R v Secretary of State for the Environment, Transport and the Regions and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dyson,MR JUSTICE DYSON |
| Judgment Date | 22 June 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0622-16 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 June 1999 |
| Docket Number | CO/814/98 |
[1999] EWCA Civ J0622-16
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2
Mr Justice Dyson
CO/814/98
MR J FINDLAY (Instructed by the Solicitor for the Dorset County Council) appeared on behalf of the Applicant.
MR J HOBSON and MS RHEE (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Dorset County Council
Introduction
The Dorset County Council ("the Council") seeks to quash the decision of the Respondent's inspector in a letter dated 26 January 1998, acting pursuant to paragraph 10(1) of Schedule 15 to the Wildlife and Countryside Act 1981, not to confirm the Dorset County Council (Footpath at Winterborne Clenston) Definitive Map and Statement Modification Order 1996 ("the Order"). The effect of the Order, if confirmed (without modification) would have been to modify the Dorset County Council Definitive Map and Statement of Rights of Way ("the Map") by adding a footpath shown by a broken black line between points A and B on the Order map, running in a generally northern direction and connecting Bridleway 22 in Winterborne Whitechurch and Bridleway 5 in Winterborne Clenston.
The factual background
In 1973, the British Horse Society made an application to add a bridleway to the Map. A proposal for revision of the Map was put forward, showing a bridleway along the line of the footpath which is the subject of the decision that is under challenge in these proceedings. In April 1975, the landowners wrote to the Department of the Environment objecting to the proposed revision of the Map, stating that there was "no evidence of dedication or of user by public as of right". A copy of this notice was sent by the Department to the Council. In October 1977, the landowners were informed by the Department that the objection was valid, and that a local inquiry was likely to be forthcoming. In November 1986, however, the Council and the Department informed the owners that the Review had been abandoned in view of the obligation on the Council of continuous review imposed by the 1981 Act. Accordingly, the claimed route was not subsequently shown on the edition of the Definitive Map that was published in 1989. In March 1995, an application was made for a bridleway along the proposed Order route. In August 1995, the landowners made a deposit under section 31(6) of the Highways Act 1980 ("the Act"), indicating that no right of way at all existed along the proposed route.
In February 1996, the Council's Committee decided to make an Order modifying the Map by adding only a footpath. The Order itself was made on 25 October 1996, and was objected to by the landowners in November 1996. A public inquiry was held in December 1997. By his letter dated 26 January 1998, the Inspector decided not to confirm the Order.
Section 31 of the Highways Act 1980
So far as material, it provides:
"31. (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.
(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, whether by a notice such as is mentioned in subsection (3) below or otherwise.
(3) Where the owner of the land over which any such way as aforesaid passes—
(a) has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and
(b) has maintained the notice after 1st January 1934, or any later date on which it was erected, the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.
…….
(6) An owner of land may at any time deposit with the appropriate council—
(a) a map of the land on a scale of not less than 6 inches to 1 mile, and
(b) a statement indicating what ways (if any) over the land he admits to have been dedicated as highways;
and, in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time—
(i) within six years from the date of the deposit, or
(ii) within six years from the date on which any previous declaration was last lodged under this section
to the effect that no additional way (other than specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgment of such previous declaration, as the case may be, are in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner or his successors in title to dedicate any such additional way as a highway."
The Inspector's decision
Having regard to the nature of the challenges, It is necessary for me to set out his conclusions in full.
CONCLUSIONS
32. It is common ground that this matter turns upon the evidence of long user and not historical evidence though it is not without significance that the claimed route has been in existence and shown on O.S. maps and others for over 100 years and although no public rights of way over it are recorded, the claimed route is a link between the networks of public bridleways at each end.
33. It is claimed the level and manner of use is sufficient to justify deemed dedication of the claimed route as a public footpath under S.31 of the Highways Act 1980 in that it was actually enjoyed by the public, as of right and without interruption for a full period of 20 years and there is insufficient evidence of intention not to dedicate. In support of this is the evidence contained in the 32 forms, the evidence produced at the time of the 1973 Review of the Definitive Map and the evidence submitted to the inquiry. This is countered by the landowners and others who claim it was not a right of way, the route was used in the main by the landowners themselves, their tenants, employees and persons with specific permission and that throughout most of the relevant period, the land was let to the Forestry Commission. The Forestry Commission evidence supports the landowners and suggests the woods generally were little used by the public.
34. However it was not disputed that the 32 users and others did in fact walk the route, openly and freely and without interruption and in the belief that it was a public right of way. This was in addition to use by employees, tenants and those with specific authority and the landowners conceded their respective families had always taken a relaxed attitude towards any use of the woods. It would appear there was little or no interference with anyone's use. There was some conflict in the evidence as to whether anyone was ever ordered off the claimed route but the 32 User Forms are clear that none of those users was ever stopped. Many of the users say their use was in fact infrequent and with the area being relatively remote, I believe the use of the claimed route by the public was light though it extended back over many years. The use by anyone would seem to have been tolerated by the landowners and in my view such acquiescence could amount to a deemed dedication unless there is sufficient evidence that there was no intention to dedicate. I do not accept that the presence of the Forestry Commission notices and the waymarks indicating accepted public routes were a denial of public rights on other routes.
35. The crux of the matter therefore is whether there has been a 20 year period of use by the public back from when the right of the public was brought into question. In my view the right was questioned when the landowners objected to the present Order in November 1996, when a S.31 (6) Deposit was made by two of the landowners in August 1995 and also in April 1975 at the time of the Review of the Definitive Map when the then landowners objected to the inclusion of the claimed route in the Revised Draft Definitive Map as a bridleway. S.31 of the Highways Act 1980, repeating earlier legislation, specifically states that a right can be questioned by a S.31 (6) deposit "or otherwise". In my view an objection to the Department of the Environment which was in turn passed onto the council as Highway Authority stating expressly there is no evidence of dedication or of use by the public as of right, is a sufficient public statement and an effective means of bringing into question the public right claimed.
36. I have considered the effect of each of these events. The 1975 Review was eventually abandoned although the evidence of user and the objection were not tested at public inquiry and the claimed route was not subsequently shown on the edition of the Definitve Map published in 1989. The evidence of use available prior to April 1975 is not sufficient to persuade me it amounted to a deemed dedication. Some 5 of the 32 users who completed forms claimed to have used for 20 years prior to 1975 but the only other information available, that submitted in support of the 1973 application for bridleway rights was too imprecise to be of value. In my view therefore public rights had not been established over the claimed route when such rights were...
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