R v West Sussex Quarter Sessions, ex parte Albert and Maud Johnson Trust Ltd

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE ORR,LORD JUSTICE LAWTON
Judgment Date24 May 1973
Judgment citation (vLex)[1973] EWCA Civ J0524-2
Date24 May 1973
CourtCourt of Appeal (Civil Division)
Before
In the Matter of an application by (1) Albert and Maud Johnson Trust Limited (2) the Reverend Charles Edmund Johnson Richard Valentine Stapleton and Alan Peter Humphries (3) J. A. (Eldon) Limited (in liquidation)and (4) the Reverend Charles Edmund Johnson for leave to apply for an order of certiorari
and
In the Matter of an Order dated the 15th November 1971 made by the Court of Quarter Sessions for the County of west Sussex pursuant to section 31 of the National Parks and Access to the Countryside Act 1949

[1973] EWCA Civ J0524-2

Before:

The Master of The Rolls (Lord-Denning),

Lord Justice Orr and

Lord Justice Lawton.

In The Supreme Court of Judicature

Court of Appeal

Appeal by applicants from order of the queen's Bench Division of the High Court of Justice dated 19th July 1972.

Mr. J. P. HARRIS and Mr. GIBSON-WATT (instructed by Messrs. Oswald Hickson Collier & Co, agents for Messrs. Bowles and Stevens of Worthing) appeared on behalf of the Appellants.

Mr. CONRAD DEHN, Q. C, Mr, M. POTTER and Miss Pamela Lee (instructed by the Clerk to the County Council) appeared on behalf of the Respondent West Sussex County Council.

THE MASTER OF THE ROLLS
1

The National Parks and Access to the Countryside Act of 1949 set up a new machinery for deciding whether or not there was a public right of way over land. It entrusted the decision to the Court of Quarter Sessions as a Court of original jurisdiction. It gave no appeal from that decision except on a point of law, in which case the Court was to state a case for the opinion of the High Court, see section 31(1)(a) and section 31(7) which applied section 20 of the Criminal Justice Act, 1925.

2

In this case Quarter Sessions found, on the evidence, that there was a public right of footway. The landowner has since discovered fresh evidence which, he says, would probably have led to a decision that there was no public way. He asks for a new trial at which the fresh evidence can be received. He applied to the Divisional Court for an order of Certiorari for the purpose. The Divisional Court held that certiorari does not lie: and that in this case, and any other like case, here is no remedy So they did not go into the new evidence.

THE FACTS
3

In this Court we admitted the new evidence de bene esse. I propose to include it in my statement of the facts, but I will put brackets round that part of it which is derived from the new evidence.

4

In Sussex, south of Petworth, there are two old villages nestling under the Downs. One is Graffham. The other is East Lavington. They are about a mile apart. In between them there is fine parkland attached to a mansion house called Lavington House. There is a carriage drive through the parkland from Graffham to East Lavington. It passes near to the mansion house. This drive was made over a hundred years ago by the owners of Lavington House so as to give access by carriage toand from their home it was called the old coach road. It is no doubt a private carriage way for the owners of the big house. But the villagers claim that there is a public right of way along it on foot. It is by far the most convenient way for anyone wishing to walk from Graffham to East Lavington. It starts near the church at Graffham and finishes by the Church at East Lavington. The landowners deny that there is any public footpath along the drive. They say that they have allowed people to walk along it out of goodwill towards them, but never so as to create a public right.

5

The dispute is of long standing. It goes back to the last century. FROM 1778 onwards the mansion house and park were settled property in the Wilberforce family. Local tradition has it that in the middle of the 19th century, the then Squire Wilberforce took action against one of the villagers, Graffham who claimed a right of footway through the park. Search has been made for the papers in that action, but to no avail. The land was at that time held in strict settlement. Squire Wilberforce may have claimed that, coming. in as reversioner, he was not bound by a dedication by the previous tenant for life, But the villagers may have claimed that they had used it for so many years that the consent of the freeholder should be presumed, see Winterbottom v. Earl Derby (1867) L. R. 2 Ex. 316.

6

Howsoever that may be, it does appear that Squire Wilberforce erected gates. At each end of the drive there was a 5-barred wooden gate across the carriage-way. It was hung on to stout wooden side posts. Alongside it, there was a small wooden wicket-gate for people on foot. The main gates ware kept locked once every year on Good Friday. The villagers used the way on foot whenever they liked. They often used it to and from Church,because the Services were held at Graffham one Sunday and at East Lavington the next. Squire Wilberforce saw them and never complained.

