Berry v Secretary of State for Environment

On a statutory appeal under the Wildlife and Countryside Act 1981, an inspector’s decision contains an error of law where a conclusion about the evidence could not rationally be reached. Under section 31(1) of the Highways Act 1980, the landowner need show an intention not to dedicate the way at some time during the 20-year period; the intention need not persist throughout the period or be brought to the public’s attention. However, the statutory presumption arising from a section 31(6) deposit must be considered. A six- or seven-month interval between that deposit and a later sign could not rationally be treated as legally insignificant or de minimis. The inspector’s decision was therefore quashed.

The claimant, a landowner, brought a statutory appeal against an inspector’s confirmation of a modification order made by Devon County Council. The order recorded a public bridleway over his land. Earlier proceedings had quashed a previous order for procedural unfairness, after which the council made a substantially similar order and a further public inquiry was held.

The claimant challenged the inspector’s approach to section 31 of the Highways Act 1980, particularly the treatment of evidence that he had not intended to dedicate the route as a public right of way. The central issue was whether the inspector had lawfully and rationally assessed the timing and effect of a landowner evidence form, a section 31(6) deposit and statutory declaration, and a later sign.

1. The appeal succeeded. The council’s modification order was quashed. The claimant’s challenge based on the absence of new evidence failed because the earlier order had been quashed for want of due process, leaving the council able to reconsider the matter. A challenge to the council’s internal procedures was also unsuitable for this statutory appeal and was brought too late; in any event, no serious prejudice had been shown.
2. The inspector had not unlawfully bypassed the initial requirements of section 31(1) of the Highways Act 1980. She had considered whether there had been 20 years’ public use as of right and without interruption before addressing the proviso.
3. Following the approach in Drain, the word “during” in section 31(1) did not require the landowner to prove an intention not to dedicate throughout the entire 20-year period. An intention existing at some point during that period could suffice, and it need not have been communicated to the public.
4. The inspector’s treatment of the decisive evidence was unlawful. The evidence overwhelmingly indicated that the large and conspicuous sign had been erected in July or August 1999, rather than in the first three months of that year. The interval between Mr Berry’s December 1998 landowner evidence form and his January 1999 section 31(6) deposit and declaration, on the one hand, and the later sign, on the other, was therefore six or seven months.
5. That interval could not rationally be treated as contemporaneous, indistinguishable or de minimis. Section 31(1) required a full period of 20 years before the presumption of dedication arose. The section 31(6) deposit and declaration were particularly important because they attracted a statutory presumption of lack of intention to dedicate. The inspector had no lawful evidential basis for disregarding their effect.
6. The court’s jurisdiction was confined to errors of law, but an irrational conclusion unsupported by the evidence was an error of law. The alternative common-law documentary evidence did not independently establish the right of way. Costs were subject to agreement or detailed assessment, and permission to appeal was refused, subject to renewal before the Court of Appeal.

The claim was a statutory appeal from the inspector’s final decision confirming Devon County Council’s modification order. The earlier order concerning the same route had been quashed by consent in judicial review proceedings for want of fairness or natural justice. The present court quashed the later modification order.