The landowner denied that a public right of way had been created over his land. Under the 1932 Act, 20 years user expiring at any time, even before the Act came into force, was capable of giving rise to a deemed dedication of a public highway under it and a period of user ending in 1931 could be relied on when the status of the way had to be decided in 1954. User by local inhabitants for this purpose constitutes user by the public. Certain words in section 1(6) of the Act of 1932 have been taken from the similar words of section 4 of the Act of 1832.
Denning LJ said: ‘I think that in order for the right of the public to have been ‘brought into question’, the landowner must challenge it by some means sufficient to bring it home to the public that he is challenging their right to use the way, so that they may be apprised of the challenge and have a reasonable opportunity of meeting it. The landowner can challenge their right, for instance, by putting a barrier across the path or putting up a notice forbidding the public to use the path. When he does so, the public may meet the challenge. Some village Hampden may push down the barrier or tear down the notice: the local council may bring an action in the name of the Attorney-General against the landowner in the courts claiming that there is a public right of way: or no one may do anything, in which case the acquiescence of the public tends to show that they have no right of way.
But whatever the public do, whether they oppose the landowner’s action or not, their right is ‘brought into question’ as soon as the landowner puts up a notice or in some other way makes it clear to the public that he is challenging their right to use the way.
Applying this test, I ask myself: when did the landowner here make it clear to the public that he was challenging their right to use the way? Quarter sessions held that he did so in 1931, when he objected to the use of the path by persons who were not local residents. We do not know what evidence was before them on that point. If the landowner merely turned back one stranger on an isolated occasion, that would not, I think, be sufficient to make it clear to ‘the public’ that they had no right to use it. He ought at least to make it clear to the villagers of Bossington, Houghton and Horsebridge. They were the members of the public most concerned to assert the right, because they were the persons who used the path. They knew – better than the landowner himself – how long they had used it. They were the persons to tell. It was no good the landowner speaking to a stranger who would know nothing of the public right and would not be concerned to assert it . . I think we ought to assume that quarter sessions had sufficient evidence before them to support their finding. We ought to assume that in 1931 when the landowner turned back strangers, he did it in so open and notorious a fashion that it was made clear, not only to strangers, that they had no right to use the path, but also to local residents, that they only used it by tolerance of the owner.’
Lord Denning discussed what had to be shown to evidence no intention to dedicate land as a public right of way: ‘In this connection I would also mention the finding of quarter sessions that in and from 1931 the landowner, by turning off strangers, showed an intention not to dedicate the path as a highway for the use of members of the public at large. This raises the same point. In my opinion a landowner cannot escape the effect of 20 years’ prescription by saying that, locked in his own mind, he had no intention to dedicate. In order for there to be ‘sufficient evidence that there was no intention’ to dedicate the way, there must be evidence of some overt acts on the part of the landowner such as to show the public at large – the public who used the path, in this case the villagers – that he had no intention to dedicate. He must, in Lord Blackburn’s words, take steps to disabuse those persons of any belief that there was a public right: see Mann v Brodie (1885) 10 App Cas 378, 386. Such evidence may consist, as in the leading case of Poole v Huskinson (1843) 11 M and W 827, of notices or a barrier: or the common method of closing the way one day a year. That was not done here; but we must assume that the landowner turned off strangers in so open and notorious a fashion that it was clear to everyone that he was asserting that the public had no right to use it. On that footing there was sufficient evidence to show that there was no intention to dedicate.’
and: ‘In my opinion a landowner cannot escape the effect of 20 years’ prescription by saying that, locked in his own mind, he had no intention to dedicate; or by telling a stranger to the locality (who had no reason to dispute it) that he had no intention to dedicate. In order for there to be ‘sufficient evidence that there was no intention’ to dedicate the way, there must be evidence of some overt acts on the part of the landowner such as to show the public at large — the public who used the path, in this case the villagers — that he had no intention to dedicate. He must, in Lord Blackburn’s words, take steps to disabuse those persons of any belief that there was a public right: see Mann v Brodie. Such evidence may consist, as in the leading case of Poole v Huskinson, of notices or a barrier; or the common method of closing the way one day a year. That was not done here; but we must assume that the landowner turned off strangers in so open and notorious a fashion that it was clear to everyone that he was asserting that the public had no right to use it. On this footing there was sufficient evidence to show that there was no intention to dedicate.’
Lord Goddard CJ, Denning LJ, Birkett LJ
[1956] 2 QB 439, [1956] 2 All ER 843
Rights of Way Act 1932
England and Wales
Cited by:
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Cited – Godmanchester Town Council, Regina (on the Application Of) v Secretary of State for the Environment Food and Rural Affairs CA 19-Dec-2005
The court considered whether a pathway had become a public highway.
Held: ‘The main question for the Court is whether sufficiency of evidence of an intention not to dedicate necessary to satisfy the proviso requires, as a matter of law, that . .
Cited – Secretary of State for the Environment v Beresford Trustees CA 31-Jul-1996
Hobhouse LJ, adopted at least part of Denning LJ’s approach in Fairey, holding that the absence of intention to dedicate had to be ‘objectively established by overt acts of the landowner’, and that ‘This is not a subjective test. The absence of . .
Confirmed – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Cited – Regina v Secretary of State for the Environment, ex parte Cowell CA 1993
The question of sufficiency of evidence for the purpose of the proviso in the subsection is a question of fact for the tribunal to determine in each case. The court rejected a broad submission from the appellant that the 1980 Act and its predecessor . .
Criticised – Regina v Secretary of State for Environment ex parte Billson Admn 16-Feb-1998
A deed granting access to a common in accordance with the section included access by horseback as well as by foot. The court upheld the Inspector’s decision that the 20-year user of the land relied upon by the applicant for the modification was not . .
Approved – Regina v Secretary of State for Environment, Transport and Regions ex parte Dorset County Council Admn 22-Jun-1999
The court was asked to review a decision not to confirm a public right of way. The court considered whether the landowner had to show some overt act as evidence of his lack of intention to dedicate the land. Dyson J said: ‘On the face of it, the . .
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Cited – Regina v Nicholson and Another, Secretary of State for Environment and others Admn 20-Dec-1996
N objected to the reclassification of a public footpath over his farm as a byway open to all traffic, saying that there had been insufficient evidence to establish a dedication at common law.
Held: N’s appeal failed. ‘A track can become a . .
Lists of cited by and citing cases may be incomplete.
Land
Leading Case
Updated: 02 November 2021; Ref: scu.192181