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

Failure to satisfy statutory deemed-dedication criteria does not end the inquiry. The common law remains available. Implied dedication requires assessment of the whole evidence. Public user is evidence, not conclusive. The decision-maker must consider the duration and character of the use, the owner’s knowledge and acquiescence, and whether dedication can properly be inferred. A public objection made at an inquiry by a person who might be the owner is material to acquiescence. Uncertain ownership does not make the objection irrelevant. Objection followed by inactivity does not automatically establish acquiescence. An inspector who overlooks that objection commits an error of law, rendering the decision vulnerable on ordinary judicial review principles.

James Wild challenged the confirmation by a planning inspector of Dorset County Council’s order adding a 660-metre footpath to the Definitive Map and Statement. The inspector rejected deemed dedication under the Highways Act 1980 but found implied dedication at common law. Keith J upheld the inspector’s decision and dismissed the challenge under paragraph 12 of Schedule 15 to the Wildlife & Countryside Act 1981: [2008] EWHC 3461 (Admin). The appeal concerned whether the inspector had lawfully assessed the effect of public objections at a 1978 inquiry, made by persons who might have been the landowner, on public use, owner acquiescence and dedication.

Lord Justice Scott Baker gave the leading judgment. Lord Justice Moses and the Chancellor agreed.

1. Disposition. The appeal was allowed. Keith J should have set aside the inspector’s decision because it was flawed on Wednesbury grounds.
2. The inspector correctly considered deemed dedication under section 31 of the Highways Act 1980. That statutory regime supplements the common law. If the statutory requirements are not met, the evidence may still establish implied dedication at common law. The position under the Rights of Way Act 1932 was materially the same.
3. At common law, the tribunal must examine the whole evidence. Public user is the starting point, followed by consideration of the owner’s acquiescence, and finally whether dedication can be inferred and accepted. User must be sufficiently open and of the necessary duration and character. It is evidence of intention to dedicate, not proof of dedication by itself. The principles stated in Poole v Huskinson (1843) 11 M&W 827, Mann v Brodie (1885) 10 App Cas 378 and Folkestone Corporation v Brockman [1914] AC 338 required consideration of all the circumstances.
4. R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335 established that the users’ honest belief in a legal right is not required for use to be as of right. That does not make the circumstances of the use irrelevant to owner acquiescence. Public knowledge that the use had been challenged could materially affect whether the owner had acquiesced and whether dedication could be inferred.
5. The 1978 objections were made publicly by persons who might have been the owners. The inspector was entitled to treat uncertain ownership as a factor, but she had to explain how acquiescence could be found despite those objections. Her conclusion that the owner’s awareness and subsequent inactivity sufficed overlooked the objections. Objection followed by inactivity did not necessarily amount to acquiescence. The respondents’ further grounds did not cure that error.

• Court of Appeal (Civil Division): allowed the appeal and held that the inspector’s decision was legally flawed. [2009] EWCA Civ 1406.
• Administrative Court: Keith J upheld the inspector’s decision and dismissed the challenge. [2008] EWHC 3461 (Admin).
• Planning inspector: confirmed Dorset County Council’s order adding the footpath to the Definitive Map and Statement.