Paton v Devon County Council & Anor

This has been the hearing of an appeal by way of case stated against the decision of Mr Recorder Abbott in the Exeter Crown Court on 19 January 2012 after a three-day hearing. Originally, the matter was brought by way of judicial review and the Recorder was reluctant to state a case, because he concluded that no point of law arose in respect of his decision and detailed judgment which he had given. But permission of HHJ Seys-Llewellyn was given for a challenge to the failure to state a case, or at any rate the delay in so doing, and in the light of that the Recorder stated the case and the claimants did not pursue their claim by way of judicial review and have simply pursued their appeal by way of case stated before me. The appellants live in the obviously delightful village of North View in Devon, and they live right by the main square at the centre of the village, formed by the junction of Station Road from the west and Queen’s Street from the North. The problem arose out of the concern of the appellants as to development of the land around them by developers, and part of their campaign to inhibit such development was to seek to establish that there was a right-of-way by way of a footpath maintainable at public expense by the Devon County Council, which would have unquestionably, if it were the case, thrown a spoke in the development.

In the event, they have followed through other challenges to the development, and I am told that other challenges have been sufficiently successful that at least the developers are having to think again about how they propose to pursue their development and the rights-of-way to the their development. But in the meanwhile this case came on for hearing, and the claimants, having lost before the Recorder, now pursue an appeal before me, which has been resisted as it was below by the respondent council instructing Mr Wadsley of counsel. Mrs Paton on behalf of the two appellants has argued the case with great erudition and eloquence, and it is plain that no point which could be taken on her behalf has been lost sight of, and that the case was fully argued both before the Recorder and before me. She recognises that there is a difficulty in pursuing an appeal by way of case stated. Her opportunity really to succeed was before the Recorder, where all issues of fact were at stake and could be pursued, as they were, to the uttermost. Before me there requires to be a point of law in respect of which the Recorder can be shown to have erred. One of the matters of which Mrs Paton complains is that in paragraph 5 of his judgment, the Recorder said:

“A mere dedication by an owner of the soil will not create a highway. It has to be dedicated by the public and usually this means by statutory adoption.”

It is quite plain to me that that was a slip by the Recorder, and that what he meant to say was it has to be dedicated to the public, and of course dedication can be by way of a statutory adoption, alternatively by way of formal dedication, alternatively and usually by way of acquiescence by the owner and user by the public. I do not conclude that the existence of that mistake in the last sentence of paragraph 5 of his judgment is any basis upon which an appeal by way of case stated has any chance of success.

The two bases upon which Mrs Paton has sought to argue the matter, if I can summarise them on her behalf, although she argued the matter very fully by reference to the facts, recognising that the facts alone would not get her home, are as follows: (1) that she submits that there was no evidence before the Recorder upon which he could reach the conclusion he did. The second is that there was one particular error of law which, irrespective of the factual context, flaws the conclusion to which he came. I shall deal with the second point second. So far as the first is concerned, this is of course an extremely heavy burden for the appellants after a three-day hearing. It must be stated from the outset that the appellant produced no evidence of user at all to support their case that there is between C and B on the plan, to which I shall describe, a right-of-way or a highway whether maintainable by the public or at all. The case was said by Mrs Paton herself, I think in the course of argument below, to be one of cartography against conjecture. The Recorder was taken through in detail evidence of maps dating back many years, as elucidated by oral evidence on behalf of the respondent and evidence of photographs. But there was no relevant oral evidence given at all, and the evidence to which the Recorder was right and entitled to take into account was primarily that of the maps, but in particular of a confirmation a public footpath by the Parish Council in 1950, to which I shall refer.

There are two sections 56 in play in this case. Section 56 of the Highways Act is that under which the original application by the claimants were brought, the Highways Act 1980, and they seek a declaration that the path from C to B, commencing in Station Road, Northlea, and ending just north of C, and along the route of a footpath to which I shall return, has always been and should now be declared to be, a highway maintainable at the public expense. Mrs Paton heavily relied below, and again before me, on the concept: once a highway, always a highway. It is not in doubt that the procedure which she used was a proper one, but equally that the onus of proof on her to establish that B to C is such a highway is on her.

