Hale v Norfolk County Council

A statutory requirement that a new street be laid out to a specified width does not, without more, create public highway rights over adjoining private land. Such rights arise at common law only through dedication by the landowner and acceptance by the public.

The hedge-to-hedge presumption applies only after a factual finding that a fence or hedge was erected to separate private land from the highway. It is not a presumption of law arising merely because a road runs between fences. Whether that inference is available depends on all the known circumstances of the fence and the surrounding land.

Mrs Hale owned a bungalow and garden adjoining Green Lane. Norfolk County Council, as highway authority, contended that a strip of her garden formed part of the public highway. It removed posts and a chain erected by Mrs Hale under section 143 of the Highways Act 1980.

The Norwich County Court dismissed her claim and declared that the whole strip was highway. The judge held that the statutory new-street regime had made part of the land highway and that the whole strip was subject to a hedge-to-hedge presumption of dedication.

Mrs Hale appealed. The central issues were whether the statutory regime itself created highway rights and whether the circumstances supported an inference of dedication and public acceptance.

1. Appeal allowed. Chadwick LJ, with whom Hale LJ agreed, held that no public right of way over any part of the blue land had been established. The County Court’s declaration and consequential orders could not stand.

2. The new-street provisions did not convert private land into highway. Section 30(4) of the Public Health Act 1925, the 1959 order and byelaw 3 deemed an adjoining builder to be laying out a new street and required a minimum width. They did not deem the landowner to have dedicated land to public use. The regime could apply equally to a private street. The judge had therefore erred in treating the required width as automatically annexed to the highway.

3. At common law, the question was whether the owner had done something from which an intention to dedicate could properly be inferred and, if so, whether the public had accepted the dedication. Acceptance could not supply the absence of an intention to dedicate.

4. The court clarified the hedge-to-hedge principle. As explained in Attorney General v Beynon [1970] 1 Ch 1, a rebuttable presumption that land between a fence and the made-up highway has been dedicated arises only after finding that the fence was put up by reference to the highway. The preliminary issue is factual. The mere presence of a highway between fences creates no legal presumption that the fences were erected for that purpose.

5. On the known facts, the fence was more likely intended to enclose the bungalow garden, preserve sight lines and mark a building line. It was not erected to dedicate land to the public. There was also no evidence of acquiesced public use. The Council’s use of section 143 of the Highways Act 1980 was consequently unavailable. The appeal was allowed with costs, and trespass damages of £300 were awarded.

• Court of Appeal (Civil Division): Allowed Mrs Hale’s appeal and set aside the declaration that the blue land formed part of the public highway.
• Norwich County Court: On 3 September 1998, Judge Langan QC dismissed Mrs Hale’s claim, declared the whole blue land to be highway, awarded the Council removal costs and granted injunctive relief.