(1) Sandra Norman (2) John Bird v Secretary of State for The Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Chadwick,Lord Justice Tuckey |
| Judgment Date | 08 March 2007 |
| Neutral Citation | [2007] EWCA Civ 334 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2006/1662 |
| Date | 08 March 2007 |
[2007] EWCA Civ 334
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)
Lord Justice Chadwick
Lord Justice Tuckey and
Lord Justice Laws
Case No: C1/2006/1662
MR T MOULD QC (instructed by Law and Regulation Directorate General) appeared on behalf of the Appellant.
MR J HOBSON and MR A FRASER-URQUHART (instructed by Nelson) appeared on behalf of the Respondent.
This is an appeal with permission granted by myself on 27 September 2006 against the decision of Collins J made in the Administrative Court on 5 July 2006 by which he quashed what I will refer to as “the modification order”. Its full title is the Derbyshire County Council (Footpath from Bridleway 11 along the Bank of the River Trent—Parish of Willington) Modification Order 2002. Derbyshire County Council are what are called the surveying authority for the area in question for the purposes of section 53 of the Wildlife and Countryside Act 1981 which I need not read. In that capacity they made the modification order on 15 August 2002. The order took the form under the 1981 Act of a modification of what is called “the definitive map and statement”. In view of the nature of the issues in the case it is only necessary to describe the relevant geography in outline. The modification order confirmed the existence of a public right of way on foot on the line of a footpath which ran along the northern bank of the River Trent as shown on a plan attached to the order. The claimants/respondents to this appeal own a house and land near to the western end of the footpath and the footpath passes over their land. The modification order as made by the county council was subject to objections by affected land owners. In those circumstances pursuant to Schedule 15 to the 1981 Act the Secretary of State appointed an inspector to hold a public local inquiry in order to decide whether the modification order should be confirmed.
An inquiry was duly held and on 13 June 2004 the inspector issued his interim decision letter indicating his intention to confirm the modification order. The decision was interim because by it the inspector proposed to modify the order and as he indicated at paragraph 101 of the letter of 13 June 2004 the confirmed order would affect land not affected by the order as submitted. In those circumstances the inspector was obliged by paragraph 8(2) of Schedule 15 to the 1981 Act to give notice of his proposal to modify the order so as to allow for representations to be made. In the result by his final decision letter the inspector stood by his earlier interim conclusions. All of the inspector's reasoning relevant to the proceedings before Collins J and this appeal is contained in the interim decision letter.
The inspector's decision was subject to challenge by way of an application to the High Court to quash issued under paragraph 12 of Schedule 15 to the 1981 Act. Such a challenge is in the nature of a statutory judicial review and is limited to ordinary public law grounds. The claimants issued such proceedings culminating in the judgment of Collins J now under appeal.
The legal basis of the county council's function in making the modification order and their confirmation of the existence of the public right of way is to be found in section 31 of the Highways Act 1980. It provides so far as material:
“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.
The period of 20 years referred to in sub-section (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 sub-section (3) below or otherwise.”
The inspector found that there had been uninterrupted use of the footpath by the public as of right for a full period of 20 years to 1999/2000. The claimant did not seek to challenge that finding, nor the finding for the purpose of section 31(2) that the right of the public to use the footpath had been “brought into question” in 1999/2000. The challenge under paragraph 12 of Schedule 15 to the 1981 Act was directed solely at the inspector's conclusion that the evidence before him was not sufficient to show a lack of any intention to dedicate the footpath to the public during the 20 year period. In particular the claimant's case focused and focuses on the inspector's treatment of the evidence of a Mr Wooddisse. He had previously owned, as I understand it, a considerable part, if not all, of the land on which the footpath lies. The inspector dealt with Mr Wooddisse's evidence by reciting at some length the content of a statutory declaration made by him in 2000 and an addendum made in 2004. I should read the material passage in the inspector's interim decision letter.
“69. Mr Richard Wooddisse, then owner of the land BW11 and crossed by the claimed way, made a statutory declaration (19 September 2000) in support of an agreement to sell land at the rear of 1 to 9 Spilsbury Close to the new house owners. He then made a sworn addendum (26 April 2004) concerning the management of the land. He had acquired the land from his parents in 1983 they having owned it since 1959. He had been well acquainted with the land since then. From time to time since 1959, it had been subject to trespass, generally by persons exercising their dogs, walking eastwards from the end of the bridleway which leads to the site of the old river crossing, onto his agricultural land, (some of which had been sold for residential development) either toward a private way for the benefit of a water treatment plant on his land or simply for the purpose of walking randomly over his land.
“70. He had erected fencing in approximately August 1992 approximately between A-B-C on the plan attached (now conveyed to 9 Spilsbury Close) 'so preventing further access and have not received any objections to this obstruction.' From time to time he had challenged people crossing his field and people using the riverbank. He had at all times possible, and on many occasions disabused users of the belief that there was a public right of way on foot along the section of riverbank that formed part of Sycamore Farm. He had done so by challenging and interrupting users and turning people away, sometimes escorting them from the land. This method had been used also by him on behalf of his father and by his two sons on his behalf. Many people had been turned back and could be specifically remembered by them but no record had been kept. He had no recollection of greeting or waving to FP users as claimed in their evidence by several witnesses who had been cross-examined.
“71. He confirmed that the stiles in fences at the riverbank had been erected by the Angling Club, who held a license, for their own benefit and were private property maintainable by them. If his father or he had any intention to dedicate a way it would have been formalised in an express agreement with the County Council. His family had given the tennis courts and bowling green to the community, and the Parish Council had been allowed to purchase the recreation...
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