Section 6
Creation of highways
6.3: Statute continued
 David Braham
Q.C.
S.31(1) of the Highways Act 1980 provides that a way is to be deemed to have been
dedicated as a highway if it has been enjoyed by the public as of right, without
interruption, for 20 years unless there is sufficient evidence that there was no intention
during that period to dedicate. This article examines the implications of the further
provision, in s.31(2), that the 20 year period is to be calculated retrospectively from
the date when the right of the public to use the way is brought into question.
Michael Orlik, Solicitor
A case note
Elias J. held that (1) an Inspector’s decision to confirm a definitive map
modification order was flawed by his failure to make a clear finding of fact on aspects on
which there was conflicting evidence and which were relevant to the issues whether the
public had enjoyed the way `as of right’ and `without interruption’ and (2) the
acts of a tenant could be relevant to the issues whether the public had implied permission
which was inconsistent with use as of right, whether the way had been enjoyed `without
interruption’ and whether there was sufficient evidence of lack of intention to
dedicate.
David Braham Q.C.
A case note
The main issue in this case turned on the interpretation of a ‘Private Road’
notice which was sited close to an official ‘Public footpath’ notice. The
judgment also raised the question whether an Inspector’s decision letter needs to
cover points which are relevant to the order making authority’s jurisdiction to make
the order, but which were not put in issue at the inquiry.
Colin Braham, M.A., M.Sc., Barrister
A case note
The claims in these cases raised three issues on the interpretation of the
‘proviso’ to s.31(1) of the Highways Act 1980.
(a) what amounts to ‘sufficient evidence’ of a lack of
intention to
dedicate a highway;
(b) whether such evidence must be brought to the notice of users
of
the highway or be likely to come to their attention; and
(c) whether it is necessary for evidence of lack of intention to
dedicate
to exist throughout the relevant period.
David Braham Q.C.
A case note
The main question for the Court was whether sufficiency of evidence of an intention not to
dedicate necessary to satisfy the proviso to s.31(1) of the Highways Act 1980 requires, as
a matter of law, that during the relevant 20 year period the landowner should not only
prove that negative intention, but also prove acts communicating it or likely to bring it
to the attention of users of the way.
The second issue was whether it is enough for the landowner to establish that there was no
intention to dedicate for a part or parts of the period, or whether he has to show that
there was no such intention throughout the period - in short, whether in the proviso to
s.31(1), 'during' means 'throughout'. On both issues the Court decided in favour of the
landowners, upholding the decision of the Divisional Court.
David Braham Q.C.
A case note
S.31(1) of the Highways Act 1980 provides that a way is to be deemed to have been
dedicated as a highway if it has been enjoyed by the public as of right for a full period
of 20 years unless there is sufficient evidence that there was no intention during that
period to dedicate. That qualification is here referred to as the proviso to s.31. S.31(2)
further provides that the 20 year period relied upon must be a period which ends with the
public right being ‘brought into question’. In the present case the issue was
whether events within the last year of the 20 year period satisfied the proviso to s.31.
David Braham Q.C.
A case note
S.31(1) of the Highways Act 1980 provides:
"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."
The Court of Appeal's decision in the present case turned on the closing words
("unless ..."), which are commonly referred to as 'the proviso' to s.31(1).
The appeal against the Court of Appeal's decision in R. (Godmanchester Town Council) v.
Secretary of State for the Environment, Food and Rural Affairs raises issues on the
meaning of the proviso. The House of Lords has reserved judgment, but the Court of
Appeal's decision in the present case did not turn on any of those issues.
David Braham Q.C.
A case note
These two appeals, (‘Godmanchester’ and ‘Drain’) were test cases
brought before the House of Lords for a ruling on the effect of the provision in s.31(1)
of the Highways Act 1980:
“Where a way over any land ... 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”.
The main issue in both appeals concerned the nature of the evidence which is sufficient to
demonstrate that there was no intention to dedicate.
Alex Lewis, LL.B., Solicitor (nonpractising),Senior Rights of Way Officer, Hampshire
County Council
Deposits and statements made under s.31(6) are in the spotlight following their
consideration in Godmanchester and the making of The Dedicated Highways (Registers under
Section 31A of the Highways Act 1980) (England) Regulations 2007. The article examines the
application of this useful tool in preventing the deemed dedication of a highway.
David Braham Q.C. [c.11,000 words]
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 it can be shown that the path or track has been used by the public
as of right and without interruption for the period of 20 years leading up to the time
when the public right to use the way is brought into question. On proof of such public use
the way is deemed to be a highway unless the landowner can produce sufficient evidence
that there was no intention during that period to dedicate the way. The section includes
the provisions in the 1932 Act which gave landowners two additional methods of providing
such evidence, as well as a provision referring explicitly to notices which are visible to
persons using the way and are inconsistent with the dedication of the way as a highway.
6.4: Agreement
Angela Sydenham, Chief Legal Adviser, C.L.A.
Landowners may be willing to make creation agreements to create new public paths as
part of a deal to re-organize rights of way so as to interfere less with land use; to make
a compromise with a claim for a new path under s.31 of the Highways Act 1980 resulting
from 20 years use by the public; in return for financial payment. Local authorities should
only use compulsory powers to make a creation order as a last resort because they cause
ill-feeling, and the legal costs are greater for both the landowner and the authority. The
amount of compensation to which the landowner is entitled is the same whether the new path
is created by an agreement or order.
David Braham Q.C.
S.34 of the Finance Act 1975 extended the concept of 'conditional exemption' from
capital taxes so that it applied to what is called Heritage land. Some aspects of the
exemption are covered here because anyone claiming such exemption is obliged to provide
"reasonable access to the public".
PRACTICE AND PRECEDENT
S.25 Highways Act 1980: S.26 Highways Act 1980
|
|