QUEEN'S BENCH DIVISION
Strand, London. WC2A 2LL
B e f o r e :
| Ainsley David Powell and Jane Shergar Irani
|- and -
|Secretary of State for Environment, Food and Rural Affairs
|- and -
|Doncaster Borough Council
Tim Buley (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 15th and 16th October 2014
Crown Copyright ©
Mr Justice Dove:
(a) When the definitive map and statement was published for Doncaster in 1965 (accurate as at September 1952) a footpath was shown on the line of A to B (the hypotenuse) as part of a longer footpath identified as footpath 13.
(b) In 1967 a Diversion Order was made the effect of which was to extinguish the footpath on the definitive map and statement between points A and B and to create the footpath described above passing from A to B through point C with a right angle at point C.
(c) When the 1981 Act came into force it is common ground that the interested party ought to have made an Order modifying the definitive map and statement so as to give effect to the 1967 Order removing the footpath from A to B and noting upon the definitive map and statement the footpath A to C to B. The interested party never did that.
(d) In 2002, following enquiries by the Vicar of Hatfield, caused by motorcyclists travelling across the land in question, the interested party sent to the Vicar a copy of what they called in correspondence the definitive map. In fact what was sent was not the definitive map but was rather an unofficial 'working' map. The map that the Vicar was sent was incorrect in ways that are irrelevant to this case but other materials sent with that correspondence showed and confirmed the existence of the footpath created by the 1967 Order on the A to C to B alignment.
(e) At some point residential development commenced within the grounds of the Hatfield Vicarage and fencing was erected in 2006 as a result of that development across the route of the path, the subject of these proceedings, passing directly from A to B. It seems that the line of the route had, as a result of the development, found itself incorporated within the back garden of one of the properties which were being developed. The obstruction caused by the fencing led to objections by those who had used the direct route from A to B (along with the hypotenuse) without going through the right angle at point C. As a result of those objections and following their investigation of the evidence, the interested party sought to recognise the path, formally, through the creation of an Order under the 1981 Act.
(f) There was an initial attempt to make an Order in respect of the path which ultimately, as a result of illegality in relation to the procedures employed in making that Order, led to it being quashed. The evidence in relation to that order and the reason for it being quashed played little or no part in the present proceedings. However, after that initial attempt to make the Order failed, the Order which is the subject of these proceedings was made.
'36. Before a presumption of dedication can be raised under statute, S. 31(1) of the 1980 Act requires that a way must be shown to have been used by the public, as of right and without interruption, and for this use to have continued for a period of twenty years. In this case, I have concluded that the status of the claimed route was brought into question in 2006, therefore it needs to be demonstrated that there was public use between 1986 and 2006 ('The relevant period') to satisfy the statutory test.
37. I have been provided with twenty three user evidence forms ('UEFs') in support of use of the claimed route. The Council conducted interviews with eighteen of the users and statements have been provided. A further eight statements have been supplied from additional people. Questionnaires were also sent out to users in order to try and determine the width of the claimed route. It will generally be the case that evidence given at an Inquiry and subjected to cross examination will carry greater weight than written statements provided. In this respect, ten people gave evidence at the Inquiry, seven of whom spoke in relation to their personal knowledge of use of the claimed route...
39. The remainder of the user evidence is supportive of the user being as of right, namely without force, secrecy or permission. There is also no evidence to indicate that this use was interrupted prior to 2006. The user evidence points to frequent use to access particular locations within Hatfield and for recreational purposes such as dog-walking. The evidence of use by the public across the site is not disputed and is supported by the evidence of the Reverend Sweed and his wife. However, it is submitted, on behalf of the principal objectors that use did not correspond to the claimed route throughout the relevant period...
