Singh & Anor v Akhtar

A party alleging that land is a highway maintainable at public expense must prove that allegation where it is not admitted. The statutory presumption of dedication after 20 years’ public use cannot retrospectively establish that a way became a highway before the statutory regime creating the presumption. Without proof that land was a highway, there is no statutory vesting in the highway authority. The owner may therefore validly reserve and grant a private right of way over it.

The respondents owned land benefiting from a right of way over a back road. The right had been reserved and later granted through conveyances deriving from the same vendor as the appellant’s deceased husband’s property.

The respondents obtained an injunction requiring removal of a wheelchair ramp which interfered with the right of way. On appeal from Bradford County Court, the appellant argued that the reservation and grant were invalid because the land had become a highway maintainable at public expense by 1958. The central issue was whether the evidence established that the passage was such a highway.

Appeal dismissed. The injunction requiring removal of the ramp was upheld.

1. The allegation that the passage was a highway maintainable at public expense was not admitted. Under Part 16.7 of the Civil Procedure Rules 1998, the appellant therefore bore the burden of proving it. That required proof, first, that the passage was a highway.
2. The 20-year statutory presumption of dedication is contained in section 31(1) of the Highways Act 1980. Its origin lies in section 1(1) of the Rights of Way Act 1932. The 1932 Act was a substantive change to the common law, not a codification of it. The statutory presumption could not therefore establish that the passage became a highway by 1917. Evidence of 20 years’ public use before 1958 might have supported reliance on the presumption.
3. The Recorder’s finding was that the evidence did not establish regular public use of the passage, and there was no specific challenge to that finding. There was no evidence of actual public use for 20 years. A stopping-up order did not remedy that evidential deficiency.
4. Maps produced for the first time on appeal were not admitted because they could have been obtained before trial and, in any event, showed physical features rather than legal rights. They would not have displaced the Recorder’s findings. Since the passage had not been proved to be a highway, there was no statutory vesting. The vendor was competent to reserve and later grant the right of way. Lords Justice McCombe and Laws agreed with Lord Justice Lewison.

• Court of Appeal (Civil Division): On 26 April 2013, the court dismissed the appeal from the decision of Mr Recorder Thorp in Bradford County Court. [2013] EWCA Civ 570
• Bradford County Court: The respondents’ claim succeeded and an injunction was granted requiring removal of the wheelchair ramp.