Huyton-with-Roby U. D. C. v Hunter
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE BIRKETT |
| Judgment Date | 28 April 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0428-3 |
| Date | 28 April 1955 |
| Court | Court of Appeal |
[1955] EWCA Civ J0428-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning
Lord Justice Birkett and
Lord Justice Homer
Mr FRANK GAHAN, Q.C., and Mr. J. EDWARD JONES (Instructed by Messrs W.F. Foster, Hedge & Clare, Agents for Mr. A. Stephen Cattson, Liverpool) appeared on behalf of the Appellant
Mr BASIL NIELD, Q.C., and Mr G.B.H. CURRIE (instructed by Messrs Sharpe, Pritchard & Co., Agents for Mr H.E.H. Lawton, Huyton) appeared on behalf of the Respondents (Applicants).
The Huyton-with-Roby Urban District Council propose to make up Thingwall Lane, a road within their district, and they seek to charge the frontages with the expense of so doing. The frontages object on the ground that the road is a highway repairable by the inhabitants at large. The Justices, having Inquired Into the matter, decided in favor of the frontages that it was such a highway. The Divisional Court,however, reversed their decision, and found in favor of the Council, but gave leave to appeal to this Court.
The history of this road, Thingwall Lane is given in the Case stated by the Justices, in the 18th century the road led to a hamlet called Thingwall, which consisted of a large house, a farm, and some cottages. It branched off from another road which led to Broad Green. At the fork of the road in the year 1776 Some one? put up a guide-stone - an impressive stone some seven or eight feet high - to show the way. It was made of one solid block of stone. On one side of the stone there was carved: "Road to Broadgreen", and on the other side of the stone there was carved: "Road to Thingwell. No thorough by". That stone showed people the way when they came to the fork in the road. If a man wanted to get to Thingwall, he took the way indicated. But the stone by saying "No thorough by", warned him that there was no through road to anywhere else. That stone has been there from 1776 until the present day. It has recently been moved a few feet because it Interferes with modern traffic conditions. This road to Thingwell had been open to the public ever since 1776, if not before. There has never been any obstruction or interruption of it.
At the beginning of the 19th century the big house at Thingwall was conveyed to a new owner, The site of Thingwall Lane was not conveyed to him, and there was no grant to him of any right of way along Thingwall Lane. That Indicates that there was a public way along it, or else the new owner buying the house would surely have stipulated expressly for a right of way.
Those matters go to show that the road was dedicated to, the public at least by the year 1776; and it this clear that if the road was dedicated to the public at any time before the year 1835, the inhabitants at large became at common law under a duty to repair the same. I pause to say that if a highway was created after 1835 by dedication or otherwise, it would not be repairable by the inhabitants at large unless the conditions laiddown in section 23 of the Highways Act 1836 had been complied with: see Cababe v. Walton-on-Thames Urban District Council, 1914 Appeal Cases, page 102,
On the other hand there are indications that it was a private road. In particular there is no trace of any public money having been spent upon this Iane to keep it up at all, and in tithe map of 1840 it was described as an occupation road. So there were Indications each way, some pointing to it being a public way repairable by the Inhabitants at large, others indicating that it was a private road. In that state of affairs it was for the Justices, as the tribunal of fact, to give their decision, and they said this: "Having viewed Thingwall Lane and inspected the guide stone at its junction with Thomas Lane we found the following facts, that Thingwall Lane is a public highway and repairable by the inhabitants at large. That being a finding of fact by the Justices, it cannot be reversed on Case stated unless there was no evidence to support it, and in my view there was evidence to support it.
But the Divisional Court have taken a different view. They said that, once it appeared that no public money had been spent on this road, then the burden of proof shifted on to the frontages to show that it was a highway repairable by the inhabitants at large. I cannot share that view. In my judgment, on the true interpretation of the Private Street Works Act of 1892, if the local authority desire to charge a frontage with the cost of making up the road, the burden is on thorn to prove that it is a "street not being a highway repairable by the inhabitants at large". They must prove the negative, that it is not repairable by the inhabitants at large. That is the legal burden which rested upon them throughout the case from beginning to end. This view is supported by ( Rishton v. Haslingdon Corporation 1898 volume 1 Queen's Bench Division, page 294) where Mr. Justice Channell said that in such a case, the onus probandi was clearly on the Council; and that decisionhas been followed in other cases such as Vyner v, Wirral Rural District Council, reported in 1909, volume 7 Local Government Reports, page 628.
The mistake made by the Divisional Court was that they failed to distinguish between a legal burden which is imposed by law and a provisional burden which is raised by the state of the evidence. Although the legal burden rests throughout on the local authority, they go some way to discharge it when they call evidence to show that no public money has over been spent on the road. When this is done, there is a provisional presumption that the road is not a public road, but it is by no means conclusive.
As the case proceeds the evidence may first weigh in favour of the view that it is not a public road, and then against it, thus producing a burden - sometimes apparent, sometimes real - which may shift from one party to the other as the case proceeds, or may remain suspended between them. That is however not a legal burden, but only a provisional burden - a burden raised by the state of the evidence - from which the Court may draw an inference one way or the other, but is not bound to do so. At the end of the case the Court has to decide as a matter of fact whether the road is repairable by the inhabitants at large or not. If it can come to a determinate conclusion, no question of the legal burden arises; but if at the end of the case the evidence is so evenly balanced that the Court cannot come to a determinate conclusion, the legal burden comes into play and requires the Court to say that the Council have not proved the case.
I would like, if I may, on this point to refer to an article which I wrote in 1945 in The Law Quarterly Review at page 375 in which I tried to point out the distinction between a legal burden imposed by law and a provisional burden raised by the state of the evidence. The part played by a legal burden of proof was well stated by Lord Dunedin in Robins v. National Trust Company Ltd. reported in 1927 Appeal Cases, page 515, at page 520: "Onus as a determining factor of the whole case can only arise if the tribunalfinds the evidence pro and can so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered". It seems to me that that is what happened in this case. The Justices, after hearing and weighing the evidence, came to a determinate conclusion that this was a public highway repairable by the Inhabitants at large, and so no question of onus came into it.
An argument was put before us on the ground that this land was a cul-de-sac, and that therefore, following observations in some of the cases - such as in the Stonehenge case, Attorney-General v, Antrobus, 1905, volume 2 Chancery Division, page 188, per Mr. Justice Farwell at pages 206 and 207 - it was a very important factor that no public money had ever been spent on it, I do not regard this lane as a cul-de-sac. A cul-do-sac, as I understand it, is a blind alley which this is not. There are innumerable villages and hamlets throughout the length and breadth of the land where the highway leads only to the one place, whether it be a hamlet underneath the Downs or one beside a river, and the like. They are not cul-de-sacs. So in this case. It must be determined according to the principles applicable to ways in general and not as a cul-de-sac.
It appears to me that this case was an issue of fact for the Justices. They have determined the matter on the facts, and have stated a very careful, complete and instructive Case, in my view they have come to no error in point of law. The decision of the Divisional Court should be reversed accordingly, and the decision of the Justices restored. I would allow the appeal,
I am entirely of the same opinion, and I will add only a very few words; and I add only a very few words for these reasons. First, at the conclusion of the argument and Judgment in the Divisional Court, the Lord Chief Justice, whodelivered the Judgment, said to learned Counsel: "You can have leave to appeal if you want it". The second reason is this: We are in fact differing from the Divisional Court, and from the Judgment of the Lord Chief Justice, and it would only seem respectful, therefore, to say a few words and state the reasons which lead this Court to come to the conclusion that the Divisional Court came to a wrong decision, I agree with the...
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