Attorney General, ex rel Yorkshire Derwent Trust Ltd and Another v Brotherton and Others
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Oliver of Aylmerton,Lord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Lowry |
| Judgment Date | 05 December 1991 |
| Judgment citation (vLex) | [1991] UKHL J1205-2 |
| Date | 05 December 1991 |
| Court | House of Lords |
[1991] UKHL J1205-2
Lord Bridge of Harwich
Lord Oliver of Aylmerton
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Lowry
House of Lords
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Oliver of Aylmerton, Lord Goff of Chieveley and Lord Jauncey of Tullichettle. I agree with them and for the reasons they give I would allow the appeal.
My Lords,
This appeal raises what, in the end, is a short but by no means simple point of construction as to the ambit of section 1 of the Rights of Way Act 1932 as amended by subsequent statutes. The question arises in this way. The appellants, who are the defendants in the action, are, either personally or in their capacity as trustees, the owners of land in Yorkshire lying between Malton and Stamford Bridge through which flows the River Derwent. The action is brought by the Attorney-General on the relation of the Yorkshire Derwent Trust Ltd., a charitable body formed for the purpose of restoring the Derwent as a navigable river, and the Town Council of Malton, which is concerned to protect, for recreational purposes, any public rights of navigation which exist on the river. It arises out of the denial by the first four appellants that any public right of navigation on the Derwent existed through their land. It is unnecessary for the purposes of the appeal to set out in any detail the procedural history of the action beyond saying that there remain a number of factual and legal issues which will require to be determined whatever the result of the appeal and that it became apparent from the pleadings that a number of preliminary issues required to be determined before the action could conveniently be tried. Accordingly, on 25 July 1986, Millett J., in chambers, directed that five questions be tried as preliminary issues. Four of these related to the position prior to and after the River Derwent Navigation Act 1702 (1 Ann. c. 27), the construction of that Act and the effect of an order made in 1935 under the Land Drainage Acts. They are not material to this appeal which is solely concerned with question 5, the terms of which were as follows:
"(1) Whether all or any (and if so, which) of the following provisions applied or apply to public rights of navigation: (a) section 1 of the Rights of Way Act 1932; (b) section 1 of the Rights of Way Act 1932 as amended by section 58 of the National Parks and Access to the Countryside Act 1949; (c) section 34 of the Highways Act 1959; (d) section 31 of the Highways Act 1980. (2) If the answer to (1) is in the affirmative, whether all or any (and if so, which) of such provisions as may be held to have applied or apply to public rights of navigation applied or apply to navigation by members of the public over along and past the relevant land before the confirmation of the 1935 Order."
Question 5 was answered by Vinelott J. in the negative [1990] Ch. 136 but his decision was reversed by the Court of Appeal who answered the first part of the question in the affirmative and the second in the negative [1991] Ch. 185. Speaking for myself, I think that nothing turns, for relevant purposes, upon the provisions of the sections of the Acts of 1949, 1959 and 1980 referred to in the question, although I will refer to them briefly later for the sake of completeness. The essential question is that of the proper interpretation of section 1(1) of the Rights of Way Act 1932. That Act was passed in order to regulate and facilitate the establishment of public rights of way by virtue of long-continued user and it will be convenient at the outset to set out the critical provisions which are those contained in subsections ( 1) and (8) of section 1. Section 1(1) provides:
"Where a way, not being of such a character that user thereof by the public could not give rise at common law to any presumption of dedication, upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way, or unless during such period of 20 years there was not at any time any person in possession of such land capable of dedicating such way."
Subsection (2) provides that where any such way has been enjoyed for a full period of 40 years it shall be deemed conclusively to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate the way. If subsection (1) and subsection (2) stood alone I should regard Vinelott J.'s decision as unassailable. Having remarked that the Act of 1932 must be construed in accordance with the ordinary usage of the English language, he added [1990] Ch. 136, 145E, "I do not think that any ordinary educated user of the English language would regard a right of navigation as a right of way over land." With that I entirely agree. But subsections ( 1) and (2) do not stand alone. They are qualified by subsection (8) which provides:
"For the purposes of this section the expression 'land' includes land covered with water."
and it is upon the meaning of these words in the context of the Act that the answer to the question must turn.
The argument for the respondent which found favour with the Court of Appeal may be shortly summarised in the following propositions. First, in a number of cases and learned treatises or textbooks prior to 1932, a right of navigation is referred to either as or as analogous to a public highway. Since, therefore, a highway is no more than a way over which members of the public enjoy rights of passage, it is no misuse of language to refer to a right to navigate as a "right of way." Secondly, since a waterway consists of water in a channel through land, it is equally no misuse of language to refer to a right of navigation as a right of way "over" land. The vessel is in contact with and is carried by the surface of the water, but the water runs over land. Thirdly, the purpose of the Act - that is to say, that of overcoming the difficulties inherent in establishing a dedication by sufficiently continuous user - is as applicable to the establishment of a right of navigation as it is to establishing a right to walk or drive on terra firma. Fourthly, a river or other waterway is properly and literally described as "land covered by water," the land being the bed of the stream, lake or pond in which the water is contained.
Attractively though the argument was put by Mr. Christie on behalf of the respondent, I have not been persuaded that the problem can be solved by so enticingly simple a progression. The major premise - that a right of navigation may properly be spoken of as a highway and, therefore, as a "way" - does no doubt find some support in reported judgments of high authority prior to 1932 - going back indeed to the eighteenth century. The impressive citation of authorities uncovered by the industry of counsel is admirably set out in the judgment of the Court of Appeal and little purpose would be served by repeating it. Those references range from, for instance, the bald statement of Lord Denman C.J. in Williams v. Wilcox (1838) 8 Ad. & E. 314 (at p. 329) that the channel of a public navigable river is a King's highway to the description by Kay J. in Bourke v. Davis (1889) 44 Ch.D. 110 (at p. 120), (particularly significant perhaps in the light of the terms of subsection (8)) of the claim in that case as "similar to a right of highway on land not covered by water." Similar references are found in textbooks and treatises to public navigable rivers as "common highways" or "highways by water." Thus the 13th edition of Pratt's Law of Highways in 1893 contains at pp. 5-7 the following passage:
"Highways by water. It is immaterial whether the land over which the right of passage exists is or is not covered with water. The right of navigation is simply a right of way; and a navigable river, a ferry, an inland lake, or a canal maintained under statutory authority for purposes of navigation, which is free and open to the public, is governed by the general principles applicable to all highways. There are some important differences between highways by land and highways by water …. A highway which crosses a river by means of a ford, or a public footpath which crosses a stream by means of stepping-stones, does not thereby cease to be a highway; …."
On the other hand, it is pointed out that both in the Highways Act 1835 (5 & 6 Will. 4, c. 50) and in the Local Government Act 1894 (56 & 57 Vict. c. 73) "highway" is either defined in terms which would exclude a right of navigation or is used in contexts which are consistent only with ways on land. The Court of Appeal's comment [1991] Ch. 185, 196E, that this demonstrates the draftsman's consciousness that, unless restricted, references to "highways" would include references to rights of navigation is, in my judgment, less than convincing, for its seems to me equally consistent with its never having occurred to the draftsman that such rights would be comprehended in the term. But in any event, I doubt whether much help can be derived from statutes clearly concerned with existing highways repairable by the inhabitants at large or at public expense in the construction of a different statute addressed to a quite different situation.
Now there are, of course, obvious analogies which can be drawn between traffic on land and waterborne traffic. Both involve the passage of men or vehicles above or on the surface of the ground in a given direction - a...
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