Judgments - R (on the application of Godmanchester Town Council (Appellants) v. Secretary of State for the Environment, Food and Rural Affairs (Respondent) and one other action R (on the application of Drain) (Appellant) v. Secretary of State for the Environment, Food and Rural Affairs (Respondent) and other action

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    55.  On the other hand, for so long as the landowner takes his first step to exclude the public within the 20 year period and keeps doing this in a way that continues to negative his intention to do so, he will be protected from presumed dedication under the statute. There will, in terms of the proviso to section 31(1), be "sufficient evidence that there was no intention during that period to dedicate it." It will be sufficient for this purpose that the situation which the proviso contemplates has arisen at any time within the 20 year period. Time ceases to run against the landowner as from that point. Irrespective of when this occurs, the period that the statutory presumption requires will have been interrupted. If it starts running again, a full 20 years will be needed thereafter before the requirement will be satisfied. So all the landowner need do is ensure that no 20 year period goes by without his taking overt acts to challenge the use of the way by the public.

    56.  The central question in these appeals is how that intention is to be demonstrated. Mr Simpson said that the words of the statute should be taken literally. An absence of intention was enough. So it was not necessary for the landowner to reveal his intention to anybody. In other words, contrary to what Denning LJ said in Fairey v Southampton County Council [1956] 2 QB 439, 458, he could keep his intention locked up in his own mind. I do not think that this extreme view finds any support in the authorities. But in R v Secretary of State for the Environment, Ex p Billson [1999] QB 374, 395 Sullivan J said that the proviso did not require the landowner to publicise his intention to users of the way (my emphasis). In R v Secretary of State for the Environment, Transport and the Regions, Ex p Dorset County Council [2000] JPL 396, 407 Dyson J went further. He said that he would not place any gloss on the proviso at all and that, in disproving an intention to dedicate, the owner need not bring home to the users that there was no right to use the way. Their approach was adopted in this case by both the Divisional Court and the Court of Appeal. In the Court of Appeal Auld LJ said that the proviso is concerned with intention and its proof, not with communication of that intention to members of the public [2006] QB 727, 752, para 63. He added this explanation:

    "To construe it as requiring the latter or even proof of overt and contemporaneous acts falling short of such communication would be to read words into it which would have been clearly included if that had been intended, and which would run counter to the operation of section 31 read as a whole."

In para 64 he said that there was no statutory threshold as to sufficiency of evidence for the purpose of the proviso.

    57.  In my opinion this is to take too narrow a view of the purpose and effect of the proviso. Like the whole of the subsection of which it forms part, it was drafted against the background of the common law. The express exclusion of a way "of such a character that use of it by the public could not give rise at common law to any presumption of dedication" demonstrates this point. So too does the use of the phrase "actually enjoyed by the public as of right and without interruption", which can only be understood by referring to what is required for this purpose by the common law. As for the proviso, the essential point is that the presumption of dedication at common law involves a dialogue between the landowner and the public. It is conducted by acts on the part of the public which indicate an assertion of its right to use the way and, if he wishes to deny the public that right, by acts on the part of the landowner to indicate the contrary. As Lord Blackburn said in Mann v Brodie (1885) 10 App Cas 378, 386, he must take steps to disabuse the public of the belief that the way has been dedicated to public use. Whether the steps that he has taken to communicate this fact to the public are sufficient for that purpose is, of course, a question of fact for the Inspector. But the landowner must communicate his intention to the public in some way if he is to satisfy the requirements of the proviso. That was the position prior to the 1932 Act, and I can find nothing in that Act or in the 1980 Act to indicate that it was Parliament's intention that such a fundamental rule should be departed from.

    58.  Scott LJ in Jones v Bates [1938] 2 All ER 237, 247 saw this point, as did Denning LJ in Fairey v Southampton County Council [1956] 2 QB 439, 457. Scott LJ said that the main object of the 1932 Act was to get rid of the onerous fiction of proving an actual dedication. There is no indication in his opinion that he thought that it was its intention to alter the nature of the evidence that would be relevant to show whether there was an intention to dedicate or not to dedicate, as the case may be. Denning LJ said that the landowner must make his position clear to the members of the public most concerned to assert the right:

    "They were the persons to tell. It was no good the landowner speaking to a stranger who would know nothing of the public right and would not be concerned to assert it."

