Berry v Secretary of State for Environment [2006] EWHC 2498 (Admin)

Case No CO/7927/2005

[2006] EWHC 2498 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday 25 September 2006

Between

RICHARD WILLIAM BERRYClaimant

SECRETARY OF STATE FOR ENVIRONMENTDefendant

FOOD AND RURAL AFFAIRSDefendant

DEVON COUNTY COUNCILDefendant

The Strand

London

WC2A 2LL

B e f o r e:

MR ANDREW NICOL QC

(Sitting as a Deputy Judge of the Queen's Bench Division)

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B E T W E E N:

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Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4

Telephone No: 020 7421 4040

(Official Shorthand Writers to the Court)

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THE CLAIMANT (assisted by Mrs M Masters, Litigation Friend)

appeared in person for in person

MR TIMOTHY MOULD (instructed by Legal Services Directorate-General

of DEFRA, London SW1P 3JR) appeared on behalf of

THE FIRST DEFENDANT

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J U D G M E N T

[1]This is a statutory appeal under Schedule 15, paragraph 12, to the Wildlife and Countryside Act 1981. It is brought by Mr Berry, who has appeared in front of me today ably assisted by his litigation friend, Mrs Masters. Mr Timothy Mould appears on behalf of the defendant, the Secretary of State for the Environment, Food and Rural Affairs.

[2]The case concerns an order made by the Devon County Council, namely the Bridleway No 48 Marwood and Bridleway No 48 East Down, Definitive Map Modification Order 2003. The effect of the modification order is to confirm the existence of a public right of way, namely a bridleway along the path shown on the plan which has been attached to the order.

[3]The claimant is a landowner over whose land or part of whose land the disputed way passes. He participated in the proceedings before the Inspector who held an inquiry into the disputed order and he is aggrieved by the Inspector's decision to confirm the order.

[4]The issue over the proposed modification has a litigation history. The claimant and the County Council were involved in judicial review proceedings in 2002. Those proceedings were compromised by a consent order made on 3 October 2002 by Davis J, whereby the modification order which had been made in 2000 in relation to the same path was by consent quashed. The reasons for doing so were that it was accepted that there had been a want of fairness or natural justice in the proceedings leading up to the making of the confirmation of that order.

[5]Devon County Council nonetheless pressed ahead in accordance, as it saw it, with its statutory duty to keep the relevant plan under review and made a further order in virtually the same terms. That led to an inquiry held by an Inspector at which a substantial amount of written evidence was produced and oral evidence was heard. The Inspector, Miss Helen Slade, produced an interim decision on 11 May 2004. It was an interim decision because it appeared to her that this was not only a bridleway but a byway open to all traffic. Since that was a somewhat different form of pubic user than the County Council had concluded, it required a further element of consultation. That was why her decision in May 2004 had to be an interim one.

[6]That period of consultation coincided with litigation in the courts. In July 2004 the Divisional Court reached its decision in R(Godmanchester Town Council and Another) v Secretary of State for the Environment, Food and Rural Affairs and R(Drain) v Secretary of State for the Environment, Food and Rural Affairs

[2005] 1 WLR 926

("the Drain decision"). The Inspector quite properly therefore invited the parties to make submissions as to what, if any, impact that decision should have on the decision she was required to reach. The solicitors then instructed by the claimant made such submissions, and it may be that there were submissions from other parties as well. The Inspector produced her final decision on 20 July 2005. It is that decision which the claimant seeks to challenge by this statutory procedure.

[7]The Drain decision of the Divisional Court was subsequently appealed to the Court of Appeal. Its decision, given in December 2005, came after the Inspector's final decision, but it is a matter which has featured in argument before me today. The Drain case in the Court of Appeal is reported at

[2006] 2 WLR 1179

[8]The obligations of a local authority in relation to footpaths are set out in the Wildlife and Countryside Act 1981. In particular, under section 53 the local authority is placed under a duty to keep its definitive map under review. Section 53(2) provides:

"As regard every definitive map and statement, the surveying authority shall -- (a) ... (b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event."

One of the events referred to is set out in section 53(3)(c) as: 9. "the discovery by the authority of evidence which (when considered with all other relevant evidence to them) shows -- (i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies; ....."