The other section 56 is section 56 of the Wildlife and Countryside Act 1981, and this is relevant to the decision of the Parish Council in 1950, to which I referred. It is headed up “Effect of Definitive Map and Statement”. By section 56(1):

“(1)

A definitive map and statement shall be conclusive evidence as to the particulars contained therein to the following extent, namely—

(a)where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover a right of way on foot, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than that right.”

If this judgment ever comes to be transcribed, there should be annexed a copy of the plan which was annexed to the complainant’s complaint, as amended, annotated and illustrated in the course of the hearing before me. This shows Station Road coming from the southwest, joining Queen’s Street in the public square. Just to the south of Station Road, before the road joins the square, is Elmfield House. In the square to the right, although not shown on the map, is the chapel. At the junction of Station Road and Queen’s Street there are a series of little buildings, which generically, because of the largest of them, has been called Clomb Cottage. North of Station Road, or to be precise northwest of Station Road, there is said to be the road of the way C to B, C being the place where this way is alleged to debouch into Station Road, and B being the place where the path is said to join a footpath, which on any basis and admittedly carries on slightly southwestwards until eventually it hits Kimber Road. There has been some discussion as to whether at some early stage in its history it had stopped at a lake or pond on the way to Kimber Road, but now certainly it ends at Kimber Road, and there are various stopping points along the footpath for the purposes of marking in the plans before me, but for the purposes of this judgment the only important ones are B, where it is alleged by Mrs Paton that the path, if there was one, starting from C in Station Road meets, or in her case turns into, that footpath, and then running on up to Kimber Road, D, E and F. The respondent, the local council, accept that there is a footpath from Kimber Road. Their case is that it starts in the west at F, carries on at E and D, that there is no significance in B, and that it carries on eastwards so as to come out onto Queen’s Street, effectively opposite the chapel and through a gap in or between buildings otherwise known as Clomb Cottage, to which I have referred. The issue before the Recorder was whether the appellants have proved the footpath B to C. Because of the admitted existence of the footpath up to F, to which I have referred, in fact and perfectly understandably and pragmatically, it seems to me that all the parties adduced evidence and the Recorder addressed his conclusion to the existence of the footpath as he found it to be from A to F. This is a footpath which the respondent admits to be maintainable at public expense, A, B, D, E, F, and it is also the answer, the respondent says, to the otherwise persuasive case of the claimants that there is a footpath, so where on earth does it end if it is not B to C, hence their case that B to C is part of that footpath, part of that way which ought to be maintained at public expense. The respondent, rather than restricting himself to saying that the appellants have not proved the path B to C, have answered that hypothetical question of the claimants by saying, yes, there is a footpath, we accept it, and it runs on from B to A. Therefore, although it was not necessary to do so, the Recorder’s decision inevitably became which path was he satisfied about? Was he satisfied about B to A, or was he satisfied about B to C? And he was not satisfied as to B to C, and reached the conclusion that the path ran effectively west-east from F through to A. In doing so, there is no doubt at all that he looked at the evidence which he was addressed about and the plans which he was shown very carefully, and I am not proposing in this judgment to repeat the very careful analysis that he made to which I refer, because of the different task which I am performing to see whether it can be said that he erred in either of the two respects to which I have referred.

Mrs Paton has inevitably referred me to what she would accept would be her best case, by reference to all the plans or maps which she says shows that the path coming from the west to Kimber Road did indeed turn down from B and debouch into Station Road at C. She has shown me, as she showed the Recorder, an ordinance survey one inch to one map for 1885, in which she says that the coloured green way supports her proposition that in 1885 it debouched into station road rather than into the junction of Station Road and Queen’s Road opposite the chapel. She says that the same came be seen from a one-inch to one-mile ordinance survey map of 1809, and two further maps dated 1900 and 1911. In addition, but less clearly, she accepts a further ordinance survey map from 1931.

