Norman & Anor v Secretary of State for the Environment, Food & Rural Affairs

Under section 31(1) of the Highways Act 1980, the inquiry has two stages. The claimant must first establish 20 years’ public use as of right and without interruption. The landowner may then rebut the deemed dedication by showing that there was no intention to dedicate during the relevant period.

There is no statutory requirement for an overt or contemporaneous act, or for communication of the landowner’s intention to users. Evidence given by the relevant landowner must be considered, although its sufficiency depends on the circumstances and the supporting evidence. An inspector errs in law by disregarding such evidence merely because it was not contemporaneous.

The applicants challenged an inspector’s decision confirming a public footpath modification order under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981. The claimed footpath ran alongside the River Trent and past the applicants’ property.

The inspector concluded that public use for the relevant 20-year period had established a deemed dedication under section 31(1) of the Highways Act 1980. He treated the former landowner’s statements of an intention not to dedicate as incapable of being considered because they were not contemporaneous with an event bringing the use into question. The central issue was whether that approach was lawful.

1. Statutory framework. Section 31(1) of the Highways Act 1980 requires a two-stage inquiry. First, the decision-maker must determine whether public use as of right and without interruption for 20 years has been proved. Only then does the proviso arise, requiring consideration of whether there was sufficient evidence of no intention to dedicate during that period.
2. The relevant intention is assessed by reference to the whole evidence. Evidence of the landowner’s intention is not legally irrelevant merely because it was expressed after the use had been questioned. The absence of contemporaneous evidence affects weight and sufficiency, not admissibility. An overt act is not a statutory prerequisite, although supporting overt or contemporaneous material will commonly be important.
3. The inspector was entitled to assess the weight of untested statements and to decide whether challenges had interrupted use of the path. However, challenges to misuse of land, such as trespass, dogs troubling livestock or kite-flying, did not necessarily challenge use of the route as a public footpath.
4. The inspector materially erred by treating the former landowner’s statements as incapable of being expressions of an intention not to dedicate and by effectively considering interruption evidence in isolation. He should have assessed whether the landowner was truthful and whether his evidence, together with the supporting material, was sufficient. Substantial supporting evidence was not invariably required.
5. The decision was therefore flawed in law. The inspector’s decision and the order were quashed. Costs were awarded to the applicants, subject to a summary assessment.

The judgment describes an inspector’s first decision in June 2004 confirming the modification order in principle, followed by a further decision in May 2005 concerning the route’s width and details. The present claim challenged the June 2004 decision.