One of the events referred to is set out in section 53(3)(c) as:

[9]The existence of a right of way may be established by showing common law dedication sufficient to satisfy the test of a right of way at common law. That may be proved on the basis of documentary evidence. But it is common, and it was the case in the present situation, for reference to be made to section 31 of the Highways Act 1980 which so far as material provides:

"(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. (2) The period of 20 years referred to in subsection (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 notice such as is mentioned in subsection (3) below or otherwise. (3) Where the owner of the land over any such way as aforesaid passes -- (a) has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and (b) has maintained the notice after the 1st January 1934, or any later date on which it was erected, the notice in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway. .... (6) An owner of land may at any time deposit with the appropriate council -- (a) a map of the land on a scale of not less than 6 inches to 1 mile, and (b) a statement indicating what way (if any) over the land he admits to have been dedicated as highways; and in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time -- (i) within ten years from the date of the deposit, or (ii) within ten years from the date on which any previous declaration was last lodged under this section, to the effect that no additional way (other than any specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgment of such previous declaration, as the case may be, are, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner or his successors in title to dedicate any such additional way as a highway."

[10]In the present case the claimant claims that there was no new evidence since the 2002 order which would justify the County Council from remaking its modified order in respect of the disputed path. In my judgment this is not a sound point. The terms of the consent order to which I have referred indicated that the modification made in 2000 was being quashed for want of due process. It was open to the County Council to reach its decision again and to make a further decision which had (as indeed took place) the consequence of allowing a further inquiry to take place. I reject that ground of challenge.

[11]Secondly, it is said by the claimant that the necessary internal procedures within Devon County Council were not followed prior to the modification order being made. To some extent this was a matter that was canvassed at the inquiry itself, but in my judgment this is not a ground on which the statutory appeal can proceed for two reasons. The first is that the proper method of raising that challenge would have been judicial review at the time the County Council made its decision. It is now far too late for such a challenge to be incorporated, even if it could be, into this statutory appeal. In any event, there has been no serious prejudice as a result of that -- that being one of the tests which I have to consider under the statutory appeal process -- because the substance of the matter has been fully investigated by the Inspector at the inquiry.

[12]The next complaint raised by the claimant is that the Inspector did not properly direct herself as to section 31 of the Highways Act. His complaint in this regard has different aspects. I intend first to deal only with the complaint: that the Inspector "leap-frogged" over the first part of section 31(1) and went directly to the question of whether there was sufficient evidence to show that he had not intended to dedicate the route as a highway. In my judgment this complaint is also unsound. In two very full and conscientious decisions, the Inspector properly directed herself as to the initial elements that had to be established for the section 31(1) presumption to arise. She reviewed the evidence on the facts and in my judgment it cannot be said that she "leap-frogged" straight to the proviso aspect of section 31(1). Accordingly I also reject that ground of complaint.

[13]The next ground of complaint raised by the claimant concerns the evidence and the treatment by the Inspector of evidence as to various signs that the claimant said had been erected in relation to this path. The Inspector accepted that a sign that was erected at some time in 1999 was sufficient for the purpose of section 31(3) of the Highways Act to indicate that the path was not dedicated as a highway. The claimant's complaint here is that the Inspector was inconsistent in her rejection of his case that the same should be said of a sign which had been erected in 1970. In my judgment there is no merit in this argument. The Inspector considered very carefully the evidence before her as to the sign that had been put up in 1970. She considered that evidence at paragraph 54 of the interim decision. She said that the sign in 1970 had used the words "Honeywell Farm -- Private", and she commented at paragraph 81 of her interim decision:

"Signs which indicate that a farm is private, or that land is private, do not necessarily indicate that there is no public right of way. All pubic rights of way pass across land that is owned by someone, and that land is usually in private hands. Many public rights of way pass along private access tracks. I do not consider that the wording of the signs, as I have described them in paragraph 51 above, unequivocally indicates that the Order route is not a public right of way."

