QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Mr Brian Paterson
|- and -
|The Secretary of State for the Environment, Food and Rural Affairs
- and -
(1) Oxfordshire County Council
(2) The Ramblers' Association
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Ms Lisa Busch (instructed by DEFRA Law and Corporate Services) for the Defendant
Ms Clare Parry for the Ramblers' Association
Hearing date: 17/2/2010
Crown Copyright ©
Mr Justice Sales:
(2) As regards every definitive map and statement, the surveying authority shall –
(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of he events specified in subsection (3); and
(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event.
(3) The events referred to in subsection (2) are as follows - …
(b) the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows –
(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies; …
(5) Any person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection.
(6) Orders under subsection (2) which make only such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (a) of subsection (3) shall take effect on their being made; and the provisions of Schedule 15 shall have effect as to the making, validity and date of coming into operation of other orders under subsection (2)."
"(1) If any representation or objection duly made is not withdrawn the authority shall submit the order to the Secretary of State for confirmation by him.
(2) Where an order is submitted to the Secretary of State under sub-paragraph (1), the Secretary of State shall either –
(a) cause a local inquiry to be held; or
(b) afford any person by whom a representation or objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by the Secretary of State for the purpose.
(3) On considering any representations or objections duly made and the report of the person appointed to hold the inquiry or hear representations or objections, the Secretary of State may confirm the order with or without modifications."
"(1) A decision of the Secretary of State under paragraph 6, 7 or 8 shall, except in such classes of case as may for the time being be prescribed or as may be specified in directions given by the Secretary of State, be made by a person appointed by the Secretary of State for the purpose instead of by the Secretary of State; and a decision made by a person so appointed shall be treated as a decision of the Secretary of State. …"
"(1) If any person is aggrieved by an order which has taken effect and desires to question its validity on the ground that it is not within the powers of section 53 or 54 or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 11 make an application to the High Court under this paragraph.
(2) On any such application the High Court may, if satisfied that the order is not within those powers or that the interests of the applicant have been substantially prejudiced by a failure to comply with those requirements, quash the order, or any provisions of the order, either generally or in so far as it affects the interests of the applicant.
(3) Except as provided by this paragraph, the validity of an order shall not be questioned in any legal proceedings whatsoever."
"I need to be satisfied that the evidence, when considered with all other relevant evidence, is sufficient to show that, on the balance of probabilities, a footpath, which is not shown in the definitive map and statement, subsists."
"(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
(2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in subsection (3) below or otherwise.
(3) Where the owner of the land over which any such way as aforesaid passes –
(a) has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and
(b) has maintained the notice after the 1st January 1934, or any later date on which it was erected,
the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway. …
(5) Where a notice erected as mentioned in subsection (3) above is subsequently torn down or defaced, a notice given by the owner of the land to the appropriate council that the way is not dedicated as a highway is, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner of the land to dedicate the way as a highway.
(6) An owner of land may at any time deposit with the appropriate council –
(a) a map of the land on a scale of not less than 6 inches to 1 mile, and
(b) a statement indicating what ways (if any) over the land he admits to have been dedicated as highways;
and, in case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time –
(i) within ten years from the date of the deposit, or
(ii) within ten years from the date on which any previous declaration was last lodged under this section,
to the effect that no additional way (other than any specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgement of such previous declaration, as the case may be, are, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner or his successors in title to dedicate any such additional way as a highway.
(7) For the purposes of the foregoing provisions of this section "owner", in relation to any land, means a person who is for the time being entitled to dispose of the fee simple in the land; and for the purposes of subsections (5) and (6) above "the appropriate council" means the council of the county or London borough in which the way (in the case of subsection (5)) or the land (in the case of subsection (6)) is situated or, where the way or land is situated in the City, the Common Council. …"
"(3) A notice by the owner of the land over which any such way passes inconsistent with the dedication of the way as a highway, placed before or after and maintained after the commencement of this Act in such a manner as to be visible to those using the way, shall, in the absence of proof of a contrary intention, be sufficient evidence to negative the intention to dedicate such way as a highway, and where a notice has been placed in the manner provided in this subsection and is subsequently torn down or defaced, notice in writing by the owner of the land to the council of the county and of the borough or urban or rural district council in which the way is situate that the way is not dedicated to the public shall, in the absence of proof of a contrary intention, be sufficient evidence to negative the intention of the owner of the land to dedicate such way as a highway."
