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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rowley & Anor v Secretary of State for Transport Local Government and the Regions [2002] EWHC 1040 (Admin) (24th May, 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/1040.html Cite as: [2002] EWHC 1040 (Admin)

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Rowley & Anor v Secretary of State for Transport Local Government and the Regions [2002] EWHC 1040 (Admin) (24th May, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINSTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 May 2002

Mr Justice Elias:

1. The first claimant in this action is the owner and occupier of Hall Close Farm, Alveley which is near Bridgnorth, Shropshire. The second claimant is the lessee of a barn and other buildings at the farm. The buildings are leased for the purpose of storing equipment and they are located within the fold yard of the farm. On 11 April 1996, the Alveley Parish Council submitted a formal application for a modification of the definitive map and statement to the second defendant, the Shropshire County Council. In this application the Parish Council sought to add a footpath to the definitive map from Dog Kennel Lane to Chapel Lane through Hall Close Farm. The footpath in fact traverses the fold yard of the farm. The County Council made an order incorporating the proposed amendment into the definitive plan on the 12 February 1999. The first claimant objected to that order by letter from his solicitors and as a consequence the order was submitted to the Secretary of State, the first defendant, for confirmation.
2. The Secretary of State appointed an Inspector pursuant to paragraph 7(2)(a) of Schedule 15 to the Wildlife and Countryside Act 1981 (“WCA 1981”). A local inquiry was held between 10 and 12 October 2001 at Alveley Village Hall. The Inspector heard various representations from, amongst others, the first claimant but nonetheless decided to confirm the order (with very minor modifications). He had power delegated to him to make that determination on behalf of the Secretary of State. That decision was reached on 23 November 2001 and the order was published on 7 December 2001. Both claimants now appeal as persons aggrieved by the order pursuant to paragraph 12 of Schedule 15 to the WCA 1981.
3. It is not necessary for me to set out that paragraph. It is common ground in this case that the issues of law arising relate to the proper interpretation and application in the circumstances of section 31(1) of the Highways Act 1980. This provides:

“(1) 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.

(2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as in mentioned in subsection (3) below or otherwise.

4. Section 31 reflects principles deeply rooted in the common law that in order to establish a right of way, the alleged right must have been enjoyed for a lengthy period (in this case 20 years) openly, without the use of force, and without requiring permission – “nec vi, nec clam, nec precario” is the Latin expression. If those conditions are satisfied, the right of way will be deemed to be dedicated by the landowner unless there is sufficient evidence demonstrating that there was no intention to dedicate it.
5. However, although it is possible to separate out the various aspects for analytical purposes, in fact they closely interlink. Evidence relied upon by the claimants in support of one argument is sometimes advanced to support another. For example, evidence of an interruption of user may be relevant not only to the question of whether there was uninterrupted use, but also to the related question of whether the use was as of right or permissive. In addition, it may also be relevant to demonstrating no intention to dedicate.
6. There is also, however, a preliminary issue which sometimes arises and which is implicit in this section. It must be established that there is at least a sufficient degree of enjoyment by the public as to give rise to a prima facie case that there may be a user as of right. That is one of the points in issue in this case. Since there is some dispute as to the legal principles which have to be applied to determine this issue, I will at this stage briefly consider these principles.
7. The fact that a particular route on private land may have been used in exceptional circumstances or on sporadic occasions by members of the public will not be sufficient even to raise the issue as to whether a right of way has been established. In Hollins v Verney (1884) 13 Q.B.D.304, 315 Lindley LJ summarised the position as follows:

“No user can be sufficient which does not raise a reasonable inference of. …continuous enjoyment. Moreover, as the enjoyment which is pointed out by the statute, is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term…the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted and ought to be resisted if such a right is not recognised, and if resistance is to be intended.”

In that case the court was dealing with a private right of way, but a similar principle applies to cases where a public right is being asserted. In the former the question is whether an implied lost grant can be established, whereas in the latter the issue is whether dedication by the owner of the way for public use is to be inferred.

