Council making definitive map modification order – Order adding bridleway to map – Inspector concluding presumed dedication of the way – National Assembly for Wales confirming order – Claimant objecting – Whether inspector erred – Section 31 of Highways Act 1980 – Claim dismissed
The claimant developer owned land that had been developed largely for housing. Under section 53(3)(b) of the Wildlife and Countryside Act 1981 (the order), the first defendants (the council) made a definitive map modification order that had added a bridleway to the definitive map. The second defendant (the National Assembly) appointed an inspector to confirm or reject the order, and a local inquiry was subsequently held at which the claimant was the sole statutory objector. Pursuant to section 31 of the Highways Act 1980, the order was based upon a presumed dedication and provided:
“(1) where a way over any land… has actually been enjoyed by the public as of right and without interruption for a full period of 20 years, the way is 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… is to be calculated retrospectively from the date when the right of the public to use the way is brought into question.”
The inspector decided that the way was brought into question in late May 1996. He concluded that: the part of the route shown as AB was used by the public at the beginning of the 20-year period; the route was used without interruption for the full 20-year period; and there was no evidence of an intention not to dedicate during that period. The National Assembly accordingly confirmed the council’s modification order. The claimant sought to challenge that decision, contending, inter alia, that its long-running building works were an interruption to any public use of the way.
Held: The claim was dismissed.
1. The inspector was entitled both to accept the evidence he did and to conclude that section AB was in use in 1976. To constitute an interruption for the purposes of section 31(1) of the Highways Act, there had to be an actual physical interruption preventing enjoyment of the way, as opposed to acts that challenged, but did not prohibit, the user: see Merstham Manor Ltd v Coulsdon and Purley Urban District Council [1937] 2 KB 77. A mere absence of continuity in the de facto use would not interfere with the enjoyment of a right of passage: see Jones v Bates [1938] 2 All ER 237.
2. Interruption meant interruption of fact, although the circumstances within which the barring of the way took place, and the intention underlying it, were relevant. On the evidence before him, the inspector was justified in concluding that no interruption of the kind envisaged by section 31 existed. Nor was there any evidence upon which the inspector could properly have found an intention not to dedicate.
Milwyn Jarman (instructed by T Llewellyn Jones, of Neath) appeared for the claimant; Louise Davies (instructed by the solicitor to the City and County of Swansea) appeared for the first defendants; Graham Walters (instructed by the National Assembly) appeared for the second defendant.
Sarah Addenbrooke, barrister
