R v Secretary of State for the Environment,ex parte Billson

Common – Footpaths – Landowner erecting barriers – Applicant seeking to modify definitive map – County council accepting modification – Landowner objecting – Public inquiry – Respondent refusing to confirm modification – Applicant seeking judicial review – Whether user as of right – Whether deed conferring rights to air and exercise evidence of intention not to dedicate – Application refused Ranmore Common, a wooded area to the north of Dorking, Surrey, was traversed by a number of public footpaths and bridleways shown on the definitive map and statement, “the map”. By a deed dated January 12 1929, the landowner of the common voluntarily applied section 193 of the Law of Property Act 1925 conferring on the public “rights of access for air and exercise”. In March 1990 the landowner put up barriers against that use. The applicant, B, who considered that the tracks were public rights of way, applied to the county council for an order under section 53(2) of the Wildlife and Countryside Act 1981 to modify the map to show the bridleways. On December 1 1993 the council declined to make that order. Following B’s appeal under Schedule 14, para 4, to the 1981 Act, the respondent, the Secretary of State for the Environment, directed the council to make the order. The landowner objected to the order and the respondent held an inquiry. Following his inspector’s report, which concluded that the requirements of section 31(1) of the 1981 Act were not satisfied as there was sufficient evidence that the landowner had no intention to dedicate during the 20-year period, the respondent refused to confirm the order. The 1981 Act provided for an appeal from a decision to confirm, but not from a decision to refuse confirmation. B therefore applied for judicial review of the respondent’s decision. There was no dispute that the applicant had established the requisite 20 years’ use of the ways as of right and without interruption, but B contended, inter alia, that the landowner had not satisfied the proviso to section 31(1) by adducing “sufficient evidence that there was no intention during (the requisite period) to dedicate”. Furthermore, B submitted that public had no knowledge of the existence of the 1929 deed, which had not been made known and which was not by itself capable of constituting evidence of an intention not to dedicate. Held The application was dismissed. 1. In order to establish the creation of a right of way, either public or private, it was necessary to establish that use of the way was in fact enjoyed without force, secrecy or permission. It was normally sufficient for those claiming the existence of a public right of way to establish that they had enjoyed it for the requisite period in the belief that they were doing so as of right. It was not necessary to prove in every case that they were using the way without permission if that issue was not raised. But if the landowner established that he knew that the use was in fact with permission, that would defeat the claim that the use was “as of right”: see Jones v Bates [1938] 2 All ER 237; R v Secretary of State for the Environment, ex parte Cowell [1993] JPL 851. 2. It followed that the users of the tracks on Ranmore Common were doing what they were permitted to do under section 193 of the 1925 Act by virtue of the deed, and no more. Their enjoyment of the ways was by licence, not as of right, even though they genuinely believed that it was as of right. George Laurence QC and Louise Davies (instructed by Brooke North,of Leeds) appeared for the applicant; John Hobson (instructed by the Treasury Solicitor) appeared for Secretary of State; Christopher Cochrane QC and Richard Rundell (instructed by Downs, of Dorking) appeared for the landowner.