Powell & Anor v Secretary of State for Environment, Food And Rural Affairs

For presumed dedication under Highways Act 1980, section 31, the expression “as of right” is governed by the tripartite test: use must be without force, secrecy or permission. There is no additional preliminary requirement that the use must have appeared to a reasonable or vigilant landowner to be an assertion of a right.

The court must first assess whether the quantity and quality of use are capable of asserting the right claimed. It must then apply the tripartite test objectively, by reference to how the use would have appeared to the landowner. An inaccurate or outdated definitive map does not make otherwise open use secret where reasonable enquiries would have disclosed the true legal position.

The claimants challenged, under paragraphs 11 and 12 of Schedule 15 to the Wildlife and Countryside Act 1981, an order confirming a public footpath in Doncaster. The path had been diverted in 1967, but the definitive map had not been amended. Evidence established public use of the former direct route for the relevant 20-year period before fencing was erected in 2006.

The Inspector concluded that use had been public, as of right and without interruption, and confirmed the order. The claimants argued that the Inspector had applied the wrong test, that the use was secret because of the defective map, and that the order could not lawfully be made or confirmed while the map remained inaccurate. The central issues were the meaning of “as of right” and the interaction between presumed dedication and the statutory duties concerning the definitive map.

1. The claim was dismissed. The Inspector had correctly concluded that the evidence established 20 years’ use of the claimed route as of right and without interruption.
2. There is no additional test beyond the tripartite test of nec vi, nec clam, nec precario. R (Lewis) v Redcar & Cleveland Borough Council (No 2) and London Tara Hotel Ltd v Kensington Close Hotel Ltd established that the tripartite test is the legal means of assessing whether use was such that resistance by the landowner could reasonably be expected. The court followed that approach.
3. The inquiry has two stages. First, the quantity and quality of use must be sufficient to amount to an assertion of the particular right claimed. Secondly, the use must be assessed objectively against the three vitiating circumstances. The court rejected the suggestion that a broader inquiry into the landowner’s reasonable expectations was required.
4. The alleged secrecy arose from the failure to reflect the 1967 diversion in the definitive map and from an old sign. That did not make the use clam. The map was historical and outdated, and reasonable enquiries would have disclosed the 1967 Order and the diverted route. The actual use, rather than undisclosed legal documentation, was the proper focus.
5. The failure to amend the definitive map under section 53(2)(a) of the Wildlife and Countryside Act 1981 did not require the later order to be quashed. The authority could update the map by taking account of all relevant orders, including the later order which effectively superseded the practical effect of the earlier diversion.
6. Although the direct route was arguably already shown on the defective map, confirmation could alternatively proceed under section 53(3)(b), because the Inspector’s findings established the statutory presumption of dedication. The same outcome would therefore have followed by a different statutory route, and the procedural ground could not justify relief.

First-instance judicial review proceedings. The judgment records the Inspector’s decision following a public inquiry but does not state a separate lower-court judgment.