R (on the application of Godmanchester Town Council) (Appellants) v. Secretary of State for the Environment, Food and Rural Affairs (Respondent) and one other action

Under section 31(1) of the Highways Act 1980, a landowner can rebut deemed dedication of a public highway only by contemporaneously manifesting an intention not to dedicate in a way reasonably perceptible to users of the way. A subjective or privately recorded intention is insufficient.

The intention need not be manifested throughout the entire 20-year period. A manifestation within that period may defeat the claim if it leaves fewer than 20 years of unrebutted qualifying use. The statutory methods of manifesting the intention are not exhaustive.

These conjoined test appeals concerned applications under section 53 of the Wildlife and Countryside Act 1981 to add public footpaths to definitive maps. One application concerned a route around Monk's Pit at Godmanchester. The other concerned a route over the Yattendon Estate in Berkshire.

Inspectors found qualifying public use for at least 20 years but treated a private letter to a planning authority and a covenant in an agricultural tenancy respectively as sufficient evidence of an intention not to dedicate. The Divisional Court and Court of Appeal upheld the subjective approach, the latter in [2005] EWCA Civ 1597, reported at [2006] QB 727.

The central question was whether section 31(1) of the Highways Act 1980 required the landowner's intention not to dedicate to be communicated contemporaneously to users of the way.

1. The appeals were allowed unanimously. Lord Hoffmann delivered the leading speech. Lord Hope, Lord Scott, Baroness Hale and Lord Neuberger agreed that both decisions should be quashed and remitted to the Secretary of State.

2. Per Lord Hoffmann, the word “intention” in section 31(1) of the Highways Act 1980 bears an objective meaning. The question is what a reasonable user of the way would understand the landowner's intention to be. The statutory requirement for “sufficient evidence” contemplates objective acts existing outside the landowner's consciousness and perceptible to the relevant public. A subjective intention, private letter or privately circulated agreement cannot rebut deemed dedication.

3. Lord Hope explained that presumed dedication involves a public dialogue. Public use asserts the right, while a landowner wishing to deny it must communicate the contrary. Lord Scott similarly held that undisclosed expressions of intention do nothing to curb public use or disabuse users of a belief that the way is public. Baroness Hale and Lord Neuberger agreed that the landowner must sufficiently manifest the contrary intention to those who may use the way.

4. The construction was reinforced by sections 31(3), (5) and (6). Those provisions prescribe visible notices and publicly accessible deposits with the appropriate council. Their elaborate requirements would have little purpose if a private declaration sufficed. The House approved the objective approach in Fairey v Southampton County Council [1956] 2 QB 439 and Secretary of State for the Environment v Beresford Trustees.

5. The phrase “during that period” does not require the contrary intention to be manifested throughout all 20 years. A sufficient manifestation at some point within the period defeats the claim if fewer than 20 years of qualifying, unrebutted use remain. Nor are sections 31(3), (5) and (6) exhaustive: section 31(2), through the words “or otherwise”, permits other sufficiently clear acts or communications.

6. The private planning letter in the Godmanchester case and the tenancy covenant in the Yattendon case were incapable in principle of rebutting deemed dedication because they were unavailable to users. The House declined to substitute its own factual decisions. Both matters were remitted for reconsideration on all relevant evidence and in accordance with the House's opinions.

1. House of Lords: Allowed both appeals unanimously, quashed the inspectors' decisions and remitted both matters to the Secretary of State.
2. Court of Appeal: In [2005] EWCA Civ 1597, reported at [2006] QB 727, upheld the subjective construction of section 31(1) of the Highways Act 1980 and disapproved the approach in Fairey.
3. Divisional Court: Followed the construction that a landowner's intention need not be communicated to users and upheld the impugned decisions.
4. Inspectors: Treated, respectively, a private letter to a planning authority and a tenancy covenant as sufficient evidence of an intention not to dedicate.