Way over land used by public for over 20 years — Presumption of dedication as highway — Council claim of uninterrupted use — Whether evidence of interrupted use — Whether evidence of intention to defeat presumption of dedication — County court holding that there was evidence of interrupted use and intention to defeat presumption — High Court reversing that decision — Judgment for council
The plaintiffs were the freehold owners of a bungalow which stood to the south of the Leadgate-Ebchester Road, Consett, County Durham. To the west of their property was a back lane. On the other side of the back lane to the plaintiffs’ property was a public house, together with its car park. To the south of the plaintiffs’ bungalow and extending to the back lane was an oblong area of land which the plaintiffs claimed was theirs. In 1987 the plaintiffs objected to the public house erecting a sign inviting customers to enter the pub car park via the back road and put some pins and chains across as a barrier. They later erected a gate stretching over the whole of the road. The council objected claiming that, although the back road was not maintainable at the public expense, it had been open to the public for over 20 years so that the presumption of dedication as a highway arose.
Under section 31 of the Highways Act 1980, where a way over land had been used as of right and without interruption for a full 20 years, that way was deemed to have been dedicated as a highway unless there was sufficient evidence that there was no intention during that period to dedicate it. Under section 31(2) the period of 20 years was to be calculated retrospectively from the date when the right of the public to use the way was brought into question. The council subsequently removed the gate itself but the plaintiffs brought an action in the county court which held that on the evidence the oblong piece of land belonged to the plaintiffs and was not a highway. Further it was not subject to a public right of way. The council appealed.
Held The appeal was allowed.
1. There was no evidence of interruption of use of the back road by the public during the relevant period. Although lorries had been parked on the oblong strip of land for long periods, they did not prevent other cars passing altogether.
2. However, under section 31 even where there had been uninterrupted use of the highway there would be no deemed dedication if there was no intention to dedicate. The burden of proof was on the landowner, since proof of 20 years’ uninterrupted use gave rise to the presumption of dedication unless evidence was forthcoming.
3. It was important to keep in mind that there was no interference with user in the absence of overt acts. The court would be slow to find a landowner’s unexpressed intention not to dedicate: that was insufficient for the purpose of section 31.
4. In the present case there was evidence of significant actual user for many years and the plaintiffs had failed to establish or put before the court sufficient evidence of no intention to dedicate. The judge had fallen into error and the council had made out their case under section 31.
Bruce McIntyre (instructed by the solicitor to Durham County Council) appeared for the council; John Winch (instructed by Snowball Tucker & Bibby of Consett) appeared for Mr and Mrs Ward.