43. In most cases, the UEFs contain a clear description and/or a good quality sketch plan of the route used. On the whole, I find that the written user evidence is supportive of the route included in the Order and that this route did not materially alter during the period it was used. The evidence of the users who spoke at the Inquiry was clear that the route they used corresponded with the one shown on the Order map. More particularly, it was described as a straight route from the site of the kissing-gate in the wall of the church yard towards point B. The gate itself was not in position for a number of years but the frame has remained. It is also apparent that a stile existed near to point B for a short period until it was removed, which left a gap at this point. A few of the users referred to a former footpath sign at point A but it cannot be determined whether this sign was in place during the relevant period. Such a sign would clearly have been incorrectly positioned after 1967. Whilst the users who spoke at the Inquiry acknowledged that vegetation was present in the locality of the claimed route, they generally state that it did not impact on the route used...
46. From an examination of the evidence outlined above it is my view on balance that the route used did not vary to any significant extent during the relevant period. I find the user evidence to be supportive of use in a straight route between the former kissing-gate and the bend in footpath 13 which falls within the parameters of the route included in the Order. It may be the case that the width narrowed at times due to an increase in the amount of vegetation but this issue can impact on maintained rights of way. I also note that Mrs Credland mentions that she sometimes used another route leading across the triangular parcel between the school and the claimed route. However, there is no other evidence to support use of such a route. Further, the user evidence is supportive of use of a particular route rather than by people wandering elsewhere within the site.
47. Overall, I consider on balance that the user evidence is sufficient to demonstrate that there has been use of the claimed route during the relevant period to such a degree to raise a presumption of the dedication of the footpath inaccordance with S. 31 (1) of the 1980 Act... '
'53.1 find on balance that the evidence of use is sufficient to raise a presumption that the claimed route has been dedicated as a footpath. In addition, I consider that the land-owner did not take sufficient action to communicate to the public that there was a lack of intention to dedicate the route during the relevant period. Therefore, I conclude on the balance of probabilities that a public footpath exists. In light of this conclusion, there is no need for me to address the user evidence in the context of common law dedication.'
The Grounds in Brief
Ground 1: This ground raises the question as to whether prior to posing the tripartite test to establish whether use has been as of right (that is to say in Latin nec vi, nec clam, and nec precario or, alternatively, with neither force, nor secrecy, nor licence) it should first be asked separately in special or particular circumstances, whether the quality of the use was such that a reasonable land-owner could be expected to intervene to resist it. Under this ground it is, therefore, argued that there is a separate and discreet question to the tripartite test which can arise in certain circumstances which needs to be asked in addition to the application of the tripartite test. The way in which that would impinge on the legality of the decision in the present case is that no such separate question was asked by the Inspector and therefore since such an additional question should have been posed it was an error of the Inspector to neither pose it nor answer it.
Ground 2: Whether even if the claimants are wrong about Ground 1, on the facts of this case the use could not have been as of right because it was secret. That contention arises in this sense. On the facts of the case as set out above everyone proceeded on the basis that there was a path on the direct route from A to B along the hypotenuse of the triangle. Such a path existed at all material times on the definitive map and statement since whilst entirely legally valid the 1967 Order extinguishing it had not found expression in modifications to the definitive map and statement. It is therefore contended that the use was secret or clam, and that the secret or concealed element in this case was the fact that there was in truth no right of way along the direct route from A to B since it had been extinguished in 1967 prior to the relevant period identified by the Inspector.
Ground 3: Under this ground it is contended that the 2012 Order must bequashed so as to enable the interested party to discharge its duty to give effect to the 1967 Order pursuant to alteration to the definitive map and statement affected under provisions of the 1981 Act as set out below.
Ground 4: Whether in the particular circumstance that the definitive map and statement show a footpath on the direct alignment from A to B there was any jurisdiction either under S 53(3)(c) (i) to make and confirm the order or, alternatively, whether there was such jurisdiction under S 53(3)(b).
Setting out the grounds in summary form hopefully provides some context for the relevant statutory provisions and case law which now follow.
'31(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 twenty 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.'
