Fortune & Ors v Wiltshire Council & Anor

A public highway may arise at common law where long public use and the surrounding evidence justify an inference of dedication and acceptance. The evidence must be assessed cumulatively. Public vehicular rights may exist even where the route ends in a cul-de-sac.

The exception in section 67(2)(b) of the Natural Environment and Rural Communities Act 2006 does not require a highway authority’s list of streets to comply perfectly with section 36(6) of the Highways Act 1980. A substantially defective list retains its character as a list. It may be maintained electronically, provided its entries can be represented visibly and it remains available for public inspection.

The appellants were residents who opposed residential development adjoining Rowden Lane, Chippenham. They accepted that the disputed sections were a public highway but contended that public passage was limited to use on foot and horseback. Alternatively, they argued that any public right to use mechanically propelled vehicles had been extinguished by section 67 of the Natural Environment and Rural Communities Act 2006.

HH Judge McCahill QC dismissed the claim after a 12-day trial, holding that the lane was an ancient public vehicular highway dedicated at common law and that the vehicular rights survived under the exception in section 67(2)(b): [2010] EWHC B33 (Ch).

The central issues on appeal were whether the historical and documentary evidence justified the finding of common-law dedication and whether the council’s electronic, incomplete list of streets satisfied the statutory exception.

1. Appeal dismissed. The trial judge was amply justified in finding that the disputed sections of Rowden Lane were an ancient public vehicular highway dedicated at common law. The conclusion rested on the cumulative effect of historical maps, public use, the physical character of the lane, access to public destinations, official records and conveyancing evidence.

2. Common-law dedication is an inference of fact drawn from all the evidence. Long public use is evidence from which an intention to dedicate may be inferred. The existence of a highway ending in a cul-de-sac is legally possible. Once public vehicular rights have arisen, they are not lost merely because part of a former through route becomes blocked or falls into disuse.

3. The appellants accepted that the lane was a public highway and that it had been used by vehicles. It was implausible to infer a dedication confined to pedestrians and riders while treating vehicular use as a series of private prescriptive rights enjoyed only by frontagers. The simpler and more probable inference was an unrestricted dedication reflecting the actual public use.

4. The trial judge undertook a permissible multi-factorial evaluation. Some individual findings, including parts of the maintenance evidence and the weight attributed to the definitive-map process, were open to qualification. Those matters did not undermine the overall conclusion.

5. Public vehicular rights were not extinguished by section 67(1) of the Natural Environment and Rural Communities Act 2006. The exception in section 67(2)(b) applied because the disputed sections appeared before commencement in the list required by section 36(6) of the Highways Act 1980.

6. A list under section 36(6) need not be fully compliant before it can qualify for the exception. The statutory language contemplates that a list may require correction. The omission of several highway categories and the erroneous inclusion of a small number of streets did not deprive the council’s database of its essential character as a list of streets. The stricter approach in R (Warden and Fellows of Winchester College) v Hampshire County Council was distinguishable because it depended on the different words “in accordance with” governing applications under another exception.

7. The list could lawfully be kept electronically. Entries capable of being read on screen or in a printout satisfied the statutory conception of writing. An electronic list accessible for inspection at the council’s offices was capable of being “deposited” there.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the findings that Rowden Lane was a public vehicular highway dedicated at common law and that its public vehicular rights had not been extinguished: [2012] EWCA Civ 334.
2. Chancery Division: HH Judge McCahill QC dismissed the residents’ claim, deciding the material issues in favour of Wiltshire Council: [2010] EWHC B33 (Ch).