Signposting your intent to the public

The law relating to public rights of way has become 'an industry', commented counsel for the appellant in the case of Godmanchester decided last month in the House of Lords (Godmanchester Town Council v Secretary of State for the Environment, Food and Rural Affairs and another [2007] UKHL 28 and (2007) 151 SJ 24, 782, 20.06.07).

Lawyers who follow developments in this particular branch of the law, may well agree. There has been an increasing amount of litigation about public rights of way.

This may be because under S 53 Wildlife & Countryside Act 1981, it is easier for a member of the public to claim the existence of a right of way over any land and conversely, it is now possible for a landowner to apply for a public right of way which is shown on the definitive map to be removed.

The section is wide ranging in its application. The case before the House of Lords dealt with a very specific matter which arises in such cases with increasing frequency.

Section 31 (1) Highways Act 1980 is the updated version of the Rights of Way Act 1932 and provides that:

'Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.' [our emphasis].

Other subsections provide some mechanisms available to a landowner who knows that members of the public are walking or riding over his land and will continue to allow them to do so but does not intend that the routes so used have become public, for instance:

• Where the owner of the land over which any such way as aforesaid passes: a) has erected in such manner as to be visible by persons using the way a notice inconsistent with the dedication of the way as a highway; and b) has maintained the notice after the 1 January 1934, or any later date on which it was erected,the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.
• Where a notice erected as mentioned in subsection (3) above is subsequently torn down or defaced, a notice given by the owner of the land to the appropriate council that the way is not dedicated as a highway is, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner of the land to dedicate the way as a highway.
• An owner of land may at any time deposit with the appropriate council: a) a map of the land on a scale of not less than six inches to one mile; and b) a statement indicating what ways (if any) over the land he admits to having been dedicated as highways; and, in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time: i) within 10 years form the date of deposit; or ii) within 10 years from the date on which any previous declaration was last lodged under this section, to the effect that no additional way (other than any specifically indicated on the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgement of such previous declaration, as the case may be, are, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner or his successors in title to dedicate any such additional way as a highway.

This wording takes account of some statutory amendments: the 'appropriate council' is the highway authority.

Landowner defeating a claim

The meat of the issue in the case was how the landowner could defeat a claim relying on the proviso: 'unless there is sufficient evidence that there was no intention during that period to dedicate it'.

For many years it had been thought that a landowner had a fairly heavy burden of proving his lack of intention, and in Fairey v Southampton County Council [1956] 2 QB 439 at page 458, Lord Denning had expressed the opinion that: 'A landowner cannot escape the effect of 20 years prescription by saying that, locked in his own mind, he had no intention to dedicate'.

Perhaps because of the status of Lord Denning, this phrase stood the test of time until Mr Justice Dyson in R v Secretary of State for the Environment, Transport and the Regions, ex p. Dorset County Council [2000] JPL 396 decided that: 'All that is required is that there be sufficient evidence of lack of intention to dedicate. Coming to the matter untutored by previous authority, one may be forgiven for thinking that what parliament intended was that the tribunal of fact simply decide as a matter of fact whether there is or is not sufficient evidence of intention to dedicate'.

He found that the intention not to dedicate does not have to be brought home to the users. In so doing, he adopted the view (conceded in one of the earlier cases) that the comment of Lord Denning was obiter.

Benefit from the change

As is so often the case, any shift in the law or its interpretation is immediately seized upon by those who can benefit from the change. In a series of cases in the courts and in several public inquiry decisions, the application of the law started to move towards allowing a landowner to avoid his land being subject to a public right of way by producing some form of evidence which he had not brought to the attention of the public but which was said to demonstrate that he had the intention not to dedicate.

This was brought to a head in the two cases which eventually came before the House of Lords. In one case, the landowner had written to the local planning authority complaining of pedestrian trespass.

Such a letter would not have come to the attention of the users of the path, or satisfied any of the alternative methods of negating intention to dedicate in Section 31 (Supra). In the other, there was a clause, a fairly normal clause, in an agricultural tenancy agreement by which the tenant covenanted to warn and keep off unauthorised persons from trespassing, to give notice to the owner of any continued acts of trespass and not to allow any footpath to be created.

In both cases it had been held by inspectors that that was a sufficient indication of the landowner's intention not to dedicate even though the public knew nothing of the tenancy, let alone its individual clauses.

The cases were deemed to be of sufficient importance to come at first hearing before a two-judge divisional court and they both found that in both the quoted situations, the landowner's actions were was sufficient to negative the intention to dedicate. In the subsequent Court of Appeal decision, there was also unanimity.

Equilibrium of interests

The Court of Appeal saw the issue as being an equilibrium between the interests of landowners and that of the public in respect of claimed rights of way.

They did not consider that the law was intended to make it easier for the public to establish a way as a highway when confronted with a landowner's contrary intention.

They thought that otherwise the statutory provision would take the balance too far in favour of the public and against that of the landowner, who had no intention of giving up his land to become a public highway, but who may not be officious about it.

The groups representing users of rights of way had been concerned about the manner in which the judges were interpreting the law and became even more concerned as they saw so many paths being lost and so they determined to take the matter as far as the House of Lords.

Landowner's intention

In the leading judgment on behalf of a unanimous House, Lord Hoffman decided that the true construction of 'intention' means what the relevant audience, namely the users of the way, would reasonably have understood the landowner's intention to be. He thought that the test was objective; not what the owner subjectively intended, nor what particular users of the way subjectively assumed, but whether a reasonable user understood that the owner was intending to disabuse the user of the notion that the way was a public highway.

Thus, no longer can a landowner keep his intention locked up in his mind. He must now do something that brings home his intention (or lack of it) to users of the way.

This must be by such steps as erecting and maintaining a notice; lodging a declaration with the Highway Authority as provided for in Section 31, or by locking a gate. A private letter or similar document is no longer enough.

The lesson to be learnt now is that if it is your intention to allow the public on your land but not to allow their route to become public and thus permanent then you must do something which either complies with the mechanism in the section or in some other manner make your intention it public.

There is one other part of the judgment which may well be the quotation most used in the future.

Lord Hoffman referred to the suggestion that the comments of Lord Denning in Fairey were obiter and thus not to be given great weight but he said: 'but there are obiter dicta and obiter dicta.

These were no throw away lines, this was a learned and carefully prepared reserved judgment (including references to authorities which had not been cited by counsel) but by one of the greatest English judges on a matter close to his heart; a village dispute in his own county of Hampshire'.

Reading this part of the judgment (and one can almost hear it being delivered in the Hampshire burr of Lord Denning) one sees that the reputation of that great judge is now being revived.