The duties in relation to the recording of Rights of Way and also their ascertainment are contained in the Wildlife and Countryside Act 1981. In particular there are provisions which are important to the decision in this case contained within S 53 of the 1981 act as follows:
'53(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 as to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in subsection (3); and
(b) as from that date, keep the map and statement under continuous review anc as soon as reasonably practicable after the occurrence, on or after that date, oi 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-
(a) the coming into operation of any enactment or instrument, or any othei event, whereby-
(i) a highway shown or required to be shown in the map and statement has been authorised to be stopped up, diverted, widened or extended;
(ii) a highway shown or required to be shown in the map and statement as a highway of a particular description has ceased to be a highway ol that description; or
(iii) a new right of way has been created over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path ;
(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;
(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description ; or
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.
"57(5) as regards every definitive map and statement, the surveying authority shall keep-
a. a copy of the map and statement; and
b. copies of all orders under this Part modifying the map and statement,
available for inspection free of charge at all reasonable hours at one or more places in each district comprised in the area to which the map and statement relates and, so far as appears practicable to the surveying authority, a place in each parish so comprised; and the authority shall be deemed to comply with the requirement to keep such copies available for inspection in a district or parish if they keep available for inspection there a copy of so much of the map and statement and copies of so many of the orders as relate to the district or parish."
"My Lords, in my opinion the casual and, in its context, perfectly understandable aside of Tomlin J in Hue v Whitelev  1 Ch 440 has led the courts into imposing on the time-honoured expression "as of right" a new and additional requirement of subjective belief for which there is no previous authority and which I consider to be contrary to the principles of English prescription. There is in my view an unbroken line of descent from the common law concept of nec vi nec clam, nec precario to the term "as of right" in the Acts of 1832, 1932 and 1965. It is perhaps worth observing that when the Act of 1832 was passed, the parties to an action were not even competent witnesses and I think that Parke B would have been startled by the proposition that a plaintiff asserting a private right of way on the basis of his user had to prove his subjective state of mind. In the case of public rights, evidence of reputation of the existence of the right was always admissible and formed the subject of a special exception to the hearsay rule. But that is not at all the same thing as evidence of the individual states of mind of people who used the way. In the normal case, of course, outward appearance and inward belief will coincide. A person who believes he has the right to use a footpath will use it in the way in which a person having such a right would use it. But user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not. Where parliament has provided for the creation of rights by 20 years' user, it is almost inevitable that user in the earlier years will have been without any very confident belief in the existence of a legal right. But that does not mean that it must be ignored. Still less can it be ignored in a case like R v Suffolk County Council ex parte Steed, when the users believe in the existence of a right but do not know its precise metes and bounds..."
"18. Both Sunninswell  1 ACC 335 and Beresford  1AC 889 were concerned with the meaning of "as of right" in the Commons Registration Act 1965. In Sunningwell Lord Hoffmann discussed the rather unprincipled development of the English law of prescription. He explained, at pp 350 - 351, that by the middle of the 19th century the emphasis shifted from fictions:
"to the quality of the 20-year user which would justify recognition of a prescriptive right or customary right. It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario; not by force, nor stealth, nor the licence of the owner. (For this requirement in the case of custom see Mills v Colchester Corporation  LR 2 CP 476, 486).
The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right - in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user but for a limited period;"
"Lord Hoffman pointed out that for the creation of a highway, there was an additional requirement that an intention to dedicate must be evinced or inferred (as to that aspect see R fGodmanchester Town Council! v Secretary of State for Environment Food and Rural Affairs  AC 221)...
20. The proposition that "as of right" is sufficiently described by the tripartite test nec vi, nec clam, nec precario (not by force, nor stealth nor the licence of the owner) is established by high authority...
30. Against that Mr Laurence QC relied on the general proposition that if the public (or a section of the public) is to acquire a right by prescription, they must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him. That was in line with what Lord Hoffmann (in Sunninewell  1 AC 335, 350-351, quoted at paragraph 18 above) called "the unifying element" in the tripartite test: why it would not have been reasonable to expect the owner to resist the exercise of the right...
