Kumar Shamrao Kotegaonkar v The Secretary of State for Environment, Food and Rural Affairs and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HICKINBOTTOM |
| Judgment Date | 19 July 2012 |
| Neutral Citation | [2012] EWHC 1976 (Admin) |
| Date | 19 July 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2453/2012 |
[2012] EWHC 1976 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN MANCHESTER
Manchester Civil Justice Centre
1 Bridge Street,
Manchester M60 9DJ
Mr Justice Hickinbottom
Case No: CO/2453/2012
Stephen Sauvain QC (instructed by Jubilee Law) for the Claimant
Tim Buley (instructed by the Treasury Solicitor) for the First Defendant
The Second Defendant not appearing.
Hearing dates: 28 June 2012
Introduction
This claim raises this question: can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?
Legal Background to the Claim
Under section 53(2)(b) of the Wildlife and Countryside Act 1981, a surveying authority has a duty to prepare and keep under continuous review a "definitive map and statement" recording public rights of way within the administrative area for which it is responsible, and to modify that map and statement where events listed in section 53(3) occur which appear to the authority to require such a modification. Those events include:
"(b) the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path…
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows—
(i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public footpath…".
Schedules 14 and 15 set out a procedure by which a member of the public can apply to the authority for a modification of the map and statement. If, upon investigation, the authority is satisfied that a ground for amendment is made out, then it may make an order of modification. However, if an objection to that order is lodged within the specified time period, then the order does not take effect unless and until it is confirmed by the Secretary of State, who may (and usually does) appoint an inspector under paragraph 10 of schedule 15 to make the appropriate decision.
Schedule 15 of the 1981 Act and the Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 (SI 2007 No 2008) provide the procedure for the inspector to follow. He may decide to confirm the order, with or without modifications (paragraph 7(3) of schedule 15); or not confirm the order, in which event the order does not take effect (paragraph 2 of schedule 15). The inspector must give reasons for his decision (rules 14(2) and 26(2) of the 2007 Rules).
By paragraph 12 of schedule 15, if a person is aggrieved by an order which has taken effect, then he may apply to the High Court which may, if satisfied that the order was not made within the powers of the Act, quash the order or the relevant part of it. Other than by that procedure, the validity of an order "shall not be questioned in any legal proceedings whatsoever" (paragraph 12(3)).
Factual Background to the Claim
In the late 1990s, the Claimant Dr Kumar Kotegaonkar wished to purchase a plot of land in Mill Lane, Bury ("the plot of land"), between the Mile Lane Health Centre and a parade of shops, from the Second Defendant ("the Council"). The health centre is privately owned by the Bury Primary Care Trust ("the PCT"). The shops are privately owned by the Claimant and a third party, jointly.
Because a route of paving stones was visible, from the health centre car park across the plot of land to the forecourt of the shops, during the negotiations for the sale and purchase of the plot of land, the Claimant's solicitors wrote to the Council, as vendor, to enquire about it. Having earlier noted that no such path was shown on the definitive map, on 24 June 1999 the Council Solicitor wrote to the Claimant's solicitors:
"In respect of the paving stones which have been laid across the site I have received confirmation from the Borough Engineer that the Health Centre Manager was verbally given permission to place the paving stones along the Council's land and therefore there is no possibility of prescriptive rights being acquired as the Council's consent was initially sought…".
The sale and purchase of the plot of land proceeded to completion in 2002.
In April 2008, the Claimant sought planning permission from the Council to develop the plot of land for sheltered housing. There was some opposition to this development; but planning permission was granted on 7 August 2008.
On 15 August 2008, an anonymous letter accompanied by 30 right of way user forms was submitted to the Council, claiming a public right of way over the plot of land from the health centre car park to the forecourt of the shops. On 16 February 2009, a formal application was made to the Council as the relevant surveying authority under schedule 14 of the 1981 Act for recognition of the claimed path as a public footpath, by a modification order to add the path to the definitive map and statement. The claimed path was from Watling Street (a public highway), over the land on which the health centre stands, and then along the line of paving stones across the plot of land to the forecourt of the shops.
The Council duly made an order (the Metropolitan Bury (Public Footpath Number 181, Bury) Order 2010, "the Footpath Order"), but limiting the route of the path to where it left the health centre land, on the basis that there was no identifiable specific route across that land. The public footpath was consequently restricted to the crossing of the plot of land.
The Claimant objected to the Footpath Order and, under the provisions of the 1981 Act to which I have referred, the Secretary of State appointed an inspector, Ms Susan Doran ("the Inspector"). Following investigation, she found that the footpath was dedicated both under the provisions of section 31(1) of the Highway Act 1980 (to which I shall turn shortly), and at common law. She dismissed the objection, and confirmed the Footpath Order; a decision which, effectively, disenables the Claimant from proceeding with the development of the plot of land in accordance with the planning permission he has obtained.
In this claim, he seeks to quash the Inspector's decision.
Highways
Curiously, "highway" is not defined in any of the Highways Acts, nor does it appear to be defined in any other relevant statute. Even the interpretation provisions of the main statute (now section 328 of the Highways Act 1980) do not define the term: they merely provide that it includes "the whole or part of the highway". Consequently, for the definition of "highway", recourse must be had to the common law.
In the words of Wills J in Ex parte Lewis (1888) 21 QBD 191 at 197, a highway is:
"… a right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance."
Whilst later cases may have used less flamboyant language, that definition is uncontroversial, well-settled and is adopted as the definition of "highway" in Halsbury's Laws of England, Vol 55, "Highways, Streets and Bridges", 5th Edition (2012).
At common law, a "highway" is therefore a public right of way, defined by reference to a number of essential characteristics, namely:
i) The passage must be as of right, not mere permission.
ii) The right must be a right to pass at will.
iii) Although the right may be for a limited purpose—such rights of passage may be for vehicles (i.e. a road), or for pedestrians and animals (i.e. a bridleway), or for pedestrians only (i.e. a footpath)—it must be a right owned by the whole of the public, not merely a portion of the public.
iv) The right must be over a defined route: the common law did not recognise a right to stray or wander over land.
v) The right must be permanent: a highway cannot be extinguished at common law except by way of complete physical destruction, hence the maxim, "Once a highway, always a highway". Short of physical destruction, extinguishment relies upon statutory provisions.
Before the Highway Act 1835, the creation of a highway was also dependent upon the common law, which identified two essential elements: dedication by the owner of the land, and acceptance by the public of the way. Each element was important. For a landowner, the dedication of a highway over his land meant that he divested himself forever of the right to exclude members of the public from using the dedicated land for the purposes for passing and repassing. For the public, the dedication of a highway meant the adoption of a burden as well as a benefit: for example, liability for the repair of almost all highways fell upon the public in the form of the parish in which the highway was situated. It is therefore unsurprising that the common law required an intention both on the part of the landowner permanently to divest himself of some of his proprietorial rights, and on the part of the public to accept the utility of the way.
Dedication by a landowner could be by way of express act or declaration; but, even in the absence of clear evidence of such an express intention, it could be inferred from usage by the public and acquiescence in that use by the landowner. Although sometimes referred to as a...
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