County council making modification order adding public footpath to definitive map – Inspector confirming order – Applicant seeking to quash order – Whether inspector adopting wrong approach – Highways Act 1980 section 31(1) – Application alllowed
In September 1929 the National Trust obtained land at Crowlink. The land was crossed by a path, which was not claimed as a right of way under the Rights of Way Act 1932 in preparatory surveys for a definitive map in 1953 nor in subsequent definitive map reviews in 1960 and 1971. It was clear, however, that the path did exist during at least a substantial part of that period. In July 1991 the Ramblers Association applied to the East Sussex County Council for an order to be made under section 53(2) of the Wildlife and Countryside Act 1981 modifying the council’s definitive map by adding the footpath; the National Trust disputed the existence of “a public footpath as claimed”. The modification order was made by the county council in April 1997 on the ground that the evidence of user gave rise to the presumed dedication of the public right of way in accordance with section 31(1) of the Highways Act 1980. Following a public hearing, the inspector confirmed the order.
Pursuant to section 53 of the 1981 Act the National Trust applied to quash the order. For the purposes of the present hearing, it was conceded by the Secretary of State for the Environment that the inspector’s decision could not stand but the grounds upon which the order fell to be quashed were not agreed. The National Trust contended that the inspector was required to reach a decision that there was “user as of right”, and not user by permission, before the presumption of dedication could operate. Second, the inspector had made sufficient findings of fact that the court could properly conclude that, had he directed his mind to that issue, he would have found that there was no user as of right. Third, the inspector had adopted the wrong approach in considering the proviso to section 31(1) of the 1980 Act, namely whether the presumption of dedication had been rebutted in finding that the “National Trust needed to have taken further action to make it clear to the public that the claimed footpath was used with permission”.
Held The application was allowed.
It was clearly established that use as of right required open use of the way, without force or permission, by those believing that they had a public right to do so: see Jones v Bates [1938] 2 All ER 237. The inspector, in identifying the sole issue as being whether the National Trust had taken sufficient steps to make their intention clear to the general public, had totally overlooked the need to decide whether there was user as of right, and not permissive user. The inspector had also erred in his approach to the proviso to section 31(1) of the 1980 Act. The landowner did not need to appraise the public that there was no right to use the way, provided he had supplied evidence of a lack of intention during the relevant period that negated the possibility that it was merely an ad hoc assertion: Jaques v Secretary of State for the Environment [1995] JPL 1031 applied. The findings of fact made by the inspector were sufficiently clear and specific to provide an answer to the question that the inspector had failed to ask himself. Upon his findings, the only answer he could have given was that there had not been a user as of right.
John Hobson (instructed by Dibb Lupton Alsop, of Birmingham) appeared for the applicant; Alice Robinson (instructed by the Treasury Solicitor) appeared for the respondent.
Sarah Addenbrooke, barrister
