5.1 Dedication of rights of way to the public can arise under statute law (s31 HA80) and under common law. The references above provide a good basis for understanding a subject which continues to arouse controversy. There has been frequent recourse to the Courts, which has provided a rich seam of judicial interpretations. Inevitably some of the dicta contained in earlier judgments have been superseded. The cases recommended for full reading reflect current judgments of which ‘Sunningwell’ is a particularly helpful history of the prescription of dedication; Godmanchester and Drain [2007] provides the leading judgement on the operation of the proviso to HA80 s31 (1). These judgments will generally lead Inspectors to the other relevant case law listed (see Section 3 ‘Case Law’).

5.2 These guidelines initially concentrate on issues affecting the interpretation of s31 HA80 then recommend rigorous testing of the user evidence forms, which almost invariably feature in claims for dedication under statute law. Finally, they address some aspects of deemed dedication at common law. Comment on specific topics is found later on in this section.

‘The Public’

5.3 There appears to be no legal interpretation of the term the public as used in s31. The dictionary definition of the term is the people as a whole, or the community in general. Hence, arguably, use should be by a number of people who together may sensibly be taken to represent the people as a whole/the community in general. However, Coleridge LJ inR v Residents of Southampton 1887 said that user by the public must not be taken in its widest sense ... for it is common knowledge that in many cases only the local residents ever use a particular road or bridge. Consequently, use wholly or largely by local people may be use by the public, as, depending on the circumstances of the case, that use could be by a number of people who may sensibly be taken to represent the local people as a whole/the local community.

5.4 It was held in Poole v Huskinson (1843) that there may be a dedication to the public for a limited purpose ... but there cannot be a dedication to a limited part of the public.

Currency and Balance

5.5 Dedication of a highway of a particular status will depend, amongst other things, on the type of public user. In this matter the definitions of minor highways in s66(1) WCA 81 are particularly relevant. The definition of a BOAT has proved troublesome.

5.6 However, the Court of Appeal settled the matter in Masters v SSETR (2000). Roch LJ held: It is in my judgment clear that Parliament did not contemplate that ways shown in definitive maps and statements as RUPPs should disappear altogether from the maps and statements simply because no current use could be shown, or that such current use of the way as could be established by evidence did not meet the literal meaning of s66(1) and that Parliament did not intend that highways, over which the public have rights for vehicular and other types of traffic, should be omitted from definitive maps and statements because they had fallen into disuse if their character made them more likely to be used by walkers and horse riders than vehicular traffic.

5.7 Thus for reclassification of RUPPs to BOATs under section 54 of the WCA 81, the position seems clear: the decision depends solely on the test of whether public vehicular rights exist and does not require current vehicular (or any other) use. For orders recording BOATs under section 53, public vehicular rights must be shown to exist but to satisfy the description BOAT as defined in s66(1) of the Act, the question of its use should still be addressed but in the light of Roch LJ's interpretation in the Masters judgment.

Duration

5.8 Use of a way by different persons, each for periods of less than 20 years, will suffice if, taken together, they total a continuous period of 20 years or more (Davis v Whitby (1974)). However, use of a way by trades-people, postmen, estate workers, etc., generally cannot be taken to establish public rights. Wandering at will (roaming) over an area including the foreshore (Dyfed CC v SSW 1989), cannot establish a public right (Halsbury’s Laws of England, Vol.21, paras 2 and 4 refer), and use of an area for recreational activities cannot give rise in itself to a presumption of dedication of a public right over a specific route (see RWLR article ‘Dedication – the Common Law Approach’).

Sufficiency

5.9 There is no statutory minimum level of user required for the purpose, and the matter does not appear to have been tested in the courts. However, it is clear that Inspectors must be satisfied that there was a sufficient level of use for the landowner to have been aware of it, and have had the opportunity to resist it if he chose. In Hollins v Verney (1884) it was said that: No user can be sufficient which does not raise a reasonable inference of such a continuous enjoyment and that no actual user can be sufficient to satisfy the statute ... unless the user is enough to carry to the mind of a reasonable person (owner, etc.) the fact that a continuous right of enjoyment is being asserted and ought to be resisted..... It follows then that use of a way is less cogent evidence of dedication if the landowner is non-resident – at any rate, if the owner had no agent on the spot – than if he is resident. If the landowner did not know that the way was being used, no inference can fairly be drawn from his non-interference.

