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 ‘as of right’ because a revocable deed by the landowner’s predecessor under section 193 of the Law of Property Act 1925 rendered the use as by way of licence. There was no need for evidence of communication to users of the way of an intention not to dedicate or for evidence of continuity of such intention throughout the 20-year period: ‘The authorities cited by Mr Laurence, Ex parte Blake  JPL 101, Ex parte Cowell  JPL 851, Ward’s case, 70 P and CR 585 and O’Keefe’s case do no more than establish the proposition that evidence of the landowner’s intention must be overt and contemporaneous. Thus, it will not avail the landowner to assert after the event that he had no intention to dedicate, but he is not required to publicise his intention to users of the way.
The only dicta to the contrary are those of Denning LJ in Fairey . . Mr Laurence accepts that they were obiter. In so far as they equate the evidence necessary to satisfy the proviso with the evidence necessary to bring home to the public that their right to use the way is being called into question, they go too far . .
Implicit in Mr Laurence’s submissions is the existence of a very fine line between acts that are sufficiently ‘open and notorious’ to be capable of bringing the landowner’s intention not to dedicate to the attention of the public, and those which are not so open and notorious that they succeed in bringing the use of the way into question. His approach seems to me to leave little if any scope for the operation of the proviso. The landowner must not keep his intention locked in his own mind, but whether his acts are fairly described as overt or covert must be a question of fact for the inspector.
I do not accept Mr Laurence’s submission that for the proviso to operate at all there must be evidence that there was no intention to dedicate for the whole of the 20-year period. Whilst ‘that period’ is a reference back to the 20-year period, ‘during that period’ is not to be equated with ‘throughout that period’. Thus, if there is sufficient evidence that for say five or ten years during the 20-years’ period a landowner who objected to riders or walkers across his land had no intention to dedicate, that would defeat a claim of dedication under section 31(1). I consider that such an approach is consistent with that adopted by Balcombe LJ in Ex parte Cowell . . in respect of the effect of a section 31(3) notice which is not maintained throughout the whole of the relevant period. It is effective for the period during which it is maintained. If the evidence shows that there was no intention to dedicate for only a very short period during the 20 year period questions of de minimis may well arise. They would have to be resolved on the facts by the inspector hearing the evidence.’
Times 04-Mar-1998,  EWHC Admin 189,  QB 374,  3 WLR 1240
England and Wales
Criticised – 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 – Besley v John CA 29-Oct-2003
The defendant farmed land adjacent to land over which he had registered rights of common allowing him to graze sheep. The freeholders brought the action saying that the use was in excess of the rights. He counter-claimed that the extension of a golf . .
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 – 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.
Updated: 27 May 2022; Ref: scu.138310