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 land as a public right of way.
Held: Lord Denning’s speech in Fairey was correct, and the land owner, in order to estabish that a plot of land had not been dedicated as a public right of way, had to demonstrate some overt, objective act which demonstrated that that had not been his intention. Lord Hoffmann said: ‘upon the true construction of section 31(1), ‘intention’ means what the relevant audience, namely the users of the way, would reasonably have understood the landowner’s intention to be. The test is, as Hobhouse LJ said, objective: not what the owner subjectively intended nor what particular users of the way subjectively assumed, but whether a reasonable user would have understood that the owner was intending, as Lord Blackburn put it in Mann v Brodie (1885) 10 App Cas 378, 386, to ‘disabuse [him]’ of the notion that the way was a public highway.’
Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury
[2007] UKHL 28, Times 22-Jun-2007, [2007] 3 EGLR 119, [2007] NPC 74, [2007] 26 EG 163, [2007] 4 All ER 273, [2007] JPL 1691, [2007] 3 WLR 85, [2008] 1 P and CR 12, [2008] 1 AC 221
Bailii
Highways Act 1980 31(1)
England and Wales
Citing:
Appeal from – 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 – Powell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘In the absence of evidence to the . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Trustees of the British Museum v Finnis 1833
The jury were to be asked to find whether land had been dedicated as a public right of way. Patteson J directed them that: ‘If a man opens his land, so that the public pass over it continually, the public, after a user of very few years, would be . .
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 – Poole v Huskinson 1843
A jury asked to uphold a public right of way has to find as a fact that there has been an act of dedication accompanied by the necessary animus dedicandi on the part of the landowner. . .
Criticised – 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 – Regina v Broke 1859
The defendant faced an accusation of having blocked a public right of way. The defendant landowner claimed to have instructed his servants to allow only seafaring men and pilots to use the path and to turn back anyone else, and that this proved that . .
Confirmed – 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 – Bryant v Foot 1867
It is to be presumed from a period of 20 years’ user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. The apparent right should lie in . .
Cited – Jones v Bates CA 1938
The court considered whether there had been an act by the landowner sufficient to amount to a dedication a path as a public right of way. Scott LJ said that actual dedication was ‘often a pure legal fiction [which] put on the affirmant of the public . .
Cited – Folkestone Corporation v Brockman HL 1914
A public right of way was claimed. It was argued that, in the absence of evidence of facts inconsistent with a dedication of the pathway, the jury were obliged to make such a finding.
Held: The House rejected this submission. User was no more . .
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 – 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 – 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 – 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 – Merstham Manor Ltd v Coulsdon and Purley UDC 1937
Where a public right of way is claimed, an interruption of the user at some point during the relevant twenty year period, such as the landowner locking a gate and preventing access, will defeat an argument based on user ‘as of right’ under section . .
Cited – Lewis v Thomas CA 1950
The landowner had resisted the inference of a grant of a public right of way over his land by closing it off on one day each year.
Held: Whether this was sufficient would depend upon the facts of each case. . .
Cited – Merstham Manor Ltd v Coulsdon and Purley UDC 1937
Where a public right of way is claimed, an interruption of the user at some point during the relevant twenty year period, such as the landowner locking a gate and preventing access, will defeat an argument based on user ‘as of right’ under section . .
Cited by:
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Lists of cited by and citing cases may be incomplete.
Land
Leading Case
Updated: 01 November 2021; Ref: scu.253516