At paragraphs 50 through to 63 the Inspector noted that the 1970 sign had put on notice that the public's right to use the way was being challenged by the landowner. In my judgment the Inspector has perfectly properly set out her reasons for reaching a conclusion in relation to the sign in 1970 that was different from her conclusion about the effect of the sign which was erected in 1999. Accordingly, I do not consider that this ground of challenge should succeed either.

[14]So far, therefore, the claimant's points have not had any success. However, he raises a much more substantial point in relation to the Inspector's treatment of the proviso in section 31(1). It will be recalled that the proviso displaces the presumption of dedication of the land as a public right of way, notwithstanding that it has been used for a period of 20 years, if there is sufficient evidence that there was no intention during that period to dedicate it.

[15]In Drain the Court of Appeal confirmed earlier decisions of the High Court that the term "during" in section 31(1) does not require the landowner to demonstrate that throughout that 20 year period he has had an intention not to dedicate the land as a public way. It is sufficient if at some time during that 20 year period he so had an intention not to dedicate the land as a public right of way. Moreover, it is not necessary during that period for the landowner's intention to have come to the attention of the public. All of those are matters to which the Inspector correctly directed herself, even though at that stage she had the benefit of only the Divisional Court decision in Drain, rather than that of the Court of Appeal.

[16]In the present case the Inspector considered the contrary evidence that the claimant had not intended to dedicate the path. There are two aspects which are particularly relevant. On 21 December 1998 the claimant lodged with the Devon County Council a Landowner Evidence Form. In this form Mr Berry made clear that he did not intend to dedicate the way to the use of the public. On 8 January 1999 Mr Berry deposited with Devon County Council the documents which are referred to in section 31(6) of the Highways Act. A few days later, on 13 January 1999, he made the statutory declaration, which is the final stage of triggering the presumption of no intent to dedicate land for a right of way that is referred to in section 31(6).

[17]The Inspector was well aware of both of these matters. She had to consider whether they constituted sufficient evidence to rebut the presumption of dedication from 20 years of user by the public of the way, which she had found to be the case. As to that she said at paragraph 84 of her interim decision:

"On 8 January 1999 Mr Berry deposited a map and statement under section 31(6) of the [Highways Act 1981] showing that there were no public rights of way across his property. On 13 January 1999 he made a declaration that no additional ways had been dedicated over the same land (see paragraph 62 above). The 1980 Act [the reference should have been to the 1981 Act] states that such a document is sufficient evidence to demonstrate a lack of intention to dedicate. However, it is not effective retrospectively. I have already concluded that it was the erection of the sign in the same year that prompted the bulk of the witnesses to complete user evidence forms. I was not presented with any evidence to indicate the precise date on which the sign was erected. Although the deposition under section 31(6) may have preceded the erection of the sign by a short time, I do not consider that the time difference is likely to have been sufficient for me to consider that the two events are distinguishable. The section 31(6) deposit cannot be applied to the period prior to 1999 and is not therefore sufficient evidence to demonstrate a lack of intention to dedicate during the period of 20 years which I am considering." "14. The only contemporaneous evidence of any lack of intention to dedicate is the actual landowner evidence form, completed a mere month or so before the submission of a declaration under section 31(6) of the 1980 Act in January 1999. It was argued in Drain that any lack of intention to dedicate must be continuous throughout the 20 year period being considered. This argument was rejected, stating that it was considered 'more likely that the legislature intended the statutory presumption of dedication to be rebuttable by sufficient evidence to negative the intention to dedicate for part of the 20 year period (subject to the question of de minimis) rather than it intended to require the landowner to prove the lack of an intention to dedicate throughout the 20 year period.' 15. I have already concluded in paragraph 84 of my interim decision that the deposit under section 31(6) was indistinguishable in terms of time from the erection of the signpost, such that it could not be considered to satisfy the proviso in question. I consider that a similar but slightly different constraint applies to the landowner evidence form. I accept that the form is evidence of Mr Berry's attitude and intention at the time it was completed, and that he plainly was not intending that the route should be dedicated as a pubic right of way. Nevertheless, it was submitted so late in the 20 year period within the final month or two that I consider it to be de minimis: the period of time during which it could be said to have had any ability to unequivocally demonstrate Mr Berry's intentions (or lack of them) was insignificant when compared to the 20 years I am considering. I do not consider that it constitutes sufficient evidence of a lack of intention to dedicate a public right of way, when considering a period of time stretching from 1979 to 1999."

