Section 6
Creation of highways
6.3: Statute
Christine Willmore LL.B. Barrister, Lecturer in Law, University of Bristol.
Dyfed County Council v Secretary of State for Wales concerned a path around a lake
used for swimming, fishing and other water recreation. The shores were used in connection
with the lake, but it was also argued by the Council that there was a public right of way
unconnected with use of the water. In the Court of Appeal three issues arose:
1. Can recreational walking be used to establish
a public right of way?
2. How well defined must a route be?
3. What rights are conferred by an inclosure award?
David Braham Q.C.
S.31 re-enacts provisions which were first introduced by the Rights of Way Act, 1932
("the 1932 Act"). These provisions simplify the task of proving that a way is a
highway in cases where the path or track has been used by the public on the footing that
it is a highway for the period of 20 years leading up to the time when the public right to
use the way is challenged. The 1932 Act gave landowners additional ways of making their
intentions clear if they did not wish the public use to ripen into a permanent right, but
provided that on proof of public use 'as of right' for the 20-year period the legal burden
should be on the landowner to show that there is sufficient evidence that there was no
intention that the public should have a permanent right of passage. This approach avoids a
variety of problems which can arise where the public's claim is founded on the common law.
In practice, most claims nowadays are founded on this section unless the dispute concerns
a way which has fallen into disuse, or whose legal origin is apparent from documents such
as an Inclosure award.
David Braham Q.C.
Case Report
Attorney-General ex rel. Yorkshire Derwent Trust Ltd and others
(Respondents) v. Brotherton and others (Appellants)
On a preliminary issue, the House of Lords reversed the decision of the Court of Appeal
and held that neither s.31 of the Highways Act 1980 nor any of the fore-runners of that
section applies in relation to public rights of navigation. Of more general interest, each
of the reasoned speeches refers to the mischief which the Rights of Way Act 1932 was
intended to cure. This was identified by reference to the Memorandum which accompanied the
Rights of Way Bill when it was laid before Parliament, and which is reproduced below.
S.R.B. Jackson, B.A., Solicitor.
The dispute concerning rights of navigation along the River Derwent highlights in an
acute form the scope for conflict between recreational interests on the one hand and
environmental and conservation interests on the other. In the absence of fresh legislation
to clarify the position the outcome of such disputes may turn upon fine points of
construction involving Acts of Parliament passed many years ago.
David Braham Q.C.
The meaning of public enjoyment "as of right" was in issue in three cases in
which Pill J. gave judgment on 24th June, 1994:
Barrett v. Secretary of State for the Environment and Buckinghamshire
County Council;
Ryland v. Secretary of State for the Environment and Buckinghamshire
County Council;
O'Keefe v. Secretary of State for the Environment and Isle of Wight
County Council.
David Braham Q.C.
A case note
In his decision in Jaques v. Secretary of State for the Environment Laws J. quashed three
definitive map modification orders on the ground that "the Inspector has found in
terms that the appellant has disproved by overt acts (and they were plainly directed at
users of the ways) any intention on his part to dedicate". He then went on to
consider a wider point on the impact of wartime requisitioning where the requisitioning
did not in fact interfere with the public use.
David Braham Q.C.
A case note
The status of a short stretch of metalled road had to be determined for the purpose of
deciding whether Mr. Adair was guilty of wilfully obstructing a highway. The claim that
this road was a highway was founded solely on s.31 of the Highways Act 1980. For
pedestrians, the road led to the beach but for motorists the road led only to a common
which was used as a car park, but on which parking was illegal.
David Braham Q.C.
The implications of Robinson v. Adair are examined so far as concerns claims under
s.31 of the Highways Act 1980.
Angela Sydenham, M.A., LL.B., Solicitor, Birketts
The law of deemed dedication under s.31 is not entirely clear, but consideration of
the development of the legislation and the decided cases suggests that, where it is
applicable, the section will enable dedication to be deemed although the land is subject
to a settlement under which there is no power to dedicate the public right of way
expressly. In other trusts of land the trustees have the powers of an absolute owner and
therefore dedication can be deemed in the usual circumstances.
J.D.C. Harte, M.A., Dip.Crim.,LL.M., (Canon Law), Barrister, Senior Lecturer in Law at
Newcastle Law School in the University of Newcastle.
The National Trust is a distinctive institution. It is a body independent of
government but it operates under special statutory powers. It is open to membership for
ordinary members of the public and it exists to preserve land and buildings which are of
interest to the public so that the public may enjoy them. However, its very nature as a
steward of land for the public benefit means that it may be more difficult for ordinary
public rights of way to be established over that land. On the other hand the special
position of the National Trust offers a model for allowing public access to land with
effective safeguards against abuse.
David Braham Q.C.
This article covers developments since the original article on s.31 of the Highways
Act 1980 ("the 1990 article") was published in the October 1990 issue as pages
6.3, 5-13.
David Braham Q.C.
The fact that modern use was confined to local inhabitants would rarely, if ever,
justify the conclusion that the landowner had set out to dedicate the way as a highway
without conferring rights on any traveller from further afield.
Colin Braham, M.A., M.Sc., Barrister
A case note
In this case Mr. Timothy Stevens challenged the reclassification of a road used as a
public path (RUPP) as a bridleway, rather than a byway open to all traffic (BOAT). The
challenge required Sullivan J. to consider the scope and effect of the principle that a
right cannot be acquired through conduct prohibited by public statute.
Ross Crail, Barrister
A case note
At issue in this case was whether deemed dedication, under s.31 of the Highways Act 1980,
could arise where a previous landowner had executed a deed under s.193 of the Law of
Property Act 1925 declaring the provisions of that section to apply to the land in
question, even though the public had not been made aware of the existence of that deed.
The implications of the judgment are considered, with particular attention to its
interpretation of some key words and phrases in the two relevant sections.
Louise Davies, Barrister
A case note
In the case of R. v. Secretary of State for the Environment ex parte Dorset County Council
Dyson J. considered two aspects of s.31 of the Highways Act 1980. The first concerned the
meaning of "sufficient evidence that there was no intention ... to dedicate" in
s.31(1) of that Act. The Judge concluded that overt and contemporaneous evidence of an
intention not to dedicate would usually be required. There was no rule that only
activities directed at users of the way could constitute sufficient evidence. The second
aspect concerned what was necessary for the public's right to use a way to be
"brought into question" within s.31(2) of the Act. The Judge held that s.31(2)
could be satisfied only where it was likely that, as a result of the act relied on, some
users would be made aware that the owner had challenged their right to use the way.
David Braham Q.C.
The wider implications of Robinson v. Adair are examined with the conclusion that
common law claims are unaffected.
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