The claimant sought to be allowed to make an opening from his rear garden to a roadway to allow him vehicular access, provided he could cross the strip of land between his house and the road. The strip belonged to the defendants. The claimant said it was part of the public highway. When the remaining roadways had been adopted, this section, a cul-de-sac had not been included. Though made up privately, signs had remained declaring it private land.
Held: the defendant’s appeal was allowed. The judge had not followed the central question of identifying just when and how the cul de sac was supposed to have become a public highway.
Lloyd LJ said: ‘It is for a party who asserts that a highway exists to prove its existence and extent. Land can become a highway either by statutory processes (irrelevant to this case) or by dedication by the landowner and acceptance by the public. Dedication and acceptance can be express or implied. To find implied dedication there must be evidence from which an intention to dedicate can reasonably be inferred. Acceptance of dedication by or on behalf of the public can be established by use, or in appropriate circumstances by other evidence, but must be shown by or inferred from probative evidence. If a landowner is taken to have fenced against a highway, there is a rebuttable presumption that the land between the fence and the made up or metalled surface of the highway has been dedicated to public use as a highway and accepted by the public as such.’ The road had been widened by the private frontagers and there was no significant public useage.
Judges:
Laws, Lloyd, Sullivan LJJ
Citations:
[2010] EWCA Civ 112
Links:
Jurisdiction:
England and Wales
Land
Updated: 14 August 2022; Ref: scu.401794