R (Godmanchester Town Council) v Environment Secretary; R (Drain) v Environment Secretary
| Jurisdiction | England & Wales |
| Judge | LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD SCOTT OF FOSCOTE,BARONESS HALE OF RICHMOND,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 20 June 2007 |
| Neutral Citation | [2007] UKHL 28 |
| Court | House of Lords |
| Date | 20 June 2007 |
[2007] UKHL 28
HOUSE OF LORDS
Appellate Committee
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Neuberger of Abbotsbury
and one other action
and one other action
Appellants:
George Laurence QC
Miss Ross Crail
(Instructed by J J Pearlman with Zermansky & Partners, Leeds)
Respondents:
Timothy Mould QC
David Blundell
(Instructed by Treasury Solicitor)
Interveners
Edwin Simpson
(Instructed by Blandy & Blandy, Reading)
My Lords,
These two appeals are test cases brought before the House for a ruling on the effect of the presumption in section 31(1) of the Highways Act 1980:
"Where a way over any land… 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."
The main issue in both appeals is over the nature of the evidence which will be sufficient to demonstrate that there was no intention to dedicate. Although the point can be put in a variety of ways, it seems to me to turn in the end on the meaning of the word "intention". The respondent landowners say that intention is a state of mind, with all the subjectivity which that implies. In principle, the owner himself is the person best qualified to give evidence about his own state of mind. Such evidence could be confirmed by acts done during the relevant period, such as putting up notices or barriers or recording his intentions in letters or memoranda. In evaluating such acts, no distinction can be drawn between those which would have come to the attention of users of the way and those which would not. What matters is the owner's state of mind and not what users of the way would have thought about it.
The contrary view is that the term intention is being used in an objective sense. It means what users of the way would reasonably have thought to be the owner's state of mind, which may or may not coincide with his actual state of mind. Similarly when one speaks of the intention of the parties to a contract, one means what a reasonable person, possessed of the background knowledge available to the parties, would have understood what they meant by using the language in which they expressed their agreement. Likewise, adverse possession by a squatter is said to require an animus possidendi, an intention to possess. But, as Slade J said in the leading case of Powell v McFarlane (1977) 38 P & CR 452 (approved as a "remarkable judgment" by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, per Lord Browne-Wilkinson at p. 432):
"In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world."
Before I say anything about the facts of this appeal, I must put section 31(1) into its wider setting. It is derived from section 1(1) of the Rights of Way Act 1932, which in turn built upon foundations laid by the common law. As has often been explained, English law differs from civilian systems such as the law of Scotland by having no doctrine of acquisition of rights, public or private, by long user: see R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335, 349. Instead, it treats user since time immemorial, that is to say, since 1189, as raising an irrebuttable presumption that the right had a lawful origin in grant to a predecessor in title or dedication to the public at large. As the reign of Richard I slipped further into the remote past, that presumption had to be supplemented by the judicial invention of others. In the case of claims to private easements such as rights of way, juries were told that user since time immemorial could be inferred from evidence of user for a long time, but that this could be rebutted by evidence that the easement could not have existed in 1189. As that was often quite easy to prove, the presumption had to be further supplemented by directions that the jury could in such a case infer the existence of a more recent grant which had been lost. This remained the law until it was reformed by the Prescription Act 1832, to which I shall return later.
In the case of a public right of way, a lawful origin had to be found in dedication by the landowner at some unknown date in the past. Such dedication was analogous to the lost modern grant of a private easement. Juries were told that they could find such a dedication on evidence of user openly and as of right by members of the public and were often encouraged to do so. The reason for juries and judges being willing to make and accept findings that there had been a dedication or a lost modern grant was of course the unfairness of disturbing rights which had been exercised without objection for a long time. In Scottish law, this policy was given effect by the more logical method of allowing such user to create the right. But in England the policy of the law was not openly acknowledged. Instead, juries were told that in order to uphold the public right, they had to find as a fact that there had been an act of dedication accompanied by the necessary animus dedicandi on the part of the landowner: see Poole v Huskinson (1843) 11 M & W 827.
As a matter of experience and common sense, however, dedication is not usually the most likely explanation for long user by the public, any more than a lost modern grant is the most likely explanation for long user of a private right of way. People do dedicate land as public highways, particularly in laying out building schemes. It is however hard to believe that many of the cartways, bridle paths and footpaths in rural areas owe their origin to a conscious act of dedication. Tolerance, good nature, ignorance or inertia on the part of landowners over many years are more likely explanations. In Jones v Bates [1938] 2 All ER 237, 244 Scott LJ said that actual dedication was "often a pure legal fiction [which] put on the affirmant of the public right an artificial onus which was often fatal to his success." In Jaques v Secretary of State for the Environment [1995] JPL 1031, 1037 Laws J called it an "Alice in Wonderland requirement."
Nevertheless, juries and other tribunals of fact did frequently find that such acts of dedication had taken place, no doubt for the reason I have suggested. So much so that in Folkestone Corporation v Brockman [1914] AC 338 it was argued that, in the absence of evidence of facts inconsistent with such a dedication, they were obliged to make such a finding. But this submission was rejected by the House of Lords and it became settled that user was no more than evidence from which dedication could be inferred. It was open to the jury to ascribe the user to toleration or some other cause. Since, as I have said, some other cause was in real life more likely, it became difficult to predict when or for what reason a jury would have sufficient sympathy with the users of the highway to find that there had been a dedication.
English judges were embarrassed by the fictions of lost modern grant, animus dedicandi and the like ("a bad and mischievous law, and one which is discreditable to us as a civilized and enlightened people" said Cockburn CJ in Bryant v Foot (1867) LR 2 QB 161, 179) and looked enviously north of the border (see Lord Blackburn in Mann v Brodie (1885) 10 App Cas 378, 386.) The law of private rights of way and certain other easements was reformed by the Prescription Act 1832 and since this provided a model for the 1932 Act, it is helpful to see how it worked. Starting from the common law, namely that user since 1189 would establish the easement, it provided in section 2 that a claim to such an easement which had been "actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years" should not be defeated by evidence which showed that it had arisen at some earlier date. This meant that it could no longer be defeated by showing that it had arisen after 1189.
Section 4 provided that the "full period of twenty years" should be taken to be the period next before the proceedings in which the claim shall have been "brought into question". If the statute had said no more, it would have been possible for a landowner to defeat a claim under the Act by the simple expedient of interrupting the enjoyment of the easement. The time which had necessarily to elapse between the interruption and the commencement of proceedings by the dominant owner to vindicate his right would automatically have prevented the latter from proving enjoyment without interruption for the 20 years "next before" the proceedings. Section 4 therefore went on to provide that "no act or other matter shall be deemed to be an interruption" unless it had been submitted to or acquiesced in for one year after the party interrupted had had notice thereof. That meant that if the servient owner barred the way, the dominant owner had a year within which to commence proceedings and claim the benefit of the statute.
The 1932 Act followed the same pattern, but with two important variations. First, section 1(1) contained the proviso which allowed the presumption of dedication to be rebutted by "sufficient evidence that there was no intention during that period to dedicate such way". There was...
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