Norman & Anor v Secretary of State for Environment, Food & Rural Affairs

This is an appeal with permission granted by myself on 27 September 2006 against the decision of Collins J made in the Administrative Court on 5 July 2006 by which he quashed what I will refer to as “the modification order”. Its full title is the Derbyshire County Council (Footpath from Bridleway 11 along the Bank of the River Trent -- Parish of Willington) Modification Order 2002. Derbyshire County Council are what are called the surveying authority for the area in question for the purposes of section 53 of the Wildlife and Countryside Act 1981 which I need not read. In that capacity they made the modification order on 15 August 2002. The order took the form under the 1981 Act of a modification of what is called “the definitive map and statement”. In view of the nature of the issues in the case it is only necessary to describe the relevant geography in outline. The modification order confirmed the existence of a public right of way on foot on the line of a footpath which ran along the northern bank of the River Trent as shown on a plan attached to the order. The claimants/respondents to this appeal own a house and land near to the western end of the footpath and the footpath passes over their land. The modification order as made by the county council was subject to objections by affected land owners. In those circumstances pursuant to Schedule 15 to the 1981 Act the Secretary of State appointed an inspector to hold a public local inquiry in order to decide whether the modification order should be confirmed.

An inquiry was duly held and on 13 June 2004 the inspector issued his interim decision letter indicating his intention to confirm the modification order. The decision was interim because by it the inspector proposed to modify the order and as he indicated at paragraph 101 of the letter of 13 June 2004 the confirmed order would affect land not affected by the order as submitted. In those circumstances the inspector was obliged by paragraph 8(2) of Schedule 15 to the 1981 Act to give notice of his proposal to modify the order so as to allow for representations to be made. In the result by his final decision letter the inspector stood by his earlier interim conclusions. All of the inspector’s reasoning relevant to the proceedings before Collins J and this appeal is contained in the interim decision letter.

The inspector’s decision was subject to challenge by way of an application to the High Court to quash issued under paragraph 12 of Schedule 15 to the 1981 Act. Such a challenge is in the nature of a statutory judicial review and is limited to ordinary public law grounds. The claimants issued such proceedings culminating in the judgment of Collins J now under appeal.

The legal basis of the county council’s function in making the modification order and their confirmation of the existence of the public right of way is to be found in section 31 of the Highways Act 1980. It provides so far as material:

“1.

Where a way over any land, other than 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, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

The period of 20 years referred to in sub-section (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in sub-section (3) below or otherwise.”

The inspector found that there had been uninterrupted use of the footpath by the public as of right for a full period of 20 years to 1999/2000. The claimant did not seek to challenge that finding, nor the finding for the purpose of section 31(2) that the right of the public to use the footpath had been “brought into question” in 1999/2000. The challenge under paragraph 12 of Schedule 15 to the 1981 Act was directed solely at the inspector’s conclusion that the evidence before him was not sufficient to show a lack of any intention to dedicate the footpath to the public during the 20 year period. In particular the claimant’s case focused and focuses on the inspector’s treatment of the evidence of a Mr Wooddisse. He had previously owned, as I understand it, a considerable part, if not all, of the land on which the footpath lies. The inspector dealt with Mr Wooddisse’s evidence by reciting at some length the content of a statutory declaration made by him in 2000 and an addendum made in 2004. I should read the material passage in the inspector’s interim decision letter.

“69.

Mr Richard Wooddisse, then owner of the land BW11 and crossed by the claimed way, made a statutory declaration (19 September 2000) in support of an agreement to sell land at the rear of 1 to 9 Spilsbury Close to the new house owners. He then made a sworn addendum (26 April 2004) concerning the management of the land. He had acquired the land from his parents in 1983 they having owned it since 1959. He had been well acquainted with the land since then. From time to time since 1959, it had been subject to trespass, generally by persons exercising their dogs, walking eastwards from the end of the bridleway which leads to the site of the old river crossing, onto his agricultural land, (some of which had been sold for residential development) either toward a private way for the benefit of a water treatment plant on his land or simply for the purpose of walking randomly over his land.

“70.

He had erected fencing in approximately August 1992 approximately between A-B-C on the plan attached (now conveyed to 9 Spilsbury Close) ‘so preventing further access and have not received any objections to this obstruction.’ From time to time he had challenged people crossing his field and people using the riverbank. He had at all times possible, and on many occasions disabused users of the belief that there was a public right of way on foot along the section of riverbank that formed part of Sycamore Farm. He had done so by challenging and interrupting users and turning people away, sometimes escorting them from the land. This method had been used also by him on behalf of his father and by his two sons on his behalf. Many people had been turned back and could be specifically remembered by them but no record had been kept. He had no recollection of greeting or waving to FP users as claimed in their evidence by several witnesses who had been cross-examined.

“71.

