Wild v Secretary of State for Environment, Food and Rural Affairs and another
Sir Andrew Morritt, C, Scott Baker and Moses LJJ
Footpath – Public right of way – Definitive map – Footpath crossing land not included in appellant’s conveyance – Local authority ordering route to be added to definitive map and statement – Planning inspector confirming order — Court upholding inspector’s decision – Whether inspector erring in conclusion that order route dedicated by landowner as public right of way – Appeal allowed
The appellant owned an estate that had been transferred to him in 2000. A footpath crossed over land close to the estate but was not included in the conveyance. In 2003, the second respondent local authority made an order, under section 53(2)(b) of the Wildlife and Countryside Act 1981, proposing to add the footpath to the definitive map and statement. The order route had no registered owner and had not been the subject of any conveyance but, in 1978, a public inquiry had taken place to determine whether a bridleway existed over the same route and the appellant’s predecessor had objected to the use of the route.
The appellant objected to the second respondents’ proposal. However, the first respondent’s planning inspector confirmed the order. She found that although the use of the route had been insufficient to deem its dedication as a highway under the criteria set out in section 31 of the Highways Act 1980, on the balance of probabilities, a public footpath that was not shown on the definitive map and statement existed at common law. On the evidence, the landowner must have been aware of the use of the route by the public and had taken no action to prevent it and rebut an inference of dedication.
Footpath – Public right of way – Definitive map – Footpath crossing land not included in appellant’s conveyance – Local authority ordering route to be added to definitive map and statement – Planning inspector confirming order — Court upholding inspector’s decision – Whether inspector erring in conclusion that order route dedicated by landowner as public right of way – Appeal allowedThe appellant owned an estate that had been transferred to him in 2000. A footpath crossed over land close to the estate but was not included in the conveyance. In 2003, the second respondent local authority made an order, under section 53(2)(b) of the Wildlife and Countryside Act 1981, proposing to add the footpath to the definitive map and statement. The order route had no registered owner and had not been the subject of any conveyance but, in 1978, a public inquiry had taken place to determine whether a bridleway existed over the same route and the appellant’s predecessor had objected to the use of the route.The appellant objected to the second respondents’ proposal. However, the first respondent’s planning inspector confirmed the order. She found that although the use of the route had been insufficient to deem its dedication as a highway under the criteria set out in section 31 of the Highways Act 1980, on the balance of probabilities, a public footpath that was not shown on the definitive map and statement existed at common law. On the evidence, the landowner must have been aware of the use of the route by the public and had taken no action to prevent it and rebut an inference of dedication.The appellant applied to quash that decision, under para 12 of Schedule 15 to the 1981 Act. However, the court concluded that alleged errors by the inspector had not been established and upheld her decision: [2008] EWHC 3461 (Admin). The appellant appealed.Held: The appeal was allowed.The inspector erred in law in failing to have regard to the fact that objection had been raised at the 1978 inquiry by a person or persons who might have been the owner or owners of the order route and her decision should therefore be set aside.Where a public right of way could not be established under the 1980 Act, one had to rely on the common law, since the 1980 Act (and its predecessor the Prescription Act 1832) supplemented the common law rather than replaced it: Poole v Huskinson (1843) 11 M&W 827 and Folkestone Corporation v Brockman [1914] AC 338 applied.The critical point was that it was possible that the appellant and his predecessors owned the route. On the evidence, no other candidates existed. From the 1978 inquiry, the challenge to the order route being a public footpath would have been known and it had to be inferred that the users knew that they were using the path against that challenge. However, the inspector had not dealt with that point even though the state of mind of the users was relevant to the status of the track. It was common knowledge that an objection had been made to the public use of the track by someone who might have been the owner.It did not follow that because of the use, the owner had dedicated the footpath; it was necessary to look at all the circumstances. The questions of public user, acquiescence and dedication had to be addressed separately. The inspector should have dealt with the consequences of not concluding who was or was not the owner of the order route. The objections in 1978, whoever made them, were relevant to the status of the track because they were made by someone who might have been the owner. The question for the inspector was not so much what the users of the path thought about whether it had been dedicated to the public’s use but whether the owner had done anything to show the public at large that he had not intended to dedicate it for public use.William Upton (instructed by Clarke Willmott LLP, of Bristol) appeared for the appellant; Tim Buley (instructed by the legal department of Defra) appeared for the first respondent; Sarah Hannett (instructed by the legal department of Dorset County Council) appeared for the second respondents.Eileen O’Grady, barrister
