Foy Sauce

Long-time readers of Byway and Bridleway might recall a report in issue 1990/10/40 on the case of Foy v. Hertfordshire County Council, also briefly reported in The Times on 4 May 1990. Mr & Mrs Foy had fenced off part of a some roadside waste forming part of the Lower Icknield Way.

A public footpath runs along the edge of the triangle of waste. The council took enforcement action and the Foys appealed, with Mrs Foy ultimately and unsuccessfully taking the matter to the Court of Appeal (the detail is in the B&B report, rather than The Times).

The judgment yielded some useful comment by Their Lordships on long-term obstruction not adversely affecting highway status, and that the extent of a highway is not necessarily confined to the metalled portion of a track.

The footpath touched upon in the 1990 case came back to court in 2015. Mr & Mrs Foy asserted that the footpath was 4 feet wide and (as did a neighbour) built structures that blocked part of the physical width of the path. Dacorum Borough Council, which has an agency agreement with Hertfordshire County Council, took the view, based on historical evidence, that the footpath was 6-7 metres wide, and required the removal of the structures. Their neighbour complied, but Mr and Mrs Foy did not, and they resisted the council’s attempts to clear the path.

In 2012 Dacorum Council sought an injunction to oblige the Foys to remove the structures; the Foys counter-claimed for trespass and related relief. The application was heard by Mr Recorder Hancock QC, who went through the historical evidence regarding the path, and looked at the law regarding ‘width presumptions’. Judge Hancock found that the path was 6 metres wide, rather than 7 metres, and he declined to issue an injunction, relying instead on undertakings from the Foys, the breach of which would have the same consequences for them as breaching an injunction. The judgment is available on BAILII under neutral citation number [2016] EWCA Civ 48.

Not daunted, Mr and Mrs Foy applied for permission to appeal to the Court of Appeal, which application was refused ‘on the papers’ by McCombe LJ. Still resilient, Mr and Mrs Foy made a further oral application to the Court of Appeal, heard by Lord Justice Jackson, with the Foys representing themselves.

Jackson LJ notes that the Foys seemed to be advancing an argument different from that run in the court below. There they were arguing that the footpath was merely 4 feet wide; this time they argued that there was no footpath at all, and Jackson LJ is having none of it: “[18] In my view, it would not be open to this court to take a different line altogether and to say that there is no public right of way at all. The judge concluded from the vast mass of historic documents put before him that although there was a time when the public right of way was shut off, nevertheless it subsequently came into existence. One can see that Wells Lane served a number of houses along its route during the 19th and 20th Century. Mr Foy tells me that those buildings were cottages and wheelwrights. It would make sense for a public right of way to serve those dwellings and buildings.” That is a useful comment on the ‘sense’ in a public right of way serving houses along the way.

His Lordship also passes comment on the absence of any width for the footpath in the definitive statement. He says, “[6] Next to that there is a column headed “width”, but, somewhat unhelpfully, the Definitive Statement does not include any figure in that column to assist the court or the public as to the width of the footpath.

The application for permission to appeal is refused. B&B is told that Mr and Mrs Foy have now applied to have the footpath deleted from the definitive map and statement.

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