[18]In my judgment there is an elision in the Inspector's decision -- an elision between the precise date on which the sign was erected and whether or not the period between that date and the date on which the Landowner Evidence Form was lodged with the County Council (ie December 1998), or the date on which the statutory declaration was made (ie 13 January 1999) was so short as to be "contemporaneous" or "indistinguishable" or "de minimis". The Inspector did not appear to find it necessary to make a finding as to the precise date on which the notice in 1999 had been erected. The closest that one comes is her comment in paragraph 15 of her final decision that it occurred "within the final month or two". Taking a month or two from the date when the statutory declaration was made, that might amount to an inference that she found that the sign had been erected in January, February or possibly March 1999. If that is the correct inference to be drawn from her use of the expression "within the final month or two", or the other expressions which I have mentioned just now, then it is necessary for the court to consider whether that was a conclusion which was rationally open to her on the evidence which was before her.

[19]This is, of course, an appeal on which Mr Berry can invoke only errors of law. It is not an appeal on the facts. But a decision which could not rationally be reached on the evidence before an inspector is one which is indeed erroneous in law.

[20]I was taken, both by Mr Berry and by Mr Mould, through such as evidence as there was as to when the sign was erected. Primarily this comes from a number of the user forms which Devon County Council invited various people to complete. I do not intend to go through each of those in detail, but there were a substantial number where users who were filling in forms in August or November 1999 referred to the sign having been erected either "within the last few weeks", "in August or in July" or "very recently". These were forms that were completed by people who used this route, on their written evidence, a substantial number of times. They varied in number, but they included people who used the route ten times a year, 40 times a year and sometimes as much as 50 times a year. Sometimes a witness said that they used the route on "numerous occasions".

[21]The Inspector made a finding which I consider significant, that the sign with which I am concerned (the sign that was erected in 1999) was "large and very conspicuous". Given that finding, it is much less likely that it would have passed unnoticed by those witnesses who referred to its erection.

[22]All of that evidence points to the sign having been erected some time in July or August 1999. The only evidence pointing to it having been erected earlier was twofold. The first is a similar user evidence form from a lady aged 57, who said that she had used the route since the 1970s; that she used to use it about once a week, but not as much now (11 November 1999 when she completed the form). When asked whether she had noticed such notices as "Private", "No Road", "No Thoroughfare", etc, she said, "Yes, 'Private Road' since the spring".

[23]The other piece of evidence to which Mr Mould drew my attention was the Landowner Evidence Form which was completed by Mr Berry in December 1998. On that occasion he said that a sign was awaiting erection in an anti-theft manner. There was therefore evidence before the Inspector that in December 1998 Mr Berry had taken steps to see that a sign was being prepared.

[24]I cannot say, therefore, that there was no evidence on which the Inspector could have reached a conclusion (if that is what she did) that the sign had been erected in January, February or March. However, although I am not the primary decision-maker, and this is not an appeal on the facts, it is my view that the Inspector, taking all that evidence together, could not rationally have concluded that the sign was erected within the first three months of 1999. The overwhelming evidence presented before her indicated that it had been erected some months later, in July or August 1999. The importance of this is that if the sign had not been erected until some time in July or August 1999, then there was an interval between the unequivocal Landowner Evidence Form lodged with the County Council in December 1998 and the statutory declaration in January 1999 on the one hand, and the erection of the sign on the other, of six to seven months. Mr Mould for the defendant very fairly accepted that an interval of that length could not be regarded as legally insignificant, could not be regarded as de minimis, and could not therefore be set aside on the basis that the Drain case said that matters which were de minimis may be set aside or disregarded.

[25]I agree. I note in particular that section 31(1) prescribes that before a presumption can arise, before there is any question of a proviso, there must have been uninterrupted public use of the right of way for "a full period of 20 years". A period of nineteen-and-a-half years is not the same as "a full period of 20 years". In my judgment the Inspector could not rationally or properly have treated that as a legally insignificant interval.

