Rowley and Another v Secretary of State for Transport, Local Government and the Regions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Elias,MR JUSTICE ELIAS |
| Judgment Date | 24 May 2002 |
| Neutral Citation | [2002] EWHC 1040 (Admin) |
| Date | 24 May 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/234/2002 |
[2002] EWHC 1040 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Elias
Case No: CO/234/2002
Mr. John Hobson Q.C. and Ms. Gillian Carrington
(instructed by DLA for the Claimant)
Mr. Timothy Mould
(instructed by Treasury Solicitor for the Defendant)
The first claimant in this action is the owner and occupier of Hall Close Farm, Alveley which is near Bridgnorth, Shropshire. The second claimant is the lessee of a barn and other buildings at the farm. The buildings are leased for the purpose of storing equipment and they are located within the fold yard of the farm. On 11 April 1996, the Alveley Parish Council submitted a formal application for a modification of the definitive map and statement to the second defendant, the Shropshire County Council. In this application the Parish Council sought to add a footpath to the definitive map from Dog Kennel Lane to Chapel Lane through Hall Close Farm. The footpath in fact traverses the fold yard of the farm. The County Council made an order incorporating the proposed amendment into the definitive plan on the 12 February 1999. The first claimant objected to that order by letter from his solicitors and as a consequence the order was submitted to the Secretary of State, the first defendant, for confirmation.
The Secretary of State appointed an Inspector pursuant to paragraph 7(2)(a) of Schedule 15 to the Wildlife and Countryside Act 1981 (“WCA 1981”). A local inquiry was held between 10 and 12 October 2001 at Alveley Village Hall. The Inspector heard various representations from, amongst others, the first claimant but nonetheless decided to confirm the order (with very minor modifications). He had power delegated to him to make that determination on behalf of the Secretary of State. That decision was reached on 23 November 2001 and the order was published on 7 December 2001. Both claimants now appeal as persons aggrieved by the order pursuant to paragraph 12 of Schedule 15 to the WCA 1981.
It is not necessary for me to set out that paragraph. It is common ground in this case that the issues of law arising relate to the proper interpretation and application in the circumstances of section 31(1) of the Highways Act 1980. This provides:
“(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 in mentioned in subsection (3) below or otherwise.
Section 31 reflects principles deeply rooted in the common law that in order to establish a right of way, the alleged right must have been enjoyed for a lengthy period (in this case 20 years) openly, without the use of force, and without requiring permission—“nec vi, nec clam, nec precario” is the Latin expression. If those conditions are satisfied, the right of way will be deemed to be dedicated by the landowner unless there is sufficient evidence demonstrating that there was no intention to dedicate it.
However, although it is possible to separate out the various aspects for analytical purposes, in fact they closely interlink. Evidence relied upon by the claimants in support of one argument is sometimes advanced to support another. For example, evidence of an interruption of user may be relevant not only to the question of whether there was uninterrupted use, but also to the related question of whether the use was as of right or permissive. In addition, it may also be relevant to demonstrating no intention to dedicate.
There is also, however, a preliminary issue which sometimes arises and which is implicit in this section. It must be established that there is at least a sufficient degree of enjoyment by the public as to give rise to a prima facie case that there may be a user as of right. That is one of the points in issue in this case. Since there is some dispute as to the legal principles which have to be applied to determine this issue, I will at this stage briefly consider these principles.
The fact that a particular route on private land may have been used in exceptional circumstances or on sporadic occasions by members of the public will not be sufficient even to raise the issue as to whether a right of way has been established. In Hollins v Verney (1884) 13 Q.B.D.304, 315 Lindley LJ summarised the position as follows:
“No user can be sufficient which does not raise a reasonable inference of. …continuous enjoyment. Moreover, as the enjoyment which is pointed out by the statute, is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term…the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted and ought to be resisted if such a right is not recognised, and if resistance is to be intended.”
In that case the court was dealing with a private right of way, but a similar principle applies to cases where a public right is being asserted. In the former the question is whether an implied lost grant can be established, whereas in the latter the issue is whether dedication by the owner of the way for public use is to be inferred.
