Darby v First Secretary of State & Anor

J U D G M E N T

1. MR JUSTICE MACKAY: This is a statutory appeal under Schedule 15 paragraph 12 of the Wildlife and Countryside Act 1981 by Mr Adrian Darby against a decision of the Inspector made on 30th August 2002 confirming an order of Worcestershire County Council of 26th October 2000 made under section 53(2)(b) of the same Act.

2. Mr Darby is the owner of certain land in the village of Kemerton, Worcester, about which the dispute arose. He has presented his case in this court, as he did at the inquiry below, and in this court he has certainly done so with conspicuous skill and courtesy both in his written material and the oral amplification that he has made today.

3. The history must be set out to this extent. On 29th June 1979 Mr Darby applied to the Worcester County Council for a public path diversion order under what was then the Highways Act 1959, in respect of a footpath, known as Footpath No.9, in the parish of Kemerton. In short, he was proposing that that footpath should be diverted to a different route (that route later attracted various names); it was known in his then application as H to G along the existing track, but it became known as Footpath 26 and 33 together. I will treat them for these purposes as a single path and I will call them the "disputed path".

4. On 18th April 1980 the County Council made the diversion order he sought. Unknown to Mr Darby at the time, two objections were lodged against it and the matter seems to have gone to sleep for a number of years. On 21st October 1986 Mr Darby wrote to the County Council, in terms which I will set out more fully later on, pointing out that there were two footpath signs of relevance: one, indicating Footpath 9, and the second the disputed path. He thought it was unreasonable to have two signs and that the County Council should make up its mind as to which was appropriate. He expressed a preference for the disputed path becoming the single footpath in effect.

5. On 9th February 1987 the County Council, having submitted its 1980 diversion order to the relevant department, the Department of Environment and Transport, as it then was, for confirmation, that confirmation was declined on what could generally be called farming grounds. Though there was an objection which was to the effect that there already was a public right-of-way over the disputed path, the report declined to decide that point.

6. In response to that decision, Mr Darby caused to be displayed at the entrances to the disputed path notices, the terms of which appear in the bundle. He relies on these as part of his case, so I will read the relevant parts. The notices read:

"I HAVE RECEIVED A LETTER FROM HEREFORD AND WORCESTER COUNTY COUNCIL TELLING ME THAT IT HAS REFUSED MY APPLICATION TO DIVERT FOOTPATH NO 9 SOUTHWARDS BY ONE FIELD SO THAT IT RUNS ALONG THIS TRACK. I MUST THEREFORE ASK PEOPLE TO USE THE FOOTPATH INSTEAD. THIS TRACK IS CLOSED TO PUBLIC ACCESS.

I REGRET THAT THIS APPLICATION HAS BEEN TURNED DOWN. IT WAS SUPPORTED BOTH BY THE PARISH COUNCIL AND BY THE ANNUAL PARISH MEETING."

He then dealt further with the history of the matter. He concluded he would issue permits for those who, in effect, could make out a case for them and told people where to apply if they wanted them. This is the date taken later by the Inspector as the date when the right of the public to use the disputed path was brought into question for the first time within the meaning of section 31 of the Highways Act 1980.

7. On 19th June 1987 Mr Darby applied to the County Council for a public footpath diversion order in respect of Footpath No 9 in substantially the same terms as those in which he had applied in 1979. On 26th October 2000 the County Council made an order under section 53(2)(b) of the Wildlife and Countryside Act 1981 modifying the definitive plan and statement. They did this by adding two new footpaths - in effect, what I have been calling collectively the disputed path - one was called Footpath 26 in the Parish of Kemerton, which ran for about 240 metres in a general north westerly direction from grid reference point SO 94253654 running from the C2224 road and its continuation, which was given the description Footpath 33 in the Parish of Bredon continuing its line northwest to a point marked C on the plan for another 270 metres.

8. This order was opposed by the claimant, Mr Darby, and others. An inspector was appointed. The Inspector held a public inquiry on 13th August at Kemerton and gave her decision in a letter on 30th August 2002 confirming the order. Mr Darby now challenges the validity of that order under the 15th Schedule of the Act, as his is his right.