36. In the light of these and other authorities relied on by Mr Laurence I have no difficulty in accepting that Lord Hoffmann was absolutely right in Sunninewell  1 AC 335, to say that the English theory of prescription is concerned with "how the matter would have appeared to the owner of the land" (or if there was an absentee owner, to a reasonable owner who was on the spot). But I have great difficulty in seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the disputed land, simply because they normally showed civility (or, in the inspector's word, deference) towards members of the golf club who were out playing golf. It is not as if the residents took to their heels and vacated the land whenever they saw a golfer. They simply acted (as all the members of the court agree, in much the same terms) with courtesy and common sense. But courteous and sensible though they were (with occasional exceptions) the fact remains that they were regularly, in large numbers, crossing the fairways as well as walking on the rough, and often (it seems) failing to clear up after their dogs when they defecated. A reasonably alert owner of the land could not have failed to recognise that this user was the assertion of a right and would materialise into an established right unless the owner took action to stop it (as the golf club tried to do, ineffectually, with the notices erected in 1998)."
"(1) where land has been extensively used for lawful sports and pastimes nec vi, nec clam, nec precario for 20 years by the local inhabitants, is it necessary under section 15(4) of the 2006 Act to ask the further question whether it would have appeared to a reasonable landowner that users were asserting a right to use the land for the lawful sports and pastimes in which they were indulging."
"65. The theory on which these provisions are based is known to the common law as prescription: see Lord Hoffmann's explanation in the Sunningwell case  1 AC 335, 350-351, of the background to the definition of "town or village green" in section 22(1) of the 1965 Act. As the law developed in relation to private rights, the emphasis was on the quality of the user for the 20-year period which would justify recognition of a prescriptive right:
"it became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not be force, nor stealth, nor the licence of the owner.. ..the unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right - in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period. So in Dalton v Henry Angus & Co. 6 App Cas 740, 773 Fry J (advising the House of Lords) was able to rationalise the law of prescription as follows:
"the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence".
"Section 2 of the Prescription Act 1832 made it clear that what mattered was the quality of the user during the 20-year period. It had to be by a person "claiming right thereto". It must have been enjoyed openly and in the manner of the person rightfully entitled would have used it, and not by stealth or by licence...
66. Referring then to section 1(1) of the Rights of Way Act 1932, Lord Hoffmann said in the Sunningwell case  1 AC 335, 353:"the words 'actually enjoyed by the public as of right and without interruption for a full period of 20 years' are clearly an echo of the words 'actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years' in section 2 of the 1832 Act. Introducing the Bill into the House of Lords (HL debates), 7 June 1932 col 637, Lord Buckmaster said that the purpose was to assimilate the law of public rights of way to that of private rights of way. It therefore seems safe to assume 'as of right' in the 1932 Act was intended to have the same meaning as those words in section 5 of the 1832 Act and the words 'claiming right thereto' in section 2 of that Act..."
67. In the light of that description it is, I think, possible to analysis the structure of section 15 (4) in this way. The first question to be addressed is the quality of the user during the 20-year period. It must have been by a significant number of the inhabitants. They must have been indulging in lawful sports and pastimes on the land. The word "lawful" indicates that they must not be such as will be likely to cause injury or damage to the owners property; see Fitch v Fitch (1797) 2 ESP 543. And they must have been doing so "as of right": that is to say, openly and in the manner that a person rightfully entitled would have used it. If the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right (see R (Beresfordl v Sunderland City Council  1 AC 889, paras 6, 77), the owner will be taken to have acquiesced in it - unless he can claim that one of the three vitiating circumstances applied in his case. If he does, the second question is whether that claim can be made out. Once the second question is out of the way - either because it has not been asked or because it had been answered against the owner - that is an end of the matter. There is no third question. The answer to the first issue (see para 4 , above) is - No.