8. Moreover, until the decision of the House of Lords in R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000]1 A.C.335, there was a line of authority which was understood to have established that in order to constitute a right of way it was necessary for those using the pathway genuinely to believe that they were in fact using it as of right: see e.g. Jones v Bates [1938] 2 All E R 237 and R v Suffolk County Council, ex parte Steed 75 P.& C.R. 102. If they believed they were using it by reason of implied permission, then that would not constitute sufficient user to give rise to a question as to whether the exercise was as of right. Accordingly, when determining whether or not there was a sufficient user to raise an inference that a right was being asserted, it was sometimes necessary to consider whether there was sufficient user by those with the appropriate subjective belief.
9. Accordingly prior to the Sunningwell case the courts would sometimes have to weigh up the evidence which might demonstrate that some persons were using the pathway in the belief that they had the right to do so and others were acting under the impression they were being permitted to do so. The latter could not be taken into consideration when determining whether sufficient user had been established. Indeed, the Sunningwell case itself was one in which the issue was whether certain land, as a result of long user allegedly as of right, should be registered as a village green under the Commons Registration Act 1965. The Inspector had determined that it should not on the grounds that it was necessary for the villagers using the land to do so in the belief that they were enjoying the land to the exclusion of all other people. He took the view that it was necessary for there to be an assertion of right by those who subjectively believed that they were exercising that right. That was in line with the authorities to which I have referred, but the House of Lords held that they were wrong.
10. The leading judgment in their Lordships House, with which Lords Browne Wilkinson, Steyn, Hobhouse and Millett all agreed, was given by Lord Hoffmann. He analysed in detail the significance of the subjective belief of a user, both in the context of private and public rights of way. He commented that the concept of user as of right meant that

“…they must have used it in a way which would suggest to a reasonable landowner that they believed they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which, as I hope I have demonstrated, depends upon the evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose, the actual state of mind of the road user is plainly irrelevant.”(p.354).

Later in his judgment he referred to the fact that because of a “perfectly understandable aside” of Tomlin J. in Hue v Whiteley [1929] 1 Ch.440 the courts had erroneously been led into “imposing upon the time-honoured expression “as of right” a new and additional requirement of subjective belief for which there is no previous authority and which I consider to be contrary to the principles of English prescription.”(p.355).

11. And later he observed that:

“In the normal case, of course, outward appearance and inward belief will coincide. A person who believes he has the right to use the footpath will use it in the way in which a person having such a right would use it. But user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not.”(p.356).

12. Accordingly, in determining whether there is sufficient user to raise the issue whether a public right of way has been established, the issue is whether there is enjoyment of a kind which would lead a reasonable landowner to believe that those using the land were asserting a public right. In my view it follows that the landowner is not required to have regard to those whom he knows are using the pathway with his express permission, because he would not believe that they were seeking to assert a right. But if others are using the particular path to a sufficient degree to suggest the assertion of a right, then the issues of whether it that use is open, unforced and not precarious comes into play.

The grounds of challenge.

13. The Inspector found that the existence or otherwise of the right of way had been first brought into question in 1993, and that conclusion has not been challenged. He therefore had to determine, in accordance with subsection (2) of s.31 of the Highways Act 1980, whether the evidence justified the conclusion that a right of way had been established without interruption since 1973. He heard evidence from numerous individuals, both oral and in writing, and concluded that the footpath should be deemed to be so dedicated.
14. He analysed the evidence under a number of headings. These included whether the use was of right or by permission; whether it had been established for twenty years; whether it was without interruption; and whether there was sufficient evidence that there was no intention to dedicate the way as a footpath. He found that there had been the requisite enjoyment and that all the relevant conditions necessary to establish the right of way had been met.
15. The claimant’s challenge the conclusions reached by the Inspector on a number of grounds. It is said that in relation to a number of central matters the Inspector erred in law. The grounds can be summarised as follows:

(i) The Inspector wrongly approached the question whether there was sufficient evidence of enjoyment by the public when considering whether the degree of user was sufficient to create a prima facie case of user as of right. In addition, when considering this question he wrongly relied upon reputation as to use prior to 1973.

