“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.”
“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.”
“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.”
“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.”
“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.”
“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.”