68. Mr Charles George QC for the claimant said that there was only one simple test: was the use caught by any of the three vitiating circumstances? Mr George Lawrence QC confirmed that it was common ground that the use of the land for recreation in this case was in this case nec vi, nec clam, nec precario, but he said that this did not exhaust the issue. The unifying principle was one of reasonableness. He said that, if it was not reasonable to expect the owner to resist what the users were doing, no harm could come to the owner from his omission to resist or complain. In this case, as the Inspector held, the local inhabitants overwhelmingly deferred to the golfers. As Dyson U said in the Court of Appeal  1 WLR 1461, paras 48- 49, the user of the local inhabitants was extensive and frequent, but so too was the use by the golfers, the greater the degree of deference, the less likely it was that it would appear to the reasonable landowner that the locals were asserting any right to use the land.
69. I agree with Mr George that all the authorities show that there are only three vitiating circumstances.... there is no support there for the proposition that there is an additional requirement. But that does not answer Mr Laurence's point, which was really and quite properly directed to the first question as to the quality of the use that is relied on. That, as has been said, is the critical question in this case".
"106 in short, on the facts of this case, had the use of the land as part of a golf course continued, the locals would in my opinion have had to continue "deferring" to the golfers. By this I understand the inspector to have meant no more than that the locals (with the single exception of Squadron Leader Kime) recognised the golfers' rights to play (in this sense only the locals "overwhelmingly deferred to golfing use"), both locals and golfers sensibly respecting the use being made of the land by the other, neither being seriously inconvenienced by the other, sometimes the locals waiting for the golfers to play before themselves crossing, sometimes the golfers waiting for the walkers to cross before playing. It is not unique for golf courses to embrace at least some common land and there are innumerable courses crossed by public footpaths. Both walkers and golfers are generally sensible and civilised people and common courtesy dictates how to behave. Harmonious coexistence is in practice easily achievable. For my part, and in the light of my own experience both as a golfer and as a walker for over six decades, I do not read the inspectors findings as indicating (to quote Sullivan J)  EWHC 1813 at  " that there was overwhelmingly 'give' on the part of the local users and 'take' on the part of the golfers".
107 This being so I see no good reason whatever to superimpose upon the conventional tripartite test for the registration of land which has been extensively used by local inhabitants for recreational purposes a further requirement that it would appear to a reasonable landowner that the users were asserting a right to use the land for the lawful sports and pastimes in which they were indulging. As Lord Walker of Gestingthorpe JSC has explained, there is nothing in the extensive jurisprudence on this subject to compel the imposition of any such additional test. Rather, as Lord Hope of Craighead DPSC, Lord Walker and Lord Kerr of Tonaghmore JJSC make plain, the focus must always be on the way the land has been used by the locals, and, above all, the quality of that user".
'114 it is for this reason in particular that I am in emphatic agreement with Lord Hope DPSC in his view that one must focus on the way in which the lands have been used by the inhabitants. Have they used them as if they had the right to use them? The question does not require any examination of whether they believed that they had the right. That is irrelevant. The question is whether they acted in a way that was comparable to the exercise of an existing right? Posed in that way, one can understand why the Court of Appeal considered that the examination of the relevant question partook of an enquiry as to the outward appearance created by the use of the lands by the inhabitants. On that basis also one can recognise the force of Mr Lawrence QC's argument that it was necessary to show not only that the lands had been used nec vi, nec clam, nec precario but also that it was reasonable to expect the landowner to resist the use of the land by the local inhabitants. The essential underpinning of both these assertions, however, was the view that the registration of the lands as a village or town green had the inexorable effect of enlargement of the inhabitants' rights and the commensurate diminution of the right of the landowner to maintain his pre-registration level of use, if that interfered with the inhabitants extended use of the lands.
