John A. Gumbs v Attorney General of Anguilla
| Jurisdiction | UK Non-devolved |
| Judge | Lord Neuberger of Abbotsbury,Lord Scott of Foscote |
| Judgment Date | 07 July 2009 |
| Neutral Citation | [2009] UKPC 27 |
| Court | Privy Council |
| Docket Number | Appeal No 35 of 2008 |
| Date | 07 July 2009 |
[2009] UKPC 27
Privy Council
Present at the hearing:-
Lord Scott of Foscote
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Neuberger of Abbotsbury
Sir Jonathan Parker
[Delivered by Lord Neuberger of Abbotsbury]
The issue on this appeal is whether there is a public right of way, and, if there is, the extent of that way, over a parcel of land at Little Bay, Anguilla. The land in question ("the Property") is registered at the Anguilla Land Registry ("the Registry") in the name of the appellant, John Gumbs.
The relevant facts are now uncontroversial following the judgment at first instance of George-Creque J, given on 17 June 2005 after a hearing at which a number of witnesses gave evidence much of it relating to the existence and use of the way in question over the years.
The Property had originally been acquired by the appellant's grandfather. For many years, there had been a footpath, whose width was around three feet, running just within the north eastern boundary of the Property. This footpath ("the path") appears to have been a link between two wider tracks. Having heard much evidence on the issue, the Judge was satisfied that, by 1973, as a result of more than twenty years of uninterrupted public use, it could and should be presumed that the path had been dedicated as a public right of way.
During 1974 and 1975, a comprehensive Cadastral Survey of the island of Anguilla was carried out, pursuant to the Land Adjudication Ordinance 1974 ("the 1974 Ordinance"). The purpose of this Survey, at least in general, was to provide a definitive adjudication of rights and interests in all land in Anguilla as at the date of the Survey.
The Demarcation Officer, who carried out the inspection of the Property and the surrounding area for the purpose of the Survey, saw the path. However, the definitive map, drawn up some time in 1975 in accordance with the 1974 Ordinance, showed no path on the north east boundary of the Property, although it did show the two tracks which it linked. In June 1975, in accordance with the conclusions of the Survey, the Property was registered in the Registry pursuant to the Registered Land Ordinance 1974 (now re-enacted with amendments as the Registered Land Act 2000). This registration recorded "the heirs of" the appellant's grandfather as the proprietor, and no reference to any path or right of way over any part of the Property was noted on the register. In November 1980, Rose Carter, in the capacity of administrator of the appellant's grandfather's estate, was registered as the proprietor. In September 1981, the appellant was registered in her place, and he has remained the registered proprietor of the Property ever since.
Meanwhile, in 1980, the Anguilla Government carried out substantial works which involved widening the path to some 13 feet and enabling it to accommodate vehicular traffic. This work was carried out without the consent of Rose Carter, although it appears that the Government sought consent of the adjoining owners in relation to the tracks at either end of the path. Rose Carter protested, and, after becoming the registered proprietor, the appellant took up the protest in 1982. He was told that the Government was considering the matter and would be looking into ways of settling the issue. Thereafter, the Government did nothing, other than to widen the path still further, so that it now extends to some 20 feet in width. Meanwhile, the widened path was used by the public both with vehicles and on foot. Because the appellant's work required him to be away from Anguilla for long periods, he did not press his concerns till 2002, when, in protest, he dug a trench across the widened path. As a consequence, the Attorney General issued the instant proceedings.
The Judge accepted the Attorney General's submission that a public right of way over the path continued to subsist, notwithstanding the absence of any registration to that effect on the definitive map or at the Registry. However, she accepted the appellant's contention that the right of way was limited to the original width of three feet, and that there was no right of way over the path in so far as it was widened in 1980 and subsequently.
Having found that a public right of way over the original path arose by presumed dedication to the extent of three feet, the Judge rejected the Attorney General's contention that a public right of way over the widened path had been established by presumed dedication. In that connection, she observed: "Whilst there is evidence of user by the public, I do not consider in the circumstances of this case that this is sufficient from which to infer dedication by the owner of the [Property] of the widened way." She referred to the fact that there had been a threat by the appellant in his correspondence with the Government to close off the way in 1982, and concluded that he had not "formed the [requisite] animus dedicandi".
