Powell and Irani v the Secretary of State for Environment, Food and Rural Affairs and Doncaster Borough Council is a rather technical but ingenious case recently decided by the High Court, which merits some comment here.

The case concerns a public footpath which formerly passed through the grounds of the vicarage at Hatfield church, Doncaster. You can see the location on Streetmap.co.uk and in Google Maps. In 1967, the path was formally diverted to an alternative route around the outside of the grounds: an alleyway in effect (visible in the Google Maps photography). But the original route, just 30 metres long, continued to be used, more so once the gate and stile at respective ends of the path became broken down and ceased to be an obstacle to passage, until in 2006 development of the old vicarage grounds began, and the original route became obstructed. Eventually, in 2012, the surveying authority, Doncaster Borough Council, made an order to recognise that the formerly extinguished footpath had come into being once again through twenty years’ use ‘as of right’ — just as can happen through long use of any path. In due course, following a decision by an inspector which was quashed in the High Court, the order was again referred to a public inquiry presided over by another rights of way inspector, who heard evidence of the use, found that there had indeed been long use ‘as of right’, and confirmed the order (see the inspector’s decision letter and map).

The claimants, who were now owners of 6 Vicarage Close, the relevant bit of the old grounds, did not in court dispute that there had been sufficient qualifying use of the former footpath. But (and this is where the ingenuity comes in) they did challenge the council’s order as not in accordance with the law.

Now, all existing rights of way are required to be shown on a definitive map and statement kept by the surveying authority. Until 1981, the authority was required to review the map every five years and update it as necessary. Subsequently, under s.53 of the Wildlife and Countryside Act 1981, the authority was required to modify the map to reflect (among other things) legal events, such as the diversion order. In neither case did the authority act on the 1967 order, so the definitive map continued to show the former footpath (and did not show the diverted path). In itself, that failing did not greatly matter: the definitive map must be read alongside any legal events which have not been recorded on it, and Doncaster’s failing was not unusual. Taken together, the map and the 1967 order were quite sufficient evidence of the effect of the diversion.

The 2012 order was made under s.53(3)(c)(i) of the 1981 Act. This required Doncaster to make the order (a definitive map modification order) on: “the discovery by the authority of evidence which…shows—(i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist over land…”. That is the usual test for an order to add a path to the map following long use. But the challenge in this unusual case was that the claimed footpath was shown on the map and statement. True enough that what was shown on the map was no longer extant: it was accepted that the footpath through the garden had been legally extinguished. But in the strict terms of the legislation, which understandably failed to anticipate such a scenario, the order could not be made to add a right of way to the map which already existed on the map (albeit the map was out-of-date). In its judgment, the court more or less acknowledged the strict legal merits of this argument, but found it didn’t need to grant relief on the strength of it, because the order could have been made under s.53(3)(b) instead, which enables an order to be made on: “the expiration…of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path…”. The court was not prepared to quash the order as incapable of having effect under one provision if the order could have been resurrected in similar form under the alternative provision (after, needless to say, the expenditure of further public funds).

The claimants also argued that the use of the path was not ‘as of right’ because a landowner, noting that the path was shown on the definitive map, would assume that the use was ‘by right’ (i.e. the public had an absolute right to use it), even though proper inquiry would have revealed the map to be erroneous. It was suggested that, in determining whether use was ‘as of right’, the inspector had to consider not only whether use was ‘without force, without secrecy and without permission’, but also whether it was reasonable for the landowner to have resisted use which had the appearance of being lawful (rather than trespass). In fact, the claimants admitted that there was no evidence that they, or any landowner, had been misled in that way. The major part of the judgment is devoted to reviewing the claimants’ analysis, taking the reader through some of the classic judgments on town and village green law in the House of Lords and Supreme Court (greens are also registered on the basis of use ‘as of right’). But in the end, it was the judgment in the Court of Appeal in London Tara Hotel Ltd v Kensington Close Hotel Ltd which best summarised the law. The Tara had licensed the then owner of the Kensington Close to use a roadway over the Tara’s land, but the Kensington Close had subsequently changed hands causing the licence to cease to have effect. The Tara hadn’t really sparked on the change of ownership, but did nothing to stop continued use of the roadway. The court noted the appellant’s argument that the Tara: “could be said to have proceeded on the assumption that things were continuing as they had before 1980, and so, implicitly, that the Licence still applied, and the use was with permission…[the Kensington Close’s] predecessors did not inform Tara of the change in the KC Hotel’s ownership, which meant that the subsequent use of the roadway was, from the perspective of Tara, secret”. But the court recognised there had been no deliberate secrecy, and even junior Tara staff knew of the change of ownership. In the event, the Kensington Close established a private easement over the roadway on the basis of 20 years’ use as of right after the cessation of the the licence. The court said that: “The subjective state of mind of the owner is…irrelevant”, and declined to graft some additional test of how the use might have appeared to the landowner, and whether it was reasonable for the landowner to object to the use, onto the tripartite elements of use ‘as of right’. And so in Powell, the court applied the same reasoning to decide that, whatever the appearance of the situation to the landowner, the inspector had found that the use of the path was ‘as of right’, and that was all that mattered.

Comment: The arguments of the claimants may have been ingenious, but it would have been surprising if they had won the day, for it was not claimed that anyone had been seriously misled by Doncaster’s failure to update the definitive map. Still, they came close with a challenge on the vires of s.53(3)(c)(i). The authority was in common with many other surveying authorities in devoting a low priority (or none at all?) to updating the definitive map to reflect legal events since the map was published with a relevant date of 1952, and it’s not hard to understand why, given more pressing demands on officers’ time to deliver more immediately useful outputs (such as diversion orders).

The claimants will now have to decide what to do with the public footpath across their land. Their problem is that the most obvious diversion route is already a public right of way, put in place by the 1967 diversion, so it may be that they will want to seek an extinguishment order rather than a diversion. The test for stopping up a path is notoriously more demanding than a diversion, and there is ample evidence from the inquiry that there is a latent demand to use the path. The Government’s draft guidance on the diversion or extinguishment of rights of way that pass through gardens may assist if and when it is formally published in the wake of the Deregulation Bill receiving Royal Assent in the next couple of months. With two High Court challenges and representation at a public inquiry by counsel already under their belt, it seems unlikely that the claimants will want to take it no further.