9. In his claim form he puts forward two broad bases of challenge. Firstly, he alleges the Inspector misinterpreted the provisions of section 31 of the Highways Act 1980 which lies at the heart of this matter, and the effect of the case of R v Secretary of State for Environment Transport and Regions ex parte Dorset County Council JPL [2000] Vol 1, 396. The second challenge is that the Inspector failed to give proper consideration to his dealings and correspondence with the County Council over the relevant 20-year period, that is March 1967 to March 1987, particularily his application to divert Footpath No 9 in 1979 and his correspondence beginning in October 1986 about the two signposts. These, he says, constitute insufficient evidence of the absence intention on his part to dedicate the disputed path. In effect, what he says amounts to this. The Inspector had no power to confirm the order where the evidence showed no intention by him, the owner of the land, to dedicate the route; she misunderstood or misapplied section 31, and her decision was reviewable or unreasonable in the Wednesbury sense.

10. Section 31(1) of the Highway Act 1982 reads as follows:

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

Any court or tribunal of fact therefore faced with construing or applying this subsection is necessarily involved in the consideration of proof of a negative state of intent, here one in the mind of the part of an owner of land.

11. The approach of this court to a decision of this type is not in dispute, and is accepted in these broad terms by both parties. Firstly, it is the function of the Inspector to look at this relevant intention over the whole of the period concerned here, 1967 to 1987; secondly, where facts are in dispute, or conflict, it is for the Inspector to resolve them; thirdly, the Inspector's conclusions of fact or the inferences that the Inspector draws have to be reasonable within the so-called Wednesbury sense; and fourthly, the reasons which she expresses have to be adequate reasons.

12. It is not for this court on a statutory review of this nature to substitute its own views about the facts in the absence of any grounds for revision proving the decision to be unlawful or reviewable.

13. The decision letter took the following form. From between paragraphs 6 to 10 it identified the issues to be decided. It then dealt with the background evidence and considered whether there was any documentary evidence to assist the Inspector in her task. The conclusion was that there was none and that the Inspector therefore said she had to rely on what she called "the user evidence". She then proceeded to make a finding as to the date on which the public's right to use the path was brought into question, and found that date to be March 1987; that was not controversial and is not challenged in this court. The Inspector then considered whether the use of the disputed path had been enjoyed by the public as of right and without interruption for the full period of 20 years. The Inspector's conclusion here was that people who had been using the track and had given evidence to her had been using it in a manner which demonstrated that they were using it as they would have used any other public right of away, i.e. as a right that had been continuous for a considerable length of time and at least 20 years dated back from 1987. That was a conclusion, which it is accepted today by Mr Darby, was one which she was entitled to reach, though I am sure he has disagreements with it.

14. The decision letter then reaches its core at paragraphs 30 to 38. These paragraphs culminate in the conclusion that in the Inspector's judgment there is an absence of evidence of lack of intention to dedicate. Before approaching it I remind myself, as Mr Coppel argues I think rightly, that the establishment of any intention, whether negative as here, or positive as is more normally the case, is usually to a large extent a matter of inference and, as such, in the province of the fact-finder. Secondly, that inferences where they are drawn are drawn from primary findings as to actions or omissions as that fact-finder establishes them to be.

15. At the outset of this section, the Inspector set out the task which she saw she had to carry out. She said:

"Section 31(1) of the 1981 Act contains what is frequently referred to as the 'proviso', which means that even if usage of a way by the public can be shown to fulfil the statutory requirements, a public right of away will not be established if an owner can demonstrate that during the period in question, he had shown an intention not to dedicate the way. The Dorset case makes it clear that such an action must be contemporaneous, and overt, but does not necessarily have to be communicated to the users."

Mr Darby's complaint is not that this is a misstatement of the task that she had to carry out, but that having stated it she failed to carry it out properly.

16. At the inquiry there were three main areas of evidence falling within the 20-year period, which were very much in play; although of course Mr Darby correctly says that they must be construed against the whole of the evidence, the backdrop of all the facts of the case and not looked at as if they existed in isolation from it. These were areas of evidence advanced as clearly evidencing absence of intention on his part, and areas where, in the decision-making process, the Inspector has failed in her task in a review of the way. Firstly he instances the question of his application in 1979 for the diversion order. The question then arises as to what light this throws on his state of mind or specifically his intention either at, before or after that date; that day being June 1979. What the Inspector said about it in her decision letter at paragraph 36 was:

