Definitive Map Orders: Consistency Guidelines
5.25 In both Godmanchester and Drain, evidence in the form of letters between the landowner and the planning authority, and the terms of a tenancy agreement were held by the House of Lords to be insufficient evidence of a lack of intention to dedicate. As these documents had not been brought to the attention of the public the users could not have understood what the owner’s intention had been.
5.26 For a landowner to be able to benefit from the proviso to s31(1) there must be ‘sufficient evidence’ that there was no such intention to dedicate. The evidence must be inconsistent with an intention to dedicate, it must be contemporaneous and it must have been brought to the attention of those people concerned with using the way. Although s31 ss (3), (5) and (6) specify actions which will be regarded as “sufficient evidence”, they are not exhaustive; s31 (2) speaks of the right being brought into question by notice “or otherwise”.
5.27 Godmanchester and Drain upheld the earlier decision of Sullivan J in Billson that the phrase “during that period” found in s31 (1) did not mean that a lack of intention had to be demonstrated “during the whole of that period”. The House of Lords did not specify the period of time that the lack of intention had to be demonstrated for it to be considered sufficient; what would be considered sufficient would depend upon the facts of a particular case.
5.28 However, if the evidence shows that the period is very short, questions of whether it is sufficiently long (‘de minimis’) may well arise, and would have to be resolved on the facts.
5.29 In the Court of Appeal case Lewis v Thomas 1949, Cohen LJ quoted with approval the judgment of MacKinnon J in Moser v Ambleside UDC 1925:
It was said, very truly, in the passage of Parke, B in Poole v Huskinson (1843) that a single act of interruption by the owner was of much more weight upon the question of intention than many acts of enjoyment. If you bear quite clearly in mind what is meant by an act of interruption by the owner, if it is an effective act of interruption by the owner – I mean the owner himself – and is effective in the sense that it is acquiesced in, then I agree that a single act is of very much greater weight than a quantity of evidence of user by one or other members of the public who may use the path when the owner is not there and without his knowledge. The fact that the owner, as is so constantly done, locks the gates once a year and that sort of thing is, or may be, a periodic intimation by the owner that he is not intending to dedicate a highway, but it must be an effective interruption; it must be by the owner himself, because if you have evidence of an interruption which is not effective in the sense that members of the public resent the interruption and break down the gate, or whatever it is, and that defiance of his supposed rights is then acquiesced in by the owner, or again, if it is an attempted interruption by a tenant without the assent or authority of the owner and is also an interruption that is ineffective and a failure because the public refuse to acquiesce in it, then, as it seems to me such an ineffective interruption, either by the owner or by the tenant, so far from being proof that there is no dedication, rather works the other way as showing that there has been an effective dedication.
This judgment established a number of principles that still endure.
5.30 However, in the subsequent case Rowley v SSTLR & Shropshire County Council May 2002, Elias J held that the acquiescence of a tenant may bind the landowner on the issue of dedication of a public right of way (for example in the case of long public user), but also that in the absence of evidence to the contrary, there is no automatic distinction to be drawn between the actions of a tenant acting in accordance with his/her rights over the property and that of the landowner in determining matters under s31HA80.
...seemed acquiescence of the tenant was the basis of the case for the assertion that there was user as of right...it would surely be implied that the tenant would have the right to decide who should be entitled to go on to his land and whom he may forbid. I find it difficult to see why the tenant’s acquiescence should bind the landlord, but not positive acts taken by the tenant in accordance with the exercise of his rights over the property, to exclude strangers.
Elias J continued:
the conclusion...that there was no evidence that any turning back had in any event been authorised by the freeholder involved an error of law. A similar argument was advanced in Lewis v Thomas [[1950] 1 K.B 438] and rejected, the court apparently taking the view that if it is alleged that the freeholder has a different intention to the tenant, there should at least be evidence establishing that.
User Evidence
5.31 Claims for dedication having occurred under s31 HA80 will usually be supported by a number of user evidence forms.
5.32 The Inspector’s own analysis of the forms is vital, so that omissions, lack of clarity, serious inconsistencies, possible collusion between witnesses and other anomalies may be identified. The analysis also allows the Inspector to reject invalid claims (e.g. no signature, no clear description of the way or of how it was being used) and to note the questions to raise at the inquiry. A similar analysis should be made of other types of user evidence that may be tendered, such as sworn statements, letters and the landowner’s evidence. It should also be noted that user evidence forms are not standardised, and pose differing questions of varying pertinence and precision. Some are better than others in terms of specifying the evidence required.
5.33 If the potential value of user evidence forms is to be realised in full they must be completed with due diligence. All questions should be answered as accurately and as fully as possible. If questions which, from the claimed duration and extent of use, appear capable of being answered yet are not, it is open to the Inspector to assume that the respondent’s recall was insufficient to provide this information. The Inspector may then question whether the claimed use is accurately recalled and the evidential weight of the form may well be reduced.
