“24. … In order for it to be presumed that a highway has been dedicated, it is necessary to show that during the 20-year period in question, the landowner made no indication that it was not his intention to dedicate a footpath. If it can be shown that the landowner did make such intention clear, then any claim must fail. The Dorset case is relevant to this issue, and the objector drew my attention to it. It was held that any action on the part of the landowner in this respect had to be contemporaneous (to avoid a retrospective assertion being made) and it had to be overt (i.e. not secretive). However, it was not considered necessary for that intention to necessarily be made known to the users of the way …”
“28. Nevertheless, I have considered carefully the evidence of the letter dated27 July 1990 to the County Council’s Planning Officer. This letter makes a clear reference to the problems being experienced by the landowner in relation to trespass. Several problems are mentioned including the unauthorised vehicular access and the illegal use of the water area. But the last two sentences are, in my view, the crucial ones. I therefore quote them in full as follows: ‘We are somewhat reluctant to erect security fencing to prevent pedestrian trespass around those parts of the pit which are not designated as a public footpath but clearly something has to be done to prevent illegal access to the land if the public is unwilling to restrict its movement to the definitive line of the footpath. Your comments on this point, in particular, would be appreciated.’ 29. Unfortunately, the response from the County Council was not presented to the inquiry, but that does not detract from the nature of the statement I have quoted. Given that at the time it was written, there was only one footpath on the definitive map (Footpath 4) it is difficult to interpret the letter in any other way than indicating that the landowner did not want pedestrian access round the pit (or lake). Even if the meaning of the word ‘trespass’ in this context is unclear, I consider that the specific reference to ‘illegal access’ clearly relates to pedestrian activity. 30. In my view this letter is contemporaneous as it was written during the period of 20-years use prior to 1999. It is also overt in that it was a letter written openly to a local authority department as part of the planning process connected with the permission to reinstate the area, following the remedial road works to the A14. As I have indicated in paragraph 24 above, it is not necessary for the contents of this letter to have been made known to the users of the path for it to satisfy the criteria of the 1980 Act. I must therefore conclude that it does constitute evidence of a lack of intention to dedicate, expressed during the relevant period, and thus the claim does not satisfy section 31 of the 1980 Act.”
“49. However, as I have mentioned in paragraph 38 above, a copy of the tenancy agreement between the Estate and the tenant farmer was presented in evidence, and contained a pertinent clause. Clause 17 of the agreement relates to game and trespass, and states: ‘… To warn and keep off all unauthorised persons from shooting fishing sporting molesting the game or trespassing over any part of the farm to give notice to the Landlord of any continued acts of trespass and not to allow any footpaths to be created. To permit the Landlord to take proceedings against trespassers or poachers in the Tenant’s name. To lay information and give evidence and sign if required notices to trespassers and others to keep off the farm.’ Although this clause appears to deal largely with the protection of the sporting interests in the land, the language is sufficiently broad to include reference to ‘others’. 50. In order for me to interpret the significance of this evidence, I refer to the cases of R v. Secretary of State for the Environment ex parte Billson [1998] (‘Billson’) and R v. Secretary of State for the Environment, Transport and the Regions, ex parte Dorset County Council [1999] (‘Dorset’). If I apply the findings of Dyson J in Dorset I must consider whether the tenancy agreement constitutes an act sufficient to satisfy what he refers to as the ‘proviso’ of Section 31(1) of the 1980 Act. In this he was guided by the judgment of Sullivan J in Billson which suggested that any action taken to satisfy the proviso needs to be overt and contemporaneous, but does not necessarily have to be communicated to the users. 51. Although the tenancy agreement was an agreement only between the parties concerned, it was a legal document and was drafted in accordance with various agricultural legislation in force at the time. It dates from 1950, but at the inquiry the Land Agent confirmed that it was still in force in 1986 when the tenant farmer retired. The Company which was formed in 1955 to manage the affairs of the Estate took over all such agreements that had previously been in force. As the agreement was still extant in 1986, it was in force for a substantial part of the 20-year period I am considering in respect of the Order route. The tenancy agreement was therefore in my view an overt and contemporaneous expression of the wishes of the landlord in respect of the tenant’s management of the property. The judgment in Billson makes it clear that the lack of intention to dedicate does not have to be demonstrated throughout the whole period of 20 years, as long as it is manifest for a sufficient part of it. I consider that 14 years (1972 to 1986) is a sufficient period to qualify. The accepted interpretation of the proviso means that to satisfy the requirements of Section 31 of the 1980 Act the tenant did not need to put the terms of the clause sufficiently into practice to bring home to users that his landlord had no intention of dedicating any public rights of way across the land. As I have already concluded in paragraph 48 above that the signage was not effective in this regard, there is no evidence that he did so. Nevertheless, I conclude that the existence of Clause 17 in the tenancy agreement is sufficiently overt and contemporaneous to satisfy the proviso. I consequently consider that there is sufficient evidence of a lack of intention to dedicate the public right of way during the relevant period.”
