Gloucestershire County Council v Farrow
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVELEIGH,LORD JUSTICE FOX,LORD JUSTICE PARKER |
| Judgment Date | 27 November 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1127-2 |
| Date | 27 November 1984 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0441 |
[1984] EWCA Civ J1127-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
On appeal from Order of Mr Justice Goulding.
Royal Courts of Justice,
Lord Justice Eveleigh,
Lord Justice Fox
and
Lord Justice Parker
84/0441
and
and
Mr S.A. MASKREY (instructed by Messrs E.P. Rugg & Co. and Messrs W. Norris Bazzard & Co., Agents for Messrs Dennis Faulkner & Alsop, Daventry, Northants) appeared on behalf of the Appellants First and Third Defendants.
Mr M.A. BURKE-GAFFNEY, Q.C., Mr G.S. LAWSON ROGERS and Miss HELEN ROGERS (instructed by Mr Robert Wotherspoon, County Solicitor, Gloucester) appeared on behalf of the Respondent (Plaintiff)
The Second Defendant did not appear and was not represented.
I will ask Lord Justice Fox to deliver the first judgment.
This is an appeal from a decision of Mr Justice Goulding and it is concerned with the attempts of the Defendant Bisbey Properties Limited to revive the weekly Thursday market in the market place at Stow-on-the-Wold. That is objected to by the Plaintiff, the Gloucestershire County Council, which is the highway authority. The second Defendant, Mr de Courcy, who I hope will not think I am discourteous if I do not use the full style by which he is sued, claims as the Lord of the Manor of Stow and the owner of a market franchise granted in the reign of King Henry I. The first Defendant is a Director of Bisbey Properties and, as I understand, trades as Stow-on-the-Wold Market Company. The Judge declared, first, that the market place is a highway for the purposes of Section 34 of the Highways Act 1959, as amended by Section 31 of the Highways Act 1980, and that the Defendants are not entitled to exercise or to permit to be exercised thereon any weekly Thursday market rights derived under the terms of any Royal Charter; (2)the second and third Defendants be restrained from holding any such market upon the market place; (3) that the counterclaim between the second Defendant and the Plaintiff and between the third Defendant and the Plaintiff be dismissed. Those counterclaims sought declarations as to the exercise of market and also fair rights on the market place.
The market, so the Judge found, began before the commencement of legal memory, having been granted to the Abbey of Evesham by the Charter of King Henry I. For the purposes of this case it is common ground that the market ceased about the year 1900. The exact date when it was last held is not known, nor is it known why it ceased. Mr de Courcy claims to be the owner of the market franchise and also the owner of a franchise granted to the Abbey of Evesham by King Edward IV to hold a fair at Stow twice yearly.
The claims are admitted for the purposes of this action. Bisbey Properties Limited has a lease granted in 1979 by the second Defendant of the market franchise rights and privileges for seven years from the 20th September 1979. The market place is an open space in the centre of Stow. It is about 500 feet long from north to south, and it is about 200 feet wide at its widest point. The width in fact varies. The Judge found that the market place was originally waste of the Manor of Stow. He also found, for the purposes of the action, that it belonged to the second Defendant except to the extent or for the purposes for which it might be vested in the Plaintiff as the highway authority. The Judge was satisfied that the Thursday market was in fact held in the market place, though specific positive evidence of that was scarce.
As to the character of the market place as a highway, it was conceded,apparently after some days of hearing at the trial, that the whole of the market place is and has been beyond the memory of persons now living a public highway. The Ordnance Survey map of 1885 shows the whole surface, apart from that occupied by a building now long since demolished, as metalled road. The Judge was of the opinion—I quote from page 8 of the transcript of his judgment—"I ought to infer that what was being done was being lawfully done. Accordingly, if the question had been raised before a court at that time"—that is to say, in the last Century—"I would expect the court to have held that the market place was dedicated as a highway in connection with the market and with a view to utilising the franchise, and that consequently the dedication created a public right of way subject to the right of the Lord of the Manor to use the market place for a market and fairs. The House of Lords reached a similar conclusion regarding a modern highway in A.-G. v. Horner, 11 A.C. 66. I have seen no evidence which would enable the court to limit the inference to any particular part of the market place". "That, however", the Judge goes on, "is not the end of the matter because it comes to be litigated not in the latter part of the 19th century but in the latter part of the 20th century".
At that point I should refer to the provisions of Section 31 of the Highways Act 1980, which it is accepted we can take as applicable for the purposes of the present case. Those provisions replaced Section 34 of the Act of 1959 without, as I understand it, significant alterations for present purposes. The provisions of Section 31 are of crucial importance to the issues in the present case. The material provisions are subsections (1) and (2), and they are as follows: "(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. (2) The period of 20 years referred to in subsection (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 subsection (3) below or otherwise".
Since the end of the 19th Century it is clear, on the Judge's findings, that the public has been enjoying a general right of way over the market place. The Defendants concede that beyond living memory it has been used as a public highway. It is the Plaintiff's case that the market place has been enjoyed by the public as of right and without interruption for a relevant period of 20 years within Section 31, and that accordingly it is deemed by the section to have been dedicated as a highway. The section places, it is said, no limits or restrictions upon the assumed dedication. Accordingly, the market place, it is submitted, is now a highway freed and discharged from any rights of Mr de Courcy and his successors to hold a Thursday market upon it.
The Judge's conclusion upon that was as follows. On page 1 of the transcript, after referring to the decision in Attorney-General v. Honywill, 1972 1 Weekly Law Reports, 1506, the Judge continued: "In his judgment, Mr Justice Bristow said, at page 1510: 'It is not disputed, and I take it to be clear law, that if a right of way was originally dedicated for use on foot it can subsequently be dedicated for use with vehicles as well'. Similarly, urges Mr Burke-Gaffney, a highway originally dedicated subject to the right to use the land for a periodic market, can subsequently be dedicated free from that reservation, and that is what the Act compels one to presume in this case. Counsel was, however, unable to point to any instance in which such a rededication of land used under a franchise had occurred, or to explain the means by which it would be effected". "Thus I am left", said the Judge, "to decide the matter as best I can upon principle alone. On the whole I am of opinion that Parliament...
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