"What Mr Darby did in fact do was to announce his intention of applying to create a public right of away along the route in question, albeit at the expense of another. It might be argued that his application to divert the path, and the publication of the Order by the then County Council, constituted an acknowledgment by both parties that public rights were not deemed to pre-exist along the track. However, it does not seem to me that the positive action by the landowner of proposing that the track become a public right of way can be construed in the negative as a lack of intention to dedicate it. Whilst there is no doubt that the application constituted a contemporaneous act on the part of Mr Darby, and that it was overt as evidenced by the Parish Council minutes, I cannot place upon it the interpretation that Mr Darby prefers. It follows that I do not consider that this action is sufficient evidence of a lack of intention to dedicate but rather the opposite. "

Mr Darby puts forward with this action and as an aid to the construction of it, his stance at the Parish Council Annual General Meeting, 27th March 1979, which the Inspector covered in an earlier part of the decision letter. At that meeting the question of his proposed diversion application was discussed and he was recorded as saying that he would be applying for it because he was aware that though the disputed path was not a public right-of-way most people used it in preference to following the route of Footpath No 9. The clerk to the Parish Council could not recall anyone voicing opposition to that or concern about it at the meeting.

17. Mr Darby says this shows that his belief was, at the time he made this application, that the disputed path was not, in truth, a public right-of-way; and, therefore, that his state of mind was that he was prepared to offer that it should become one but only on terms that Footpath No 9 was replaced and, therefore, extinguished by it. He was, he says, proposing a trade: an exchange of his non-dedicated land to permit the creation of a dedicated footpath on it in return for the extinguishment of an existing footpath. He was not proposing the simple gift of a right-of-way over his land.

18. The defendant's answer to this is that this action, on his part, says nothing about his state of intention in the relevant years that led up to it (1967 to 1979) but it does evince a positive indication as to his future intention. At all events, it was open to the Inspector to construe it as not being evidence of an absence of intention to dedicate, rather the opposite. The core sentence in paragraph 36, which I will set out again, is important:

"However, it does not seem to me that the positive action by the landowner of proposing that the track become a public right of way can be construed in the negative as a lack of intention to dedicate it."

19. Mr Coppel argues that that was the right approach since embedded in this application was indeed the offer to create a public right-of-away over the disputed path. The sentence I have repeated certainly needs to be read with care and probably read more than once, but, in my judgment, at the end of the day, it survives that test well. Every word in it is chosen with care, as it seems to me, so as strictly to address the question at issue: does the piece of evidence under scrutiny in fact amount to "sufficient evidence that there was no intention during that period to dedicate it"? His action was certainly contemporaneous. It was certainly overt. The Inspector's conclusion was that it ought not to be constituted as evidence of an absence of intention and she did not interpret it as such. If that was the Inspector's conclusion that was the end of it. Indeed, the Inspector was, in my judgment, entitled to go on to call it evidence of a positive intention to dedicate the land albeit on conditions. But this final finding was not a necessary part of her task.

20. As to the state of the defendant's intention in the years 1979 to 1987, this was dealt with at various stages of the decision letter, principally paragraphs 20, 22 and 37. There was, as will always be the case in inquiries of this nature, a patchwork of evidence, this being a historic investigation to an extent. Mr Darby had said that before 1978 he had challenged users of the disputed path and his sister gave evidence that her father had done the same in his lifetime. That evidence had to be read in the light of the Inspector's impression, as in paragraph 30, that the challenge, query whether just of the father or of both, consisted mainly of asking for dogs to be put on leads and perhaps advising people that it was not a right-of-way. But, most importantly, in his evidence Mr Darby accepted that after 1979 he had actively encouraged people to use the disputed path. This was during the period when, in fact, his application was being considered, although he, to be fair to him, had no idea that this was the case and thought he was home and dry. But putting his motivation to one side, this was an accurate statement of the position as the Inspector found that he had "actually promoted the use of the path by the public." As I have said today, he argues that that this was in fact to encourage them not to use Footpath No 9 which they were doing, as old habits die hard, and was also in the mistaken belief that his application was successful.

21. But as a primary finding of fact it was plainly open to the Inspector to reach and, she having reached it, it was a finding of the highest significance in her consideration of the question of the proviso. At the very lowest, it was not evidence of an absence of intention to dedicate, and not even arguably was it such. The Inspector's conclusions on this topic are at paragraphs 37 and 38. She said:

"As I have already discussed .... subsequent to his application and up to March 1987, far from preventing access along the track, Mr Darby encouraged it. So I must look at the 12 years prior to 1979 ... to see whether any other actions taken by Mr Darby might demonstrate a lack of intention to dedicate."

