R v Lancashire County Council, ex parte Guyer
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE ACKNER |
| Judgment Date | 07 February 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0207-1 |
| Docket Number | DC/311/76 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 1980 |
[1980] EWCA Civ J0207-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen'Bench Division Court
Divisional Court
Lord Justice Stephenson
Lord Justice Ackner
and
Lord Justice Cairns
In the Matter of an Application by Jack Guyer for an Order of Mandamus
and In the Matter of Section 166 of the Highways Act 1959 as Amended
MR. CHARLES BLOOM (instructed by Messrs. Simpson & Ashworth) appeared on behalf of the Appellant (Applicant).
MR. MICHAEL TILLETT (instructed by Messrs. Brian Hill) appeared on behalf of the Respondent (Respondent).
On 31st October 1977 the Divisional Court refused the applicant, Mr. Guyer, judicial review in the shape of an order of Mandamus directed to the Lancashire County Council requiring the said Council to exercise the duty imposed upon them by Section 116(1) of the Highways Act 1959 to assert and protect a particular public right of way within its district, namely a public footpath running from King Street, Whalley in the County of Lancaster at the north-easterly side of Whalley Bridge and proceeding in a generally easterly direction following the northern bank of the River Calder upstream.
The applicant is a public-spirited resident of Whalley, a small town of some 4,000 inhabitants, in Lancashire. He has lived there since 1961 and in that neighbourhood for all the 70 odd years of his life.
If you cross the River Calder over Whalley bridge in a north-easterly direction into King Street, a footpath runs eastwards to your, right along the northern bank of the River Calder for a distance of between 100 and 200 yards until it joins an admittedly public footpath which carries on eastwards to a weir. Many people have used this first stretch of footpath over the years of this century. Mr. Guyer's case is that this footpath is presumed to be dedicated as a highway after uninterrupted public use as of right for 20 years under section 34(1) of the Highways Act 1959. He says that the council have a statutory duty to assert that right for him under section 115(1) of the 1959 Act, as amended by the Local Government Act 1972.
He entered into correspondence with the council in March 1975 in an effort to get them to take up his case and assert that right to use this footpath. The council informed him, first of all, (page 13 of the bundle) that the footpath had not been marked as a public footpath under the National Parks and Access to the Countryside Act 194-9 and there would not be any further review of the matter of footpaths under the Act for quite a few years.
On 12th June 1975 (page 15) the Chief Executive Clerk of the council wrote to him saying:
"There appears to be little doubt that this footpath has been used on numerous occasions by members of the public but be that as it may, I am not altogether convinced that this use has been 'as of right'."
He referred to the fact that over a period of years a gate had been locked at least once a year, a gate giving access to the footpath, and concluded:
"Whilst it is a duty of the Council to assert the rights of the public under the amended Section 116 of the Highways Act 1959, this assertion presupposes that there is a public right of way in existence in the first place and where there is doubt, as in the present case, the onus of proving the existence of a public right of way rests on the parson alleging the same, namely yourself."
In a later letter at page 19 it was pointed out that many people in Whalley considered the footpath to be private and at the end of that letter the sane officer of the council described the operative word in section 116 as being a highway and stated "…. before the Council can assert any rights, they must be satisfied that the road or path in question is a 'highway' within the meaning of the Act. If the Council is not satisfied that the footpath in questionis a highway then obviously they will take no action under Section 116 as amended because, in their opinion, there will be no rights to assert."
In a letter of 29th August 1975, the same officer wrote:
"I am sure you will appreciate that as highway authority the County Council must listen to all sides of the argument and it is for this very reason and the fact that there are just too many people who consider the footpath to be private that the Council cannot simply purport to assert the rights of the public and dismiss without question the assertion of, above all, the landowners,"
Mr, Guyer supported his case in correspondence with 56 statements of local residents, mainly elderly, as to the use they had made of this footpath over many years, and some of them said that there had never been any gate or notice indicating that the path was private until 1968. I think all are agreed that a barrier had been put up at the King Street, or Western, end of the footpath, with notices marking the path as private - 'no footpath, no fishing' - in 1974-.
