R (Godmanchester Town Council) v Environment Secretary; R (Drain) v Environment Secretary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lady Justice Arden,Mr Justice Bennett |
| Judgment Date | 19 December 2005 |
| Neutral Citation | [2005] EWCA Civ 1597 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2004/1867 & C3/2004/1868 CO/4211/2003 |
| Date | 19 December 2005 |
[2005] EWCA Civ 1597
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISIONAL COURT
THE RIGHT HON LORD JUSTICE MAURICE KAY and
THE HON MR JUSTICE RICHARDS
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Auld
The Right Honourable Lady Justice Arden and
The Honourable Mr Justice Bennett
Case No: C3/2004/1867 & C3/2004/1868
CO/2870/2003
CO/4211/2003
Mr George Laurence QC and Miss Ross Crail (instructed by Zermansky & Partners) for Godmanchester Town Council and Dr Leslie Ernest Drain
Mr Tim Mould (instructed by Treasury Solicitors) for the Secretary of State
Mr Edwin Simpson (instructed by Blandy & Blandy) for Yattendon Estates Limited
Lord Justice Auld :
Introduction.
In both of these appeals, which come to this Court by permission from Clarke LJ, as he then was, the appellants, Godmanchester Town Council ("Godmanchester") and Dr Leslie Ernest Drain, raise two main questions on the interpretation and application of what is frequently referred to as "the proviso" in the concluding words of Section 31(1) of the Highways Act 1980 ("the 1980 Act") . Section 31(1) , which repeats an earlier provision in section 1(1) of the Rights of Way Act 1932 ("the 1932 Act") provides a rebuttable presumption of the dedication of a way as a highway after user of it by the public as of right and without interruption for 20 years.
Part III of, and Schedule 15 to, the Wildlife and Countryside Act 1981 ("the 1981 Act") impose on a local authority, as a surveying authority for the purpose, a duty to maintain a definitive map and statement of public rights of way within its area. It also has a duty to modify the map and statement when there arises under section 31(1) and (2) of the 1980 Act an unrebutted presumption of dedication of a way as a public footpath as a result of 20 years public use of a way as of right and without interruption, the 20 years ending with the date when the right of the public to use it was brought into question. If a local authority makes such an order, either of its own volition or, after its refusal to do so, by direction of the Secretary of State, it does not take effect in the event of objection until confirmed by the Secretary of State.
Section 31(1) and (2) provide:
"(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." [my italics]
(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 …"
Thus, these provisions enable the deemed dedication of a way as a highway if: 1) it is of such a character that use of it by the public could give rise at common law to a presumption of dedication; 2) it has been enjoyed by the public for a full period of 20 years ending at the date when the public right to use it was "brought into question"; 3) such enjoyment has been "as of right"; 2) such enjoyment has been without interruption; and 5) – the proviso – there is no "sufficient" evidence that there was no intention during that period to dedicate it as a highway.
The two main questions raised by the appeals are:
(1) whether evidence, to be capable of sufficiency for the purpose of the proviso, must be of communication of no intention to dedicate to members of the public using the way or of conduct that was likely to bring such intention to their notice; and
(2) whether it is enough for the landowner to establish that there was no intention to dedicate for a part or parts of the period, or whether he has to show that there was no such intention throughout the full period—in short, whether in this context, "during" means "throughout".
In Dr Drain's case, there is a further subsidiary issue raised by way of an application for permission to appeal adjourned to this Court by Clarke LJ, arising out of the particular facts and a finding of the Inspector. It is whether the terms of a tenancy granted by the owner of a freehold reversion constituted evidence from which it could be inferred that the owner had had no intention to dedicate the way to the public.
These issues came before a Divisional Court consisting of Maurice Kay LJ and Richards J (as he then was) , by way of claims for judicial review of decisions of the Inspector appointed by the Secretary of State not to confirm modification orders, made pursuant to section 53 of the 1981 Act, to add public footpaths to the definitive map and statement of rights of way maintained by the relevant authority.
The Divisional Court found against Godmanchester and Dr Drain respectively on all three issues. On the two main issues it held, approving and following decisions of Sullivan J in R v Secretary of State, ex p Billson [1999] QB 374, and Dyson J (as he then was) in R v Secretary of State, ex p Dorset County Council [2000] JPL 396, that the proviso's requirement of "sufficient evidence" of an intention not to dedicate, does not require a landowner:
(1) to have taken steps to communicate that intention to public users of the way, or to have taken such other steps as were likely to bring it to their attention; or
(2) to show a continuous intention throughout the 20 year period not to dedicate—in short, that "during" does not mean "throughout".
On Dr Drain's subsidiary issue, the Court upheld the Inspector's reasoning on the facts of the case, "not as a bare finding on the legal consequences of succession to and continued existence of the tenancy agreement", but on the basis that there had been an overt and contemporaneous expression by the landowner of its intention not to dedicate.
In the Godmanchester claim for judicial review, there was one interested party, Cambridgeshire County Council, the relevant surveying authority, but it took no part in the proceedings before the Divisional Court or on this appeal. In Dr Drain's claim, the interested party is the landowner, Yattendon Estates Limited ("Yattendon") , which, through counsel, Mr Edwin Simpson, took part in both proceedings in support of the Secretary of State's case.
The Facts
The Godmanchester Appeal.
In August 1999 Godmanchester applied to the Cambridgeshire County Council for a modification order to add to the Cambridgeshire Definitive Map and Statement a public footpath around a pool known as Monks Pit in Godmanchester. The proposed public footpath linked two points on another footpath, already shown on the Definitive Map and Statement as "Public Footpath No 4 Godmanchester". On 20 th March 2002 the Council made the order sought. The owners of the land over which the existing and proposed public footpaths run, the Church Commissioners, objected. On submission of the matter to the Secretary of State for confirmation, he appointed an Inspector, Helen Slade, to conduct a public local inquiry. By a decision letter of 21 st March 2003, following such inquiry, the Inspector declined to confirm the order.
The Inspector, in her decision letter, found that the proposed public footpath had been used by the public as of right and without interruption for 20 years up to April 1999. That was the date upon which the public's right to use the way had been brought into question under section 31(2) of the 1980 Act by the Church Commissioners' erection of a fence across its route. In paragraph 24 of her decision letter, having directed herself to the guidance of Sullivan and Dyson JJ by reference to the latter's judgment in Dorset, she proceeded on the basis that the intention not to dedicate referred to in section 31(1) of the 1980 Act had to be overt as well as contemporaneous, but not necessarily communicated to users of the way. And, in paragraph 30, she found that there was sufficient evidence of no such intention, namely a letter from Smiths Gore, the Church Commissioners' land agents, of 27 th July 1990 to the County Planning Officer commenting on certain landscaping proposals of the Council for the area around Monks Pit. The letter included the following note of concern about the use of the perimeter of the pool as a footpath:
"A point of major concern to us is trespass which seems to have increased significantly since the improvements to the surface of the footpath were carried out in 1989. Despite our attempts thus far to prevent it, trespass seems to continue and there has even been some illegal use of the water area. … We are somewhat reluctant to erect security fencing to prevent pedestrian trespass around those parts of the pit which are not designated as a public footpath but clearly something has to be done to prevent illegal access to land if the public is unwilling to restrict its movement to the definitive line of the footpath. Your comments on this point, in particular, would be appreciated."
The Inspector interpreted those expressions of concern as indicating that the Church Commissioners...
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