Darby v First Secretary of State & Anor

On a statutory appeal concerning the deemed dedication of a public path, the court’s role is supervisory. The Inspector must consider the landowner’s intention throughout the whole statutory period, resolve disputed evidence, draw reasonable factual inferences, and give adequate reasons. The court must not substitute its own view of the evidence.

Under section 31(1) of the Highways Act 1980, an owner’s proposal that a route should become a public right of way may be treated as inconsistent with an absence of intention to dedicate, even where the proposal is conditional. Evidence that the owner encouraged public use during the relevant period may be particularly significant. The claim failed because the Inspector’s conclusions were reasonably open to her.

The claimant owned land crossed by a track in Kemerton. An Inspector confirmed an order made by Worcestershire County Council under section 53(2)(b) of the Wildlife and Countryside Act 1981, adding the disputed route to the definitive plan and statement.

The claimant brought a statutory appeal under Schedule 15 paragraph 12 of that Act. He argued that the Inspector had misapplied section 31 of the Highways Act 1980 and had failed properly to assess his 1979 diversion application, later correspondence, and other evidence bearing on his intention not to dedicate the track. The central issue was whether the Inspector’s findings and inferences were unlawful or unreasonable.

1. Outcome. The statutory appeal was dismissed. The Inspector’s order confirming the addition of the disputed path was upheld. The claimant agreed to pay costs of £6,414.
2. Scope of review. The Inspector had to consider the relevant intention over the entire period from 1967 to 1987. She was entitled to resolve conflicts in the evidence and draw inferences from established acts and omissions. Her factual conclusions and inferences were reviewable only if unreasonable in the Wednesbury sense, and she had to give adequate reasons. The court could not substitute its own assessment of the facts.
3. Section 31(1). The Inspector correctly understood the proviso to section 31(1) of the Highways Act 1980. The absence of an intention to dedicate had to be demonstrated by a contemporaneous and overt act. Communication of that act to users was not necessarily required, consistent with R v Secretary of State for Environment Transport and Regions, ex parte Dorset County Council (JPL [2000] Vol 1, 396).
4. The Inspector was entitled to conclude that the claimant’s 1979 application, which proposed making the track a public right of way in place of another path, was not evidence of an absence of intention to dedicate. She was also entitled to regard the claimant’s subsequent encouragement of public use as powerful evidence against the proviso. Her treatment of the 1986 and 1987 correspondence was likewise reasonably open to her, particularly since the claimant continued to encourage use and the first effective challenge was found to have occurred in March 1987.

The judgment describes a statutory appeal from an Inspector’s decision rather than an appeal through the ordinary courts.

• Inspector — on 30 August 2002, confirmed Worcestershire County Council’s order of 26 October 2000.
• High Court (Administrative Court) — dismissed the statutory appeal under Schedule 15 paragraph 12 of the Wildlife and Countryside Act 1981.