(ii) The Inspector misdirected himself as to the test to be applied when determining whether the use of the footpath was permissive or as of right. In particular, he failed to consider whether the evidence supported the inference that there was implied permission.

(iii) He failed properly to assess the evidence which pointed towards the permission being implied. In particular, he failed to make any finding on the potentially critical question whether strangers and persons with dogs were turned back.

(iv) His conclusion that there was no interruption of user was simply inconsistent with the evidence; alternatively, he failed to make material findings of fact which would have enabled him properly to determine whether there was interrupted user or not.

(v) The Inspector erred in his approach as to whether there was evidence of no intention to dedicate. He was wrongly influenced by the fact that there was no evidence that the freeholder had authorised the tenant at the material time, Mr. Percy Jones, to challenge strangers and those with dogs.

16. The first challenge goes to the question whether there was sufficient user for the requisite period; grounds two and three relate to whether or not there was implied permission; ground four goes to the question of interruption, but is also potentially relevant to the issue of permission; and ground five touches both on the question of permission and the issue of whether there was evidence of no intention to dedicate. I will consider the issues in turn.

Was there sufficiency of user for twenty years?

17. As to the question of whether there had been user for requisite 20 years, the Inspector analysed various categories of people who had used the path in one way or another. He identified certain individuals (four in total) who considered that they had been expressly given permission; others who called at the farm either socially or to buy garden produce there; and certain other individuals whose use of the track was consistent with visiting the farm with permission rather than asserting a right of way. He took the view that in analysing the degree of user he should ignore all the categories of user save for those who were claiming to act as of right. The Inspector’s conclusions were then as follows:

“77. Eight people gave evidence of use during the relevant period, five of them for the whole 20 year period. A further seven had provided written evidence of use, five of them for the whole 20-year period. However, this written evidence was not tested at the inquiry and so carries less weight.

78. Although the evidence of use is not great, and whilst I note the case law mentioned by the objector, it is bolstered by its reputation of use; one had used it from the 1920s, three from the 1930s, three from the 1940s, and one from the 1950s. Of those that gave evidence at the inquiry, five had seen others using it during the relevant period (Mrs Saunders had seen ‘loads of other people, especially villagers’) as had three of those who provided written evidence.

