'As of right' and the definitive map

Right of Way 34826038 sPaul Wilmshurst reports on a High Court public rights of way case with interest to lawyers also dealing with easements and village greens.

In December 2014 Mr Justice Dove handed down judgment in Powell v Secretary of State for Environment, Food and Rural Affairs [2014] EWHC 4009 (Admin), a statutory appeal brought by a landowner pursuant to paragraphs 11 & 12 of Schedule 15 of the Wildlife and Countryside Act 1981 (“the 1981 Act”).

The challenge was made against an Order, made in 2012, proposed by Doncaster Borough Council and confirmed by an Inspector after an inquiry which had the effect of modifying the definitive map and statement by adding a new footpath over the landowner’s land.

The footpath that was subject to the Order under challenge was described by the judge as being “the hypotenuse of a right-angled triangle.” (i.e the longest side of the triangle, opposite the right angle) The right angled limbs of the triangle were labelled point A, through point C on the right angle itself, to point B.

The relevant history leading to the litigation was as follows:

  • When the definitive map and statement was published in 1965 the footpath shown between A-B (along the hypotenuse) was shown. In 1967 a Diversion Order was made with the effect that route A-B was extinguished and replaced with the longer route following A-C-B.
  • When the 1981 Act came into force the Doncaster Borough Council did not make an order modifying the definitive map and statement to give effect to the 1967 Order.
  • In around 2006 residential development commenced across the route of path A-B (the hypotenuse route that had been extinguished by 1967 Diversion Order). The line of the route found itself incorporated within the back garden of a newly developed property.
  • Despite the 1967 Order many users had continued to use path A-B in high numbers through the years. The obstruction of the route led them to seek recognition of the route through the creation of an Order under the 1981 Act.
  • When the Order under the 1981 Act had been made it was confirmed by an Inspector after a public inquiry. The claimant appeared at the inquiry to object.

The Inspector found that the public by long user for 20 years between 1986 and 2006 had used route A-B as of right and without interruption and that therefore a presumption of dedication had arisen under s.31(1) of the 1981 Act.

The claimant argued before Dove J that this was an erroneous decision on the basis of four grounds.

Ground 1 - A preliminary question to the as of right had not been posed or answered

It is well established that user as of right will satisfy the tripartite test in that such users will have been present on the land nec vi, nec clam, nec precario (without force, secrecy or permission).

The claimant argued here that the authorities supported the proposition that there was in fact a preliminary question to posed before the tripartite test: was the “quality” of the use such that a reasonable landowner could be expected to resist it?

The claimant suggested that if the question above had been posed then the answer would have made a difference: the landowner had been acquiescing in use which was consistent with the unamended definitive map and statement that did not reflect the 1967 Diversion Order.

The judge referred to all of the seminal village green cases of recent years including Sunningwell, Beresford, Redcar and Barkas. Particular reliance was placed upon a difference of opinion between Lord Carnwath and Lord Neuberger in the Barkas case where the former had said (in apparent distinction to the latter) at [58] and [61]:

“[58] The ‘as of right’/‘by right’ dichotomy is attractively simple. In many cases no doubt it will be right to equate it with the Sunningwell tripartite test, as indicated by judicial statements cited by Lord Neuberger PSC: paras 15–16. However, in my view it is not always the whole story. Nor is the story necessarily the same story for all forms of prescriptive right…

[61] Lord Scott's analysis shows that the tripartite test cannot be applied in the abstract. It needs to be seen in the statutory and factual context of the particular case. It is not a distinct test, but rather a means to arrive at the appropriate inference to be drawn from the circumstances of the case as a whole. This includes consideration of what Lord Hope of Craighead DPSC has called ‘the quality of the user’, that is whether “the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right’: R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70 , para 67. Where there is room for ambiguity, the user by the inhabitants must in my view be such as to make clear, not only that a public right is being asserted, but the nature of that right.”

Mr Justice Dove emphatically rejected the landowner’s submission under this head and said at [32] that “I have no hesitation in concluding that it is absolutely clear from [the authorities] that there is no additional test over and above the tripartite test…” The judge distinguished what Lord Carnwath said in Barkas by holding that there was, in this case, no “ambiguity” of the sort that Lord Carnwath was contemplating as “the authorities are clear that the focus of the inquiry should be on the use itself and how it would, assessed objectively, have appeared to the landowner.” The judge held that any ambiguity in the present case could only possibly arise if one looked behind the user at what might have been discoverable by the landowner by looking at legal documentation.

