R (on the application of Godmanchester Town Council and Drain) v Secretary of State for Environment, Food and Rural Affairs


Reference:
[2008] AC 221

Date:
20th June 2007

Court:
House of Lords

Comment:

These consolidated appeals concerned the interpretation and application of section 31 of the Highways Act 1980, which provides for dedication of a highway to be deemed to have occurred following a 20-year period of public use satisfying certain conditions, subject to the closing words of section 31(1) “unless there is sufficient evidence that there was no intention during that period to dedicate it” (known as “the proviso”).

The appellants had applied by way of judicial review claims for the quashing of two decisions by an inspector appointed by the respondent under schedule 15 to the Wildlife and Countryside Act 1981. In each case, the inspector had refused to confirm an order made on the appellant’s application under section 53 of that Act to modify the definitive map and statement of public rights of way by adding a footpath. The basis of both refusals was that there had been sufficient public user of the requisite quality and duration, but the proviso to section 31(1) had been satisfied. The piece of evidence held to suffice for that purpose in Godmanchester Town Council’s case was a letter written by the landowner’s land agents to the local planning authority referring to concerns about pedestrian trespass on the claimed footpath. In Dr Drain’s case, the evidence consisted of a clause in an agricultural tenancy agreement affecting the land crossed by the claimed footpath which required the tenant to “warn and keep off all unauthorised persons from trespassing and not to allow any footpaths to be created.”

The principal ground of challenge to the decisions was that the letter and tenancy agreement were private documents, of which users of the respective paths had no knowledge. The appellants contended that on its proper construction, the proviso could only be satisfied by evidence of acts by the landowner evincing no intention to dedicate which came to the attention of users. They appealed to the House of Lords following the rejection of that contention by the Divisional Court and the Court of Appeal and the dismissal of their judicial review claims.


Held:

Allowing the appeal, that on the proper construction of the provision to section 31 (1) for there to be “sufficient evidence that there was no intention during that period to dedicate” to rebut the presumption of dedication arising from 20 years’ uninterrupted as of right public user, there must be evidence that during the 20 year period the landowner took advantage of the specific methods of negativing intention to dedicate prescribed in section 31(3), (5), and (6), or did other acts demonstrating to users of the way that he had no such intention. “Intention” meant what users of the way would reasonably have understood the landowner’s intention to be. The inspector’s decisions were quashed.

In this decision on the construction of section 31 of the Highways Act 1980 (deemed dedication of highways), in particular the proviso to section 31(1) (“sufficient evidence that there was no intention during that period to dedicate”), the House of Lords preferred the approach taken in obiter dicta by Lord Denning MR in Fairey v Southampton County Council [1956] 2 QB 439 to that adopted in R v Secretary of State for the Environment, ex p Billson [1999] QB 374 and R v Secretary of State for the Environment, Transport and the Regions, ex p Dorset County Council [2000] JPL 396. The landowner must communicate to the public that he has no intention to dedicate if the proviso is to be satisfied


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