She then reviewed the evidence as to usage in those years. It is not suggested that she included evidence that was not relevant to that period or excluded evidence that was. The results of that consideration she expressed in this way:

"The weight that I can attach to this evidence [the evidence of challenges by Mr Darby] is therefore reduced as a consequence as in my view I have no evidence of an overt and contemporaneous act sufficient to demonstrate a lack of intention to dedicate."

As with all such inquiries the resolution of the core question often comes down to the weight to be attached to evidence. This Inspector felt that that weight in this case was reduced by the fact that none of the people who gave evidence to the Inspector of regular use had themselves encountered any challenges from Mr Darby, as he conceded, with the absence of one lady, who had died before the inquiry took place. This finding of fact, as with many in the letter, must have been a disappointing one for Mr Darby and the court can understand that.

22. But my judgment is that again it fell squarely within the area of fact-finding which was the province of the Inspector and her conclusion is one that cannot be called unreasonable in a sense that opens it to review in this case.

23. That leaves then the question of the exchange of correspondence that I have already mentioned which took place between Mr Darby and the County Council, starting with his letter of 21st October 1986. Because importance is attached I should read it in its relevant part:

" Footpath No 9 Kemerton

You will remember that I telephoned you two weeks ago to complain that a footpath sign had been erected on the Kemerton - Kinsham road both on the original line of the footpath and the line to which it was provisionally diverted on the order of 18th April 1980. I understand that this provisional diversion has still not been finalised and that the line of the path is currently uncertain. However, I think it is unreasonable to have two signs and that you must make up your mind which one is appropriate. I am, of course, still anxious to complete the diversion which will be more convenient from a farming point of view as well as being to the wishes of the population of Kemerton as expressed at the annual meeting."

After some delay by the Council, he wrote threatening, not in any offensive way, to remove the sign himself if they did not do so, and eventually the Council did. They reacted by removing the sign which had been placed at the disputed path.

24. It is true that this letter expresses a preference, and because he is a civilised and courteous man, Mr Darby expressed his preference in polite terms, but it is there and it is plainly there to be seen, a preference in favour of the 1979 proposal.

25. His argument today is that he was making it clear in this letter within the relevant period that he was insisting on one sign being removed and with it, therefore, one footpath, and only agreeing to the disputed path becoming a right-of-away on the condition that Footpath No 9 was closed. His follow-up letter of 7th February 1987 underlines this point.

26. Mr Coppel argues that all the letter of 21st October does is ask the County Council to make a decision with a mild nudge in the form of a stated preference expressed by the defendant for the decision to go in a particular way. These are conflicting and competing arguments as to construction, each of which has merit. The Inspector's job was to look at this letter and the surrounding evidence that goes with it from this point of view, and from this point of view only, namely did it amount to evidence of a lack of intention on the part of Mr Darby to dedicate the disputed path.

27. The Inspector's conclusion was that it did not and she said so in this these terms:

"... I do not consider that this action demonstrated a lack of intention to dedicate as Mr Darby did not specify which sign he wanted removed."

Mr Darby says that is not right, that he is, in effect, specifying that he wanted the disputed path sign removed. But in so saying, I think he is putting a favourable or one-sided construction of the letter, and I do not mean that in any offensive sense. My judgment is it was open to the Inspector to take the line she took. She went on significantly:

"Neither do I consider that this event was significant enough to bring the use of the right of way into question, as Mr Darby continued to encourage use of the path."

The Inspector as I have noted above found that the displaying of the notice of March 1987 was the first challenge within the meaning of section 32 to its use.

28. This claim for relief, therefore, in my judgment must fail, for the reasons I have given above, none of the elements of the decision letter attacked are indeed properly to be criticised on the grounds that they are criticised, and that the areas with which I have dealt were within the province of the Inspector properly addressed by her.

29. I reach this conclusion with regret, since Mr Darby has conducted his appeal with great ability and great clarity. I have little doubt that this result will come as a considerable disappointment to him. I hope he will be able to accept that its failure is due to no fault on his part but is a reflection of the necessarily limited role of this court in its power to review and re-visit findings of the type that are in question in this case. For the above reasons this claim fails.

(Claimant agreed to pay costs in the sum of £6,414.)