10 December 2015
Mrs Susan Doran
User evidence, ‘bringing into question’, and the date of the application as a ‘default’.
This was an order made by the Lake District National Park Authority to add a public footpath to the definitive map and statement on the strength of long public user being sufficient to show deemed dedication within the scope of s.31 of the Highways Act 1980. Mrs Doran properly sets out the first test to be satisfied before she can assess the user evidence before the public inquiry: “ This requires the date to be established when the public’s right to use the Order route was brought into question. The evidence can then be examined to determine whether use by the public has been as of right and without interruption for a period of not less than 20 years ending on that date.”
In looking to establish the first date of challenge (if there was such) Mrs Doran says, “  There are several possible dates to consider. There is the application to add the Order route to the DMS in 2013 …” and she then dedicates 18 paragraphs and 2,169 words to a detailed consideration of alleged signs along the way: what they said, who put them up and when, and what message they conveyed. In the end she finds, “ I find there is credible evidence on both sides as regards when the sign at W was put up, but that there is a material conflict of fact between what those in support of the Order, and those opposed to it say. The evidence is, in my view, evenly balanced, despite it having been heard and tested, and expanded on. There remains, as the LDNPA stated, no objective evidence either way.”
Mrs Doran moves on to consider ‘use by the public’ [28-31] and ‘the actions of landowners’ [32-33] before reaching her ‘conclusions on presumed dedication’ at . She finds, “Having regard to the above, I conclude that there is a conflict of evidence as regards the sign at point W which is material to when the public’s right to use the Order route was brought into question, and that conflict cannot be resolved. It follows that, on the available evidence, the LDNPA has failed to make out a case that a public footpath subsists over the Order route. I therefore decline to confirm the Order.” Is Mrs Doran correct to say that the LDNPA has “failed to make out a case” because there is conflict as to what signs existed, where, and when? This is the relevant statutory provision in s.31 of the Highways Act 1980:
S.31 Dedication of way as highway presumed after public use for 20 years.
(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 is mentioned in subsection (3) below or otherwise.
[S.69 of CRoWA 2000 introduced a provision amending the Highways Act 1980, by inserting new sub-sections 7A and 7B.]
(7A) Subsection (7B) applies where the matter bringing the right of the public to use a way into question is an application under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications so as to show the right on the definitive map and statement.
(7B) The date mentioned in subsection (2) is to be treated as being the date on which the application is made in accordance with paragraph 1 of Schedule 14 to the 1981 Act.
The Planning Inspectorate’s Consistency Guidelines (8th Revision July 2013) advises in [5.6] (our emphasis), “However, where there is no identifiable event which has brought into question the use of a path or way, s31 ss (7A) and (7B) of HA80 (as amended by s69 of NERC06) provides that the date of an application for a modification order under WCA81 s53 can be used as the date at which use was brought into question.”
So, Mrs Doran finds at  that “… there is a conflict of evidence as regards the sign at point W which is material to when the public’s right to use the Order route was brought into question, and that conflict cannot be resolved.” There is, in her view, no identifiable event which has brought into question the use of the path or way. Fair enough, but Consistency Guidelines indicates that the proper course of action in this situation is to fall back on s.31(7B) of the Highways Act and take the date of application as being the date of challenge for s.31(2).