It is quite plain that the Recorder considered those plans and accepted that, at least on the one-inch maps if not the larger scale ones, there could be said to be what appeared to be what he calls a dog-leg, which could be consistent a turn from B down to C rather than straight on from B through to A. That, however, was not the totality of the evidence before him, and which he considered. And there must be added to that, and in the light of section 56 of the Wildlife and Countryside Act 1981, very persuasively the definite map and statement by the Parish Council 1950. Mrs Paton emphasises once a highway, always a highway, but the issue before me of course is whether I am satisfied that there ever was a highway, and if there was then it is still there. The issue is whether there was, and in those circumstances, given the ambiguity which could be said to arise out of the earlier plans and the absence of any evidence of user, the 1950s documents are very powerful.

A clerk to the Parish Council lodged on 6 November 1950 a document headed “Grounds of a leading path to be copied”, which stated “Dedicated to the public by usage many years ago” with the remarks “the path is used occasionally, but at present at certain points is in need of repair”. It is to be emphasised that “the path” that is referred to as being used occasionally is, of course, the whole path up to Kimber Road. There is, as I have indicated earlier, and as Mrs Paton accepts, no evidence of any user of C to B, which is what she has to prove. What is that path which was so described in the Parish Council Clerk’s document? The entry on the register for the Northlea Parish Council is headed up “General Description”, and it states as follows. Having recorded whether likely to be disputed, “No. Footpath to East Kimber Road”, and that of course is to destination F. The description is as follows:

“Starts in the village on through the glebe yard and road to field gate 1, along by fence to field gate 2 to a brook but now impassable because of growth from bank fence no footbridge over the brook, continue on across the Fields to field gate 3 at the terminus at Kimber Road.”

And there is a handwritten note: “Private yard and private road”.

There is a map, effectively therefore the definitive map, which forms part of the Register, and it has on it the notation of the path. Running from west to east, it is quite clear that this pathway, as annotated in this plan, starts at what we have been calling A; it does not come out opposite Elmfield House, which is where C would be on Station Road; it comes out on the square, as will be described, opposite the chapel. It runs then westwards. There is, as I indicated, no relevance to B, because there is no right turn; it carries on to D, E and F. There are four field gates that are marked; three of them are obviously the field gates referred to in the description, the field gates 1, 2 and 3, which are at the various spots which we have delineated as D, E and F. There is an additional field gate which is clearly from its position after the beginning of the footpath in the village, apparently in the square, and a little way in; and it appears to be common ground -- certainly if it is not common ground it is clear to me -- that this field gate is placed at a position which we have called G, which is the boundary between the Glebe Yard, which forms part of the Glebe land along which the path then runs, and what we have called Clomb Cottage. There is no reference to this fourth field gate in the description, but it is marked on the plan, and it appears therefore that it must have existed at the time of the plan, although it is not a necessary part of my conclusion that it did, which would appear to suggest therefore that the path commencing on the public road had a stopping point by way of a field gate before the commencement of the Glebe land or in particular the Glebe Yard.

There is a concise description of the path to include means of access, constructions, etc, which is headed up from County Road, and then with a number to undesignated County Road. It is quite plain the undesignated County Road means Kimber Road. As to County Road, in 1950 it appears that the council wrongly thought that Queen’s Street was not an adopted road, but at any rate County Road and that number is conceded by the respondent to be a reference to Station Road, and Mrs Paton relies on that. The description is then footpath, and the description starts at County Road opposite the chapel in North View, and continues westward through the Glebe Yard and over a short length of private accommodation, and then it describes how it goes on to the Kimber Road.

Both sides gained support from that description. Mrs Paton relies of course on the definition of the reference to County Road to which I have referred, and she says that the reference to a footpath running through the Glebe Yard supports her proposition that it must be a reference, or include a reference, to B to C, which runs through the yard if it exists. The respondent, however, relies on the same statement, namely that it runs through the Glebe Yard, because it plainly does on his case in running east-west, but particularly relies on the fact that the path starts opposite the chapel, which can only be consistent with A, which is opposite the chapel, and not C, which is not opposite the chapel and is opposite Elmfield House. Thus, submitted below and before me Mr Wadsley, the description is only consistent with the passage starting A to B and not starting C to B. Further, as Mr Wadsley says extremely persuasively, the path is described as continuing running westward, whereas if Mrs Paton were right, the path starts by running northward and then turns westward at B. Mrs Paton relies on the fact that the description says “Starts at pavilion on through the Glebe Yard”. She submits that that means that the path starts at the road and immediately enters the Glebe Yard, and the only way for that to occur is if C is the entry point. Mr Wadsley submits that the wording, particularly given the reference to opposite the chapel, is in fact not only consistent with but more consistent with the path starting at the village and then going on through the Glebe Yard once it has passed the position that we have called G, where the field gate is depicted.

