Rotherham Borough Council v Wildblood

On an application for leave to appeal, permission should be refused where the proposed appeal has no real prospect of success. An appellate court will ordinarily not interfere with findings of fact based on the trial judge’s assessment of witnesses’ credibility unless those findings are clearly wrong. Under section 31 of the Highways Act, 20 years’ public use of a way as of right and without interruption may result in deemed dedication, absent sufficient evidence of a contrary intention. A highway need not be confined to a metalled carriageway; adjoining strips may form part of it.

This was an application by Leslie Wildblood for an extension of time and leave to appeal from an order made by Mr Recorder Collins in Rotherham County Court on 6 August 1996. The order awarded Rotherham Borough Council £1,208.88 for repairs, declared the boundary of the highway, continued an injunction and ordered costs.

The dispute concerned excavations on land adjoining the applicant’s property. The Council claimed that the land formed part of a highway through long public use. The applicant challenged factual findings based on witness evidence and also appealed the dismissal of his counterclaim concerning flooding. The central issues were whether the findings could properly be revisited on appeal and whether the Recorder had misdirected himself on highway dedication.

The application was refused. Although the applicant’s explanation for submitting his application three days late was accepted, there was no real prospect of success on the proposed appeal.

1. The applicant’s challenge principally concerned the credibility of Mrs Shephard and Mr Walker. The Recorder had heard their evidence, considered the photographs and other material, and made clear findings that he believed them. An appellate court should not reverse such findings merely because the evidence can be reargued. Fact-sensitive issues depending on oral evidence ordinarily end with the trial judge unless the findings are clearly wrong.
2. The Recorder had considered the applicant’s photographs, deeds, maps and other documentary arguments. There was no misdirection of law. He had correctly addressed whether the disputed land had been used as a highway.
3. The court applied section 31 of the Highways Act. A way actually enjoyed by the public as of right and without interruption for 20 years is deemed dedicated as a highway unless there is sufficient evidence of an intention not to dedicate it. The existence of a metal track does not necessarily confine the highway to that track. Strips of land alongside it may also form part of the dedicated highway.
4. The challenge to the counterclaim and the repairs award also had no real prospect of success. The roadworks had been carried out competently, the evidence did not establish a nuisance, and significant flooding damage had not been shown.

Leave to appeal was refused.

• Court of Appeal (Civil Division) — On 22 January 1997, refused the application for an extension of time and leave to appeal.
• Rotherham County Court — Mr Recorder Collins made the order dated 6 August 1996 awarding the Council £1,208.88, declaring the highway boundary, continuing the injunction and dismissing the counterclaim.