[26]The deposit of the documents with the County Council in January 1999 and the making of the statutory declaration are particularly important. The Drain case emphasised that it is for the primary decision-maker to determine whether the evidence is sufficient to demonstrate an intention by the landowner during the 20 year period not to dedicate it to a public right of way. It was not necessary for either the Divisional Court or the Court of Appeal in that case to consider the effect of the statutory presumption of precisely that lack of intention in section 31(6); but in the present case Mr Berry can, and is entitled to, rely on just that presumption. There was no evidence, as far as I can see, on which the Inspector could or did rebut that presumption, other than (if it be the case) the shortness of time between that step being taken by Mr Berry and the erection of the sign. However, in my judgment the Inspector could not lawfully have dismissed that period of time as legally insignificant. Accordingly, and for that reason, in my judgment this appeal succeeds.

[27]The Inspector considered an alternative basis for demonstrating the existence of this right of way via the common law and in particular the documentary evidence going back as far as 1804 for the existence of a right of way. However, it is fair to record that, although there was some evidence on the documents pointing in that direction, she did not feel that on the documentary evidence alone it could be said that the right of way had been established. The critical matter was whether the tests under section 31 of the Highways Act had been satisfied. She found that they were. In my judgment her conclusion in that respect was legally erroneous and the decision of the County Council to make the modified order must be quashed.

[28]Mr Berry, your claim has succeeded. Is there anything else that you want to ask me to do? THE CLAIMANT: My Lord, thank you very much for your tolerance and allowing Mrs Masters to be my McKenzie Friend. I could not possibly criticise the court for their assistance, but I am totally unprepared for a statement of costs, but think it is perfectly reasonable to have the costs of my solicitor for preparing the bundles to be reimbursed. THE DEPUTY JUDGE: Do you know how much that was? Have they given you a bill? THE CLAIMANT: It was about £7,500, my Lord. THE DEPUTY JUDGE: Just to prepare the bundles? THE CLAIMANT: To get it to this stage, my Lord, yes. THE DEPUTY JUDGE: Mr Mould? MR MOULD: My Lord, I cannot resist an order for costs in principle. I would invite your Lordship to say that in the circumstances -- THE DEPUTY JUDGE: Do you want a detailed assessment? MR MOULD: My Lord, yes. I hope that we will be able to reach agreement, but I think that in the circumstances I would ask for a detailed assessment. THE DEPUTY JUDGE: Mr Berry, there are two ways in which costs can be dealt with. They can either be dealt with summarily -- that means by me now -- but in order to do that I would have to have rather more information than you have been able to give me about how much those costs are. The alternative is for the court to order this: that you and the solicitor to the Department can agree what the appropriate figure for costs is, then it can all be dealt with in that way by consent between you. If it cannot, there are Costs Judges within the High Court who will determine the matter and you will have to seek advice as to the procedure that you go through in order to get that assessment. That process is called a detailed assessment. I will order that, in the absence of agreement between the parties as to costs, there will be a detailed assessment of your costs which will then have to be paid by the defendant. THE CLAIMANT: Thank you, my Lord. THE DEPUTY JUDGE: Thank you all very much. Thank you, Mrs Masters. THE LITIGATION FRIEND: May I say, my Lord, although this is the first time I have been able to support Mr Berry as he was nervous, I am very grateful indeed for your tolerance. THE DEPUTY JUDGE: Not at all. Not at all. MR MOULD: My Lord, there is one matter. It is the question of an appeal. I appreciate that your Lordship has dealt with the case very much on the facts of the case, and so the suggestion that there is any matter that the Court of Appeal ought to consider is a little difficult to sustain, but nevertheless your Lordship appreciates that those instructing me may wish to consider the matter and I do invite your Lordship to say whether or not he would grant permission. THE DEPUTY JUDGE: The test for giving permission to appeal is: are there real prospects of success or is there some other compelling reason why permission to appeal should be granted? In my judgment this is not a case where the defendant would have real prospects of success. It is also a case that turned very much on its facts. It is not one that I consider, therefore, raises compelling reasons why there should be permission to appeal. It is open to the Department, if it considers it proper to do so, to renew that application before the Court of Appeal. ____________________________________