Powell and Irani v Secretary of State for Environment, Food and Rural Affairs

[2014] EWHC 4009 (Admin)

5th December 2014

Administrative Court


George Laurence QC and Rodney Stewart Smith represented the landowners in the Planning Court in Powell and Irani v Secretary of State for Environment, Food and Rural Affairs [2014] EWHC 4009 (Admin), an application to quash an order modifying a definitive footpath map. Judgment was given by Dove J. on 5 December 2014. The footpath in question was shown on the definitive map prepared in 1965 but effective as at a date in 1952. It was extinguished by a diversion order made in 1967 but the map was never modified to give effect to the order. Following the diversion the path continued to be used by the public and the principal question was whether 20 years’ use following the diversion was use “as of right” which gave rise to a presumption of dedication under section 31 of the Highways Act 1980. The landowners argued that it did not because a reasonable landowner would have assumed, on the basis of the unaltered definitive map, that the public were continuing to exercise an existing right rather than acquiring a new one and could not therefore have been expected to prevent the continued use. The application was dismissed. The judge held that the Supreme Court in R(Lewis) v Redcar and Cleveland Borough Council (No.2) [2010] 2 AC 70 has decided that use is “as of right” if it is use which is “nec vi ( by force), nec clam (secret), nec precario (by permission)” and that there is no additional requirement that the use should be such that a reasonable landowner should have been expected to prevent it. Since the continued use of the path following its diversion was admitted to be “nec vi, nec clam, nec precario” the presumption of dedication therefore arose and there was nothing to rebut it.

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