Both parties appealed. The Court of Appeal agreed with the Judge that the right of way subsisted notwithstanding its non-registration, but differed from her view that it was limited to the original three feet. They concluded that, in the light of the provisions of the Anguilla Roads Ordinance 1973 ("the 1973 Ordinance"), the width of the way over which the public right extended was 32 feet. Consequently, the Court of Appeal disagreed with the Judge's conclusion that the appellant had any cause for complaint. Accordingly, they dismissed the appellant's appeal, and allowed the Attorney General's cross-appeal. The appellant now appeals to the Board.
Two arguments are raised on behalf of the Attorney General as to why the Court of Appeal was right, and there is a public right of way over the full width of the path in the state that it now exists. The first, and principal, argument is that the original path was subject to a public right of way in 1973, and accordingly was a "road" within the meaning of the 1973 Ordinance, section 16 of which provides that the width of the right of way is effectively 32 feet. Consequently, it is said that it must have been open to the Government to widen the path as it did, provided that the overall width did not exceed 32 feet. In the alternative, if that is wrong, the Attorney General contends that, in the light of the events since 1980 (or earlier) until 2002, there has been a presumed dedication of the widened path as a public highway, as a result of which the appellant's claim must fail.
The appellant agrees that the path in its original form was a "road" within the meaning of the 1973 Ordinance, and says that, as a result, the freehold of the path vested in "the Anguilla Administration" pursuant to section 5 of that Ordinance. Accordingly, contends the appellant, when the 1974 Ordinance came to be implemented, the failure of Her Majesty's Commissioner in Anguilla ("the Commissioner") to ensure that the path was duly recorded on the definitive map or recorded as owned by the Crown means that the Crown's title to the freehold of the path has been lost, and, as a result, there is no public right of way over the path. If this is right, then, as there was no public right of way over the path, it must follow that the Government could not lawfully have widened the path as it did in 1980 and thereafter. In answer to the Attorney General's alternative argument, the appellant contends that whether the path, as widened, became a public right of way as a result of presumed dedication after 1975 is an issue which turns on an assessment of the evidence, and there are no grounds for interfering with the Judge's conclusion that there was no presumed dedication.
Section 2 of the 1973 Ordinance contains definitions for the purpose of the Ordinance, which include this:
" 'Road' means any public road mentioned in the Schedule and includes any public rights of way at present existing in Anguilla, or which may hereafter come into existence …"
Section 5 of the 1973 Ordinance states that:
"All roads and all land taken for their construction are the property of the Anguilla Administration."
Section 16 of the 1973 Ordinance is in these terms:
"The boundary of any road should be the fence, which may be erected by the officer in charge of the Public Works Department, running along it on either side, and where there is no such fence, the boundary shall be a line at all points sixteen feet from the centre of the roadway measured in a direction at right angles to the road".
The Board is prepared to proceed on the assumption, on which both parties are agreed, indeed on which both parties rely, namely that, even though it was only a public footpath three feet in width, the path in its original form was indeed a "road" for the purpose of the 1973 Ordinance. However, it should be emphasised that the Board is not deciding that that assumption is correct. For instance, it is a little hard to accept that those who drafted the 1973 Ordinance could have intended that a public right of way by foot over a three foot path should be converted into a public right of way, potentially with motor vehicles, over a width of 32 feet. On the other hand, the wide definition of the word "road" in section 2 of the Ordinance makes it somewhat difficult to avoid such a conclusion. It may be that evidence, which is not available in this case, as to the extent and nature of public rights of way in Anguilla in 1975 would assist in resolving this conundrum, but it need not be resolved on this appeal.
Having had the benefit of seeing in draft the judgment of Lord Scott of Foscote, it is right for the Board to develop this point a little further. Lord Scott's judgment eloquently sets out the arguments as to why the common...
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