The Inspector's Decision
"22. A number of extracts have been provided from the minutes of the meetings of Shiplake Parish Council. The minutes from the 1930s and 1940s record that issues in relation to the claimed route were considered. Reference is made by certain parties to the claimed route being a private right of access for the owners of certain properties. The minutes note that an owner of a proportion of the land crossed by the route (Mr Lowe) had written to the Henley Rural District Council stating that there was no public right of way from Mill Road to the River Thames. A copy of a letter of 10 September 1934 from Mr Lowe to the District Council has been supplied and this also mentions the existence of an old notice board at the entrance to the path, which stated "Trespassers will be Prosecuted". This had been removed but immediately replaced.
23. There is also a reference in the minutes to the placing of a sign at the entrance to the claimed route, apparently by a Mr Davies of Brookfield, which stated "Private – Rights of way Act 1932". The issue of a right of way to the Mission Hall was discussed on a number of occasions and this led the Parish Council in 1940 to arrange for a notice to be erected at around point A, which stated "Shiplake Parish Council Right of Way to the Mission Hall". It appears to me that the Parish Council accepted that there was no public right of way in relation to the claimed route but that the initial section served as a means of access to the Mission Hall.
24. It is apparent that Henley Rural District Council did not place the claimed route on the map of public rights of way in connection with the 1932 Rights of Way Act. In addition, the route was not subsequently claimed or recorded at any stage of the process in relation to the production of the original definitive map and statement for the area. I find there to be no substantive evidence in support of use of the claimed route to access the Ferry across the River Thames, prior to it ceasing to operate."
"To The Clerk of the Rural District Council Henley on Thames …
Further to my interview with you on the 7th instant, when I was surprised to find that the Shiplake Parish Council had made a claim that there was a Public Right of Way from the High Road by Burnbank, over my Private Occupation Road, through Mr Knight's fields, under the Great Western Rly line & from here to the River Thames.
I must point out that there is not & never has been a path from this point on the High Road to the River Thames. There is from that point on the High Road a Private Right of Way & along a path to a Private piece of land, which is my property over which certain rights have been conveyed by deeds to certain persons by the late Col Baskerville.
In 1889 or 1890 Col Baskerville sold some land in Shiplake. Again in 1896 he had further sales by Public Auction. This land is frequently referred to as the Baskerville Estate. As these pieces of land had no access to the River Thames, Col Baskerville conveyed to all these purchasers & their successors in title, the right to use this Private meadow about an acre in extent. I have purchased the soil of this meadow from Col Baskerville, subject to the above mentioned rights. Rights to use this land have never been conveyed to anyone except these purchasers of land on the Baskerville Estate. Anyone else coming on this land is a trespasser.
To enable purchasers of the sales made in 1889 to 1896 to reach this Private Land, a Private Path was made to it, as I have described above, but the path ended at a gate giving access to this Private Meadow.
There is an old notice board at the entrance to this path from the Private Occupation Road, stating that "Trespassers will be prosecuted". Recently someone wrenched off this board & threw it into a ditch, but it was immediately replaced.
To enable your Council to appreciate fully the position, I enclose a sale catalogue of the late Mr Tom Dixon's land with map attached showing this Private Right of Way to my land. Please return this. I shall be glad to hear from you that your Council has ordered the removal of this claim from your map. It appears to me this claim could not have been made, if the Parish Council had taken the slightest trouble to enquire from any of the occupiers of the land on the Baskerville Estate as to their rights. Under the circumstances I think a letter of regret is due to me from the Parish Council for the trouble & annoyance that I have been caused by their neglect."
"28. Mr Maroudas [who presented the case at the Inquiry on behalf of Mr Paterson] refers to the notices that were erected in the 1930s, which are detailed in paragraphs 22 and 23 above, and he believes that they were not consistent with the dedication of a highway. Mr Maroudas also submits that the letter from Mr Lowe to the Henley Rural District Council in 1934 could have served as a notice under Section 31(5) of the 1980 Act.
29. I have doubts regarding how effective the wording of these notices would have been in bringing home to the public that there was a lack of intention to dedicate the claimed route. This particularly applies to the notice erected by Mr Lowe. The evidence of the users of the route only points to clear signs and other measures being adopted to challenge use of the route after Brookfield was purchased by Mr and Mrs Paterson. In addition, I am not satisfied that the information supplied by Mr Low in his letter could be interpreted as being equivalent to a notice under Section 31(5) of the 1980 Act.
