Derek Smith v Great Yarmouth Magistrates Court

For section 31 of the Highways Act 1980, the 20-year period is calculated retrospectively from the date on which the public’s right to use the way is brought into question. A finding that the relevant event occurred within a period may be sufficiently precise where the exact date cannot affect whether 20 years’ qualifying use is established.

On a case stated, the High Court examines whether the magistrates’ decision was wrong in law or exceeded jurisdiction. It does not reweigh evidence. Magistrates may consider the evidence as a whole, including photographs and contextual documentary evidence, when deciding whether public use was continuous and sufficient to establish presumed dedication.

The appellant was convicted by Great Yarmouth Magistrates’ Court of four offences under section 137 of the Highways Act 1980. The charges concerned obstruction of a highway by a cabin and vehicles placed on land beside Vauxhall Bridge. The magistrates acquitted him of two further charges concerning a fence erected by the highway authority.

The magistrates found that the land had become a highway under section 31 of the Act. On an appeal by case stated, the appellant challenged the precision of the date when the public right was brought into question and argued that the evidence was insufficient to prove 20 years’ qualifying use to the criminal standard. The central issues were whether the magistrates had applied section 31 correctly and whether their factual findings disclosed an error of law.

1. Appeal dismissed. The answers to both questions in the case stated were that the magistrates were entitled to reach their decision and had made no error of law.
2. Under section 31 of the Highways Act 1980, the relevant 20-year period runs retrospectively from the date when the public’s right to use the way is brought into question. The magistrates were entitled to find that the fence was erected between the last relevant photograph in 1988 and the appellant’s purchase of the land in March 1989. That degree of uncertainty did not matter because the evidence showed qualifying use for more than 20 years before any date within that period.
3. The expression “as of right” means without force, secrecy or permission. “Without interruption” requires the absence of any entire prevention of the right of passage during the relevant period, although temporary interference is permissible.
4. On an appeal by case stated, the High Court determines whether the magistrates’ decision was wrong in law or exceeded jurisdiction. It does not reconsider the weight of evidence. A factual finding supported by evidence gives rise to an error of law only if no reasonable bench could have reached it.
5. The evidence was capable of supporting the finding that the land had been used as a highway for the required period. The photographs showing vehicle use, considered with the 1982 planning and transportation sub-committee minute, provided strong evidence of use before and during the relevant period. The evidence did not have to establish uninterrupted use on every occasion.

• High Court (Administrative Court): The appeal by case stated from the appellant’s convictions in Great Yarmouth Magistrates’ Court was dismissed.
• Great Yarmouth Magistrates’ Court: The appellant was convicted of four offences of obstructing a highway and acquitted of two offences concerning the fence.