There are indications elsewhere in section 31 that support this view. The notice referred to in section 31(3) must be "visible to persons using the way." A notice which is put up somewhere else, or which remains in the landowner's workshop, will not do. This is because it will not be effective to communicate the landowner's intention to those who wish to assert the right to use the way unless they can see it. The elaborate process of depositing a map and other documents with the appropriate authority that section 31(6) describes would be a pointless exercise if all that was needed was for the landowner to send a letter which gave expression to his intention to his estate agent or his solicitor.

    59.  For these reasons, as well as those given by my noble and learned friend Lord Hoffmann whose speech I have had the advantage of reading in draft and with which I am in full agreement, I would allow the appeals and make the orders that he proposes.

LORD SCOTT OF FOSCOTE

My Lords,

    60.  The issue in these two appeals, as my noble and learned friend Lord Hoffmann has said, is whether the respective landowners, respondents in the two appeals, have shown "sufficient evidence" (s.31(1) of the Highways Act 1980) that they had no intention during the relevant 20 year period to dedicate as public footpaths the paths over their land claimed by the appellants to have achieved that status by 20 years' public user. Section 31(1) speaks of a "deemed" dedication brought about by the requisite 20 years' user unless there is "sufficient evidence" that there was "no intention during that period to dedicate …". The emphasis in section 31(1), regarding the means whereby a path may achieve the status of a public path, is on dedication. Dedication by the landowner was the common law means whereby a public right of way could be created. Scott LJ in Jones v Bates [1938] 2 AER 237 was very scornful about common law dedication. He described dedication as "usually quite imaginary", "often a pure legal fiction", and expressed a clear preference for prescription on the Scottish model where public user of the requisite quality for the requisite period would impel the legal conclusion that the path was public whatever the landowner might say or prove about his intention (see pages 244-245). He was not, however, joined in these strictures by his Court of Appeal colleagues and, for good or ill, dedication by the landowner remains the basis on which paths used by the public can attain the status of public paths. What section 1(1) of the Rights of Way Act 1932, now section 31(1) of the 1980 Act, did was to provide a means whereby the insufficiency of positive evidence of the intention of the landowner to dedicate a path as a public way could be sidestepped. If the path had been used by the public as of right and without interruption for twenty years before the right of the public to use the path had been "brought into question", it was to be "deemed" to have been dedicated unless the landowner could show "sufficient evidence that there was no intention" to dedicate. The onus was shifted to the landowner. But the basis of the public status bestowed on a path by public user remained after 1932, and remains, dedication. Prescriptive user alone is not necessarily enough.

    61.  The particular issue in each of these appeals, where there has been the requisite quality of public user of the path in question for the requisite period, concerns the nature of the evidence about his intentions that the landowner must show in order to displace the deemed dedication brought about by the twenty years' user. Section 31(1) simply speaks of "sufficient evidence" and the Act contains no guide as to what might be sufficient. There are two questions. First, can an intention held in pectore by the landowner and disclosed to no-one ever constitute "sufficient evidence" for section 31(1) purposes? If the answer is 'No', must "sufficient evidence" (other than evidence made sufficient by subsections (3), (5) or (6) of section 31) consist of acts which, objectively viewed from the standpoint of the users of the path, demonstrate the intention of the landowner that they should not use the path?

    62.  To answer these questions one must, in my opinion, start with the law about dedication of highways as it stood immediately before the enactment of the 1932 Act. It is said that the Prescription Act 1832 provided a model for the 1932 Act. This is no doubt correct but analogies drawn from the rules about prescription of private easements can, if applied to dedication of paths as public rights of way, go astray. For example, private easements, under common law, are private rights in rem and can only be created by grant. Hence the need, until statutory intervention came to assist, for the fiction of a lost modern grant to be invented. The creation of a public right of way, by contrast, is brought about by dedication of the way as a public way by the landowner. The dedication need not be formal. Sufficiently unequivocal conduct by the landowner evincing his intention to dedicate will suffice. There must also be acceptance of the dedication by the public, evidenced by their use of the path. So long user of the path by the public with the owner standing by and acquiescing in the user is consistent with there having been a dedication and its acceptance by the public. It can be taken, in the absence of evidence to the contrary, to justify the inference of the requisite dedication.

