Public footpath – Modification of definitive map and statement – Refusal to confirm modification order – Presumption of dedication as highway by landowner – Evidence sufficient to rebut presumption
In each of the joined appeals, the relevant local authority made a modification order by which they added a public footpath to the definitive map and statement for the area, pursuant to section 31(1) of the Highways Act 1980, on the ground of 20 years’ use by the public as of right. In each case, the respondent’s inspector declined to confirm the order. The inspector found that the presumption under section 31(1), that a way so used was deemed to have been dedicated by the landowner as a highway, had been rebutted because there was “sufficient evidence that there was no intention during that period to dedicate it” within the proviso to section 31(1).
In the first case, the “sufficient evidence” was held to consist of a letter from the landowner to the county planning officer, complaining of pedestrian trespass to areas not designated as public footpaths. In the second case, the evidence took the form of a clause in an agricultural tenancy requiring the tenant to keep out trespassers.
In judicial review proceedings brought by the appellants, issues arose as to: (i) what evidence of the landowner’s intention was needed to rebut the presumption of intention to dedicate; and (ii) whether the intention to dedicate had to have been absent throughout the 20-year period, or whether a lack of intention to dedicate for only a part of that period would suffice. The claims were dismissed at first instance and on appeal. The Court of Appeal held that: (i) the proviso to section 31(1) did not require communication of the landowner’s intention to users of the way in question or proof of overt and contemporaneous acts falling short of such communication; and (ii) a landowner could satisfy the proviso if it could show a lack of intention to dedicate during any part of the 20-year period of user. The appellants appealed.
Held: The appeal was allowed.
(1) On the true construction of section 31(1), “intention” meant what the relevant audience, namely users of the way in question, would reasonably have understood the landowner’s intention to be: Fairey v Southampton County Council[1956] 2 QB 439 and Secretary of State for the Environment v Beresford Trustees [1996] NPC 128 applied; R v Secretary of State for the Environment, Transport and the Regions, ex parte Dorset County Council [2000] JPL 396 and Rv Secretary of State for the Environment, Transport and the Regions, ex parte Billson [1999] QB 374 not followed. Section 31(1) imposed an objective test that did not depend upon what the owner subjectively intended. It did not merely require the tribunal of fact to be satisfied that there was no intention to dedicate; it required “sufficient evidence” that there was no such intention. That contemplated evidence of objective acts, perceptible to the relevant audience, not simply proof of a state of mind. The landowner had to take steps to disabuse the public of the belief that the way had been dedicated to public use. The primary example was the erection and maintenance of a notice within section 31(3), although notices under section 31(3), (5) and (6) were not exhaustive of the ways in which an intention to dedicate could be rebutted.
(2) A landowner’s intention not to dedicate need not be manifested continuously throughout the 20 years. During any period in which there was no intention to dedicate, the effect of enjoyment of the right would be negatived. If that left less than 20 years of unrebutted enjoyment, the claim to a right failed.
(3) The inspector’s decision in each appeal would be quashed and the matter remitted to the secretary of state. In neither case had the matters relied upon by the inspector amounted to sufficient evidence to rebut the intention to dedicate. In the first appeal, the letter to the council would not have come to the attention of users of the path and did not satisfy any of the alternative methods of negativing intention to dedicate in section 31. In the second appeal, the inspector had been wrong in principle to take into account the terms of the tenancy agreement, which would not have been available to the users of the right of way.
George Laurence QC and Ross Crail (instructed by Zermansky & Partners, of Leeds) appeared for the appellants; Timothy Mould QC and David Blundell (instructed by the Treasury Solicitor) appeared for the respondent; Edwin Simpson (instructed by Blandy & Blandy, of Reading) appeared for Yattendon Estates, the landowner and interested party in the second appeal.
Sally Dobson, barrister