In June 1976 the Whalley Parish Council did not take Mr. Guyer's part. They decided that the disputed stretch of this footpath was in fact private property. Mr. Guyer's solicitors took the matter up with the Chief Executive Clerk of the Council in a letter of 3rd June 1976 (page 63). They referred to the fact that they had taken counsel's opinion and said: "We have no doubt that these numerous statements establish at least an extremely strong case for the existence of a public right of way." They asked for the names of persons, other than the landowners, who were disputing the existence of a public, right of way, and were told that therewere three landowners who were making that claim.
"It is our view, supported by Counsel, that your duty to assert and protect the rights of the public to the use and enjoyment of any highway, for which you are the highway authority, must include the taking of such steps as are necessary so as to determine the existence of such a right of way where "that is in dispute, provided at least that there is a strong prima facie case for the existence of such a right of way. Any other view would defeat the object of section 116 of the Highways Act 1959."
They suggested it was a proper case for the council to take proceedings in the High Court under Order 15 Rule 16 for a declaration that the footpath was a public right of way, and concluded:
"Unless you indicate within the next fourteen days that you are prepared to take this course or at least some other appropriate course in exercise of your duty under section 116(3) of the Act, -our instructions are to proceed by way of Mandamus."
Hence Mr. Guyer took the matter to the Divisional Court by a Notice of Motion of 6th October 1976.
Pending the hearing in the Divisional Court, Mr. Guyer's persistence was rewarded - though I do not think he looked upon it in that light - by the council instituting a public local inquiry. That was conducted on 28th February 1977 by the council's Chief Legal Officer. At that inquiry 17 people gave evidence, excluding the landowners. Five gave evidence as to why they thought the path was public. "Mr. Guyer and his solicitors had been invited to attend but had previously indicated that despite the fact that the landowners' solicitors intended to represent their clients formally at the hearing, they would rely on the evidence ft already submitted to the County Council in. written form." That is a quotation, its accuracy not disputed, from theReport that was made by the officer who presided over that inquiry. He referred as of vital importance to the evidence given by the two daughters of a previous owner, Mr. Forman, "… that a gate at the Xing Street end of the path was locked at least once a year on 26th November, the then landowner's birthday." That seems to have been the procedure which, according to the evidence of those two ladies, was carried out annually from the time when their father bought the property in 1919 until one of them ceased to live there in 1970
The officer who presided over that inquiry suggested that the Highways and Transportation Committee of the council should make a recommendation: "That, having regard to all the evidence available, the Committee accept that the path is not public, and therefore not a highway in respect of which action should be taken under Section 116 of the Highways Act 1959": and, "That the Chief Executive/Clerk be authorised to continue to resist the proceedings commenced against the County Council,"
That recommendation was not adopted by the Highways and Transportation Committee but in March 1977 they:
"RESOLVED: That, having regard to the conflicting evidence presented to the Committee, the Committee feel that the legal status of the path should be determined by the Courts and that accordingly the Chief Executive/Clerk be authorised to continue to respond to the High Court proceedings on the basis, that the path is not one in respect of which the Council has a duty to act under Section 116 of the Highways Act, 1959."
There has been a dispute as to the meaning of that resolution and some criticism of the way in which it wasinterpreted by Widgery, LCJ in the judgment of the Divisional Court refusing the order for Mandamus. I find it unnecessary to go into that resolution, or the Lord Chief Justice's interpretation of it, except to say that his interpretation seems to me to accord with the language of the resolution, and that neither side can get out of the resolution any assistance in deciding the question that we have to decide, which is whether or not the council have failed to do their duty under section 116 of the Act,
That resolution having been passed, Mr. Guyer had to proceed with his application to the Divisional Court, which was, as I have said, dismissed later in 1977. Hoping to save further expense, which he could ill afford, Mr. Guyer waited, before...
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