Dacorum Borough Council v Foy

A challenge to the existence or width of a public highway is a merits issue, not a jurisdictional objection. A party seeking permission to appeal cannot recast the case by advancing a fundamentally different argument from that run at trial. Permission should be refused where the proposed grounds do not engage with supported factual findings or show an error, and therefore have no real prospect of success. A definitive map identifying a public right of way may provide conclusive evidence of its existence under section 56 of the Wildlife and Countryside Act 1981. Historical plans and documents may support a finding that a route is substantially wider than its metalled surface or the width asserted by an adjoining owner.

Dacorum Borough Council, the highway authority, sought a declaration of the width of a public footpath and an injunction requiring Mavis Ann Foy and Toneye Foy to remove structures. The defendants counterclaimed for trespass and related relief.

The Luton County Court held that the route was a public highway approximately 6 metres wide, gave judgment for Dacorum and dismissed the counterclaim. It accepted undertakings instead of granting an injunction. McCombe LJ refused permission to appeal on the papers. The defendants renewed their application, challenging jurisdiction, relying on an alleged historic stopping-up order and arguing that no public right of way existed. The central question was whether those arguments disclosed a real prospect of success.

1. Permission refused. The renewed application disclosed no real, rather than fanciful, prospect of success. The proposed grounds did not demonstrate any error in the Recorder’s findings, which were based on the historical documents and plans.
2. Jurisdiction. The question whether a public footpath existed was an issue capable of determination at trial on the merits. It did not deprive the court of jurisdiction and did not require determination before trial.
3. Case advanced on appeal. At trial the defendants had accepted that a footpath ran between Points A and B and had disputed its width. Their argument before the Court of Appeal that no right of way existed at all was therefore a fundamentally different case. The Court of Appeal could not properly take that new line on the permission application.
4. Evidence of the right of way and width. The Definitive Plan and Statement identified the route as a public footpath. The Recorder was entitled to rely on the effect of section 56 of the Wildlife and Countryside Act 1981 and on the extensive historical documentation. The plans showed a route plainly wider than 4 feet. The Recorder was entitled to conclude that its width was approximately 6 metres rather than 7 metres.
5. The Recorder had also relied on the principle stated in Harvey v Truro Rural District Council [1903] 2 Ch 638, concerning the prima facie extent of a highway between its boundaries. His reasoning was sound. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): On 13 January 2016, Jackson LJ refused the renewed applications for permission to appeal. The decision is reported at [2016] EWCA Civ 48.
• Court of Appeal (Civil Division, on the papers): McCombe LJ refused permission to appeal in June 2015, holding that the Recorder’s core conclusions on the width of the right of way were findings of fact to which he was entitled to come.
• Luton County Court: Mr Recorder Hancock QC held that Dacorum was entitled to bring the proceedings, found the public highway to be approximately 6 metres wide, gave judgment for Dacorum and dismissed the counterclaim. The decision was given on 18 February 2015.