Wild v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE KEITH |
| Judgment Date | 01 December 2008 |
| Neutral Citation | [2008] EWHC 3461 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10826/2007 |
| Date | 01 December 2008 |
[2008] EWHC 3461 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Keith
CO/10826/2007
Mr William Upton (instructed by Clarke Willmott) appeared on behalf of the Claimant
Mr Timothy Buley (instructed by DEFRA Legal) appeared on behalf of the First Defendant
Miss Sarah Hannett (instructed by the Legal Department, Dorset County Council) appeared on behalf of the Second Defendant
Introduction
This case is all about a footpath. It is said to run across land in Dorset which is claimed to be within the ownership of the lord of the manor. The local surveying authority decided that it was a public footpath, and it added the footpath as a public right of way to the definitive map of the area. The lord of the manor objected, and a public inquiry was held. The inspector concluded that this was a footpath to which the public enjoyed rights of access. She confirmed the view taken by the surveying authority. The lord of the manor questioned the validity of the decision made by the surveying authority, and he has now applied to the High Court pursuant to paragraph 12(1) of Schedule 15 to the Wildlife and Countryside Act 1981 (“the 1981 Act”) for the decision to be quashed.
The legal framework
It is necessary at the outset to set out the legal framework within which the issue of the validity of the surveying authority's decision has to be determined. The common law was recently explained by Lord Hoffmann in R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28. Unlike other systems of law, English law does not have a doctrine of acquisition of rights, whether public or private rights, by long use on its own. Instead, English law treats long use as raising a presumption that the right had a lawful origin of some kind. In the case of a public right of way, a lawful origin has to be found in the dedication by the landowner of the land for the use of the public at some stage in the past. That dedication could, of course, be proved by an express dedication by the landowner. But invariably the evidence of an express dedication was unavailable, and proof of dedication was usually effected by inferring such dedication from the character and extent of the use of the land.
This notion of inferred dedication was recognised to be something of a legal fiction. As Lord Hoffmann said at [6], it is “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.” He went on to say in [7] that because some reason other than dedication was more likely for the use of the land by the public having occurred without apparent objection, “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.” That was the genesis of the legislation which ultimately became section 31 of the Highways Act 1980 (“the 1980 Act”). The relevant subsections are subsection 31(1) and subsection 31(2) which provide, so far as material, as follows:
“(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 …..”
The path
The path to which this case relates was added to the definitive map of the County of Dorset by the Second Defendant, Dorset County Council (“the Council”), the surveying authority for the county, by the Dorset County Council (Footpath from Clay Lane to Looke Lane, Puncknowle) Definitive Map and Statement Modification Order 2003 (“the Order”) made on 28 February 2003 under section 53(2)(b) of the 1981 Act. The path is about 660 metres long. It crosses land close to the village of Puncknowle. The claimant, James Wild, is the owner of the Puncknowle Manor Estate. He bought the estate in 2000. He accepts that the land over which the path passes was not included in the estate when it was conveyed to him. But he claims that his acquisition of the estate conferred on him the title of lord of the manor, and that it is in that capacity that he owns the land over which the path passes. That was not an issue which the inspector appointed by the First Defendant, the Secretary of State for the Department of the Environment, Food and Rural Affairs, thought she needed to decide, and although her decision contained a discussion about the ownership of the land, she reached no conclusions on it. What is clear is that the land over which the path passes has had no registered owner and has not been the subject of any conveyance.
The inspector's decision
The inspector examined a number of documents to see whether there was any documentary evidence relating to the path and its status. She decided that this evidence confirmed “the long-standing existence of the [path] as a physical feature” of the landscape, but that none of the documents provided what she called “categorical evidence of its status”. Accordingly, she concluded that the documentary evidence alone could not substantiate the existence of a path over which the public had rights of access by foot. She therefore considered whether the path could be said to be deemed to have been dedicated as a public right of way by virtue of section 31 of the 1980 Act.
A number of alternative dates for when the right of the public to use the path was brought into question were advanced to the inspector. The Council suggested the relevant date was in late January or early February 1998 when the gates at one end of the path were locked and a notice was put up there which read “No Public Right of Way: Nature Conservation Area.” The inspector found that the right of the public to use the path had indeed been brought into question then, but she also agreed with Mr Wild's claim that the right had been brought into question in September or October 1978 when the agents for the trustees of the estate of a previous owner of Puncknowle Manor Estate had appeared at a public inquiry into whether the path should appear on the definitive map of the area as a bridleway. She concluded that the airing of this objection in the 1978 inquiry had been sufficient to bring into question the public's right to use the path on foot as well as on horseback. It follows that the relevant period over which the right of way had to have actually been enjoyed by the public without interruption, if it was to acquire the status of a public right of way by virtue of section 31 of the 1980 Act, was the period between 1958 and 1978.
On that issue, the inspector found that only a few members of the public had been using the path on foot during the early part of that period, even though their use of it was without interruption. At best, the use was by four or five people. The use was occasional if not irregular, and it included public use as well as private use. The use of the path did not increase to a more significant level until the early 1970s. In the circumstances,...
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Wild v Secretary of State for Environment, Food and Rural Affairs
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