Wild v Secretary of State for Environment, Food and Rural Affairs & Ors

Use which is insufficient to establish deemed dedication under section 31 of the Highways Act 1980 may nevertheless contribute to establishing dedication at common law. The statutory and common-law questions are distinct. The court must consider the evidence cumulatively.

The central focus in presumed dedication is the conduct of the landowner. The relevant question is whether the landowner did anything to demonstrate to the public that there was no intention to dedicate the way. An objection at an earlier public inquiry may be neutralised by subsequent inaction, particularly where the landowner took no effective steps to prevent public use.

The claimant sought to quash an order made by Dorset County Council, as surveying authority, adding a footpath from Clay Lane to Looke Lane, Puncknowle, to the definitive map under section 53(2)(b) of the Wildlife and Countryside Act 1981. An inspector appointed by the Secretary of State confirmed the order after finding that the path had been used by the public over many years.

The inspector concluded that the use between 1958 and 1978 was insufficient to establish deemed dedication under section 31 of the Highways Act 1980. She nevertheless considered that period together with later use in assessing whether dedication could be inferred at common law. The central issues were whether earlier insufficient use could be combined with later use and whether an objection at a 1978 public inquiry prevented a later inference of dedication.

1. The application was dismissed. The inspector had made no material error in confirming the definitive map modification order.
2. English law does not acquire public rights merely through long use. Long use raises a presumption that the right had a lawful origin, ordinarily dedication by the landowner. Dedication may be inferred from the character and extent of public use and the landowner’s conduct, consistently with the explanation in R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28.
3. The inspector was entitled to combine the use between 1958 and 1978 with the use between 1978 and 1998 when considering common-law dedication. The fact that the earlier period did not satisfy the statutory 20-year requirement did not make that evidence irrelevant to the distinct common-law question.
4. The relevant focus was the landowner’s conduct, rather than the understanding of members of the public who used the path. Following Fairey v Southampton County Council [1956] 2 QBD 439 at 458, the question was whether the landowner had done anything to show the public that dedication was not intended. The 1978 objection did not prevent the inference because there was no evidence that the objectors were then the landowners and, in any event, no effective action was taken to prevent use until the 1990s.
5. The inspector’s failure to consider separately whether there was sufficient evidence of an absence of intention to dedicate during 1958–1978 did not invalidate her decision. There was no evidence from that period suggesting an intention contrary to dedication. The claimant was ordered to pay the Secretary of State’s costs, summarily assessed at £5,833.53. Permission to appeal was refused.