“In my opinion a landowner cannot escape the effect of twenty years’ prescription by saying that, locked in his own mind, he had no intention to dedicate: or by telling a stranger to the locality (who had no reason to dispute it) that he had no intention to dedicate. In order for there to be ‘sufficient evidence that there was no intention’ to dedicate the way, there must be evidence of some overt acts on the part of the land owner 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. He must, in Lord Blackburn’s words, take steps to disabuse those persons of any belief that there was a public right: see Mann v. Brodie (1885) 10 App. Cas. 378, 386. Such evidence may consist, as in the leading case of Poole v. Huskinson (1843) 11 M&W 827, of notices or a barrier: or the common method of closing the way one day a year. That was not done here; but we must assume that the land owner turned off strangers in so open and notorious a fashion that it was clear to everyone that he was asserting that the public had no right to use it. On this footing there was sufficient evidence to show that there was no intention to dedicate.”
“Quite clearly, it was not sufficient for the landowner merely to come along and beat his breast and say that all was lost, because there was an intention never to dedicate. That intention had to be manifested by sufficient overt or notorious acts.”
“Although proof of matters there identified would provide sufficient evidence in a particular case, what evidence was sufficient in other cases would necessarily vary from case to case.”
“But did it have to be overt to every single user of the way on every single day of the year? There was nothing in the section to say that. Denning LJ in the Fairey case gave as an example the common practice of closing a way for one day in the year. He (Staughton LJ) was not sure that that would always be sufficient - for example if the land owners chose to charge a toll on Christmas Day, when nobody would be out riding their horses or on a day when there was a howling blizzard and when nobody would go out, even on a horse. It might be thought that that was not sufficient evidence of an intention not to dedicate. Again it was a question of fact.”
“In the absence of overt acts demonstrating an intention not to dedicate, such as displaying a ‘no right of way’ notice, the court ought to be slow to find that a landowner’s unexpressed intention not to dedicate is sufficient evidence for the purpose of section 31.”
“On the point of construction, there was of course a danger of putting a gloss on the word ‘intention’ in the statute and normally, when intention was at issue, a witness was permitted to say after the event what his intention at the time had been. In the context of the 1980 Act however, he (Pill J) respectfully agreed that intention had to be made manifest by contemporaneous and overt acts. The object of the Act, or one of its objects, was to simplify proof of dedication which was presumed upon proof of user. The statute gave a landowner means of protection against that presumed dedication upon production of sufficient evidence to negative the intention to dedicate during the relevant period of use. Read as a whole, section 31 contemplated overt acts during the relevant period; use, as defined, on the one hand, acts which negative an intention to dedicate on the other…. Further, it would be a rare case in which a statement after the 20-year period of what the intention had been during that period could be ‘sufficient evidence’ unless made manifest by acts during the 20-year period.”
“.. under section 31 the landowner had to prove merely that he had no intention to dedicate; certainly, he had to prove it by overt acts, directed (as Lord Denning indicated in Fairey) to the public who use the way in question.”
“Quite plainly, the second part of section 31(1) imported a further requirement. It meant that evenif use of the required quality was proved, the status of right of way would not be established if the landowner demonstrated an intention not to dedicate. The logical relationship between the two parts of the sub-section entailed that proof of an intention not to dedicate could be constituted by something less than proof of facts which had to have made it clear to the public that they had no right to use the way: otherwise, once the interested public had established their case under the first part of the subsection, there would be no room for the operation of the second part. That was not a very satisfactory state of affairs. It was plain that the landowner had to disprove an intention to dedicate by overt acts directed to the members of the public in question, but equally plain that they need not actually bring home to the public that there was no right to use the way. He could only conclude that any sufficiently overt act or series of acts indicating an intention to keep the way private would be enough for the landowner’s purposes in relation to the second part of the subsection, though they did not in fact bring home to the public his objection to their using his land.”