30. Mr Maroudas' alternative position is in line with Mr Ramm's view that the claimed route was brought into question in 1996. I accept that a sign erected by Mr and Mrs Paterson clearly challenged use of the claimed route and this action and subsequent acts were recognised by a proportion of the users of the route. …
31. Therefore, I conclude, on balance, that the claimed route was first brought into question by the action taken by Mr and Mrs Paterson, following their purchase of Brookfield in August 1996."
"39. In light of the above, I consider that I should discount the evidence of use from the people who lived in a property sited on the former Big Field during the relevant period or those users who confirm that they had a private right of way over the claimed route. I accept that, in some cases, it is not possible to be certain that a person did not enjoy a permissive right of way, or the length of time that they resided at a particular property, from the details provided. In that sense, I may have slightly underestimated or overestimated the number of users who have enjoyed a permissive right of way over a proportion of the claimed route. Overall, I find that approximately fifty people have used the claimed route during the relevant period without apparently enjoying a private right of access. In addition, there is no evidence to show that formal permission was granted by the landowners for these users to use the claimed route."
"45. There is some evidence from local residents regarding a lack of public use, or little public use, of the claimed route being observed. However, it is apparent that a proportion of the evidence, notably the detailed knowledge of Mr and Mrs Paterson, relates to a period after the route was brought into question. I accept that it may be the case that the number of daily users was not great as many of the UEFs were completed by people who used the route only a few times during the course of a year. However, the number of people using the route during the relevant period suggests that some of this use ought to have been evident to the landowners. Although, it may be difficult for a person to be in a position to accurately determine the level of use. The situation is also blurred by the fact that a private right of way exists over a proportion of the claimed route.
46. Whilst a proportion of the users are not claiming to have used the route for a period of twenty years, when taken as a whole, I find that there is evidence of use from a number of people throughout the relevant period. I consider that the user evidence is supportive of use of a route between points A, B, C, D and E with reference to specific features and structures at certain points. I have given consideration to the issues raised by the objectors in terms of the route used and I do not rule out the possibility that people may have, on occasions, deviated away from the claimed route, particularly between points D and E. However, I consider, on balance, that the user evidence is supportive of public use of the claimed route throughout the relevant period."
"50. There were discussions in the 1980s regarding a number of proposals in connection with the long distance Thames Path. One proposal involved the claimed route and Mr Varian's evidence form states that he objected to the Thames Path following this route on privacy grounds. A minute in relation to the meeting of Shiplake Parish Council on 9 June 1986 records that the route of the proposed path was circulated to members, which was approved and supported. The minute also records that "The extension was a private right of way for Ferry Cottage and Lashbrook Chapel". The subsequent consultation report that was published by the Countryside Commission in 1987 refers to Mr Varian's preference for an alternative route. This report also mentions that the claimed route had been permissively used for some years but was not a public right of way. The proposed Thames Path was referred to the Secretary of State in 1989.
51. I consider that there is a distinction between the response to the consultation involving the proposed creation of a footpath and the making of a clear statement to users that there was no intention to dedicate the route. I do not doubt that the general nature of the Thames Path was known about by a proportion of local residents at the time and extracts have been provided from the local press regarding this issue. However, even if a user had taken the time to read the detailed reports that were produced in relation to the Thames Path, the relevant sections only mention Mr Varian's preference for a particular route. Overall, I do not find that the discussions and subsequent reports produced in connection with the Thames Path would have clearly indicated to those people who were using the claimed route, at the time, that there was no intention to dedicate the route. I am also not satisfied that the references in some of the documents to the existence of private rights would prevent the establishment of a public right of way unless it was clearly conveyed to users that there was no intention to dedicate the route."
"Prefers [a different] route which uses the bottom of his garden to the original proposal which would have used his private access road past the Chapel."
"52. Dr Elliott says that a private sign was affixed to a tree alongside the claimed route near to the Lashbrook Chapel (point B) when he sold the land in 1976. He believes that the sign was erected by his grandparents (Mr and Mrs Lowe). Whilst Mr Varian recalls that this sign stated "Private, No Tipping", he could not remember it being in place when he returned to the area in 1978. At the Inquiry, Mr Paterson mentioned additional information from Dr Elliott regarding a sign that could indicate a lack of intention to dedicate the route; however, there is no evidence in support of Mr Paterson's statement. I consider that there is a lack of clear information regarding the existence of signs during the relevant period. In particular, the evidence provided is not indicative of signs that were worded to clearly demonstrate to the public that there was no intention to dedicate the claimed route. I noted on the site visit the presence of an additional notice but it was apparent that this related to the railway and not the claimed route.