He confirmed that the stiles in fences at the riverbank had been erected by the Angling Club, who held a license, for their own benefit and were private property maintainable by them. If his father or he had any intention to dedicate a way it would have been formalised in an express agreement with the County Council. His family had given the tennis courts and bowling green to the community, and the Parish Council had been allowed to purchase the recreation ground at an agricultural not a development value, in such a formal manner. Significantly the Bell Homes Planning Appeal (October 1990) had considered the need for any of the proposed development land to be used for recreational purposes such as a public footpath. In 1990 there had been no FP claim by any person that the land carried a right of way on foot which should be excluded from development. That implied that the Parish Council and Ramblers Association were aware it was private land and unencumbered with a public FP. Whilst one proposal considered for the non-developed land was for a public FP it was rejected - it would have been an additional benefit but not essential.

“72.

At no time had there been a formal claim on behalf on any individual or the public at large to be entitled walk over his land nor any attempt to dispute his right to exclude trespassers. He had not knowledge of any intent by his parents or his predecessors to dedicate the riverbank or any part of it as a public right of way. ‘Such a route would have no logical lawful purpose as there is no publicly accessible point to which such a path could legitimately lead.’ He was ‘aware that occasional trespass does take place it is not practicable to exclude each and every trespasser but whenever possible I have done so by asserting by right to refuse access and at no time ahs my right to do so been questioned.’ He did ‘not believe that there is or ever had been a public right of way along the riverbank at this point and have always done what I could to discourage a belief in the public mind that such a right might exist.’”

The inspector proceeded to record, by contrast, evidence of user without objection. Then at paragraph 85 he came to his conclusions:

“85.

I conclude that, on the balance of probability, between 1979 and 1999/2000 the documented and verifiable occasions upon which Mr Wooddisse, as the owner of the land or by his sons on his behalf, or as agent for his father, had challenged persons using the claimed path were insufficient to show that there was no intention to dedicate a public right of way over the line of the claimed footpath. Prior to 1980 there was ample evidence of public use of the riverside path and few challenges to its use, that use continued but with only 4 alleged challenges to its use after that date. In the evidence of user and in other representations there are no recorded complaints that such use of the riverbank interfered with those exercising a licence to fish other than the occasional misdemeanour of a dog, or with the flora and fauna. There is no recorded complaint that they interfered with the fishermen’s enjoyment of their sport.

“86.

In my view, the land owners and their agents were right to challenge, then to turn back, any such user crossing their farmland. They were also entitled in any particular case to allow that person to complete their journey with implied, or perhaps express permission. That did not grant any such rights to other persons. There are several cases cited and recalled, especially by Mr Wooddisse, that at times persons had crossed the field when livestock were present or it was in cultivation. Others had used the field for recreation, flying kites etc. Unsurprisingly all, when seen, were admonished and asked to leave.

“87.

At the inquiry, Mr Wooddisse demonstrated a consistent attitude by his family, as owners, of a non-acceptance of walkers across their fields. However that was only clearly articulated in his sworn statements presented to the inquiry. The first (September 2000) was on the occasion of his disposal of the land upon which Mr Money had already built a fence in 1999 and in early 2000. The second was 4 years after the way had been called into question and the case for the Order by the OMA [I interpolate that as the order making authority the county council] had been received (April 2004). Those statements cannot of themselves be considered as expressions of intention not to dedicate to the public use of the path as they were not contemporaneous with any event before the use of the way had been brought into question.”

The leading case on the approach to be taken to the application of the proviso (as it is called) to section 31(1) of the Highways Act 1980 is Godmanchester [2006] 2WLR 1179. It is sufficient given the scope of the argument before us to cite part of the headnote:

“Held, dismissing the appeals, that the words ‘unless there is sufficient evidence that there was no intention during that period to dedicate’ in section 31(1) of the 1980 Act were not intended to make it easier for the public to establish a way as a highway when confronted with a landowner’s contrary intention; that they were concerned with the landlord’s intention and its proof and did not require the landlord to have communicated to users his lack of intention to dedicate; that there was no statutory threshold as to sufficiency of evidence nor any restriction on the type of evidence required, and it was for the fact-finder to determine in a particular case, usually as a matter of weight, whether the evidence was sufficient to rebut the presumption, thought it would be rare for evidence to be regarded as sufficient without proof of some overt and contemporaneous act.”

There are earlier authorities, not least ex p. Billson [1999] QB 374, but with deference I need not refer to those. We are told that the case of Godmanchester is to be argued in their Lordships’ House in early May this year. In the present case the learned judge below said this:

“13.

I should therefore turn to the inspector’s decision. He sets out the issues. In paragraph 38 he refers to section 31(1) and cites it, and he includes his comments on it as he goes through. In considering the words of the proviso he qualifies the ‘sufficient evidence’ by adding in brackets:

‘Of an overt and contemporaneous act, not necessarily brought home to the public at large.’

14.