18. Mr. Hobson contends that the Inspector erred in the way in which he considered the question whether there was a degree of user sufficient even to give rise to the question as to whether there was a user as of right. He submits that the Inspector ought not simply to have focused upon those who were using the route under the impression that they were doing so as of right, but should also have taken into consideration other users, including those who considered they were using it under permission and those who were using it to call at the farm for one purpose of another.
19. I do not accept this submission. I accept that the Inspector appears to have approached the matter on the assumption that the pre-Sunningwell law applied. He was focussing only upon those who genuinely thought that they were exercising a right. He did not also consider those who might subjectively have believed that they were, or may have been, enjoying the path pursuant to some permission. Following the House of Lords decision, it seems to me that the relevant question to ask whether there was a sufficient degree of user of the pathway having regard to all those whom the landowner would reasonably believe were seeking to assert a public right of way, whatever their subjective beliefs in fact. However, if the Inspector had adopted that approach, it could only have increased or left unaffected his assessment of the degree of relevant user. It could not have reduced it. Accordingly, if he was satisfied that the degree of user of those with a subjective belief that they could use the path was sufficient, he must have reached the same conclusion had he used the broader approach inherent in the Sunningwell decision.
20. In any event, as I have said, in my view the Inspector would have been correct to ignore the user of those who were actually given permission. Nor do I think that it would be right to have regard to those who were using the path purely for the purposes of going to the farm. Their use would plainly be consistent with an implied licence in any event. They are not using the route as a pathway; rather they are using part of the path for the more limited purpose of visiting the farm. A reasonable landowner would not anticipate that such persons were seeking by that conduct alone to assert a right of way.
21. In my judgment Mr. Hobson is confusing the question of user with the distinct issue of permission. The fact that some of the users may have been given permission would be relevant to the issue of whether the user, taken overall, could be said to be “as of right” rather than permissive, and therefore sufficient to create a public right of way. But it is not relevant to the question of whether there is a sufficient degree of user to raise the issue about whether a right of way is being asserted. Moreover, I do not see how the use of the pathway by those visiting the farm can be relevant even to the question of permission. The question is whether there is permission to use the alleged right of way for those who are using it as a right of way to get from A to B that is for purposes other than visiting the farm. Such permission cannot be inferred from the fact that the landholder permits visitors onto his property. Nor, conversely, can the fact that visitors use the track as a convenient way of visiting the farm or its buildings assist in establishing that there is a user of the path as of right.
22. In my judgment, therefore, even although the Inspector did approach this question wrongly, (and he appears not to have been alerted to the Sunningwell case) the error was not the one identified by Mr. Hobson, and in any event it does not assist the claimants.
23. A subsidiary argument in this connection was that it was alleged that the Inspector had erred in his analysis of the user because he commented that the evidence of use had been “bolstered” by use prior to the commencement of the 20-year period. Although the decision is not as clear as it might be, it seems to me that on a fair reading the Inspector came to the conclusion that there was sufficient use during the 20-year period and that the earlier use reinforced that conclusion and supported the view that it had been used as of right for at least that length of time. The use had preceded the 20-year period, and nothing suggested that there had been any change to cast doubt on the nature of the use during the 20-yeasr period on which the Inspector had to focus. In my judgment the Inspector was entitled to have regard to that earlier use. Accordingly, I would reject this submission also.

Was the user by permission or as of right?

24. The Inspector considered this issue between paragraphs 48 and 51. He analysed the arguments and his conclusions in relation to the question whether the use was as of right or by permission.

“The Objectors Case

48. Use of the way was by those who were known to the tenant; strangers were turned away. Thus their use, which was known to the tenant and was tolerated by him, was use by implied permission. Use of the way could not, therefore, have been without permission.

The County Council’s Case

49. Of the 14 people who filled in evidence forms, three wrote that they had been given permission by Mr Jones and one wrote that he had been given permission by Bridgnorth District Council. The remainder and all those who gave evidence for the County Council at the inquiry were quite clear that they had not been given permission and were using the way because they thought it was public.

Conclusions

50. In general, a presumption of dedication rests on the fact of use as of right – that is openly, without force and without permission – coupled with acquiescence by the landowner. If, therefore, acquiescence by the landowner is taken to imply permissive use, as the objector argues, it is difficult to see how such a claim could ever succeed. It seems to me that for use to be by permission it needs to have been permission positively given rather than implied by acquiescence. In Mills v Silver (1990) – which was a claim to a private right rather than a public one – it was held that ‘the owners [of a track] had, up to the death of Joe Phillips, acquiesced in his use of the disputed track with vehicles. They knew of it, had power to prevent it, and did not intervene. Nor had permission ever been sought or granted. The user with vehicles was a user as of right and the respondents had no defence in law on the ground of tolerance to the applicant’s claim…’

51. Whilst the situation here is somewhat different in that the landholder was a tenant for life rather than the landowner (and leaving aside for the moment whether he was authorised to act on behalf of the landowner), it does not seem to me to alter the principle that use which is tolerated is not use with permission. It is hardly surprising that Mr. Jones knew most (but not all) of those using the alleged footpath because Alveley is not a large village and he had lived there all his life and had been the tenant on the farm since 1959. I therefore accept that use by the public that had been tolerated by the tenant was use as of right and not use by permission.”

