Public right of way – Presumption of dedication by reason of 20 years’ use – Section 31(1) of Highways Act 1980 – Rebuttal of presumption by evidence of intention not to dedicate – Evidence given at inquiry by former landowner – Judge finding inspector erring in rejecting evidence as not being contemporaneous – Appeal dismissed
The respondents’ house, which was to close to a river and formed part of a development that had been built between 1999 and 2000. In 2002, the local authority made a footpath modification order confirming the existence of a public right of way along the river bank that ran across the respondents’ land. The basis for the order was the presumption of dedication as a highway, arising pursuant to section 31(1) of the Highways Act 1980 where the public had used a way as of right and without interruption for a period of 20 years, if there was sufficient evidence of a lack an intention to dedicate. The appellant secretary of state confirmed the order following a public inquiry. The inspector found that: (i) there had been the necessary 20 years’ use; and (ii) the presumption of dedication was not displaced by the evidence of the previous owner of the land, W, that he had consistently reproved walkers who crossed his land and asked them to leave. The inspector rejected that evidence on the grounds that W’s attitude was clearly articulated only in his sworn statements before the inquiry. He contended that the statements could not of themselves be considered as expressions of an intention not to dedicate the way because they were not contemporaneous.
That decision was overturned on an application brought by the respondents under para 12 of Schedule 15 to the Wildlife and Countryside Act 1981. The judge held that the inspector had erred in law in disregarding W’s evidence, which could, as a matter of law, be regarded as an expression of an intention not to dedicate. He held that such evidence, although unlikely to be sufficient on its own, would, if accepted as being true, needed little in the way of further evidence to support it. He concluded that the inspector did have such evidence him and that the matter should accordingly be remitted for reconsideration. The secretary of state appealed.
Held: The appeal was dismissed.
In assessing a landowner’s evidence, it was necessary to distinguish between a bare assertion that it had no intention to dedicate, without any evidence of overt actions demonstrating that attitude, and cases where the landowner did give evidence of overt actions, such as barring the public, even though there was no independent evidence of those acts and the landowner’s evidence was given some time after the relevant period. Since W’s evidence fell into the latter category, the inspector had not been entitled to dismiss it merely because it was not contemporaneous. He should instead have made findings of fact as to whether he believed that evidence. Since he had rejected it for a mistaken reason, the judge had correctly ordered that the matter should be remitted for reconsideration: R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWCA Civ 1597; [2006] 2 WLR 1179 applied.
Timothy Mould QC (instructed by the legal department of Defra) appeared for the appellant; John Hobson QC and Andrew Fraser-Urqhuart (instructed by Nelsons Solicitors, of Nottingham) appeared for the respondent.
Sally Dobson, barrister