Chapter 3 : How rights of way came into being
Links and downloads referred to in the text of Chapter 3
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| 57,58 | Letter of 14 July 2006 from Minister for Biodiversity, Landscape and Rural Affairs at Department for Environment, Food and Rural Affairs | download [file BBE06] |
| 58, 59 | Letter of 20 September 2006 from Minister for Biodiversity, Landscape and Rural Affairs at Department for Environment, Food and Rural Affairs. | download [file BBE07] |
| 69 | Advice Note 6: The Sunningwell judgment and the meaning of ‘as of right’ (Planning Inspectorate, 2000) | download |
| 69 | Advice Note 12 : Wildlife and Countryside Act 1981 – vehicles and rights of way: Bakewell Management v Brandwood; Stevens v Secretary of State for the Environment (Planning Inspectorate, 2000) | download |
| 69 | Advice Note 15 : Breaks in user caused by foot and mouth disease (Planning Inspectorate) | download |
| 69 | Part 6 of the Natural Environment and Rural Communities Act 2006 and Restricted Byways : A guide for local authorities, enforcement agencies, rights of way users and practitioners (Defra, 5th edition, May 2008) | download |
| 69 | Practice Guidance Note 2: Deemed dedication of rights of way: section 31(6) of the Highways Act 1980 (Rights of Way Review Committee, revised December 2007) | link |
Supplement to the text of Chapter 3
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| 40 | 3.2 In Wild v Secretary of State for Environment, Food and Rural Affairs and Dorset CC (2010), the Court of Appeal (Scott Baker LJ, Moses LJ) held that the airing, in 1978, at an inquiry on the occasion of a special review of the definitive map, of objections, lodged in 1975, by ‘persons who could very well have been owners’ (per Scott Baker, L J) of land crossed by a way, to the showing of the way as a bridleway, constituted not only (a) something that brought the right to use the way into question (in the context of a claim, in the event unsuccessful, that use of the way prior to 1978 had resulted in the way being dedicated as public); but also (b) sufficient indication that the owners of the land (‘…whoever they may be,’ per Scott Baker, LJ) had not acquiesced in public use of the route to preclude an inference, from use of the way as of right for a period short of twenty years prior to the locking in 1998 of a gate across the way, of dedication at common law of the way as a public right of way on foot [i.e., notwithstanding that the expression of contrary intention had occurred, not during the period of user relied upon, but prior to its commencement.] (‘The state of mind of the users seems to me to be relevant to the status of the track.’ Per Scott Baker, LJ.) Decision of the High Court (Keith J) upholding the inspector’s confirmation of the order adding the way to the definitive map as a footpath, set aside. | link to judgment |
| 44 | 3.3.5 In Smith v Muller (2008), landowner A made a claim, based on long usage, to an easement (a private right of way) over B's land to a road on the far side. An enclosure award of 1798 required the boundary between A's and B's land to be fenced. B argued that the construction of an access through the fence would constitute an unlawful breach of the fencing requirement in the award, with the result that no presumption of dedication either under statute or at common law could have arisen. The court rejected the argument. The purpose of the requirement was to mark the ownership boundary and to retain cattle, purposes that would not be impeded by the existence of a gate in the fence. The enclosure award requirement of fencing was therefore no bar to the presumption of the dedication of the easement. A's claim succeeded. | link to judgment |
| 51 | 3.3.8 ‘..brought into question.’ How? In R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs Lord Scott said, ‘ … the bringing into question could, in my opinion, be done not only by the landowner but also by a member of the public or by the local authority. A member of the public might apply to the court for relief of some sort that would bring the right into question, or a prosecution brought by a local authority against a landowner e.g., allowing a stile to fall into disrepair, might, if the landowner disputed that there was any right of way, be similarly regarded’. | link to judgment |
| 53 | 3.3.9 The House of Lords, in R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs reversed the decision of the Court of Appeal, thus overturning the decision of Dyson J in R v Secretary of State for the Environment, Transport and the Regions ex parte Dorset CC (1999) and rendering unsound the decision of Collins J in Norman and Bird v Secretary of State for Environment, Food and Rural Affairs (2006) and of the Court of Appeal (2007) in upholding Collins J’s decision: dictum of Lord Justice Denning in Fairey v Southampton CC (1956), (‘In my opinion a landowner cannot escape the effect of 20 years’ prescription by saying that, locked in his own mind, 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 landowner such as to show the public at large – in this case the villagers – that he had no intention to dedicate’), approved.
In R (Drain)) v Secretary of State for the Environment, Food and Rural Affairs (heard and reported with Godmanchester above), the House of Lords rejected the contention of the appellant that the contrary intention under section 31 must, to rebut the presumption of dedication, be shown to have existed throughout the twenty year period of use. |
link to judgment |
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3.3.9 and footnote 67. HA 1980 s 31A(1), which requires highway authorities to keep a register containing information relating to maps and statements deposited and declarations lodged with the authority under section 31(6), was brought into operation in England from 1 October 2007 : Countryside and Rights of Way Act 2000 (Commencement No. 13) Order 2007. The Dedicated Highways (Registers under Section 31A of the Highways Act 1980) (England) Regulations 2007, make provision for the information that is to be included in a register (regulation 3), the manner in which the register is to be kept (regulation 4), and the circumstances in which an entry may be removed (regulation 5). Defra has issued guidance to authorities in England on the regulations. |
link to regulations download Defra guidance |
| 56 | 3.3.10 An Inspector has held that section 56 of the Pastoral Measure 1985, under which no church or consecrated land can be sold, leased or otherwise disposed of otherwise than under powers conferred by the Measure did not preclude the presumption of the dedication of a right of way under HA 1980 s 31 over consecrated land. The reason was that presumed dedication under the section did not constitute the sale, lease or other disposition of the land. Since twenty years’ use of the way as of right over the consecrated land concerned had been shown, the order modifying the definitive map to add a footpath was confirmed. (A Pastoral Measure is a Measure of the General Synod of the Church of England confirmed by both Houses of Parliament...) Worcestershire County Council Order (Footpath 709, Alfrick) Definitive Map Modification Order 2006. PINS ref:FPS/E1855/715, order decision issued 14.12.2007. | link to PINS website for decision |
| 56 | 3.3.10 In Housden v Conservators of Wimbledon and Putney Commons (2008), the Court of Appeal held that section 35 of the Wimbledon and Putney Commons Act 1871, which prevented the Conservators from selling, leasing or in any manner disposing of any part of the common, did not prevent them lawfully granting an easement over the land [in exercise of the power conferred by section 8 to 'hold and to dispose of (by grant, demise or otherwise) land']. The Court (Mummery, L J) indicated, obiter, that if it had – if the Conservators had had no power to grant an easement - this lack of capacity would prevent the acquisition, from long usage, of an easement under section 2 of the Prescription Act 1832, notwithstanding that, under the section, where 40 years use had been shown, the claim was to be 'deemed absolute and indefeasible’ unless the use had been by consent in writing. | link to judgment |
| 65 | 3.4.7 In Campbell v Banks (2009) it was held that while the Wildlife and Countryside Act 1981 provides a statutory procedure by which the existence or non-existence of a public right of way may be established, the fact that this statutory procedure exists does not oust the inherent jurisdiction of the court to make a declaration as to whether a way is or is not public. For the court to exercise this jurisdiction, however, it is necessary for all parties affected (including, in particular, the owners of land crossed by the way) to be joined as parties to the action, so the parties may be before the court. | link to judgment |