Gumbs v. Attorney General of Anguilla (Anguilla)  UKPC 27 (07 July 2009)
Privy Council Appeal No 35 of 2008
John A. Gumbs Appellant
Attorney General of Anguilla Respondent
THE EASTERN CARIBBEAN SUPREME COURT
- - - - - - - - - - - - - - - - -
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 7th July 2009
- - - - - - - - - - - - - - - - -
Present at the hearing:-
Lord Scott of Foscote
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Neuberger of Abbotsbury
Sir Jonathan Parker
- - - - - - - - - - - - - - - -
[Delivered by Lord Neuberger of Abbotsbury]
" 'Road' means any public road mentioned in the Schedule and includes any public rights of way at present existing in Anguilla, or which may hereafter come into existence …"
Section 5 of the 1973 Ordinance states that:
"All roads and all land taken for their construction are the property of the Anguilla Administration."
Section 16 of the 1973 Ordinance is in these terms:
"The boundary of any road should be the fence, which may be erected by the officer in charge of the Public Works Department, running along it on either side, and where there is no such fence, the boundary shall be a line at all points sixteen feet from the centre of the roadway measured in a direction at right angles to the road".
"was enacted in Anguilla 'to provide for the adjudication of rights and interests in land and for purposes connected therewith', with provision
sfor appeal to the High Court. At the same time the Registered Land Ordinance was enacted 'to make provision for the registration of land and for dealings in land so registered and for purposes connected therewith.' All land in Anguilla came subject to these Ordinances which together prevailed over all other laws relating to land adjudication and registration. The end product of this judicial adjudication process was the compulsory creation by the Registrar of Lands of a first registration of land with absolute or provisional title on the Land Register. … by virtue of the final adjudication record emanating from the judicial process under the Land Adjudication Ordinance. Such a first or subsequent registration can be defeated and rectified only on proof of mistake or fraud under the Registered Land Ordinance."
"(a) see that the boundaries of each piece of land, which is the subject of a claim, are indicated or demarcated …;
(b) indicate or cause to be indicated the boundaries of:-
(i) public roads, public rights of way and other Crown land, and
(ii) unclaimed land."
Concurring Judgment by Lord Scott of Foscote
"With the exception of highways created under statute, no highway can be created except by dedication, express or presumed, by the owner of land, of a right of passage over it to the public at large and the acceptance of that right by the public."
It is relevant, therefore, when considering the facts of the present case, to bear in mind the implications at common law of a public right of way created by dedication. First, an owner who dedicates land to the public as a highway does not thereby relinquish his property in the soil:
"The owner of the soil of the highway is entitled to use and enjoy his property in every way not inconsistent with the public right of passage"
(Pratt and Mackenzie (ibid) at 53)
As Lord Cairns LJ put it in Rangeley v Midland Railway Co. (1867) LR 3 Ch. 306, 311:
"… a public road … is a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing" (emphasis added)
"If a person uses the soil of a highway for any purpose other than that in respect of which the dedication was made … he is a trespasser"
and, as it is put in Pratt and Mackenzie (ibid) at 22,
"Conditions restrictive of the mode of enjoyment are necessarily involved in the dedication of a bridleway, i.e. a way not to be used with carts or carriages, or of a footway, i.e. a way not be used with horses, carts or carriages."
"In considering the construction and effect of this Act, the Board is guided by the well known principle that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms."
And in Hartnell v Minister of Housing and Local Government  AC 1134 Lord Wilberforce at 1173 cited with approval the above cited passage. The Board hearing the present appeal should, I respectfully suggest, be similarly guided by the principle of law expressed by Lord Warrington.
"The courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless. But the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result. The more unreasonable a result, the less likely it is that Parliament intended it …"
"An Ordinance to provide proper procedures for improving and constructing roads in Anguilla and matters incidental thereto".
This language does not appear to me to be an apt introduction to confiscatory legislation that can turn a dedicated footpath into a highway for vehicular use. In my opinion, for reasons that I will explain, and giving due weight to the presumptions to which I have referred, first, the 1973 Ordinance ought not to be construed as applying to footpaths created by implied dedication; secondly, section 5 ought not, at least in relation to dedicated rights of way, to be construed as vesting in the Government anything more than the surface of the right of way in question, and, thirdly, section 16 ought not to be construed as applying to footpaths or bridleways.
"'road' means any public road mentioned in the Schedule and includes any public rights of way at present existing in Anguilla, or which may hereafter come into existence and also includes the roadway, water tables, any bridges and culverts, and the land on each side of the roadway including road drainage works and water tables up to the boundary of any road".
It is true that, literally read, the words "any public rights of way" would include public footpaths created by dedication; but the definition taken as a whole does not read, to me at least, as if the draftsman had them at all in mind. Needless to say, the roads mentioned in the Schedule are all roads for vehicular traffic. Section 3 says that the roads mentioned in the Schedule are to be constructed and maintained at public expense and section 4 that, if the Government so decide, the same applies to any other road. In section 6 provision is made for the Government to enter into contracts for the repair or maintenance of any of the roads in the Schedule and to annul any contract for the repair and maintenance of any road. Section 7 entrusts "the general care and supervision of the roads of Anguilla" to the Officer in charge of the Public Works Department. In relation to none of these sections is it reasonable to suppose that the draftsman had in mind footpaths that had become public footpaths by implied dedication and acceptance.
"Whenever it appears to the Commissioner that any particular portion of land is required for the laying out of a new road or the widening or diverting of any part of an existing road, a declaration to that effect shall be published in the Gazette" (emphasis added).
This provision enables what is, in effect, the compulsory acquisition of land for the purpose of the construction, widening or improvement of roads to take place. Section 12 allows the owner of land to which a section 9 declaration relates to apply for compensation and sections 13, 14 and 15 deal with the assessment and payment of compensation.
(i) that the 1973 Ordinance on its true construction does not apply to footpaths;
(ii) that, in any event, section 16 of the Ordinance cannot, on its true construction, be applied to footpaths; and
(iii) that, in any event, section 5 of the Ordinance, on its true construction, does not, in relation to public rights of way created under common law by dedication and acceptance, vest in the Government anything more than the surface of the right of way.
"rights of way, rights of water and any easement or profit …"
These rights, like the rights falling under each of the other paragraphs, are private rights vested in some person or body. Public rights of way are not, in my opinion, overriding interests under section 28. The "rights of way" referred to above are private rights of way.