5.34 Similarly if an overall picture emerges from a variety of sources which differs significantly from the respondents’ recollections, or if a particular difficulty which must have been encountered during claimed user is not mentioned, the Inspector may well wonder whether the claimed use is accurately and honestly recalled.
5.35 It is sometimes the case that objectors do not seek to challenge user evidence in cross-examination. If so, the Inspector needs to do so, in order to be in a position to decide what evidential weight to place on the witnesses’ claims. If few, or none, of the users attends the inquiry, the Inspector should pose questions to the party presenting the evidence, so that the evidential weight can be determined. As with other evidence, user evidence tested in cross-examination generally carries significantly more weight than untested evidence. While questioning of witnesses needs to be incisive and thorough, Inspectors should be aware that members of the public giving evidence may be nervous or anxious and should deal with them accordingly.
Dedication at Common Law
5.36 ‘Rights of Way: A guide to law and practice’ is a useful source of information. The referenced RWLR article ‘Dedication: the common law approach’ discusses the relevant principles, and shows how they were applied in practice by giving detailed consideration to the salient facts in reported cases.
5.37 The common law position was described by Farwell J, and Slessor and Scott LJ in Jones v Bates 1938, both quoted with approval by Laws J in Jaques v SSE 1994, who described the former’s summary as a full and convenient description of the common law. Other leading cases that speak to dedication at common law are Fairey v Southampton CC 1956, Mann v Brodie 1885 and Poole v Huskinson 1843. Jaques is a particularly helpful exposition on the differences between dedication at common law and under statute.
5.38 Halsbury states – “Both dedication by the owner and user by the public must occur to create a highway otherwise than by statute. User by the public is a sufficient acceptance. And - An intention to dedicate land as a highway may only be inferred against a person who was at the material time in a position to make an effective dedication, that is, as a rule, a person who is absolute owner in fee simple; and At common law, the question of dedication is one of fact to be determined from the evidence. User by the public is no more than evidence, and is not conclusive evidence ... any presumption raised by that user may be rebutted. Where there is satisfactory evidence of user by the public, dedication may be inferred even though there is no evidence to show who was the owner at the time or that he had the capacity to dedicate. The onus of proving that there was no one who could have dedicated the way lies on the person who denies the alleged dedication”.
5.39 Sometimes dedication at common law will be argued as an alternative, in case the s31 claim fails. In any event, the Inspector should consider common law dedication where a s31 claim fails. Whilst the above principles affecting dedication by landowners and acceptance by user will normally apply in both situations (even though there is no defined minimum period of continuous user in common law), there is an important difference in the burden of proof. As Denning LJ made clear in Fairey v Southampton County Council 1956 The Rights of Way Act 1932 has introduced a new means by which the public may acquire a right of way, in addition to the old means of dedication, which, be it noted, is still preserved... In later describing the effect of the 1932 Act he said: It reverses the burden of proof; for whereas previously the legal burden of proving dedication was on the public who asserted the right... now after 20 years user the legal burden is on the landowner to refute it.
5.40 From these comments it follows that, in a claim for dedication at common law, the burden of proving the owner’s intentions remains with the claimant. For the reasons given by Scott LJ in Jones v Bates 1938, this is a heavy burden and, in practice, even quite a formidable body of evidence may not suffice. However, should it be asserted in rebuttal that there was no one who could have dedicated the way, the burden of proof on this issue would rest with the asserting party (Halsbury, above, refers).
5.41 The principles established in Rowley (see paragraph 5.24) may, arguably, apply to equivalent issues arising under common law.
Land Held in Trust or Mortgaged
5.42 Halsbury gives useful guidance; Volume 21 para 73 states: Where a mortgagor (borrower) is still in possession of the mortgaged land it would seem that the mortgagee’s (lender’s) assent to a dedication is necessary, and that a dedication cannot be inferred from user unless the mortgagee can be shown or presumed to have had knowledge of it. Trustees of land held on trust for sale generally have power to dedicate on their own provided that no incompatibility is introduced (Halsbury Vol.21 para 74 refers). For leaseholds and copyholds the consent of both landlord and lessee or copyholder would usually be required for dedication. However, Inspectors should always check the detailed wording and provisions of the trust or mortgage document pertaining to the case before them, in case there are specific requirements for enabling powers. A public body can in general create a right of way, provided that the public use would not be incompatible with the purpose of the body. (See also ‘Legal capacity to dedicate’ in the referenced RWLR articles ‘Section 31 of the Highways Act 1980’ and ‘Section 31: update’ and note the provisions of HA80 s31(8)).
Vehicular use post 1930
5.43 Use without lawful authority of mechanically propelled vehicles adapted or intended for use on the roads on footpaths, bridleways and elsewhere than on roads became a criminal offence in 1930. The Countryside and Rights of Way Act 2000 extended this provision to all mechanically propelled vehicles.