115 For the reasons that Lord Hope DPSC and Lord Walker JSC have given, the view that this was the effect of the relevant authorities in this area may now be discounted. For my part, I find it unsurprising that this view formally held sway. Mr Lawrence (without direct demur from Mr George) informed us that it was the universal opinion of all who practised in this field that the inevitable consequence of the decision in Oxfordshire County Council v Oxford City Council  2 AC 674 was that local inhabitants acquired unrestricted rights of recreation after registration. Passages from the speech of Lord Hoffman in that case - particularly at para 51 - appeared to lend support for the notion that general, unrestricted rights of recreation over the entire extent of the lands followed upon registration. And the speech of Lord Scott of Foscote certainly seemed to imply that he apprehended that this was the outcome of the decision by the majority. Whatever may have been the position previously, however, it is now clear that, where it is feasible, co-operative, mutually respecting uses will endure after the registration of the green. Where the lands have been used by both the inhabitants and the owner over the preregistration period, the breadth of the historical user will be, if not exactly equivalent to, at least approximate to that which will accrue after registration.
116 On that basis, I am content to accept and agree with the judgment of Lord Hope DPSC, Lord Walker and Lord Brown JJSC that no overarching requirement concerning the outward appearance of the manner in which the local inhabitants use the land is to be imported into the tripartite test. The inhabitants must have used it as if of right but that requirement is satisfied if the use has been open in the sense that they have used it as one would expect those who had the right to do so would have used it; that the use of the lands did not take place in secret; and that it was not on foot of permission from the owner. If the use of the lands has taken place in such circumstances, it is unnecessary to inquire further as to whether it would be reasonable for the owner to resist the local inhabitants' use of the lands. Put simply, if confronted by such use over a period of 20 years, it is ipso facto reasonable to expect an owner to resist or restrict the use if he wishes to avoid the possibility of registration".
"16 in the subsequent case of R (Lewis') v Redcar & Cleveland Borough Council (2)  2 AC 70, which was concerned with the 2006 Act, Lord Walker confirmed at paragraph 20 "as of right" "is sufficiently described by the tripartite test nec vi, nec clam, nec pecario [as] established by high authority" (I would be prepared to accept that it is possible that, as Lord Camwath suggests, there may be exceptional cases involving claims to village greens where this does not apply, but I am doubtful about that). And at para 30 Lord Walker accepted as a "general proposition" that, if a right is to be obtained by prescription, the persons claiming that right "must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him".
17 In relation to the acquisition of easements by prescription, the law is correctly stated in Gale on easements (19th edition 2012), para 4-115; "the law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced by the owner is "as of right"; acquiescence is the foundation of prescription. However, user which is with the licence or permission of the owner is not "as of right". Permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence".
18 the concept of acquiescence in this context was explained in the opinion delivered by Fry J (with which Lord Penzance expressed himself as being "in entire accord" at page 803), in Dalton v Henry Angus & Co (1881) 6 App Cas 740, 774, where he said: "I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner; 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant maybe be made appears to me to be plain...." ...
20 in the present case, the Council's argument is that it acquired and has always held the Field pursuant to section 12 (1) of the 1985 Act and its statutory predecessors, so the Field has been held for public recreational purposes; consequently, members of the public have always had the statutory right to use the Field for recreational purposes, and, accordingly, there can be no question of any "inhabitants of the locality" having indulged in "lawful sports and pastimes" "as of right" as they have done so "of right" or "by right". In other words, the argument is that members of the public have been using the Field for recreational purposes lawfully or precario, and the 20-year period referred to in section 15(2) of the 2006 Act has not even started to ran - and indeed it could not do so unless and until the Council lawfully cease to hold the Field under section 12 (1) of the 1985 Act.
21 In my judgment, this argument is as compelling as it is simple. So long as land is held under a provision such as section 12(1) 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land "by right" and not as trespassers, so that no question of user "as of right" can arise. In Sunningwell at pp 352H - 353A, Lord Hoffman indicated that when a user was "as of right" should be judged by "how the matter would have appeared to the owner of the land", a question which must, I should add, be assessed objectively. In the present case it is, I think, plain that a reasonable local authority in the position of the Council would have regarded the presence of members of the public on the Field walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities, given that the Field was being held and maintained by the council for public recreation pursuant to section 12(1) of the 1985 Act and its statutory predecessors.'
