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 during the relevant 20 year period the landowner should not only prove that negative intention, but also acts communicating it or likely to bring it to the attention of users of the way. There is also a sub-issue – though in practical terms of little importance – namely whether, if evidence of communication of that negative intention to users of the way is not necessary to satisfy the proviso, it is at least necessary to prove it by overt and contemporaneous acts during the relevant period. ‘ and ‘The statutory scheme . . . creates a delicate balance between, . . . the interest of the public in having access to what have become highways as a result of their nature and length of use of them . . . And . . . the interest of landowners in retaining control over their own land. In order to establish the rebuttable presumption, a claimant must show 20 years of use, not only ‘as of right’ in the sense which, since Sunningwell, does not depend upon what the users of the way believe to be the case. He must also show that it has been ‘without interruption’, for example, without interference from the landowner by overt, in the sense of identifiable acts preventing or significantly deterring passage . . . mere absence of continuity in actual user does not amount to interruption. Only if a claimant establishes those matters does the rebuttable presumption of dedication arise and then, a need to consider the proviso. Sunningwell does not help on the proviso, save, possibly in favour of the landowner, on the balance underlying the presumption and the counter-balance provided by it.’ The new legislation enabled landowners to turn to rebut the presumption with simply a sufficiency of evidence of an intention that there had been no intention to dedicate it during the material 20 year period.
In my view, the proviso in favour of the landowner has been carefully drawn and in the sparest of terms – ‘sufficient evidence’ of ‘no intention . . to dedicate’ – to provide, as near as can be provided, an equilibrium between the interest of landowners and that of the public in respect of claimed rights of way. It was not intended, as I believe, to make it easier for the public to establish a way as a highway when confronted with a landowner’s contrary intention. ‘
Judges:
Lord Justice Auld Mr Justice Bennett Lady Justice Arden
Citations:
Times 27-Dec-2005, [2005] EWCA Civ 1597, [2006] QB 727, [2006] 2 WLR 1179
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Fairey v Southampton City Council CA 1956
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 . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – 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 . .
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 . .
Cited – 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 – Jacques v Secretary of State for the Environment CA 1995
The Inspector had found that the landowner had, by overt acts directed at users of the way in question, including the erection of locked gates and of fencing and of notices, disproved any intention on his part to dedicate.
Held: The . .
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 . .
Cited by:
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 13 November 2022; Ref: scu.236547