25. The claimants submit that there are a number of errors in this analysis by the Inspector. First, and foremost, they submit that there was a fundamental error in the approach adopted by the Inspector to the question whether or not use was as of right or by permission. They say that the Inspector acted on the premise that either there had to be an express permission, or there was acquiescence. In the latter situation, the acquiescence could not constitute permission and was only consistent with user as of right. The claimants say that this is a wrong approach. The decision of the Court of Appeal in R (Beresford) v Sunderland and City Council [2002] 2 WLR 693 establishes that there may be situations where the conduct of the landholder is such as to lead to the inference that user is by way of an implied permission rather than as a result of acquiescence. That case concerned the question whether a parcel of land should be registered as a village green on the grounds that it had been used “as of right” for a period of 20 years for purposes of sport and entertainment. The statutory context was different to this case, but the question whether the use was “as of right”, and the comments of Dyson LJ upon that issue, are as relevant in the context of section 31 of the Highways Act as they were in that case. Dyson LJ said this:

“What is the essential difference in the present context between permission and acquiescence? In my view, it is that permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence. The positive act or acts may take different forms. The grant of oral or written consent is the clearest and most obvious expression of permission. But there is no reason in principle why the grant of permission should be confined to such cases. I can see no reason why permission may not be inferred from an owner’s acts. It may be that there will not be many cases where (in the absence of express oral or written permission) it will be possible to infer permission from an owner’s positive acts. Most cases where nothing is said or written will properly be classified as ones of mere acquiescence. But suppose that (a) cricket and football pitches had been laid out and a sports pavilion built at the sports arena; (b) the facilities had been well maintained by the various authorities that owned the site from time to time; and (c) none of the authorities issued any statement or passed and resolution expressly permitting inhabitants in the locality to use the site for purposes of sport and pastimes. Why should it not be inferred from such facts that the authorities permitted such use of the site? It cannot seriously be suggested that these facts would disclose no more than acquiescence in the use of the site for the purposes of sport and pastimes. The reality is that, on such facts, the owners of the site would be showing by their overt behaviour that they were actively encouraging, and thereby permitting, the use of the site for those purposes. In principle, the position would be no different if there had been an express oral or (more likely) written grant of permission.”

26. Mr. Hobson says that the Inspector failed to appreciate that user may be the result of an implied permission. He submits that the reference to permission “positively given rather than implied by acquiescence” in paragraph 50 of the decision indicates that the Inspector was not considering a midway position between the express conferring of permission and acquiescence. He submits that there were a number of factors here which the Inspector ought to have addressed and which may have lead him to conclude that there was indeed implied permission, had he properly considered them
27. I do not accept that the Inspector did not have this possibility in mind. True it is that he does not in his conclusion refer specifically to the question of implied consent, but it was suggested to him that the implied consent should be inferred from two matters (and apparently not on various other grounds now relied upon by the claimants): first, that fact that the users were known to him, and second that strangers were turned away. I shall deal with the latter point later. As to the former, the Inspector gave cogent reasons why that was irrelevant in demonstrating any positive act on the part of the tenant. Accordingly, he concluded that there was no implied consent. If he were making the error of assuming that there had to be express consent, he would surely simply have identified the fact that such consent was absent and would not have considered the argument based on the tenant’s knowledge at all.
28. The third ground of complaint I have identified is interlinked with the allegation that the Inspector did not focus upon implied consent. It is the distinct issue of whether even if the Inspector did properly address that question, he considered it in the proper legal manner. The claimant says that in arriving at the decision whether or not the user was as a result of permission, the Inspector should have considered whether certain positive acts did in fact constitute implied consent. In particular, Mr. Hobson identifies the following matters: the fact that the permission was allegedly given only to those whom the tenants knew and were predominantly if not exclusively in the local community; most significantly, that the tenants turned away those whom they did not know and those with dogs, at least on some occasions; that the individuals using the pathway were frequently doing so because they were attending the farm house for one reason or another; and in addition he referred to the fact, identified at paragraph 79 of the decision, that the then tenant, Mr. Jones, had agreed to a re-routing of the footpath and that the new route appears to have been followed on walks which were organised by the Villages Footpaths Committee.
29. As to the significance of the fact that some persons used the path to visit the farm, for reasons I have already given, that is in my judgment irrelevant to the question of whether the use is permissive. As to the other matters, Mr. Mould for the Secretary of State contends that it is plain from the decision that all the matters now identified by the claimants were in the mind of the Inspector and that he concluded that they were insufficient to amount to implied permission. However, Mr. Mould realistically accepted that the question of whether or not individuals were turned back was potentially an important issue, but submitted that reading the decision fairly and sensibly, the proper inference to be made was that the Inspector had rejected that evidence.
30. I accept that the Inspector did have in mind the various matters identified; no doubt he did not specifically refer to them when considering the issue of consent because only two matters appear to have been emphasised as significant by the objectors, namely the fact that only people known to the tenants were allowed to use the path and that strangers were turned back. But the question arises whether he did make any finding of fact in relation to the issue of turning back strangers.
31. In considering this issue, it is necessary to examine the way in which the matter was dealt with in the Inspector’s decision. In paragraph 48, he identifies as one of the features of the objectors’ case that strangers were turned away but in his conclusions in relation to the question of implied consent, he says no more about that particular issue. He does however, return to the matter when dealing with the distinct issue of whether there was no intention to dedicate. He analysed this issue between paragraphs 81 and 83. These paragraphs are as follows:

“The objectors’ case.

81. Evidence from the Jones family and others said that strangers to the area were turned back. During a site meeting to discuss the study into reclamation of the Colliery area in about 1986, a representative of th4 District Council said that there was no public footpath along the claimed route.

The County Council’s case.

82. Local people were not turned back. None who gave evidence at the inquiry were ever challenged even though some of them did not know the Jones family. Users of the way had not seen others turned back. It is disputed that strangers were turned back; if they were, Fairey v Southampton City Council (1956) suggested that that was not sufficient.

Conclusions.

83. The only first-hand evidence I heard of people being turned back during the relevant period was from Mrs Jones, which was supported in a written statement from her son, Michael Jones. She said that she ‘sometimes turned people back – not very often’. She also said that her husband turned back people that he did not know. Michael Jones wrote ‘I have turned strangers back, particularly those with dogs’. There is no contemporaneous evidence of anyone having been challenged. The objector has not shown that the tenant was authorised by the landowner to deny access nor that there was no intention by the landowner to dedicate the way during the relevant period.”

32. Mr. Mould submits, and I accept, that one should assume that the conclusion reached by the Inspector in these paragraphs is the conclusion that he must be taken to have reached in relation to the question whether or not there was implied consent. Plainly the factual conclusions would not vary depending upon the specific legal issue under consideration. The question is, however, whether it is possible to reach any degree of confidence as to what the Inspector did find in relation to this particular evidence. It is plain that there was the conflict between the parties as to whether or not people were turned back. The Inspector’s conclusion was that there was no contemporaneous evidence of anyone having been challenged. I am not entirely clear what that means; if it means no evidence of challenge during the relevant 20-year period, then of course there was because that is precisely what Mrs Jones and her son were suggesting.
33. In my view, the decision suggests that the Inspector had not thought it necessary to reach a view in relation to this evidence because of his conclusion that in any event any evidence of turning back was not shown to be authorised by the landowner. It is plain that if there is evidence of a lack of intention to dedicate, it must be the landowner who displays that intention and not the tenant. If that was indeed the Inspector’s approach then it seems to me that he erred in law. Nobody was suggesting that there was any distinction to be drawn at the material time between the actions of the tenant and the landowner, or that the tenant’s actions may have been unauthorised. Indeed, it seems to be that acquiescence of the tenant which is the basis of the case for the assertion that there was a user as of right. Moreover it would surely be implied that the tenant would have the right to decide who should be entitled to go onto his land and whom he might forbid. I find it difficult to see why the tenant’s acquiescence should bind the landlord, but not positive acts taken by the tenant, in accordance with the exercise of his rights over the property, to exclude strangers.
34. Another possible reason why the Inspector felt it unnecessary finally to decide this question is found in the reference by the County Council to the case of Fairey v Southampton County Council [1956] 2 Q.B. 439. In that case a landowner objected to the map prepared by a local authority identifying a path on his land as constituting a right of way. He suggested that the owner had objected to the use of the path by persons other than local residents, rather as in this case. He contended that was evidence that he did not intend to dedicate the path as highway. Lord Denning dealt with that argument as follows (page 457):