5.10 Use of the way should also have been by a sufficient number of people to show that it was use by the public – representative of the people as a whole, or the community in general (see ‘The Public’ above) – and this may well vary from case to case. Very often the quantity of valid user evidence (see ‘User evidence,’ below) is less important in meeting these sufficiency tests than the quality (i.e. its cogency, honesty, accuracy, credibility and consistency with other evidence, etc.).

5.11 It was held in Mann v Brodie 1885 that the number of users must be such as might reasonably have been expected, if the way had been unquestionably a public highway. Watson J said: If twenty witnesses had merely repeated the statements made by the six old men who gave evidence, that would not have strengthened the respondents’ case. On the other hand the testimony of a smaller number of witnesses each speaking to persons using and occasions of user other than those observed by these six witnesses, might have been a very material addition to the evidence. Arguably, therefore, the evidence contained in a few forms may be as cogent - or more cogent – evidence than that in many. However, Dyson J in Dorset 1999 did not question that the Inspector had found the evidence contained in five user statements insufficient to satisfy the statutory test, even though the truth of what was contained in them had been accepted.

Subjective Belief

5.12 For many years before 1999, it was held that use as of right entailed use that was open, not by force and not by permission (‘nec vi, nec clam, nec precario’); furthermore, users had to have an honest belief that there was a public right of passage. Hence, it was necessary to prove that users believed that they had a right to use the way.

5.13 However, in Sunningwell 1999 it was held that there is no requirement to prove any such belief, but only that the use was without force, without stealth and without permission. Hoffman LJ said: To require an enquiry into the subjective state of mind of the users would be contrary to the whole English theory of prescription, which depends upon acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose the actual state of mind of the road user is plainly irrelevant ..... in my opinion the casual and, in its context, perfectly understandable aside of Tomlin J in Hue and Whiteley (1929) has led the courts into imposing upon the time-honoured expression ‘as of right’ a new and additional requirement of subjective belief for which there is no previous authority and which I consider to be contrary to the principles of English prescription ... user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not.

5.14 However, if a user admits to private knowledge that no right exists, it could be that the explanation may have an important bearing on the second limb of the statutory test, the intention of the owner not to dedicate. Inspectors should investigate where appropriate.

Landowner’s Toleration

5.15 In the same judgment, and in the context of a call not to be too ready to allow tolerated trespasses to ripen into rights, Hoffman LJ also held that toleration by the landowner of use of a way is not inconsistent with user as of right. In effect it is not fatal to a finding that use had been as of right. In R (Beresford) v Sunderland CC [2003], Lord Bingham stated that a licence to use land could not be implied from mere inaction of a landowner with knowledge of the use to which his land was being put. Although the Sunningwell judgment is silent on the relationship between claimed toleration and acquiescence, Lord Scott stated in the Beresford case I believe this rigid distinction between express permission and implied permission to be unacceptable. It is clear enough that merely standing by, with knowledge of the use, and doing nothing about it, i.e. toleration or acquiescence, is consistent with the use being "as of right".

5.16 However, it is clear that permission may be implied from the conduct of a landowner in the absence of express words. Lord Bingham, in the same judgment stated that a landowner may so conduct himself as to make clear, even in the absence of any express statement, notice, record, that the inhabitants' use of the land is pursuant to his permission. But encouragement to use a way may not equate with permission: As Lord Rodgers put it in Beresford, the mere fact that a landowner encourages an activity on his land does not indicate ... that it takes place only by virtue of his revocable permission. In the same case, Lords Bingham and Walker gave some examples of conduct that might amount to permission, but the correct inference to be drawn will depend on any evidence of overt and contemporaneous acts that is presented. (see also ‘No Intention to Dedicate’ below).

