Ainsley David Powell and Jane Shergar Irani v Secretary of State for Environment, Food and Rural Affairs Doncaster Borough Council (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Dove
Judgment Date05 Dec 2014
Neutral Citation[2014] EWHC 4009 (Admin)
Docket NumberCase No: C0/2284/14

[2014] EWHC 4009 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Dove

Case No: C0/2284/14

Between:
Ainsley David Powell and Jane Shergar Irani
Claimant
and
Secretary of State for Environment, Food and Rural Affairs
Defendant

and

Doncaster Borough Council
Interested Party

Mr George Laurence QC and Rodney Stewart Smith (instructed by Freeths LLP) for the Claimant

Tim Buley (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 15 th and 16 th October 2014

Mr Justice Dove

Introduction

1

This is a challenge brought by the claimants pursuant to paragraphs 11 & 12 of Schedule 15 of the Wildlife and Countryside Act 1981. The interested party did not take part in the proceedings. The case raises, in particular, issues in respect of the application of the test under S. 31 of the Highways Act 1980 and the tripartite test which is to be considered in the question of whether or not use (in this case, in respect of a right of way) has been 'as of right.'

The Facts

2

By an order, made on 16 May 2012 under S. 53 (2) (b) of the 1981 Act Doncaster Borough Council, the interested party, sought recognition of a footpath ("the path") which had arisen from presumed dedication under S. 31 of the 1980 Act, in the village of Hatfield on land attached to Hatfield Vicarage. The discovery of the path was one which it was said amounted to an event under S. 53 (3) (c) (i) justifying the making of the Order. The path which was the subject of the Order is in the form of the hypotenuse of a right angled triangle which can be described between points A, B and C. The right angled limbs of the triangle from A through point C to B were already recognised as a path as a result of matters which I shall set out below. It was the hypotenuse to that right angled triangle formed by a line between A and B which was the route of the footpath which the Order sought to recognise.

3

The factual background in relation to the making of the order is of some significance. The essential elements of that factual background are as follows:

(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.

4

After the order had been made it was necessary to convene a Public Inquiry in order to examine whether or not it should be confirmed. The claimants appeared at the inquiry as objectors to the order. Evidence was provided in support of the use of the direct route from A to B along the hypotenuse of the right angled triangle by those who had used it over the years. As will become apparent from the extracts from the Inspector's Report that I am about to quote much of the evidence was provided in writing and many of those who provided a written statement also gave evidence orally at the Inquiry. Some of those who gave evidence recalled seeing a sign marking the direct route along the hypotenuse from A to B which had, by the time of the Inquiry, been destroyed or removed. In the course of the evidence the interested party accepted, in particular through the evidence they called from their Footpath Officer, Mr Diprose, that there was a lack of knowledge of the 1967 Order. This observation was borne out by the witnesses themselves, many but not all of whom were unaware of the existence of the 1967 Order which, as set out above, had extinguished the direct route from A to B and replaced it with the right angled route from A to B through C.

5

After the Inquiry had concluded the Inspector provided a decision letter containing his conclusions. He was satisfied that it was appropriate to confirm the order subject to a number of modifications which are immaterial to the questions which arise before me. Having dealt with a variety of legal submissions the Inspector went on to consider the detailed factual evidence which he had received in respect of the use of the path. The relevant parts of his decision are as follows:

'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...

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