    63.  These very different approaches to the creation of private rights of way on the one hand and public rights of way on the other hand lead, post the advent of the Prescription Act 1832 enabling private easements to be acquired by 20 years' use as of right, to two important differences between them. First, user for the acquisition by prescription of private rights of way has to be, among other things, nec precario, ie as of right, not by permission of the landowner. User to justify the inference of dedication of a public right of way, on the other hand, has to be user of such a character and in such circumstances as to justify the inference that the landowner had given permission, not merely temporarily but on a permanent basis, for the user. Second, the inference of dedication brought about by long public user is not conclusive. Where private rights are concerned, however, sufficiently long user of a sufficient quality creates, by prescription, the right. Where public rights are concerned, the user is no more than evidence from which the dedication can be, but does not always have to be, inferred.

    64.  The merely evidential character of long public use was emphatically confirmed by this House in Folkestone Corporation v Brockman [1914] AC 338. The issue was whether a particular roadway had been dedicated as a public highway. The evidence was that from 1827 or thereabouts the roadway had been used by members of the public on foot without interruption, openly and to the knowledge of the landowner or his agents. But the justices, dealing with objections by local householders to being required to meet the expenses of certain street works—objections based on their contention that a dedication of the roadway should be inferred, in which case the costs would fall on the inhabitants at large—had held that there had been no dedication. The decision had been upheld by the Divisional Court but reversed in the Court of Appeal. Lord Kinnear, giving the first speech in the House, cited a passage from Lord Blackburn's speech in Mann v Brodie 10 App Cas 378 at 386:

    " … where there has been evidence of a user by the public so long and in such manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find that fact may find that there was a dedication by the owner, whoever he was".

Lord Kinnear then continued, at 352:

    "The points to be noted are, first, that the thing to be proved is intention to dedicate, and secondly, that while public user may be evidence tending to instruct dedication, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and with the acquiescence of the owner of the fee."

At 354 after emphasising that "… the question is whether the facts are sufficient to raise the presumption …", he said:

    "I think it fallacious to assume dedication on a partial view of the evidence, and only after that has been done to inquire whether conflicting facts are strong enough to dislodge a conclusion already reached".

And at 355:

    " … the presumption cannot be held to be established in law at any intermediate stage of the proof, or until the whole facts and circumstances have been fully considered …"

and at 356:

    "The question is one of fact, turning upon probabilities of conduct".

    65.  Lord Atkinson, at 361, summed up the argument for a dedication that had been put forward by counsel for the respondent thus:

    "Proof of open, uninterrupted, and continuous user raises a praesumptio juris in favour of dedication. If evidence be not produced to rebut this presumption, it must prevail. … In the present case there was such evidence of user, no rebutting evidence was produced, the justices were therefore bound in law to find that this way was dedicated to the public, and their decision to the contrary was a decision made without any evidence to support it, and consequently invalid in point of law".

This argument was rejected. The House held that the inference of intention to dedicate drawn from long and uninterrupted user as of right was an inference of fact and that the justices were not bound to draw the affirmative inference. The House allowed the appeal.

    66.  My Lords, the state of the law as explained by the House in Folkestone Corporation v Brockman was the law addressed by the 1932 Act and I do not believe that the remedial provisions introduced by that Act can be properly understood otherwise than against the background of the pre Act state of the law.