53. Mrs Varian acknowledges, in her evidence form, that the claimed route was used by dog walkers and people heading towards Footpath No. 37 but she says that it was difficult to distinguish between local residents and the general public. In addition, Dr Elliott states that he did not challenge people as he was aware that a lot of people had a private right of access. There is also an acceptance by Mr Varian that occasionally local people would walk their dogs in the fields, as outlined in his letter of December 1999 to the Council. He says that he did not prevent this use as it was not intrusive but he was unaware of any regular tours by walkers. However, he refers, in his subsequent evidence form, to challenging approximately two people a year who he did not recognise. There is a reference in a Council telephone note to Mr Doble stating that in the past he had challenged people he did not recognise but he was unable to provide any details regarding these challenges.
54. Two witnesses (Mr Ball and Mrs Shankland) gave evidence at the Inquiry and they both state that they were informed that no public right of way existed when walking the claimed route. Mrs Shankland believes that she spoke to Mr and Mrs Varian and this encounter occurred between 1986 and 1992. She says that her husband was also informed during this period that the route was not a public right of way. The written evidence form completed by Mr Thorburn provides no details regarding use of the path but it states that he was challenged in May 1995.
55. The applicant for the Order (Mr Jones) approached Mr Varian about the claimed route in around November 1995. It appears that Mr Jones made a request for the route to be added to the definitive map and statement and that Mr Varian did not agree to this request. There is no evidence to indicate that this conversation was communicated to users of the route, either as individuals or as members of a group. I also note that Mr Jones has not provided evidence to show that he used the claimed route.
56. I find that the written submissions of the landowners are not clear regarding users of the route being informed that there was no intention to dedicate the claimed route. Furthermore, none of the users' evidence that was submitted in support of the Order mentions verbal challenges being issued until after the route was brought into question. However, as detailed above, there is some evidence to show that when people approached Mr Varian about the route they were informed that it was not a public right of way. In addition, he made other statements to indicate that he did not want it to become a public right of way.
57. In my view, there is evidence to show that Mr Varian did not wish the claimed route to be a public right of way. However, I have doubts regarding how effective he was in communicating this view to the public. In contrast, there is clear evidence of action being taken following the sale of Brookfield to Mr and Mrs Paterson, which would indicate a lack of intention to dedicate the route. I find that, given the number of people claiming to have used the route, there is only clear evidence of isolated occurrences of people being informed that the claimed route was not a public right of way. Therefore, having regard to the Godmanchester judgment, I conclude, on the balance of probabilities, that the landowners did not take sufficient action to inform the public that there was no intention to dedicate the claimed route during the relevant period."
The Grounds of Challenge
"32. My Lords, in my opinion the law as stated by Denning LJ in [Fairey v Southampton County Council  2 QB 439] and by Hobhouse LJ in [Secretary of State for the Environment v Beresford Trustees, Court of Appeal, 31 July 1996, unreported] was correct and the Court of Appeal [in Godmanchester] was wrong. I think that upon the true construction of section 31(1), "intention" means what the relevant audience, namely the users of the way, would reasonably have understood the landowner's intention to be. The test is, as Hobhouse LJ said, objective: not what the owner subjectively intended nor what particular users of the way subjectively assumed, but whether a reasonable user would have understood that the owner was intending, as Lord Blackburn put it in Mann v Brodie (1885) 10 App Case 378, 386, to "disabuse [him]" of the notion that the way was a public highway. The Court of Appeal said that this would involve reading words into the Act; placing a gloss on the statute. But, outside the criminal law and parts of the law of torts, it is common to use the word intention in an objective sense, as in the intention of Parliament, the intention of the parties to a contract and, even in Latin, the animus possidendi which a squatter must have to acquire a title by limitation.
33. It should first be noted that section 31(1) does not require the tribunal of fact simply to be satisfied that there was no intention to dedicate. As I have said, there would seldom be any difficulty in satisfying such a requirement without any evidence at all. It requires "sufficient evidence" that there was no such intention. In other words, the evidence must be inconsistent with an intention to dedicate. That seems to me to contemplate evidence of objective acts, existing and perceptible outside the landowner's consciousness, rather than simply proof of state of mind. And once one introduces that element of objectivity (which was the position favoured by Sullivan J in [R v Secretary of State for the Environment, ex p. Billson  QB 374]) it is an easy step to say that, in the context, the objective acts must be perceptible by the relevant audience.
