Law Report: Right of way was not dedicated: Jaques v Secretary of State for the Environment - Queen's Bench Division (Mr Justice Laws), 27 May 1994

Persons asserting a right of way under section 31(1) of the Highways Act 1980 had to demonstrate actual enjoyment of the way, as of right (ie believing they had a right to do so) and without interruption, for at least 20 years; but, even if such use was proved, the status of right of way would not be established if the landowner established an intention on his part, demonstrated by overt acts, not to dedicate it as such.

Mr Justice Laws allowed a statutory appeal brought by Jack Kearsley Jaques, the owner of land near Sevenoaks, Kent, against an order of the Secretary of State for the Environment, acting on his inspector's report following a public local inquiry, directing Kent County Council, under section 53(2) of the Wildlife and Countryside Act 1981, to modify its definitive map of the area by adding three new public bridleways or footpaths over the appellant's land.

The Highways Act 1980 provided by section 31: '(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 actually been enjoyed by the public as a 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 sub-section (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question . . .'

Joanne Wicks (Buss Murton, Tunbridge Wells) for the appellant; John Hobson (Treasury Solicitor) for the respondent.

MR JUSTICE LAWS said the appellant's case was that the footpaths were private and had not been dedicated as public highways either at common law or under section 31 of the 1980 Act.

Paragraph 58 of the inspector's report stated: 'Turning to the possible presumption of dedication under common law, I conclude that for the last 46 years, while the objector has been directly involved with the estate, he has shown by his various actions that he had no intention of dedicating the footpaths.'

Yet in relation to section 31, he concluded that the public's use of the paths had been 'open, unobstructed and unchallenged' for over 20 years before their right to do so was called into question.

In his Lordship's judgment this case turned on the differences between the old common law rules relating to the dedication of public rights of way, and the effect of section 31. Before the enactment of the Rights of Way Act 1932 (the predecessor of the 1980 Act) the common law required not only that the claimant to the right of way should show that the landowner had evinced an intention to dedicate; he had to show actual dedication; and since such an event was usually fictitious or imaginary the common law was unsatisfactory.

But under section 31, the landowner must prove merely that he had no intention to dedicate. Certainly, he must prove it by overt acts, directed to the public who used the way in question.

The traditional means of closing the way for one day in the year would suffice: see Fairey v Southampton CC (1956) 2 QB 456 at 458, per Denning LJ.

The change effected by statute (which nevertheless preserved the old common law rule) did not merely consist in a shift of the burden of proof: under the statute the landowner had a lesser proposition to disprove, than under the common law the claimant had to prove.

Here the appellant must succeed, since the inspector had found in terms that the appellant had disproved by overt acts, plainly directed to the users of the ways, any intention on his part to dedicate.