    67.  Section 1(1) of the 1932 Act seems to me to have set itself firmly to reverse Folkestone Corporation v Brockman. The Act, in effect, accepted the arguments of counsel for the respondent, as recorded by Lord Atkinson, that the House had rejected. Under section 1(1), and now its successor, section 31(1) of the 1980 Act, there are two questions of fact, not, as the House held in 1914, only one. The first question is whether the way has been "actually enjoyed by the public as of right and without interruption for a full period of 20 years." The language was plainly borrowed from section 2 of the Prescription Act 1832 but the meaning of "as of right" must be interpreted in the context of dedication, not prescription. If the first question can be given the answer 'yes', there will be a "deemed" dedication, something more, in my opinion, than the pre 1932 evidentiary presumption of an intention to dedicate referred to by Lord Kinnear and Lord Atkinson in the Folkestone Corporation case. The statutory conclusion, the "deemed" dedication, stands unless the specified statutory condition of escape, "sufficient evidence that there was no intention to dedicate", is satisfied. That is the second question of fact.

    68.  Evidence merely that the landowner lacked any intention to dedicate, eg. that he had never given dedication a moment's thought, will not suffice. Counsel on both sides accepted that that was so and that the statutory requirement was not simply for evidence of the absence of an intention to dedicate but was for evidence of a positive intention not to dedicate. I think that must be right. Evidence "sufficient" to displace the statutory deemed conclusion of dedication should at least establish a positive intention. Lord Kinnear in the Folkestone Corporation case had referred to "the probabilities of conduct" ([1914] AC at 356) on which the question would turn. If that was so in the pre 1932 Act days—and counsel accepted that there was no pre 1932 case that suggested the contrary—a fortiori it must have remained a requirement under the Act.

    69.  The issue on which these appeals turn, therefore, is whether evidence of an intention not to dedicate can ever (unless it be evidence made sufficient under subsections (3), (5) or (6) of section 31) be sufficient unless it demonstrates the intention to the public at large or, at least, to the users of the path in question. Acts blocking passage along the path by, for example, the padlocking of gates would be likely to be sufficient. Regular challenges to users of the path might suffice. But expressions of intention never disclosed or circulated privately would not, in my opinion, be "sufficient". The reason they would not is that they would do nothing to curb the public user of the path, or to disabuse users of the path of any belief that they had a right to use it, or to make clear to those users who did not care or give a thought to whether or not they had a right to use the path that they were trespassers. In Fairey v Southampton County Council [1956] 2 QB 439 Lord Goddard CJ in the Divisional Court and Denning LJ (as he then was) in the Court of Appeal referred to various ways in which a landowner might demonstrate his opposition to the use by the public of the path over his land. Denning LJ referred at 458 to "… evidence of some overt acts on the part of the landowner such as to show the public at large - the public who used the path, in this case the villagers - that he had no intention to dedicate." This requirement of overt acts such as to demonstrate to the public that the landowner had no intention to dedicate seems to me consistent with the nature and quality of the "sufficient evidence" required by the Act to rebut a deemed dedication brought about by twenty years uninterrupted public user.

    70.  Lord Hoffmann has discussed in his opinion what, for section 31(2) purposes, would constitute bringing the right of the public into question. I am in respectful agreement with what he has said and would only add that the bringing of the public right into question could, in my opinion, be done not only by the landowner but also by a member of the public or by the local authority. A member of the public might apply to the court for relief of some sort that would bring the right into question, or a prosecution brought by a local authority against the landowner for, eg. allowing a stile to fall into disrepair, might, if the landowner disputed that there was any public right of way, be similarly regarded. There is, in my opinion, no necessary symmetry between acts that bring the public right into question and acts of the landowner to demonstrate that he does not intend dedication.

    71.  For these reasons, supplemental to those of Lord Hoffmann with which I am in full agreement, I would allow these appeals and make the orders that he proposes. Having had the advantage of reading the opinions of my noble and learned friends Lord Hope of Craighead and Lord Neuberger of Abbotsbury I want to express also my agreement with the reasons they have given for coming to the same conclusions.

BARONESS HALE OF RICHMOND

My Lords,

    72.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend, Lord Hoffmann. I agree with it so completely that it is a work of supererogation for me to add anything more. On the main issue, two points have weighed most heavily with me.

