Hale v Norfolk County Council
Appellant owning property – Garden of property fronting onto roadway – Whether part of garden dedicated for use as highway – “Hedge to hedge” presumption – Judge concluding that land forming part of highway – Appeal dismissed
The appellant was the owner of a property, consisting of a dwelling-house and garden, known as Hviskende Traer, Tivetshall Street, Margaret, Norfolk. The property fronted onto a roadway called Green Lane, in respect of which the respondent council were the local highway authority. In April 1992 the appellant erected several low posts and a chain along the edge of her garden where it met the roadway. The council objected and served a notice under section 143 of the Highways Act 1980, requiring the removal of the posts and chain. The council claimed that a certain part of the appellant’s garden (the land) fronting Green Lane had been dedicated for use as part of the highway. The council’s claim to highway rights over the land was founded upon an alleged act of dedication by the appellant’s predecessor in title, W, at or about the time that he built the dwelling-house in 1968.
The appellant refused to comply with the notice and the council arranged for the chain and posts to be removed. Subsequently, the appellant issued proceedings, claiming a declaration that the land did not form part of the highway and seeking an order requiring the council to replace the posts and chain. The judge held that the effect of the county council byelaws made in July 1933, in conjunction with the Public Health Act 1925, was that, on or before the date when W commenced building the dwelling-house, and without any further act by W, such part of the property as lay within 36ft of the far boundary of the highway became annexed to, and part of, the highway. Accordingly, the judge dismissed the claim and declared that the land formed part of the public highway. The appellant appealed.
Appellant owning property – Garden of property fronting onto roadway – Whether part of garden dedicated for use as highway – “Hedge to hedge” presumption – Judge concluding that land forming part of highway – Appeal dismissed The appellant was the owner of a property, consisting of a dwelling-house and garden, known as Hviskende Traer, Tivetshall Street, Margaret, Norfolk. The property fronted onto a roadway called Green Lane, in respect of which the respondent council were the local highway authority. In April 1992 the appellant erected several low posts and a chain along the edge of her garden where it met the roadway. The council objected and served a notice under section 143 of the Highways Act 1980, requiring the removal of the posts and chain. The council claimed that a certain part of the appellant’s garden (the land) fronting Green Lane had been dedicated for use as part of the highway. The council’s claim to highway rights over the land was founded upon an alleged act of dedication by the appellant’s predecessor in title, W, at or about the time that he built the dwelling-house in 1968.
The appellant refused to comply with the notice and the council arranged for the chain and posts to be removed. Subsequently, the appellant issued proceedings, claiming a declaration that the land did not form part of the highway and seeking an order requiring the council to replace the posts and chain. The judge held that the effect of the county council byelaws made in July 1933, in conjunction with the Public Health Act 1925, was that, on or before the date when W commenced building the dwelling-house, and without any further act by W, such part of the property as lay within 36ft of the far boundary of the highway became annexed to, and part of, the highway. Accordingly, the judge dismissed the claim and declared that the land formed part of the public highway. The appellant appealed.
Held: The appeal was allowed.
1. There was nothing in section 30(4) of the 1925 Act to suggested that it could be presumed that a person had subjected his land to public rights of way merely because he was building upon land abutting or adjoining an existing highway and was deemed to be laying out a “new street”. Nor could that result be derived from the 1933 byelaws. Accordingly, the judge had erred in holding that the effect of the byelaws and section 30(4) of the Act was that such part of the property as lay within 36ft of the far boundary of the highway had become annexed to, and part of, the highway on or before the date when W had built the dwelling-house.
2. Where a landowner erected a fence between his private land and land over which the public exercised a right of way, the first question was whether he had intended the fence to separate private land from the public land. If he had done so, then, unless rebutted, the “hedge-to-hedge” presumption applied (the supposition that the land between the fence and the surface of the highway had been dedicated to public use as a highway). However, there was no foundation for a presumption of law that where a fence or hedge separated private land from a public highway, it must be taken to have been erected for that purpose. That was a question of fact in each case. In the instant case, there was no basis for such a conclusion, since it was unlikely that W would have wanted to give up more of his garden than was required. Accordingly, the council had not been entitled to take action under section 143 of the Act: Neeld v Hendon Urban District Council (1899) 81 LT 405 and A-G v Beynon [1970] Ch 1 considered.
Nicholas Caddick (instructed by the Bar Pro Bono Unit) appeared for the appellant; Graham Sinclair (instructed by the solicitor to Norfolk County Council) appeared for the respondents.
Thomas Elliott, barrister