5.44 However, lawful authority may be granted by a landowner, and Lord Scott, in Bakewell Management Ltd v Brandwood [2004] (in the context of the acquisition of an easement to drive over common land) held that if such a grant could have been lawfully made, the grant should be presumed so that long de facto enjoyment should not be disturbed. In overruling Robinson v Adair (1995), in which it had been held that no presumption of dedication could arise following long illegal user by motor vehicles, Lord Scott stated that However, it was, so I assume for there is nothing to suggest the contrary, open to Mr Adair or his predecessors in title to have dedicated the road as a public highway. Such a dedication would have constituted ‘lawful authority’ for section 24(1) [of the Road Traffic Act 1988] purposes. The dedication would have been effective. That being so, I can see no reason why public policy would prevent a presumption of dedication arising from long use.
5.45 A grant would not be lawful if, for example, it gave rise to a public nuisance. The granting of vehicular rights over an existing footpath might constitute a public nuisance to pedestrians using that path.
5.46 Whilst it is therefore possible for long use of bicycles on a footpath or bridleway (subject to paragraph 5.43 below) to give rise to a claim for a BOAT, Inspectors will need to consider whether vehicular use of the way in question has given rise to or is likely to give rise to, a public nuisance i.e. if the use of bicycles has given rise to, or the use in the future of bicycles and/or any other vehicles on the way is likely to give rise to, a public nuisance, the claim for a BOAT must fail. The public nuisance issue is one to be determined by Inspectors by reference to the particular facts before them.
5.47 Use of bicycles on a public bridleway after 3rd August 1968 (the date on which section 30 of the Countryside Act 1968 came into force) cannot give rise to a claim, or be used to support a claim for vehicular rights.
Crown Land
5.48 The Highways Act 1980 does not apply to land belonging to (or held in trust for) the Crown, except under a special agreement as described in HA80 s327. Consequently, there cannot be a presumption of dedication of such land under s31.
5.49 It seems likely that s31 does not apply to land leased to the Crown, because the existence of the lease would take the land outside its scope. Furthermore, the creation of a right of way would adversely affect the Crown’s leasehold interest. These arguments do not appear to have been tested in the courts, but, even if they were accepted, they would not prevent an effective presumption of dedication under s31 for a period before or after the Crown’s ownership or leasehold of land.
5.50 Under common law, there can be a presumption of dedication of a way over Crown Land. However, there cannot be such a presumption over land requisitioned by the Crown, as there would be no one with power to dedicate (Jaques 1994).
Common Land
5.51 Public rights of way over defined routes can and do exist on common land and can be established by deemed dedication through user over a number of years. However, the effect of s193 of the Law of Property Act 1925, which creates (often restricted or conditional) public rights of access for air and exercise, may sometimes have to be considered, since it is believed to apply to a substantial number of commons. This issue is addressed in detail in R v SSE ex parte Billson 1998, and useful background information can be found in the RWLR article ‘Public Access to Commons’ (particularly pages 5,6).
The National Trust
5.52 The Trust has power to dedicate highways by virtue of s12 of the National Trust Act 1939. However, Trust bylaws may be in place and operate as a conditional permission to use the land. Such bylaws prevent a presumed dedication under s31, whether users were aware of them or not. Useful reference can be made to National Trust v SSE [1999] JPL 697, holding that the permissive nature of the use of NT land precluded user as of right.
Charities
5.53 Dedication requires the consent of the Charity Commissioners under s36 of the Charities Act 1993, unless the charity is within an exemption granted by or under that section.
Physical Characteristics of a Claimed Way
5.54 In some circumstances the physical characteristics of a way can prevent a highway coming into existence through deemed or inferred dedication. In Sheringham UDC v Holsey 1904 it was held that use by wheeled traffic of a public footway appointed by an Inclosure Award at 6 feet wide had always been an illegal public nuisance in view of the obstruction and danger to pedestrians, and no length of time could legalise it. Furthermore, there was no one with power to dedicate. Hence there could not have been any dedication of the way as a vehicular highway. In Thornhill v Weeks 1914, Astbury J observed that: it seems impossible that a lady who resided there would at once start dedicating a way through her stable yard … In trying to form an opinion whether an intention to dedicate has existed, one must have some regard to the locality through which the alleged path goes. The fact that it goes through the stable yard [close to the house] is strong enough to raise a presumption against an intention to dedicate.
5.55 Where physical suitability of a route is argued by parties, referring to gradient, width, surface, drainage, etc., Inspectors should be aware that what may now be regarded as extremely difficult conditions may well have been relatively commonplace and frequently met by stagecoaches, hauliers and drovers in times past, and that special arrangements were often in place to negotiate them.
(January 2008)
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