34. Such a construction is in my view supported by reading section 31 as a whole. The primary example of an act which would negative an intention to dedicate is the erection and maintenance of a notice inconsistent with dedication "in such manner as to be visible to persons using the way": section 31(3). If the notice is torn down or defaced, notice to "the appropriate council" will have the same effect: section 31(5). If any overt act would do, why should the notice have to be given to "the appropriate council"? A notice to an inappropriate council, or to the landowner's solicitor or friend, would be just as good. In the Court of Appeal, Auld LJ said that a notice to the appropriate council would be unlikely to come to the attention of the public using the way and this was an indication that, in general, the landowner's intention did not have to be communicated to users of the way. I disagree. A notice to the council under section 31(5) is plainly regarded as second best and is only allowed when the original notice has been torn down or defaced, just as substituted service is allowed only when there is good reason to dispense with personal service. It is true that users of the way are not very likely to call at the County Council offices to ask whether any notices under section 31(5) have been lodged, but a well-advised defender of rights of way, such as the Ramblers' Association, will know where to look and be able to draw such notices to the attention of users. The fact that in certain defined circumstances one can resort to a method less likely to come to the attention of users of the way is no basis for concluding that in general it does not matter whether the landowner's intention can come to their attention or not."
"Other issues: the meaning of "during", and manifesting the intention
87. The second question is whether the phrase "during that period" in the proviso to section 31(1) means "during the whole of that period", as the appellants argued, or "at some point during that period", as was contended by the respondents. As a matter of ordinary language, it appears to me clear that it has the latter meaning.
88. First, the former interpretation would lead to wholly unrealistic results. It would mean that signs referred to in section 31(3) (combined, where appropriate, with the documents referred to in section 31(5)), and the documents referred to in section 31(6), would be ineffective unless they were in place for the whole of the twenty year period. Mr Laurence was forced to concede that it would therefore be necessary to imply some sort of period of grace, based on reasonableness, but that is not warranted by the wording of the section, and it would be a recipe for uncertainty and dispute.
89. Secondly, it is clear that an interruption of the user at some point during the relevant twenty year period, such as the landowner locking a gate and preventing access, will defeat an argument based on use "as of right" under section 31(1) during that period. Traditionally, one day a year is the norm – see for instance Merstham Manor Ltd v Coulsdon and Purley UDC  2 KB 77 at 85. However, it may depend on the facts of the particular case whether this is enough to amount to a sufficient interruption; that was the view taken by the Court of Appeal in Lewis v Thomas  KB 438. Whatever the position, it is clear that, to be effective, the interruption need not last long in the context of twenty years in order to defeat user as of right. It would be inconsistent if the sign contemplated by section 31(3), or any other action or communication invoked as evidence of lack of intention, had to be in place for the whole of the twenty years.
90. This is not the occasion to discuss how long a sign would have to be present, or when the documents referred to in sections 31(5) and (6) would have to be lodged, during the twenty years relied on in any particular case. It is conceivable that one day in twenty years would be enough in a particular case, and it even may be the case, I suppose, that it would be enough as a matter of principle, but it may well be that what constitutes a sufficient period will depend on the facts of the particular case – see the discussion in Lewis.
91. It is fair to add that this conclusion can, at any rate at first sight, be said to sit a little uneasily with the procedures set out in sections 31(5) and (6). They appear to contain somewhat elaborate requirements if all that is needed is, for instance, the erection of a notice for a relatively short period under section 31(3). The answer, I think, is this. A landowner who wishes to protect his position over many decades may be concerned that he or his successors will forget to keep checking that a section 31(3) notice remains intact, and that, following a defacing of a notice, he may let twenty years uninterrupted use occur. Such a landowner may be glad to be able to protect his position by taking advantage of section 31(5). As to section 31(6), it appears to be aimed primarily at large estates, and enables a landowner to protect himself, inter alia, in relation to potential rights of way which he may not even know are in the process of being acquired under section 31(1)."
"53. The common law has not laid down fixed rules as to what the owner may do to disabuse the public of the belief that the way has been dedicated for use by the public. The statute clarifies the law in this respect too. The erection and maintenance of a notice which is inconsistent with the dedication of the way as a highway which is visible to persons using it will, in the absence of proof of a contrary intention, be sufficient evidence: section 31(3). If it is torn down or defaced, a notice to the appropriate council that the way is not dedicated as a highway will have the same effect: section 31(5). So too will the deposit with the council by the owner of a map and a statement indicating which ways, if any, he admits to have been dedicated as highways, so long as this is backed up every ten years by a declaration that no additional way has been dedicated in the meantime: section 31(6). The appropriate council is, in effect, the guardian of the public interest in these matters. In country areas, it is the council of the county in which the way or the land is situated: section 31(7)."