R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs; R (on the application of Drain) v Secretary of State for the Environment, Food and Rural Affairs (conjoined appeals)

The House construed the proviso in section 31(1) of the Highways Act 1980: the phrase "sufficient evidence that there was no intention during that period to dedicate" requires objective manifestations of the landowner's intention such that a reasonable user of the way would understand that the landowner did not intend to dedicate the way as a public highway. The court held that evidence confined to the landowner's private state of mind (for example a private letter or an undisclosed tenancy covenant) is not, in general, sufficient to rebut the statutory presumption of dedication. The statutory examples (section 31(3), (5) and (6)) point to evidence communicated or communicable to users or the public; the proviso is therefore to be read objectively in the context of the statutory scheme and historic common‑law background.

Applying that construction, the House found that the inspectors in the two appeals had relied upon inadmissible or insufficient evidence to rebut the presumption and quashed their decisions, remitting the matters to the Secretary of State for reconsideration in accordance with the House's legal guidance.

Background and parties:

• The appeals concern two applications under section 53 of the Wildlife and Countryside Act 1981 to modify definitive maps by adding public footpaths: one by Godmanchester Town Council (Monk's Pit path) and one by an applicant at Yattendon (land of Yattendon Estate).
• Each inspector had found qualifying public user for over twenty years prior to the date when the right was said to have been "brought into question" and the main contested issue became whether the landowners had produced "sufficient evidence that there was no intention during that period to dedicate" the ways within the meaning of section 31(1) Highways Act 1980 (the successor to section 1(1) of the Rights of Way Act 1932).

Nature of the relief sought and procedural posture:

• The applicants sought confirmation of orders adding the footpaths to the definitive map. The landowners relied on various items of evidence to rebut the statutory presumption of dedication (notably a private letter to the planning authority in Godmanchester and a tenancy clause in Yattendon, together with notices and challenges).
• The inspectors accepted some of that evidence; their decisions were challenged and, after earlier proceedings and a Court of Appeal decision, the cases reached the House of Lords as test cases on the legal standard required by the proviso to section 31(1).

Issues framed by the court:

1. Does the word "intention" in the proviso mean the landowner's subjective state of mind or an objective intention as reasonably understood by users of the way?
2. What sort of evidence will be "sufficient" to negative an intention to dedicate during the relevant 20‑year period, and must such evidence be communicated to users of the way?
3. Does "during that period" require continuous manifestation throughout the whole twenty years or is demonstration at some point within the period sufficient?

Reasoning and decision:

• The House analysed the common‑law and statutory history (Prescription Act 1832; Rights of Way Act 1932; Highways Act 1980), pre‑1932 authorities and post‑1932 case law, and concluded that the proviso is to be read objectively. "Intention" means what a reasonable user would have understood the landowner's intention to be; the statutory examples (notices, deposit of maps/declarations) and the scheme of the Act show Parliament intended communicable, perceptible acts to be the ordinary means of rebuttal.
• Private, undisclosed declarations of intent or clause in an agreement unlikely to have been brought to users' attention are generally insufficient to rebut the presumption. The court rejected the opposite construction that would permit purely subjective, uncommunicated intent to defeat claims acquired by long user.
• "During that period" was held to mean at some point within the 20 years (not necessarily continuously throughout), so that an appropriate overt act within the period will interrupt the running of the presumption.
• Applying these principles, the House concluded that the inspectors in both cases had relied upon evidence that, as a matter of law, could not constitute "sufficient evidence" to negative intention to dedicate; accordingly their decisions were quashed and the cases remitted to the Secretary of State for reconsideration under the correct legal test.

Wider context:

• The Lords emphasised the role of an objective public dialogue between users and landowners in the acquisition or rebuttal of public rights of way and recognised the limited but important statutory means by which a landowner can protect against presumed dedication.

Appeals allowed. The House held that the proviso in section 31(1) of the Highways Act 1980 must be given an objective construction: the "intention" referred to is what reasonable users of the way would have understood the landowner's intention to be, and "sufficient evidence" will ordinarily consist of overt, perceptible acts or communications to users (or to bodies likely to inform users) so as to disabuse them of any belief in dedication. Private, undisclosed evidence of the landowner's subjective state of mind is not normally sufficient. The inspectors' decisions in the Godmanchester and Yattendon appeals were therefore quashed and the matters remitted to the Secretary of State for further decision in accordance with the legal principles stated.

Appeal from the Court of Appeal ([2005] EWCA Civ 1597; reported in the judgment at [2006] QB 727). The matters originated in applications to inspectors under Schedule 15 to the Wildlife and Countryside Act 1981 to modify the definitive map (section 53).