Public footpath — Modification of definitive map and statement — Refusal to confirm order — Presumption of dedication as highway by landowner — Evidence sufficient to rebut presumption — Appeal dismissed
In each of the joined appeals, the relevant local authority made a modification order by which it added a public footpath to the definitive map and statement for the area, pursuant to section 31 of the Wildlife and Countryside Act 1981, 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. She concluded 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, expressing concern about the use of its land as a footpath despite efforts to prevent trespass, and suggesting that something needed to be done to prevent illegal access. In the second case, the evidence took the form of a clause in an agricultural tenancy requiring the tenant to “warn off and keep off all unauthorised persons from… trespassing over any part of the farm”. The tenancy dated from before the commencement of the 20-year period, but had continued in force for much of it.
The appellants brought unsuccessful judicial review claims against the inspector’s decisions. The issues were whether: (i) the lack of intention to dedicate had to have been communicated to members of the public using the way, or at least indicated by conduct likely to bring such intention to their notice and; (ii) the words “during that period” meant that it was sufficient for a landowner to establish that the intention to dedicate had been absent for part only of the 20-year period, or the landowner had to show that such an intention had been absent throughout the entire period. On the second appeal, there was also a question as to whether the terms of the tenancy constituted evidence from which a lack of intention to dedicate could be inferred.
Held: The appeals were dismissed.
1. There was no statutory threshold as to sufficiency of evidence for the purpose of the proviso to section 31(1). The proviso had been carefully drafted, in the sparest of terms, to balance the interests of landowners and the public in respect of claimed rights of way. It 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. The fact of communication was relevant only as an indicator of the presence of a genuine intention not to dedicate. However, it would be rare in practice for evidence to be regarded as sufficient without some proof. The sufficiency of the evidence would depend upon the circumstances: the greater the knowledge possessed by the landowner, the more it might be expected to protest, whereas if the way had been little used or the landowner had had little knowledge of that use, a “private” overt act, not communicated to or likely to come to the attention of users, would suffice: R v Secretary of State for Environment, Transport and the Regions, ex parte Dorset County Council [2000] JPL 396; [1997] PLSCS 160 and Ward v Durham County Council (1994) 70 P&CR 585; [1994] EGCS 39 considered.
2. A landowner could satisfy the proviso if it could show, even by a single act, a lack of intention to dedicate during any part of the 20-years period of user. The words “during that period” should not be considered in isolation. Read in context, they did not require continuity of an intention not to dedicate throughout the entire relevant 20-year period. There was no reason why a claim based upon 20 years’ uninterrupted use should not be capable of rebuttal by a clear indication by the landowner, on one or more occasions during that period, that it did not intend to dedicate. In that respect, there was symmetry and overlap with the notion of interruption of use and the intention not to dedicate: Dorset County Council and R v Secretary of State for the Environment, ex parte Billson [1999] QB 374; [1998] PLSCS 45 applied.
2. With regard to the agricultural tenancy in the second appeal, it was a matter for the inspector whether she regarded the contractual position as being sufficient evidence of a continuing intention not to dedicate extending into the 20-year period, and her conclusion that it was had not been unreasonable.
George Lawrence QC and Ross Crail (instructed by Zermansky & Co, of Leeds) appeared for the appellants; Timothy Mould (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