“Applying this test, I ask myself: when did the landowner here make it clear to the public that he was challenging their right to use the way? Quarter sessions held that he did so in 1931, when he objected to the use of the path by persons who were not local residents. We do not known what evidence was before them on that point. If the landowner merely turned back one stranger on an isolated occasion, that would not, I think, be sufficient to make it clear to “the public” that they had no right to use it. He ought at least to make it clear to the villagers of Bossington, Houghton and Horsebridge. They were the members of the public most concerned to assert the right, because they were the persons who used the path. They knew – better than the landowner himself – how long they had used it. They were the persons to tell. It was no good the landowner speaking to a stranger who would know nothing of the public right and would not be concerned to assert it.”

If this dictum is correct, then plainly it supports the view that there was no sufficient act here to demonstrate a lack of dedication because there was not evidence that the local people had been told that strangers were being turned back. However, in my view, this observation of Lord Denning does not accurately state the law. In R v Secretary of State for the Environment ex parte Billson [1999] QB 374 at 395 Mr. Justice Sullivan declined to follow what he described as the obiter comments of Lord Denning. He concluded that in determining whether or not there was evidence of an intention not to dedicate, it was not necessary for the acts evincing a lack of intention to be brought to the attention of the public. I see no reason why the position should be different when the same acts are relied upon to demonstrate that the exercise is precarious and not as of right. Second, and in any event, in my view these observations do not sit consistently with the decision of the House of Lords in the Sunningwell case. As I have said, that case establishes that whether the user is as of right or not does not depend upon the perceptions or subjective knowledge or understanding of those using the route. In the context of whether or not permission has been granted, therefore, the question is simply whether objectively viewed the evidence justifies the inference that there is implied permission, not whether the public are made aware of the acts relied upon as giving rise to that implication.

35. In my judgment, this issue of turning back was a matter of some significance. It was not addressed in any terms by the Inspector when looking at the question of implied permission. It was considered by him in the course of his determining whether or not there was evidence of an intention not to dedicate, but in that context it seems to me that there was no clear finding of fact as to whether or not the Inspector accepted the evidence or rejected it. Had he accepted it, then it would have been at least highly relevant in determining whether or not, along with other factors, it might be said to give rise to the inference that the user was pursuant to permission granted by the landholder rather than pursuant to a dedication. That was not, indeed, disputed by Mr. Mould. He realistically accepted that if I were unable to conclude that a relevant finding had been made on this point, then it would mean that the Inspector had not had regard to a relevant factor when considering the question of implied permission.

The interruption

36. The argument based on interruption was this. There were four gates found at different positions on this pathway. Two were at each end, and there were two gates which were at opposite ends of the fold yard. There was some conflicting evidence as to when and whether these particular gates were locked. The Inspector appears to have accepted the evidence that the top gate (not one of the fold yard gates) was locked at night during the lambing season (February to April). Mrs Jones also gave evidence that she believed that the fold yard gates were locked during lambing or when animals were in the yards. She also gave evidence about her recollection of when the bottom gate was locked, and it is pertinent to note that the Inspector concluded, and I quote: “I am more hesitant to accept Mrs Jones’s recollection about the bottom gate”. This followed his having recounted her evidence in relation to the fold yard gates. It suggests that he was prepared to accept her evidence in relation to those particular gates. When it came to reaching his conclusion as to whether or not such locking as there was constituted interruption, he concluded that the case was distinctly similar to the Court of Appeal decision of Lewis v Thomas [1950] 1 K.B. 438 and that in the circumstances he was satisfied that there was no interruption.
37. In the Lewis case a track over agricultural land had been used for upwards of 40-years allegedly as of right as a way for agricultural vehicles and cattle. There was evidence that at certain points in the year that the tenant locked the gate at night for the purpose of protecting his corn from damage by cattle. He had not locked it specifically for the purpose of interrupting the exercise of any right of way. The Court of Appeal held that in determining whether or not there was an interruption within the meaning of the relevant legislation (a predecessor of section 31) it was merely necessary to establish that there was an interruption in fact. If there were such an interruption, then the fact that the interruption had been created for some other reason than to block the pathway or to make its use more difficult was irrelevant. Lord Evershed M.R. summarised the legal position as follows:

“I have already mentioned Scott L.J.’s judgment in Jones v Bates. I quote this short passage: “The next requirement of the statute, without interruption, means that the enjoyment of the right must not have been interrupted. If for the statutory period members of the public have used the way as of right, and their exercise of that right has in fact been interrupted, then the statutory consequences follow”. I take that as meaning that, in the mind of the Lord Justice, “interruption” means what it says; it means interruption in fact”(p.444).

Cohen LJ made similar observations (p.447).

38. However, the court concluded also that the intention with which a particular act is done may have a bearing on the question whether or not there is an interruption in fact: see Lord Evershed at p.444 and Cohen LJ at p.447. In that case it was not locked with the purpose of hindering use of the pathway, there was no evidence of any actual interruption, and gate was locked when it was almost certain that nobody would be exercising their right to take vehicles or cattle on the route. In my judgment, the Inspector was plainly justified in drawing an analogy between Lewis v Thomas and the evidence which demonstrated that the top gate had been locked at night during the lambing season. However, the evidence in relation to the gates being locked at the fold yard during that same season (and at other times when animals were present in the yard) is potentially much more significant. If the gates were locked during that period, then it would suggest a relatively extensive interference with the right of way. It is true that the Inspector records that none of the users who gave evidence ever found the gates locked. It may be that he could have concluded on the balance of the evidence before him that Mrs Jones was wrong in her evidence about that matter. But as I have indicated, he in fact appears to have accepted at the very least that she may have been right about that. In my judgment, if the finding had been that the fold yard gates had been locked during the lambing season, and not simply at night, then it would have been very difficult to bring that fact under the umbrella of the Lewis v Thomas decision. This is especially so since as the Court of Appeal have recognised in that case, if there is a factual interruption it matters not that nobody was in fact prevented from using the path: as Lord Evershed observed (at p.444):

“I agree that a barring, and particularly a deliberate barring, of a way for an appreciable period would not necessarily lose its effect merely because no one happened to try to use the way during that period.”

It is sufficient that they could not have done so had they wished to do so.

39. Accordingly, in my view there is an error here which vitiates the decision of the Inspector on this point also. It was incumbent upon him to make a clear finding on this matter in order to determine whether the right was as of right or by permission.
40. No evidence of a lack of intention to dedicate.

The Inspector considered the evidence relating to the issue whether there was a lack of intention to dedicate in paras. 81 to 83, which I have already set out at para. 31 above, in the context of considering whether the user was as of right or not. It was alleged that the turning back could also provide evidence relevant to this question. I agree, and for reasons I have set out above, I consider that the conclusion reached by the Inspector that there was no evidence that any turning back had in any event been authorised by the freeholder involved an error of law. A similar argument was advanced in Smith v Thomas and rejected, the court apparently taking the view that if it is alleged that the freeholder has a different intention to the tenant, there should at least be evidence establishing that: see Lord Evershed at p.443.

Conclusion.

41. It follows that the decision made by the Secretary of State (through the Inspector) to confirm the order was made contrary to law. I therefore quash the confirmation of the order of the 12 February 1999 with the consequence that the modification of the definitive plan and statement resulting from that confirmation shall not take effect.