“Is the deed ‘sufficient evidence’ of the landowner’s intention given that it was not publicised or made manifest to the users of the way? The authorities cited by Mr. Laurence, ex parte Blake …, ex parte Cowell …, Ward’s case … and O’Keefe’s case … do no more, in my view, than establish the proposition that evidence of the landowner’s intention must be overt and contemporaneous. Thus it will not avail the landowner to assert after the event that he had no intention to dedicate, but he is not required to publicise his intention to users of the way. The only dicta to the contrary are those of Denning LJ in Fairey v. Southampton County Council. Mr. Laurence accepts that they were obiter. In so far as they equate the evidence necessary to satisfy the proviso with the evidence necessary to bring home to the public that their right to use the way is being called into question, they go too far, in my view. Implicit in Mr. Laurence’s submissions is the existence of a very fine line between acts that are sufficiently ‘open and notorious’ to be capable of bringing the landowner’s intention not to dedicate to the attention of the public, and those which are not so open and notorious that they succeed in bringing the user of the way into question. His approach seems to me to leave little if any scope for the operation of the proviso. The landowner must not keep his intention locked in his own mind, but whether his acts are fairly described as overt or covert must be a question of fact for the inspector. One can imagine far-fetched hypothetical examples: writing a letter to oneself and placing it in one’s desk drawer; but the inspector was entitled to conclude in this case that the formal execution of a deed addressed to ‘all men’ and depositing that deed with the appropriate government department was a sufficiently overt act. I accept that the analogy with section 31(6) is not precise, because Parliament created a specific means of negativing intention, and the declaration has to be deposited with a highway authority and renewed every six years, but it is fair to observe that Parliament did not feel that it was necessary to bring the existence of such a declaration to the attention of the public using the way. It is true that in order to be effective under section 31(3) the notice has to be visible to persons using the way, but erecting such a notice is merely one way of establishing a contrary intention, and is deemed to be sufficient in the absence of proof of a contrary intention. One would expect that the evidential threshold required to bring the landowner within such a deeming provision would be relatively high.”
“On the face of it, the language of the proviso is straightforward. All that is required is that there be sufficient evidence of lack of intention to dedicate. Coming to the matter untutored by previous authority, one may be forgiven for thinking that what Parliament intended was that the tribunal of fact simply decide as a matter of fact whether there is or is not sufficient evidence of intention to dedicate. Indeed, in Cowell,Rose LJ emphasised that it is a question of fact. Staughton LJ made the point that the need for an overt act is not to be found in the statute. In O’Keefe Pill J referred to the danger of putting a gloss on the word ‘intention’. I accept that as a matter of fact the tribunal of fact will rarely, if ever, find that there is sufficient evidence of lack of intention to dedicate in the absence of overt and contemporaneous acts on the part of the owner. I do not, however, think that such a requirement can be spelled out of section 31(1) as a matter of construction. In my judgment, Parliament left it to the tribunal of fact to decide whether the evidence in any given case is sufficient for the purposes of negativing the intention to dedicate. The section states no criteria as to what constitutes ‘sufficient evidence’, although in section 31(3) and (6) two particular examples are given as to what will suffice …. [I]t cannot be suggested that sub-sections (3) and (6) are exhaustive of the circumstances in which there will be sufficient evidence. They are (the only) two examples of what, as a matter of law, will amount to sufficient evidence. I would therefore not place any gloss on the proviso at all. But if a gloss is justified, it seems to be common ground that it cannot be that advocated by Denning LJ. As explained by Sullivan J … the intention not to dedicate does not have to be brought home to the users, since otherwise, in view of section 31(2), there would be no role for the proviso at all. Furthermore, as explained by Laws J, the relationship between the two parts of section 31(1) itself demands 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 …. It is necessary to stand back from the textual criticism to which the various obiter dicta have been subjected, and seek to ascertain the purpose of the proviso. It is clearly to protect the landowner, by enabling him to defeat a claim of presumed dedication by proving that he did not intend to dedicate. The only requirement imposed by Parliament is that there should be sufficient evidence of that intention. In my view, there is no reason in logic or policy why the only evidence that can be sufficient is of overt acts which are aimed at the users, but which do not bring home to them the owner’s objection. As Staughton LJ pointed out in Cowell, the overt acts rule (if that is what it is) is a sensible rule of evidence, since it prevents a landowner from asserting after the event that he had no intention to dedicate. The rule that the owner must bring his objection home to the users is relevant to section 31(2) since, as Denning LJ made clear in Fairey, one of the objects of that sub-section is to give users the opportunity to meet the owner’s challenge. But I can see no reason to construe the proviso to section 31(1) as imposing a requirement that falls somewhere between what I have called the overt acts rule and that which is required for the purposes of section 31(2).”
“The purpose of the Act of 1932 was to make it unnecessary to infer an actual dedication and, in the absence of specific rebutting evidence, to treat user as of right as sufficient to establish the public right.”
“In passing the Act of 1932, Parliament clearly thought that the previous law gave too much weight to the interests of the landowners and too little to the preservation of rights of way which had been for many years in de facto use. As Scott LJ pointed out in Jones v. Bates[1938] 2 All ER 237 , 249, there was a strong public interest in facilitating the preservation of footpaths for access to the countryside ….”
“That was sufficient evidence that there was no intention to dedicate during the 20 year period ending in August 1995. In my view, it is impossible to impugn the Inspector’s decision on this point.”