"58 "as of right"/"by right" dichotomy is attractively simple. In many cases no doubt it will be right to equate it with the Sunningwell tripartite test, as indicated by judicial statements cited by Lord Newburger (paras 15-16). However, in my view, it is not always the whole story. Nor is the story necessarily the same story for all forms of prescriptive right...
"61. Lord Scott's analysis shows that the tripartite test cannot be applied in the abstract. It needs to be seen in the statutory and factual context of the particular case. It is not a distinct test, but rather a means to arrive at the appropriate inference to be drawn from the circumstances of the case as a whole. This includes consideration of what Lord Hope has called "the quality of the user", that is whether "the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of the public right" (R (Lewis) v Redcar and Cleveland Borough Council (No. 2  2 AC 70, para 67). Where there is room for ambiguity, the user by the inhabitants must in my view by such as to make clear, not only that a public right is being asserted, but the nature of that right.
62. This is not a live issue in most contexts in which the tripartite test has to be applied, whether under this legislation or otherwise, because there is no room for ambiguity. It was not an issue in Sunningwell itself, where the land was in private ownership, and there was no question of an alternative public use. Twenty years use for recreation by residents, the majority of whom came from a single locality, was treated as an effective assertion of village green rights...
64. The same cannot necessarily be said of recreational use of land in public ownership. Where land is owned by a public authority with power to dedicate it for public recreation, and is laid out as such, there may be no reason to attribute subsequent public use to the assertion of a distinct village green right.
65. The point can also be tested by reference to the 'general proposition' (cited by Lord Neuberger, para 16) that, if a right is to be obtained by prescription, the persons claiming that rightó
'must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning trespassers off, or eventually finding that they have established the asserted right against him'.
It follows that, in cases of possible ambiguity, the conduct must bring home to the owner, not merely that a 'right' is being asserted, but that it is a village green right. Where the owner is a public authority, no adverse inference can sensibly be drawn from its failure to 'warn off the users as trespassers, if it has validly and visibly committed the land for public recreation, under powers that have nothing to do with the acquisition of village green rights."
"28. In Redcar  2 AC 70, Lord Walker gave the leading judgment, with which three of the other four justices expressly agreed. He said that '[t]he proposition that "as of right" is sufficiently described by the tripartite test nec vi, nec clam, nec precario (not by force, nor by stealth, nor the licence of the owner)' was 'established by high authority' - see at  2 AC 70 para 20, citing, inter alia, observations of Lord Davey and Lord Lindley in Gardner  AC 229, and of Lord Bingham and Lord Rodger in Berrisford  1 AC 889. Lord Hope reached the same conclusion at  2 AC 70, para 67, when he said that 'the owner will be taken to have acquiesced in [a use] - unless he can claim that one of the three vitiating circumstances applied in his case'. Lord Brown and Lord Kerr also expressed the same view at  2 AC 70, paras 107 and 116 respectively. Lord Rodger said at  2 AC 70, para 87, that, 'the basic meaning of ["as of right"] is ... nec vi, nec clam, nec precario'1.
29. So, in order to succeed on this appeal, it seems to me clear that Tara would have to show that the use of the roadway from 1980 by KCH and its predecessors was vi, clam, or precario, when judged by the actual use as viewed from the perspective of a reasonable person in the position of Tara. There is no question here of vis. However, the argument that, viewed from the perspective of Tara, the use of the roadway from 1980 was precario or clam is not without its attraction. Tara assumed that things had no changed in 1980, and therefore, although as a matter of fact it gave no thought to the Licence, it could be said to have proceeded on the assumption that things were continuing as they had before 1980, and so, implicitly, that the Licence still applied, and the use was with permission, or precario. Another way of putting it is that KCH's predecessors did not inform Tara of the change in the KC Hotel's ownership, which meant that the subsequent use of the roadway was, from the perspective of Tara, secret or clam, in the sense that the identity of the person for whose benefit the use was enjoyed.