At the time the inspector reached his decision he was entirely justified in that qualification because that appeared to be the law as set out in the cases before the decision in Godmanchester. However, it was made clear by the court in Godmanchester that an overt and contemporaneous act was not something which was as a meter of law needed in order to establish sufficient evidence. This goes back to the point that Mr Hobson may, and which I entirely accept, and that is that on the language of the Act the evidence will normally be the evidence of the landowner. The question will be whether that evidence, coupled with any supporting evidence which tends to show that that intention was indeed held, is sufficient to enable the owner in question to obtain the benefit of the proviso.

The judge then proceeded to refer to paragraph 87 of the interim decision letter which I have read. He said (last sentence of paragraph 16):

“It seems to me that that last sentence is plainly wrong as a matter of law. They can of course [he is referring to the statement] be considered as expressions of intention not to dedicate, but whether they will be regarded as sufficient evidence of that intention is another matter. However they cannot be disregarded. They must be taken into account. Indeed, they are central to the consideration whether that intention existed because it is the intention of Mr Wooddisse who was the relevant owner over the period.”

The judge returned to the deficiencies of paragraph 87 at paragraph 26 of his judgment. He said:

“What, as I say, the inspector should have done is to consider whether the intention expressed by Mr Wooddisse - which could as a matter of fact have been sufficient on its own but was unlikely to be if there was nothing to support it - was evidence which if accepted was sufficient to establish the necessary intention. There was evidence to support it. It may be that that evidence was regarded by the inspector as not very substantial. But there is no need for very substantial evidence if one once accepts that the proper approach is that one looks at the evidence given by the land owner and then one sees whether there is material to support it. Equally, there is nothing in the inspector’s decision to indicate he rejected the landowner, in the sense that he did not believe that he was giving evidence that was truthful evidence.”

The Secretary of State by Mr Mould QC contends that the inspector’s conclusions are perfectly consistent with the approach to section 31 vouchsafed in Godmanchester though, as it happens, this court’s judgment in that case post-dates the inspector’s decision letters. It is submitted that the inspector was entitled to look for evidence of any overt and contemporaneous acts and was entitled to reject Mr Wooddisse’s evidence that he did not intend to dedicate the footpath to the public use.

In my judgment it is helpful to distinguish between two possible states of affairs. One is where a landowner merely asserts that he never had an intention to dedicate the relevant way to the public but gives no evidence, nor is there any other evidence, of any overt act which tends to corroborate that state of mind on his part. The second is where the landowner gives evidence of overt acts barring the public putting up notices and so forth, although there may not be any independent evidence of such acts, and the landowner’s own evidence is again given after the event, perhaps some considerable time after the event.

In the first of these cases as a matter of common sense and consistently with the authority of Godmanchester, an inspector would no doubt be entitled to be extremely sceptical about the landowner’s case and be inclined not to accept it without other evidence. In the second case, however, he simply has to decide whether the acts to which the landowner testifies happened or not. Here Mr Wooddisse’s evidence recited by the inspector at paragraph 69 to 72 was plainly in the second category. But the inspector nowhere indicates what he makes of the substance of this evidence. Instead he simply dismisses it -- paragraph 87 -- as not being contemporaneous with any event before the use of the way was challenged; and he proceeds to concentrate, seemingly exclusively, on the question what “documented and verifiable” occasions of challenges to the use of the path were demonstrated: see paragraph 85.

This is in my judgment a flawed approach. The inspector was required to find facts relevant to the proviso. In the course of that exercise he was required to decide what he made of Mr Wooddisse’s evidence and not simply to put it on one side for what, to my mind, is a mistaken reason. The inspector appears to have proceeded on the basis that in order to satisfy the proviso contemporary evidence verified in some way had to be produced. One notices his use of the expression in paragraph 39, “The authenticated evidence of an intention by the owner not to dedicate”; and as my Lord, Lord Justice Chadwick pointed out in the course of argument it may be significant that the heading above paragraph 67 of the decision letter is cast in these terms:

“During that period [that is the 20 years] was there sufficient evidence of lack of intention by the owner of the land to rebut the presumption that the way had been dedicated to the public.”

That suggests the inspector was, perhaps exclusively, looking for evidence that was itself contemporaneous with the events in question or evidence which actually arose during the 20-year period. Mr Mould has been at pains to refer to other passages in the decision letter, not least paragraph 90, where facts are set out upon which undoubtedly, as it seems to me, the inspector was entitled to rely. But the short point in this case was that as a statutory fact finder he had to arrive at a conclusion upon the question: what did he make of all the evidence? Mr Wooddisse’s evidence was clearly of great importance. I would for my part suppose, though it is not necessary to decide this, that if what the inspector recorded in paragraph 70 were accepted as true evidence, that would be very powerful material to demonstrate the lack of intention that is referred to in the proviso.

In the result then in my judgment the inspector has not properly carried out his task as fact-finder at the inquiry. That amounts in the circumstances as I have described them and for the reasons I have given to an error of law, and accordingly it seems to me that the learned judge below was right.

I would dismiss the appeal.

I agree.

I also agree.