“(1) Where a way, not being of such a character that user thereof by the public could not give rise at common law to any presumption of dedication, upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of twenty years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way, or unless during such period of twenty years there was not at any time any person in possession of such land capable of dedicating such way. (2) Where any such way has been enjoyed as aforesaid for a full period of forty years, such way shall be deemed conclusively to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way.”
“It does not profess to alter the general law as to the manner in which public rights are deemed to have come into existence. The important change is in the length of time which is enough to establish the intention. If the way can reasonably be presumed to have been dedicated as public, then proof of public user for 20 years past is now enough, if the user has been ‘as of right’, without interruption, and it is not proved by the landowner that the intention to dedicate the way was not continuous during the 20 years …”
“If a notice were put up before 1933, it would have this effect: if the 20 years had not then run, the notice would prevent a public right being acquired; whereas if it had already run, the notice would serve as an emphatic assertion that the path had heretofore been used by tolerance of the owner and not by right of the public ….”
“Their Lordships had cited all the relevant cases save one which he would mention because it had formed part of Mr Laurence’s argument: R v. Secretary of State for the Environment, ex p. Blake [1984] JPL 101 where Walton J (rightly in his view, although criticised by Mr Laurence) held that a notice which was not maintained throughout the whole of the relevant period necessary under section 31(3) could nevertheless be relied on as evidence that during the time that notice was displayed, the way was being used with the permission of the landowner, and therefore, during that period at least, there was not user ‘as of right’ ….”
"The house will be astute to ensure that unnecessary costs have not been incurred. Where there is multiple representation, the losing party will not normally be required to pay more than one set of costs unless the recovery of further costs is justified in the circumstances of the particular case."
"In such cases -- that is to say, under section 288 of the Town and Country Planning Act -- the developer has usually been regarded as having a separate interest, which he is entitled to protect at the local authority's expense."
"This practice was recognised by Simon Brown J in Waverley. However, (inaudible) in the Court of Appeal cast doubt on the current practice. In that case the developer had been awarded the whole of his costs in the court below and the Secretary of State got nothing. The Court of Appeal held, in my view correctly, that this was wrong. The Secretary of State should have been awarded the whole of his costs. The Court of Appeal could not, however, touch the award of costs in favour of the developer since the developer was not represented on the appeal. But Leggatt LJ said: 'If the developer had not been awarded any part of his costs, he might not have been able to complain,' and went on: 'In my judgment, in circumstances such as these, where the issues argued on behalf of two or more respondents are identical, the court should be disposed to make only one order for costs."
"The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard -- that is to say, an issue not covered by counsel for the Secretary of State -- or unless he has an interest which requires separate representation."
"An application for permission to appeal may be made- "(a). to the lower court at the hearing at which the decision to be appealed was made; or "(b). to the appeal court in an appeal notice."
"Where the appellant seeks permission from the appeal court, it must be requested in the appellant's notice. The appellant must file the appellant's notice at the appeal court within such period as may be directed by the lower court -- LORD JUSTICE MAURICE KAY: We certainly have the power. MR LAURENCE: Your Lordship has the power: " ... or, where there is no such direction, within 14 days."
"The cases concern two points on the construction of section 31, which will affect almost every case in the country concerning claims to public rights of way. The effect of the construction of the section upheld by the court is to put the well advised landowner in a position to defeat any claim based on section 31, as the court itself appears to recognise at paragraph 43 of the draft judgment. The net result will be a return to the common law. "
" ... despite, or perhaps because of, having given the issue his customary careful treatment, and since then the case of Sunningwell has confirmed that the key difference between common law dedication and section 31 deemed dedication is that in the former cases it is open to the fact finder to ascribe the landowner's attitude to tolerance, leading to difficulty and unpredictability for claimants relying on the common law, of which it was Parliament's object, in providing them with a statutory alternative in 1932, to relieve them. "
"We prefer Mr Mould's submissions as to legislative intent."
"Even if a claim under the statute could be defeated by such advice, it might well still be possible to infer a dedication at common law. Although Mr Laurence described this as very much a last throw, it is something to which a decision maker could be expected to give particularly close attention in circumstances of the kind envisaged."
"I know of no principle to require us to assume an intention to dedicate rather than tolerance."
"The estate never had any intention of dedicating this track as a public path."
"Miss Cameron cautioned your Lordships ... "
" ... against being too ready to allow tolerated trespasses to ripen into rights. As Bowen LJ said in (inaudible) nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners under the fear that their good nature may be misunderstood."
"On the other hand, this consideration, if carried too far, would destroy the principle of prescription. A balance must be struck. In passing the Act of 1932, Parliament clearly thought that the previous law gave too much weight to the interests of the landowner and too little to the preservation of rights of way which had been for many years in de facto use. As Scott LJ pointed out in Jones v Bates, there was a strong public interest in facilitating the preservation of footpaths for access to the countryside."