‘Bringing into Question’

5.17 R v SSETR ex parte Dorset County Council 1999 is the most recent case addressing the meaning of s31(2) HA80; specifically what act or acts constitute ‘bringing into question.’

5.18 Dyson J was not satisfied that the unusual circumstances pertaining, a landowner’s letter to DoE subsequently passed to the OMA but not communicated to the users, satisfied the spirit of s31(2). Inspectors may be perplexed at the fine line drawn between these circumstances and those instanced in s31(6), but the principle emanating from the judgment is clear. The test to be applied is that ennunciated by Denning LJ in Fairey v Southampton County Council 1956. Dyson J’s interpretation of that judgment is that: Whatever means are employed to bring a claimed right into question they must be sufficient at least to make it likely that some of the users are made aware that the owner has challenged their right to use the way as a highway.

5.19 However, an action which of itself is insufficient to bring a right into question may well be sufficient to demonstrate an intention not to dedicate (see later paragraphs).

5.20 There is no rule of law that the “bringing into question” has to result from the action of the owner of the land or on their behalf. This issue was considered in Applegarth v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 487 (28 June 2001). The owner of a property whose means of access was via a track claimed to be a public bridleway, challenged the public use of the track even though he was not the owner of it. In this case, Munby J stated: “Whether someone or something has “brought into question” the “right of the public to use the way” is, as it seems to me, a question of fact and degree in every case.” Thus any action which raises the issue would seem to be sufficient. In this context the application for or making of a modification order under WCA81 s53 would not normally by itself constitute a “bringing into question” for the purposes of s31. However, where there is no identifiable event which has brought into question the use of a path or way, s31 ss (7A) and (7B) of HA80 (as amended by s69 of NERC06) provides that the date of an application for a modification order under WCA81 s53 can be used as the date at which use was brought into question.

5.21 The Inspectorate considers that the non-existence or disappearance of the landowner is not sufficient to defeat a presumption of dedication. Once use is established as of right and without interruption, the presumption arises. If there is no contradictory evidence in accordance with the proviso to s31(1) deemed dedication is made out and the Order should be confirmed. This is so whether there is an owner who cannot provide sufficient evidence of lack of intention or whether there is no owner available to produce such evidence.

‘No Intention to Dedicate’

5.22 Section 31 expressly provides for methods by which to show that during the period over which the presumption has arisen there was in fact no intention on the landowner’s part to dedicate the land as a highway. For instance, under section 31(3) a landowner may erect a notice inconsistent with the dedication of a highway, and if that notice is defaced or torn down, can give notice to the appropriate council under section 31(5). Under section 31(6), an owner of land may deposit a map and statement of admitted rights of way with “the appropriate council”. Provided the necessary declaration is made at ten yearly intervals thereafter, the documents are (in the absence of evidence to the contrary) “sufficient evidence to negative the intention of the owner or his successors in title to dedicate any additional ways as highways”. This is for the period between declarations, or between first deposit of the map and first declaration.

5.23 The interpretation of the phrase “intention to dedicate” was considered by the House of Lords in R (on the application of Godmanchester and Drain) v SSEFRA [2007] and is the authoritative case which deals with the proviso to HA80 s31. The House of Lords reversed the earlier judgement of the Court of Appeal and rejected the judgements of Sullivan J in R v SSEex parte Billson [1999] and Dyson J in R v SSETR ex parte Dorset CC [1999] which had held that a landowner did not need to publicise his lack of intention to dedicate to users of the way. In his leading judgement, Hoffmann LJ approved the obiter dicta of Denning LJ (as he then was) in Fairey v Southampton County Council [1956] who held “in order for there to be ‘sufficient evidence there was no intention’ to dedicate the way, there must be evidence of some overt acts on the part of the landowner such as to show the public at large – the people who use the path…that he had no intention to dedicate”.

5.24 Hoffmann LJ held that “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 owner’s intention to be. The test is … 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), to ‘disabuse’ [him]’ of the notion that the way was a public highway”.

Section 5 is continued on the next page

(January 2008)