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OSS home page FEATURES: No 4 Some law cases R (Godmanchester Town Council) v
Secretary of State for Environment, Food and Rural Affairs; R (Drain) v
Secretary of State for Environment, Food and Rural Affairs [2007] WLR(D)
167. R (Ashbrook) v East Sussex County Council
[2002] EWCA Civ 1701, Massey and Drew v Boulden and Boulden [2002] EWCA civ1634 Brandwood v Bakewell
Management Ltd [2003] EWCA Civ 23 ‘Intention’ analysed R (Godmanchester Town Council) v Secretary of State for
Environment, Food and Rural Affairs; R (Drain) v Secretary of State
for Environment, Food and Rural Affairs [2007] WLR(D) 167. A landmark case, won by the Ramblers’ Association in the House of Lords, means that it is now much harder for a landowner to defeat a claim to add a path to the definitive map. Since 1999 path claims based on user evidence have been bogged down by an unfavourable judgment from Mr Justice Dyson (R v Secretary of State for the Environment, Transport and the Regions, ex parte Dorset County Council [2000] JPL 396). Section 31 Dyson J said that a landowner could defeat a claim for a public path, even when he had not challenged the use, by retrospectively alleging he had no intention of dedicating it. He was not required to have brought his lack of intention to the public’s attention. Clearly, this was unfair. The Ramblers had to wait some years to challenge this ruling, but at last two cases were lost on the grounds of the Dorset case: at Godmanchester in Cambridgeshire and Yattendon in West Berkshire. The judicial reviews of the two cases were heard together, and were lost in the High Court and Court of Appeal. Determined to resolve this issue, the Ramblers went to the House of Lords. The case was heard by Lords Hoffmann, Hope of Craighead, Scott of Foscote and Neuberger of Abbotsbury, and Baroness Hale of Richmond. They were unanimous in finding for the Ramblers (represented by George Laurence QC and Ross Crail QC, instructed by Jerry Pearlman of Zermansky & Partners solicitors). The opinions make good reading. Lord Hope quotes an article about the Rights of Way Act 1932 by our former secretary, Lawrence Chubb, in our journal of October 1932. Lord Hoffmann runs through highway law, quoting judgments which endorsed the view that a landowner’s intention not to dedicate a path must be made public. He refers to recent case-law on village greens, since there are similarities between claiming highways and greens. Wobble Baroness Hale pointed out ‘If the private thoughts of the landowner were
enough, the section [31(1)] need only have read “…unless there was no
intention…” The section is calling for sufficient manifestation of the
landowner’s intention during the relevant time’.
R (Ashbrook) v East Sussex County Council [2002] EWCA Civ 1701,
It was champagne all round outside the law courts when Kate Ashbrook won her
case against East Sussex County Council for its failure to reopen the infamous
'Hoogstraten' footpath, Framfield 9. The court action, which started in September 2001, put the diversion on hold. In March 2002 Kate lost her case before Mr Justice Grigson in the High Court, but with the judge's consent she appealed. In the Court of Appeal in October 2002, Kate was represented by
barristers George Laurence QC and David Wolfe, instructed by Naeem Siraj of
Brooke North solicitors, before Lord Justice Schiemann, Lady Justice Arden and
Lord Justice Dyson.
for failure to remove the obstructions. The fines were not paid. It was evident that the only way to get the path reopened was to take action against the county council. In deciding whether to process the diversion order, the council was required
by its own policy to take account of certain matters. The council's guidance
note for processing public path orders says: Reasonably achievable The leading judge, Lord Justice Schiemann, said a relevant consideration for the council, in deciding whether to proceed with the diversion, was 'the fact that what was done here was a deliberate obstruction deliberately continued in the face of repeated objections by the highway authority and of convictions by the magistrates'. The council 'needed to face fairly and squarely that there had been a deliberate and persistent flouting of the law. They needed to take this into account when deciding whether or not to submit the order for confirmation.' Lady Justice Arden added that the rights conferred by the Countryside
and Rights of Way Act 2000 'wrought a sea change in the law's approach to the
rights of members of the public to reasonable enjoyment of the English
countryside, even when in private ownership. The 2000 act effected a rebalancing
of private and social interests in land, to which, so far as the act affected
this matter, the council was bound to pay regard.... It was wrong of the council
to ignore the order reached by the magistrates' court.' All three judges concluded that the council, in deciding to submit the diversion order to the Secretary of State had failed to apply paragraph 6(a) of its own guidelines correctly. That decision was accordingly quashed. Notice served Costs and lesson to councils The decision is of far-reaching value. Councils must in future think carefully before attempting to divert blocked paths, especially when the obstruction is deliberate rather than accidental. Where they have guidelines for the diversion of paths (and ESCC's are fairly typical), they must follow them. In short, councils can no longer get away with diverting obstructed
routes. It will be cheaper and easier for them to uphold the law.
Massey and Drew v Boulden and Boulden [2002] EWCA civ1634 The owners of a house claimed they had prescriptive vehicular rights across a village green, known as The Pinn, at Bonnington in Kent. The green's owners, the Bouldens, appealed against Judge Poulton's ruling in Canterbury County Court. The appeal court upheld the principle in Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14, that it is illegal to drive a motor vehicle over common land. This is due to section 34 of the Road Traffic Act 1988 and a similar provision in section 67 and schedule 7 of the Countryside and Rights of Way Act 2000 (CROW Act). The Massey case has extended the principle to all land, not just common. Disturbingly Lord Justice Simon Brown found that the grant of vehicular rights over a green was not a breach of section 12 of the Inclosure Act 1857, which protects village greens from encroachment, because 'there was no sufficient reason to regard the existence and use of the track as injuring the green or interrupting its use or enjoyment by others'. There was discussion as to whether prescriptive rights can ever be acquired for a use of land which is in conflict with public rights enjoyed over it. Lord Justice Simon Brown said that if vehicular use of the track was inconsistent with the public's right to use the land as a village green 'the landowner could not lawfully grant such a right of way; no more, therefore, could such a right be acquired prescriptively by a presumed (lost modern) grant'. If so this would defeat any claim, including under section 68 of the CROW Act 2000. On this argument the landowner could never properly have made an express grant of such an easement in the first place. However the judge made clear that since the point was not taken in the High
Court, and the facts were not explored with this consideration in mind, he was
'wholly unprepared in these circumstances to conclude that the factual basis for
such an argument has been made out'. The court was apparently not told that it is unlawful to drive over a village
green. Defra's view, in paragraph four of its non-statutory guidance note on the
CROW Act section 68 regulations, is that it is probably not possible to grant
lawful authority for driving over a green but it notes that there is no case law
to determine this. Unless Massey is taken to the House of Lords, it may be used
as authority for allowing accesses over greens.
Brandwood v Bakewell Management Ltd [2003] EWCA Civ 23
The Court of Appeal found that the residents could not base their assertion
of vehicular rights across common land on this use, because they were committing
a criminal offence under the Law of Property Act 1925 section 193. The court
also upheld the decision in Hanning v Top Deck Travel Ltd. The appeal was
dismissed.
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