    73.  One is the wording of the so-called proviso itself: ". . . unless there is sufficient evidence that there was no intention during that period to dedicate it". If the private thoughts of the landowner were enough, the section need only have read ". . . unless there was no intention. . . " The section is calling for sufficient manifestation of the landowner's intention during the relevant time.

    74.  The other point is that the section tells us what the landowner's intention is deemed to have been unless he shows us to the contrary. There are many contexts in which references to the intentions of the parties are to their intentions as objectively understood by an informed but impartial outsider. If the public enjoy the way as of right and without interruption for 20 years, the statute tells us what an objective outsider is to assume - that the landowner intends to dedicate it as a highway. To rebut that, the landowner has to do something which the objective outsider would understand to mean that he had no such intention. I agree that (leaving aside the specific means provided for in the section) the objective outsider would not so understand unless the landowner did something to bring his intention to the notice of the public who might use the way. But I also agree that it is what the public should reasonably understand from the landowner's actions which count, rather than their subjective wishful thinking or belief.

    75.  In agreeing that both these cases should be remitted to the Secretary of State to decide, I am remembering only too well that the reasons given when one is reaching one result on the facts may be quite different from the reasons given when one is reaching another. Points which have been discarded in the former case may assume more importance in the latter and vice versa. Facts which were not considered in one context, because they did not have to be, may deserve further and better consideration in the light of the law as it has now been explained. Much of the evidence in these cases is relevant to more than one point - to whether the user is 'as of right', to whether it was 'without interruption', to whether the right has been 'brought into question' and to whether there is 'sufficient evidence that there was no intention'. All the relevant evidence should be considered as a whole, rather than allocated to one issue or another. I would not myself feel confident that there can be only one answer in either of these cases.

    76.  I agree, therefore, that these appeals should be allowed, the decisions quashed and the cases remitted to the Secretary of State for him to decide. This will, of course, include him deciding in accordance with the statutory procedures as well as with the opinions of the House.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

    77.  I have had the benefit of reading in draft the opinions of my noble and learned friends, Lord Hoffmann and Lord Hope of Craighead. For the reasons they give, I too would allow these appeals and remit the cases to the Secretary of State. The issues raised are of some significance, and I will therefore briefly explain my reasons.

    The main issue: the meaning of "intention"

    78.  The main issue in these appeals is whether, as the appellants contend, the intention referred to in what I will call the proviso to section 31(1) of the Highways Act 1980 has to be communicated contemporaneously (i.e. during the twenty years referred to in the section) to members of the public using the way. For a combination of reasons, I am clearly of the view that the answer is yes.

    79.  First, the whole tenor of section 31, whether it is dealing with establishing presumed dedication (enjoyment "as of right"), or rebutting presumed dedication ("without interruption" and the provisions of subsections (3) to (6)) is directed towards observable actions from which presumptions may be made or rebutted. It is true that communications with the local authority under sections 31(5) and (6) are not with members of the public, but a local authority would be obliged to retain the documents there referred to, and to permit members of the public to inspect them.

    80.  Secondly, one of the purposes of section 1 of the Rights of Way Act 1932 (the original ancestor of section 31 of the 1980 Act) was to get rid of a landowner's ability to rely on the argument that he treated the users of the way as "tolerated trespassers" to defeat a claim of presumed dedication based on long user - see R v Oxfordshire County Council ex p Sunningwell Parish Council [2000] 1 AC 335 at 353B-E. In my opinion, if a landowner can say, after twenty years public use of a way as of right, that he had no subjective intention to dedicate, although there was no contemporaneous communication of that intention, this purpose would be effectively neutralised.

    81.  Thirdly, as Lord Hoffmann's analysis of the cases prior to the 1932 Act shows, the common law appears to have required some form of act or statement communicated to users of the way, so that evidence of the subjective uncommunicated intention of the landowner would not have been enough (or even admissible) to rebut a presumption of dedication. It would be surprising if section 31(1) of the 1980 Act, which uses the language and concepts of the common law relating to highways, changed the law radically, and in a direction inconsistent with its purpose, so as to enable a landowner to rely on an intention of which the users of the way were not merely unaware, but could have no means of becoming aware.

 
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