Godmanchester Town Council & Anor, R (on the application of) v Secretary Of State For Environment, Food & Rural Affairs & Ors

Under section 31(1) of the Highways Act 1980, evidence rebutting presumed dedication need not have been communicated to users of the way or been likely to come to their attention. The statute contains no general “overt acts” rule, although overt and contemporaneous evidence will usually be needed to prove a negative intention. The evidence required is a question of fact and varies from case to case.

The expression “during that period” does not require proof that the landowner lacked an intention to dedicate throughout the whole 20-year period. Sufficient evidence relating to part of the period may suffice, subject to de minimis considerations. The claims for judicial review were dismissed.

Two judicial review claims challenged inspectors’ refusals to confirm modification orders adding public footpaths to definitive maps. In each case, public use for the relevant 20-year period satisfied the other requirements of section 31(1) of the Highways Act 1980, but the inspector found sufficient evidence of a lack of intention to dedicate.

The claimants argued that the evidence had to comprise overt acts directed, or likely to be brought, to the attention of users, and that the lack of intention had to persist throughout the whole 20-year period. In the second claim, they also challenged reliance on a tenancy agreement. The central issues were the proper construction of the proviso to section 31(1) and whether the inspectors had erred in applying it.

1. The claims were dismissed. The inspectors were entitled to apply the approach in Billson and Dorset County Council.

2. The proviso to section 31(1) does not require evidence of lack of intention to dedicate to have been communicated to users or to have been likely to come to their attention. The court agreed that the dicta of Denning LJ in Fairey should not be followed insofar as they imposed such a requirement.

3. There is no general rule of law requiring “overt acts” for the purposes of the proviso. The statutory examples in section 31(3)–(6) are not exhaustive. Outside those examples, whether the evidence is sufficient is a question of fact which necessarily varies from case to case. In practice, a landowner will generally find it difficult to prove a lack of intention without something overt and contemporaneous.

4. The phrase “during that period” does not mean “throughout that period”. Evidence that the lack of intention to dedicate existed for part of the 20-year period may rebut the statutory presumption, subject to any de minimis issue. The statutory provisions concerning notices and deposits do not compel a different construction.

5. The court rejected the submission that section 31 creates a continuing intention to dedicate. A deemed dedication, like an inference of dedication at common law, is a dedication at a point in time. That did not prevent the statute from allowing the presumption to be rebutted by evidence showing that there was no intention to dedicate during part of the relevant period.

6. In Dr Drain’s claim, the inspector’s reliance on clause 17 of the tenancy agreement was not a bare finding that succession by operation of law was sufficient. Properly read, her decision contained a positive finding that the successor company had taken over the agreement with the same intention as the original owner. That finding was reasonably open to her and disclosed no error of law. The claims were dismissed with one set of costs payable to the Secretary of State; permission to appeal was refused, subject to an extension for an application to the Court of Appeal.

The judgment records no prior appellate decision in the present litigation. The court refused permission to appeal, but extended the time for lodging an application to the Court of Appeal until 31 August 2004.