I am fortunate that I do not need to resolve the dispute, because that is not my function. Clearly Mrs Paton had, by reference to the old plans, a strong case. But it is quite impossible for me to conclude that there was not before the Recorder evidence upon which he was entitled to rely that the path was, and is, as found in 1950, and as carefully described, including the fact that it started opposite the chapel, so as to be a westward running path from A to B. I therefore am completely unpersuaded that the Recorder erred in law in his primary conclusion that he was not satisfied that there was a path B to C, and that he was equally entitled, once the matter was before him, given that there was the admitted footpath from F to B, to conclude that on the balance of probabilities the much likelier position was that it ran from B through G to A, but that certainly he was entitled to dismiss the claim by the appellant.

I turn then to the second way in which Mrs Paton must put the case, in the light of those findings of fact which, in my judgment, cannot be overturned, and it was clearly a necessary part of the Recorder’s conclusions in those circumstances, says Mrs Paton, that he was satisfied that the path ran from A to B, and she submits that he was not entitled in law to have concluded that the path ran from A to B because even if it was possible to conclude that the path from G to B formed part of the highway maintained at public expense, because it was on Glebe Land, because the path from A to G would on this analysis have run over a private road, in part recorded in 1950. There was no basis upon which the Recorder could conclude that there was a path from A to G.

The first answer which Mr Wadsley gives is in my judgment a correct one, and that is that it was not a necessary part of the conclusion of the Recorder, albeit it was a perfectly understandable as I have given, for him to conclude that there was a path from A to B. He was simply required to be satisfied or not, and he was not, that there was a path maintainable at the public expense from B to C. But Mr Wadsley did not rest his case there; he submitted that the Recorder was not prevented in law or at all from the conclusion that he reached that the path from A to B, and then onwards running westwards from B to F, was a path maintainable at public expense as conceded by the respondent, whereas that from B to C was not. It is, of course, right in principle for Mrs Paton to say that before a highway maintainable at the public expense can be found it has to be dedicated to the public. And whereas as to the path insofar as it runs over Glebe land and thereafter over property through to Kimber Road, she accepts that it would have been understandable that there would be a conclusion that that was dedicated to the public, there is no evidence that the passage from A to G was so dedicated or should be so regarded.

The problem she has is twofold: first that there is no evidence, the onus being on her, that there was any basis upon which the Council ought to have reached a conclusion that A to G was not dedicated to the public. She has said, although there is no evidence before me I have accepted, that in 1950 she believes, although she did not come to the area until 1981, that the owner of Clomb Cottage had died in the War, and thus it may be that he plays no material part in the proceedings that took place to which I have referred. That may be right, it may be wrong; it is five years after the Second World War, and it must be likely that those entitled to the state of a deceased person must have had some interest in what occurred. But the fact remains that the Parish Council researched the position, were required to publicise the position, and recorded, as I have earlier said, that the existence of the path as described by them was not likely to be disputed.

The result was that, by reference to section 56 of the Wildlife and Countryside Act 1981 to which I have referred, that statement is conclusive evidence. I understand that in other proceedings the Patons may be seeking to attack that conclusion by proceedings or otherwise by reference to Schedule 14 of the Act, but for the purposes of my conclusion, which is whether the Recorder can be said to have erred in law in reaching the conclusion, insofar as it was relevant to his decision, that there was a highway maintainable at public expense between A and G as well as between G and B and then onwards from B to F, and not between B and C, I see no possible basis in law upon which he can be said to have erred in reaching that conclusion; namely, a conclusion that either conclusively or otherwise A to B was a public right-of-way.

In those circumstances, this appeal is dismissed.