30. Although these arguments have their attraction, I cannot accept them...
35. I turn to the other way Mr Gaunt puts the case for Tara, namely that the use of the roadway after 1980 was clam. As the judge said, there was nothing secret about the way in which KCH and its predecessors used the roadway after 1980 at least in the ordinary sense of the word, the use of the roadway was plainly not secret. To succeed on the issue, therefore, Tara needs to establish that, as a matter of principle, a use can be clam simply if the identity of the person enjoying the use is unknown to the owner of the putative servient land. I am prepared to assume that that may be so, but I do not consider the argument can succeed on the facts of this case.
36. It was inherent in the licence that it would determine on a change in the ownership of the KC Hotel, and that should have been (and maybe was) appreciated by Tara when the licence was granted. When the change of ownership of the KC Hotel occurred in 1980, there was no question of any secrecy, or even of a deliberate intention to keep quiet, on the part of KCL or THF, as is shown by the fact that the change was known to junior employees at the KC Hotel. Accordingly, it appears to me that Tara's case on clam fails for very much the same reasons as Tara's case on precario fails.
37. Of course, whether the case is put on clam or precario, very different considerations would apply if it could have been shown that KCL or THF had deliberately concealed the change of ownership of the KC Hotel from Tara, or, a fortiori, if it could have been shown that KCL or THF had deliberately misled Tara about the change of ownership. But there is no such suggestion in this case."
"59. In the course of his excellent submissions Mr Gaunt QC said that the law of prescription was founded on acquiescence. A landowner could not acquiesce in something of which he was ignorant. Thus the use relied on to support a claim to have acquired an easement by prescription entails assertion, appearance and acquiescence. The assertion in question is an assertion to exercise a right without the landowner's permission. The appearance is how it would appear to a reasonable landowner. The use relied on must be such as to cause the reasonable landowner to appreciate that the assertion is being made by conduct; or at least put him on inquiry that such an assertion is being made. If thereafter he takes no action to prevent the use, he can fairly be said to have acquiesced in it. But unless he knows or ought to know that he can object to the use he cannot be said to have acquiesced to it. Thus the first ground of appeal is that the use relied on did not have the requisite quality to support a claim to have acquired an easement by a prescription.
60. It is clear on high authority that the subjective state of mind of the person exercising the claimed right is irrelevant. The subjective state of mind of the owner is equally irrelevant."
"74. In my judgment this [Lewis] is clear authority at the highest level that if a use satisfies the tripartite test (not by force, nor stealth, nor the licence of the owner) then a prescriptive right will be established. There is no further criterion that must be satisfied. As Lord Kerr put it, once those three criteria are established it is ipso facto reasonable to expect the landowner to challenge the use. In other words, once these three criteria are established the owner is taken to have acquiesced in the use. It follows, in my judgment, that unless the use by KCL was forcible, stealthy or permissive a right of way will have been established."
"the principle underlying in ground D is that a claim of presumed dedication of a Highway under Section 31 of the Act cannot arise, even if use of the way by public as of right is proved for a 20 year period, if the particular circumstances of the use are such that a landowner who is reasonably vigilant in protecting his rights cannot have been expected to prevent the use."
"31. Section 53(3)(c)(l) of the 1981 Act provides for the recording of ways found to subsist which are not already recorded in the map and statement. There will be no purpose in an Order being made to record an identical right of way. However, regard needs to be given to the rights recorded only being conclusive as at the relevant date. The fact that the definitive map and statement have not been modified to take into account the subsequent legal events could lead to a person being misinformed should they look at the defective map in isolation. Although there is no evidence to suggest that this has happened in this case. Mr Diprose confirmed that people making enquiries regarding the position of rights of way in this area would have been informed that Footpath 13 followed the diverted line. This is supported by the letter outlined in para 50 below [the letter of the 24th October 2002]"
"as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appears them to be requisite in consequence of the occurrence, before that date of any of the effects specified in sub-section 8(b)".
"subsists or is reasonably alleged to subsist over land in the area which the map relates".
It is submitted by the claimant that on the basis that the definitive map already shows a footpath in that location there was no jurisdiction under that element of Section 53 to make the order. The path was already "shown in the map".