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

Under section 31(1) of the Highways Act 1980, the presumption that a way has been dedicated as a highway is rebutted by sufficient evidence of the landowner’s lack of intention to dedicate during the relevant 20-year period. The statute imposes no mandatory requirement for an overt and contemporaneous act, although such evidence may be powerful and an unsupported assertion may attract scepticism. The fact-finder must assess all relevant evidence, including a landowner’s evidence of acts barring public use given after the event. It is an error of law to disregard that evidence solely because it was not contemporaneous or independently documented.

Derbyshire County Council made a modification order confirming a public footpath. Following objections, an inspector held a public local inquiry and proposed to confirm the order. The respondents challenged the decision under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981, arguing that the inspector had failed properly to assess evidence from a former landowner, Mr Wooddisse, concerning acts preventing public use and his intention not to dedicate the path.

Collins J quashed the order, holding that the inspector had wrongly disregarded later statements expressing that intention. The Secretary of State appealed. The central issue was whether the inspector had lawfully applied the proviso to section 31(1) of the Highways Act 1980.

The appeal was dismissed. Lord Justice Laws gave the judgment, with Lord Justices Chadwick and Tuckey agreeing.

1. The proviso to section 31(1) of the Highways Act 1980 requires the fact-finder to decide whether there is sufficient evidence of the landowner’s lack of intention to dedicate during the relevant 20-year period. As explained in Godmanchester [2006] 2 WLR 1179, there is no statutory threshold or prescribed type of evidence. The landowner need not have communicated the lack of intention to users.
2. There is a material distinction between a bare assertion that the landowner never intended to dedicate, unsupported by evidence of conduct, and evidence that the landowner or his agents overtly barred public users. In the first case, an inspector may properly be sceptical. In the second, the inspector must decide whether the acts occurred and assess the substance of the evidence, even where the evidence is given after the events and lacks independent corroboration.
3. The inspector had recorded Mr Wooddisse’s evidence of repeated challenges and attempts to prevent public use, but treated the evidence as incapable of demonstrating lack of intention because it was not contemporaneous with the period before the right of way was brought into question. He then focused on documented and verifiable challenges. That was a flawed approach. It effectively treated contemporaneous and authenticated evidence as legally necessary and failed to determine what should be made of all the evidence.
4. The inspector’s error was an error of law. Collins J was therefore right to quash the decision. The appeal was dismissed.

• Court of Appeal (Civil Division): On 8 March 2007, the court dismissed the Secretary of State’s appeal: [2007] EWCA Civ 334.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Collins J quashed the modification order on 5 July 2006. No citation for that decision is stated in the judgment.