Ali v Secretary of State for Environment, Food And Rural Affairs & Ors

Under Highways Act 1980, 20 years’ public use as of right raises a presumption of dedication unless there is sufficient evidence of an objective intention not to dedicate. That intention must be demonstrated by overt acts perceptible to users of the way. An annual closure may suffice in an appropriate case, but its effectiveness depends on whether it communicates the landowner’s intention to users who would understand and react to it. A closure occurring when the way is unlikely to be used may be ineffective. The court’s supervisory role is limited to public law errors, including irrationality, failure to consider relevant matters, procedural error and inadequacy of reasons.

The claimant sought judicial review of the Secretary of State’s confirmation of an order under section 53 of the Wildlife and Countryside Act 1981, adding a public footpath to the definitive map for Essex. The order followed objections to the proposed route through an alleyway adjoining the claimant’s property.

The appointed inspector considered whether public use had continued for the relevant 20-year period and whether the landowners had provided sufficient evidence of an intention not to dedicate the way. The claimant challenged the inspector’s treatment of evidence that a door across the alleyway had been closed or locked, and alleged irrationality and inadequate reasons.

1. The claim was dismissed. The earlier claim, issued before the statutory challenge period began, was also to be dismissed.
2. Under section 31 of the Highways Act 1980, the relevant question was whether the public had enjoyed the route as of right and without interruption for 20 years, and whether there was sufficient evidence of no intention to dedicate. The inspector was entitled to assess the whole evidential picture and to distinguish between closing and locking the door.
3. The principles in Regina (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2008] 1 AC 221 required intention to be judged objectively. The landowner’s acts had to be sufficiently overt and perceptible to the relevant users. The inspector rationally concluded that any earlier locking was not proved on the balance of probabilities and, in any event, did not interrupt public use.
4. The inspector was entitled to find that the door was locked over Christmas 2011 but that this did not provide sufficient evidence of an intention not to dedicate. The route was mainly used to reach shops and businesses, which were closed over Christmas. The closure therefore did not communicate the landowner’s intention to users at a time when they were likely to use the route.
5. The decision letter, read fairly and without excessive legalism, explained the inspector’s conclusions adequately. The alleged inconsistencies and infelicities in language did not make the decision irrational or unlawfully unreasoned.