7

In 1903 the Wilberforce regime came to an end. The strict settlement was broken. On 11th December, 1903, Lavington House and the parkland was sold to a Mr. James Buchanan who had made a fortune in whisky. He afterwards became a peer and took his title from the name of the down which rose behind the house, Woolavington Down. He became Lord Woolavington.

8

Soon after he bought the place, he decided to erect a new lodge and entrance gates at the Graffham end. He employed an architect, Mr. Detmar Blow of 9 King's Bench Walk, Temple; and builders, James Longley & Co. of Crawley, Sussex. The contract was placed in January 1904. The work was done in the next year or two the gates were of fine wrought-iron across the carriage way. They were hung on stone pillars. On either side where were iron railings stretching to the hedges. There was some dispute as to whether there was a side-gate for foot passengers or a gap through which they could pass, but the plans at the time do seem to show that there was no side-gate or gap. Mr. Buchanan, afterwards Lord Woolavington, locked these iron gates once a year on Good Friday. But he left the other gates at the East Lavington end untouched They still remain as Squire Wilberforce had erected them, a main gate across the carriage-way and a wicket gate alongside for people on foot. The carriage gates were locked at night and all day on Good Friday.

9

In 1942 Parliament passed the Rights of way Act, 1932. It carne into force on 1st January 1934. Under it landowners were at liberty to deposit a map with the local councils snowing the ways which they admitted to have been dedicated as highways. TheCounty Council decided to prepare a map showing all known and claimed rights of way. To do this they sought the co-operation of the district councils and parish councils. There may have been some agreement at this time between the Graffham Parish Council and Lord Woolavington by which the Parish Council disclaimed any claim to a public way over the drive. At any rate, on 22nd February, 1935, Lord Woolavington made a declaration under that Act. He attached a schedule showing the footpaths which he admitted to be public footpaths over his estates. This schedule did not contain the drive through his park. The inference is clear. He did not admit that there was any public right or footway over it.

10

In April 1937 the house and park were sold to Captain Ewan Wallace, M. P. He took the same line as Lord Woolavington. In August 1938, Captain Wallace saw the chairman of the Parish Council and told him that he did not mind pedestrians using the way. The Chairman took this as meaning that he did not object to it being a right of way. But Captain Wallace at once corrected any misapprehension. He emphatically denied that there was a right of way.

11

But the Local Councils made claim to a public footway. The Rural District Council on behalf of the parish of East Lavington claimed a public right of footway over the East Lavington portion, that is, along the drive from a point "near Graffham bounds" proceeding east to the East Lavington gate. The Graffham Parish Council at first did not claim a right of footway over the Graffham portion. (There is a letter of fifth July, 1948, saying that a right of way had never been claimed over it.) It appears that the Chairman had discussed it with Lord Woolavingtons agent and came to an agreement not to claim it. But Graffham afterwards hid second thoughts. In September 1938 the Graffham ParishCouncil claimed a right of way for foot passengers over the Graffham portion and sent it for registration on the County Map.

12

The position, therefore, under the 1934 Act was that the local council laid claim to a public footway over the whole of the drive: but the landowners denied it.

13

During the war the house and park were requisitioned. In 1945 the house and park were bought by Alderman Johnson. A year or two later the house was turned into a school for boys called Seaford College. The headmaster is the Reverend C. E. Johnson the son of Mr. Albert Johnson. It has expanded greatly and has some 400 boys.

14

In 1949 the school authorities out a notice on the gates saying "Seaford College. Strictly Private. Trespassers will be prosecuted." The Graffham Parish Council out up a notice saying "Public Footpath". Alder man Johnson instructed solicitors, Glanvilles of Portsmouth, who demanded its removal. The Parish Council wrote to the County Council about it. In August 1949 the County Council made inquiries. They took statements from many old people then living. Their knowledge went back to the 1870s and 1880s. They all said that they had always regarded it as a public footway and had used it as such. They said that the main gate was locked once a year for one day, but the side gate was not locked. 0n 26th September, 1949, the Clerk to the County Council wrote to Alderman Johnson's solicitors and said that there was ample evidence to support the claim to a public footway. He said that evidence could be adduced to show that: "immediately...

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