Moreover, until the decision of the House of Lords in R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000]1 A.C.335, there was a line of authority which was understood to have established that in order to constitute a right of way it was necessary for those using the pathway genuinely to believe that they were in fact using it as of right: see e.g. Jones v Bates [1938] 2 All E R 237 and R v Suffolk County Council, ex parte Steed 75 P.& C.R. 102. If they believed they were using it by reason of implied permission, then that would not constitute sufficient user to give rise to a question as to whether the exercise was as of right. Accordingly, when determining whether or not there was a sufficient user to raise an inference that a right was being asserted, it was sometimes necessary to consider whether there was sufficient user by those with the appropriate subjective belief.
Accordingly prior to the Sunningwell case the courts would sometimes have to weigh up the evidence which might demonstrate that some persons were using the pathway in the belief that they had the right to do so and others were acting under the impression they were being permitted to do so. The latter could not be taken into consideration when determining whether sufficient user had been established. Indeed, the Sunningwell case itself was one in which the issue was whether certain land, as a result of long user allegedly as of right, should be registered as a village green under the Commons Registration Act 1965. The Inspector had determined that it should not on the grounds that it was necessary for the villagers using the land to do so in the belief that they were enjoying the land to the exclusion of all other people. He took the view that it was necessary for there to be an assertion of right by those who subjectively believed that they were exercising that right. That was in line with the authorities to which I have referred, but the House of Lords held that they were wrong.
The leading judgment in their Lordships House, with which Lords Browne Wilkinson, Steyn, Hobhouse and Millett all agreed, was given by Lord Hoffmann. He analysed in detail the significance of the subjective belief of a user, both in the context of private and public rights of way. He commented that the concept of user as of right meant that
“…they must have used it in a way which would suggest to a reasonable landowner that they believed they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which, as I hope I have demonstrated, depends upon the evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose, the actual state of mind of the road user is plainly irrelevant.“(p.354).
Later in his judgment he referred to the fact that because of a “perfectly understandable aside” of Tomlin J. in Hue v Whiteley [1929] 1 Ch.440 the courts had erroneously been led into “imposing upon the time-honoured expression “as of right” a new and additional requirement of subjective belief for which there is no previous authority and which I consider to be contrary to the principles of English prescription.“(p.355).
And later he observed that:
“In the normal case, of course, outward appearance and inward belief will coincide. A person who believes he has the right to use the footpath will use it in the way in which a person having such a right would use it. But user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right...
To continue reading
Request your trial
-
Whitworth v Secretary of State for Environment Food & Rural Affairs
...think that the evidence of use by cyclists in the 1950s can materially affect the case. Miss Busch relied on Rowley v Secretary of State [2002] EWHC 1040 para 23, in which Elias J held that the inspector had not erred by commenting that the evidence of use had been “bolstered” by use prior ......
-
Public Rights of Way
...not have done so, had they chosen to use the way. See Rowley v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1040 (Admin) at [38] per Elias J; see also Lewis v Thomas [1950] 1 KB 438 at 444 per Lord Evershed: ‘I agree that a barring, and particularly a delib......
-
Creation of Highways
...at [16] (discussing Lewis v Thomas [1950] 1 KB 438). 48 Rowley v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1040 (Admin) at [38], per Elia J; see also Lewis v Thomas [1950] 1 KB 438 at 444, per Lord Evershed, ‘I agree that a barring, and particularly a de......
-
Table of Cases
...(1880) 14 Ch D 785, 44 JP 680, 49 LJ Ch 691, CA 60 Rowley v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1040 (Admin), [2002] All ER (D) 397 (May) 27 Rugby Charity Trustees v Merryweather (1790) 11 East 375n 5, 28 Sage v Secretary of State for the Environme......
-
Creation of Rights of Way
...to the appropriate council that the way is not 72 Rowley v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1040 (Admin). 73 HA 1980, s 31(3). On ambiguous notices, see Burrows v Secretary of State for Environment Food and Rural Affairs [2004] EWHC 132 (Admin).......