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

Section 31(1) creates a rebuttable presumption of dedication after 20 years’ public use of a way as of right and without interruption. The proviso requires sufficient evidence of the landowner’s lack of intention to dedicate during the relevant period. It does not require communication of that intention to users, or impose a legal requirement for overt contemporaneous acts. Sufficiency is assessed by the fact-finder on the particular evidence, subject to ordinary judicial review constraints. The word “during” does not mean throughout: evidence relating to part of the 20-year period may suffice, subject to its duration and weight. The appeals were dismissed.

Godmanchester Town Council and Dr Leslie Ernest Drain sought judicial review of inspectors’ refusals to confirm modification orders adding alleged public footpaths to definitive maps. The proceedings arose under the Wildlife and Countryside Act 1981 and concerned the proviso to section 31(1) of the Highways Act 1980.

In Godmanchester’s case, the Inspector relied on a letter from the landowners’ agents expressing concern about public access. In Dr Drain’s case, she relied on a tenancy covenant requiring the tenant to prevent trespass and the creation of footpaths. The Divisional Court upheld both decisions, following earlier approaches in Billson and Dorset. The appeals concerned whether the proviso required communication of the landowner’s intention not to dedicate, whether “during that period” meant throughout the full 20 years, and whether the tenancy evidence was legally sufficient.

1. The appeals were dismissed. Auld LJ gave the principal judgment. Arden LJ agreed with the reasoning on the main issues, and Bennett J agreed with both judgments.
2. Section 31(1) of the Highways Act 1980 creates a rebuttable presumption of dedication where a way has been enjoyed by the public as of right and without interruption for a full period of 20 years. The statutory scheme is an alternative to common-law prescription, which is preserved by section 31(9). The proviso permits rebuttal by sufficient evidence that there was no intention to dedicate during the relevant period.
3. There is no statutory threshold requiring the evidence under the proviso to consist of communication to, or conduct likely to come to the attention of, users of the way. Nor is proof of overt and contemporaneous acts a legal precondition, although objectively identifiable contemporaneous acts will commonly assist the fact-finder. Sufficiency is a question for the tribunal of fact, generally one of evidential weight, subject to Wednesbury constraints. The specific mechanisms in section 31(3)–(6) do not impose a general communication requirement.
4. “During that period” does not mean continuously throughout the 20 years. Evidence may relate to part of the period, potentially subject to de minimis considerations. A single act may suffice where the evidence shows that the landowner did not resile from the stated position. This approach was consistent with the reasoning in R v Secretary of State, ex p Billson [1999] QB 374 and R v Secretary of State, ex p Dorset County Council [2000] JPL 396. The contrary communication requirement in the dictum of Denning LJ in Fairey v Southampton County Council [1956] 2 QB 439 should no longer be treated as good law.
5. In Godmanchester, the Inspector was entitled to treat the contemporaneous letter as sufficient evidence. In Dr Drain’s case, the continuing tenancy covenant, viewed with the surrounding evidence and the successor’s conduct, was capable of evidencing a continuing intention not to dedicate. The Inspector’s conclusion was not Wednesbury-unreasonable.

• Court of Appeal (Civil Division) — The appeals from the Divisional Court were dismissed. [2005] EWCA Civ 1597
• Queen’s Bench Divisional Court — Judicial review challenges to the Inspectors’ refusals to confirm modification orders were rejected, and the decisions were upheld. No separate citation is stated in the judgment.