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

For the statutory presumption of dedication under section 31 of the Highways Act 1980, the relevant period is any full period of 20 years ending when public use is brought into question. Earlier challenges do not prevent reliance on a later period of uninterrupted use.

The landowner must provide sufficient objective evidence, communicated to the relevant audience of users, showing no intention to dedicate the way as a public highway. Notices and other acts must be assessed in context. A notice to the appropriate council under section 31(5) must be given during the relevant 20-year period and does not ordinarily have indefinite temporal effect. The court will not interfere with an inspector’s evaluative assessment of the evidence unless it is unlawful or irrational.

Mr Brian Paterson, the owner of part of land crossed by a claimed footpath near Shiplake, appealed under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981. Oxfordshire County Council had made an order modifying the definitive map to record the route as a public footpath after an inspector concluded that public use for the period 1976 to 1996 raised a statutory presumption of dedication under section 31 of the Highways Act 1980.

The inspector rejected the historic-documentary case but accepted the long-user case. Mr Paterson challenged the choice of period, the treatment of earlier signs and a 1934 letter, the assessment of use by persons with private easements, and the adequacy of landowners’ communications to the public. The central issue was whether the inspector had erred in law or acted irrationally.

1. Appeal dismissed. The inspector’s decision was reached within the powers conferred by the Wildlife and Countryside Act 1981 and in accordance with ordinary public law principles.
2. Section 31(1) of the Highways Act 1980 requires identification of a full period of 20 years during which the way was actually enjoyed by the public as of right and without interruption. Under section 31(2), the period is calculated retrospectively from the date when public use was brought into question. The inspector was therefore entitled to use 1976 to 1996, notwithstanding the existence of earlier notices in the 1930s.
3. The proviso to section 31(1) requires sufficient objective evidence during the relevant period that the landowner had no intention to dedicate the way. Following R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28; [2008] 1 AC 221, the evidence must be perceptible to the relevant audience of users. Occasional challenges to strangers and private communications not shown to have reached users were insufficient.
4. Signs saying only “Private” or “Private, No Tipping” were ambiguous in the factual setting. The inspector was entitled to conclude that they did not clearly communicate an absence of intention to dedicate the footpath. The existence of private easements made assessment more difficult, but did not remove the requirement for effective communication to the public.
5. A notice under section 31(5) is a secondary mechanism available where a notice under section 31(3) has been torn down or defaced. It must be given to the appropriate county council and must operate within the relevant period. Mr Lowe’s 1934 letter was neither a qualifying substituted notice nor a notice to the correct authority, and could not defeat the later presumption. The contrary observation in Godmanchester at paragraph [91] was obiter and was not followed on this point.
6. The inspector had carefully assessed the user evidence, including use by persons holding private rights of way, and his conclusions were reasonably open to him. The court declined to reweigh that evidence.

The judgment does not state a prior court decision. It was an appeal to the High Court under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 against an order made by Oxfordshire County Council and confirmed through the statutory process.