Dove J went on to set out what he considered to be the structure of the inquiry in respect of the as of right test, relying heavily on what Lord Hope said in Redcar:

“First there must be an examination of the quality of the use which is relied upon. Was it of sufficient quantity to amount to the assertion of a right? Was it of sufficient quality to the nature of the right which is being claimed? For instance, exclusive evidence of usage on foot could not be used to substantiate a claim for the existence of a bridleway. Once the use has passed that threshold of being sufficient quantity and suitable quality then the question arises as to whether any of the vitiating elements from the tripartite test apply…."

This preliminary question endorsed by Dove J may be of importance in, for example, a village green case if the circumstances meant that the user could be characterised (for whatever reason) as being less than the assertion of a public law village green right in circumstances where the use had otherwise met the requirements of s.15 of the Commons Act 2006.

It is however likely that what Lord Carnwath said in the Barkas case will continue to directly cause disputes wherever the as of right requirement is in issue. For example, with respect to Dove J (who was faced with arguably conflicting dicta from different Supreme Court justices in different cases and with the case of Barkas that overruled the House of Lords in Beresford) it is far from clear that in Barkas the focus of the court was solely on the user itself as it was a relevant circumstance and fact (objectively) known to the council in that case that it had made an “allocation decision” to set out the land as a public recreational facility and/or had set out and maintained the land for such use. Lord Neuberger’s analysis in that case was, it appears, based solely on the lawful allocation decision (recorded in the council’s papers) and it is difficult to draw a distinction between this and the legal documentation that might have been available to the landowner in the Powell case in terms of evidential category: neither could be seen just be looking at the outward appearance of the users on the land in isolation. 

Ground 2 - The user was secret (or “clam” to use the latin)

The claimant submitted in the alternative that the user was not as of right because it was secret: a submission that is almost unknown in the authorities relating to public rights of way, village greens or even private rights of way.

The supposed secrecy was derived from the 1967 Order not being given effect in the definitive map and statement so that the reasonable landowner would have no reason to think that use of route A-B (the hypotenuse) was anything other than by right.

The judge accepted the inspector’s conclusion that on the facts that any reasonable landowner would not just have relied on a definitive map and statement that was expressed to be accurate only as at 1952 or relied either on an historic sign marking route A-B (there had been some evidence on this point before the inquiry but it is not clear what this sign said or for what period it was in place).

Further, the judge accepted the inspector’s factual conclusion that if the landowner had made inquiries of Doncaster Borough Council at any relevant time they would have been informed that route A-B shown on the definitive map and statement had been extinguished.  

Ground 3 - The 2012 Order must be quashed to enable effect to be given to the 1967 Order

The claimant also raised two procedural grounds which sought to overturn the 2012 Order. First, it was said that the Order ought to be quashed because unless that was done Doncaster Borough Council would be unable to to fulfil its duty under s.53(2)(a) of the 1981 Act to modify the definitive map and statement so as to give effect to the 1967 Order: that duty requiring modifications to be made “as soon as reasonably practicable after the commencement date [of the 1981 Act]… in consequence of an occurrence, before that date of any of the effects specified in sub-section 8(b)” (such an occurrence would clearly include the 1967 Order).

The judge rejected the claimant’s bold submission under this head. He held that the whole point is that the duty imposed is to modify the definitive map in such a way that “ensures it reflects the up-to-date position.”

Ground 4 - There was no “event” under s.53(3)(c)(i) which could be relied upon to make the Order

The second procedural head of challenge that the claimant raised was that there was an event under s.53(3)(c)(i) of the 1981 Act. The relevant event under that section is the discovery of evidence by an authority which shows that a right of way which is not already shown in the definitive map and statement “subsists or is reasonably alleged to subsist over land in the area which the map relates.”

The claimant submitted that as the out-of-date definitive map already showed a footpath along route A-B there was “no jurisdiction” under s.53 of the 1981 to make an Order recognising that route. There was some discussion of the different widths of the route recognised by the 2012 Order compared to the route extinguished by the 1967 Order but the judge found that the two routes were “essentially the same.”

Dove J held that the claimant was correct and that s.53(3)(c)(i) of the 1981 Act spoke to circumstances where a path was not already recorded on the definitive map and statement. However, there appeared to the judge no reason why the 2012 Order recognising footpath A-B could not be confirmed on the alternative basis provide by s.53(3)(b) which covers a case where “the enjoyment by the public of the way during that period raises the presumption that they way has been dedicated as a public path.” The judge did not think that he should exercise his discretion to uphold on an alternative basis merely to “send out a message to authorities” that they ought to comply with their duty to maintain an up-to-date definitive map and statement.

Overall result

Accordingly, the claimant’s application was dismissed. This case will be of great interest not just to lawyers dealing with public rights of way (i.e for the procedural points it considers) but also to those dealing with easement or village green cases wherever the elusive and much litigated as of right test is in issue.

Paul Wilmshurst is a barrister at 9 Stone Buildings specialising in public rights of way, easements, village greens and all aspects of real property.