Public footpath – Modification of definitive map and statement – Long user – Claimant landowner applying to quash modification order – Inspector finding insufficient evidence to rebut presumption of public right of way long user — Whether inspector erring in concluding that public right of way properly established – Application dismissed
A local resident (J) sought to maintain the existence of a public right of way over land near Henley-on-Thames, part of which was owned by the claimant. J approached the county council (the first interested party) to request that the definitive map for the area should be modified to identify a public right of way over the footpath, relying on section 53(3)(c)(i) of the Wildlife and Countryside Act 1981. J claimed that he had identified maps and documents that showed a previous effective dedication of a public right of way. Further, such a right was to be presumed by reference to the statutory provisions concerning long user of ways over land set out in section 31 of the Highways Act 1980.
The first interested party declined to make the modification sought, J successfully appealed to the defendant under Schedule 14 to the 1981 Act. The first interested party made the order to modify the definitive map, as requested. The defendant’s inspector identified two possible reaons for finding that a public right of way subsisted, namely whether: (i) the provisions in section 31 of the 1980 Act regarding a presumption of the grant of a public right of way based on long user were satisfied; and (ii) an inference could be drawn by reference to common law principles and evidence of historic maps and documents and user that a grant of a public right of way over the footpath had existed in the past. The inspector rejected the second argument but accepted the claim made by reference to long user under section 31.
The claimant applied to quash the modification order under para 12 of Schedule 15 to the 1981 Act. He argued that no public right of way had been properly established and sought to maintain his rights as a private landowner in respect of the footpath. He accepted that certain nearby residents had rights of way by reason of private easements, but rejected the existence of a public right of way over the footpath.
Held: The application was dismissed.
In order for section 31(1) of the 1980 Act to displace the presumption of a public right of way arising from long user, sufficient objective indications of an appropriate kind have to have been given at some stage in the relevant 20-year period to show the relevant public audience that the landowner had no intention of dedicating the land as a public right of way: R (on the application of Godmanchester Town Council) v Secretary of State for Environment, Food and Rural Affairs [2007] UKHL 28; [2007] 3 EFLR 119 applied.
It would be necessary to show, in the course of the relevant 20 year period, evidence in the form of the erection and maintenance of signs under section 31(3) or the locking of gates once a year. A notice under section 31(5) would constitute sufficient evidence of the requisite intention provided that it was served with in the relevant period. A section 31(5) notice offered a second-best mechanism of providing sufficient evidence of an intention not to dedicate a way to the public and became available if the primary mechanism of erecting signs was defeated by the signs being torn down or defaced.
It was difficult to reconcile an interpretation of section 31(5), which gave it an extended temporal effect, with section 31(6). Section 31(6) also provided a mechanism for a landowner to protect itself by giving notice to the appropriate council. The landowner would have to send the council a map on which was marked the highways on its land and a declaration of an absence of intention to dedicate highways other than those shown. That protection was expressly stated to operate for a period of 10 years. The provision reinforced the impression that the act affording sufficient evidence referred to in section 31(5) was to be taken as operating at the time it was carried out (that is, when the notice was sent) and not as having continuing temporal effect. Where an act of notification of an appropriate council was to have an extended temporal effect, the 1980 Act made express provision for that as in section 31(6).
In the instant case, the assessment of user made by the inspector was reasonably open to him on the evidence. The assessment of and the weight to be attached to each item of evidence was a matter for the inspector; he had made a careful assessment of the evidence and there was nothing irrational or otherwise unlawful in the conclusions that he reached. Furthermore, he was entitled to conclude that the landowner had sufficient notice of the use of the footpath as a public right of way to alert them to the need to take action if they wanted to challenge it: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 considered.
The existence of extensive private rights of way clearly posed a problem for a landowner hat wanted to make it clear to the relevant audience that a public right of way did not exist, and the inspector had had that in mind. However, that did not remove the requirements that effective notice of a challenge to a public right of way should be given to the relevant audience. It would not be sufficient to turn back a stranger on an isolated occasion. The inspector was entitled on the evidence to conclude that that was what had happened in the instant case. The evidence did not indicate sufficient notice had been given and there was no proper reason for dispensing with that basic requirement.
Edwin Simpson (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the claimant; Lisa Busch (instructed by the legal department of the Department of Environment, Food and Rural Affairs) appeared for the defendant; the first interested party did not appear and was not represented; Clare Parry (instructed by the Zermansky & Partners, of Leeds) appeared for the second interested party.
Eileen O’Grady, barrister
