Slough Borough Council v Secretary of State for Environment Food And Rural Affairs

For common-law dedication of a public highway, the decision-maker must assess the whole period and character of use, together with interruptions and the landowner’s response, to determine whether dedication is the probable explanation. A later obstruction cannot be treated as irrelevant merely because dedication may already have occurred. The timing of dedication and the absence of steps to remove the obstruction may be material to whether any wider vehicular right was ever dedicated. Any inferred dedication should extend no further than the evidence warrants. The same least-burdensome approach may inform common-law as well as statutory dedication. For the statutory exemption preserving vehicular rights, a list under section 36(6) of the Highways Act 1980 must identify a highway maintainable at public expense. A separate entry describing the way as a private street does not satisfy that requirement.

The claimant authority made an order under the Wildlife and Countryside Act 1981 proposing to record a right of way as a bridleway. Objections sought registration as a byway open to all traffic. Following a public inquiry, the defendant’s inspector concluded that the way had been dedicated at common law as a vehicular highway and that the vehicular rights were preserved by the exemption in section 67(2)(b) of the Natural Environment and Rural Communities Act 2006.

The Council challenged the decision under paragraph 12 of Schedule 15 to the 1981 Act. It alleged errors in the inspector’s approach to common-law dedication and in the construction of the section 67(2)(b) exemption. The central issues were whether the inspector had properly assessed the significance of a 1961 obstruction and whether the Council’s list, which described the way as a private street, was a statutory list of highways maintainable at public expense.

1. Common-law dedication. The correct approach is to examine the whole evidence of use and decide whether dedication is the more probable explanation than trespass or toleration. The evidence must be assessed in its factual context, including the timing and level of use, the nature of the claimed rights, interruptions and the landowner’s response.
2. The inspector had treated the 1961 obstruction to mechanically propelled vehicles as irrelevant because he considered that dedication had occurred earlier. That was legally inadequate. The obstruction, and the absence of efforts to remove it, were themselves relevant to whether dedication of vehicular rights should be inferred at all. The inspector also needed to explain when the dedication was said to have occurred, particularly because the substantial use followed housing development in the mid-1950s and the obstruction followed after only a short period of vehicular use.
3. There is no fixed minimum period of use for common-law dedication. Short use may suffice, but the conclusion depends on the circumstances and evidence. The inference should be no wider than the evidence supports. The least-burdensome principle discussed in Whitworth & Others v SSEFRA [2010] EWCA Civ 1468 could properly inform the common-law inquiry as well as statutory dedication.
4. Section 67 exemption. The inspector wrongly treated inclusion of the way in the Council’s combined register as sufficient for section 67(2)(b). The relevant part of the register had to show a highway maintainable at public expense. The entry describing the way as a private street expressly indicated the contrary. The vehicular rights were therefore extinguished in 2006.
5. Both grounds succeeded. The inspector’s decision was quashed.