Huntingdon v Secretary Of State For Environment & Anor [1998] EWHC Admin 802 (30 July 1998)

1. By her Notice of Motion in these proceedings the Applicant Mrs. Huntington (pursuant to leave) appeals against the decision of the First Respondent, the Secretary of State for the Environment, to confirm the County of Cornwall (A3078 Road to Footpath No.10 with spur from Nanshutt Hall Farm to Footpath 15 St Just-in-the-Roseland) Modification Order 1991 (“the Order”) made by the Second Respondent, Cornwall County Council, under the Wildlife and Countryside Act 1961 (“the Act”). Paragraph 12 of Schedule 15 to the Act provides that any appeal to the Court must be launched within 42 days from the date of publication of Notice of Confirmation of the Order. The Notice of Confirmation of the Order was published on the 22nd June 1995 and the Notice of Motion was entered at the Crown Office on the 3rd August 1995. The interest of the Applicant lies in the fact that she and her husband (“the Owners”) are the owners of the land to which the Order relates (“the Land”). Her husband was a party to this appeal until it was opened before me, when the parties agreed that the appeal should proceed as an appeal by Mrs Huntington alone.

“The National Parks and Access to the Countryside Act 1949 obliged each county council in England and Wales to prepare a definitive map and statement showing all the footpaths, bridleways and roads used as public paths in their area over which members of the public had rights of way. In 1981 the relevant provisions of the 1949 Act were repealed and replaced by the Wildlife and Countryside Act 1981. Section 53 of this Act cast upon surveying authorities (here the respondent county councils for their respective counties) various duties in relation to their definitive maps and statements. Section 53(2)(b) obliges each such authority to keep its map and statement under continuous review.

When an authority discovers evidence which, when considered with all other relevant evidence available to it, shows that a right of way to which the 1981 Act applies which is not shown in their map and statement subsists or is reasonably alleged to subsist over land in their area, the authority must as soon as reasonably practicable thereafter make, by order, such consequential qualifications to its map and statement as appear to it to be requisite (see s53(2)(b) and 3(c)(i)). Such an order is known as a modification order. Any person may apply to the authority for a modification order, in which event ‘the provisions of Schedule 14 shall have effect as to the making and determination’ of such an application (see s53(5)).

Schedule 14 prescribes in detail the form in which such an application for a modification order is to be made; it makes provision for giving notice to owners and occupiers; it obliges the authority to investigate the matters stated in the application and to consult with every local authority affected and then to decide whether or not to make the order sought. As soon as practicable after determining the application, the authority is to give notice of its decision to the applicant and to the owners and occupiers affected.

Paragraph 3(1)(c) requires the notice to specify the time (not being less than 42 days thereafter) within which representations or objections with respect to the order may be made. If no representations or objections are made, the county council may confirm the orders (see para 6(1)), but if any representation or objection is duly made and not withdrawn the county council must submit the order to the Secretary of State for confirmation by him. The Secretary of State must either (a) cause a local inquiry to be held or (b) afford any person by whom a representation or objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by the Secretary of State for the purpose. The Secretary of State may not confirm the order without first considering the representations and objections and the report of the person appointed to hold the inquiry, or hear representations or objections (see para 7).

3. There are accordingly two stages leading to the confirmation of an order. At the first stage the surveying authority investigates whether there is a prima facie case of the existence of a public right of way. If it decides that there is, it makes a modification order, which has no effect unless and until confirmed. The decision of the Court of Appeal in R v Cornwall County Council ex p. Huntington supra laid down the general rule that by reason of paragraph 12(3) of Schedule 15 of the Act no legal challenge can be made to a modification order unless and until confirmed, and on this ground the Court of Appeal dismissed the Applicant’s challenge to the Order made in this case prior to its confirmation. The second stage arises after the making of a modification order when opportunity is given for objection to be made, and if objection is made there will follow an inquiry, which may lead to confirmation of the modification order by the First Respondent. A challenge may then be made in this Court on the statutory grounds specified in the Act to the order as confirmed.

4. In this case, Mr and Mrs Huntington objected to the Order and an inquiry was held by an Inspector, Dr Goultry. By letter dated the 11th February 1994 Dr Goultry decided to confirm the Order subject to three modifications. Mr. and Mrs. Huntington objected to these modifications, and this led to another inquiry in respect of those modifications by another Inspector, Mr Brown, who by letter dated the 19th May 1995 decided to confirm the three modifications. The Notice of Confirmation (which was required to be given by paragraph 11 of Schedule 15 of the Act) was, as I have already said, published on the 22nd June 1995 and these proceedings were commenced on the 3rd August 1995.

2. The hearing of this appeal has been seriously delayed by reasons of some six adjournments, of which five were the responsibility of the Applicant and one was due to lack of available court time. Changes of Counsel (so far as one can judge because their advice was unpalatable) have apparently played a major part in the reasons given for the applications for adjournments by the Applicant. The first adjournment was on the 17th April 1996, when Turner J made an order that the Applicant file an affidavit in support of the Notice of Motion and that in default the Notice of Motion be struck out and that the Applicant pay the costs of this adjournment. On the 20th March 1997 there was a further adjournment to enable the Applicant’s counsel to advise her together with leading counsel. On the 24th June 1997 there was a further adjournment to obtain counsel’s opinion. On the 24th November 1997 she obtained a further adjournment. The Respondents attended the hearing fixed for the 27th January 1997 prepared for trial, but the Applicant’s counsel successfully obtained a further adjournment and leave to amend the Notice of Motion: counsel was at the same time directed to prepare an amended skeleton argument. The sixth adjournment which was by the Court on grounds of lack of time was granted in June 1998. The Amended Notice of Motion and amended skeleton argument were duly prepared, but subsequently the counsel who prepared them was appointed to the circuit bench, and some three weeks before the hearing before me, Mr Moriarty was briefed in her place.

6. The challenge mounted by the Applicant in these proceedings (as Mr Moriarty confirmed to me) is confined to the decision of Dr Goultry. Counsel originally instructed by the Applicant in the Amended Notice of Motion challenged the decision on a wide variety of grounds and maintained these contentions in her amended skeleton argument. Mr Moriarty adopted the skeleton of his predecessor wholesale though quite clearly he found the bulk of the contentions made therein unsustainable. As he told me, he regarded the skeleton prepared pursuant to an order of the Court as having the character of a pleading which he was not free to depart from without the leave of the Court. With respect, this is a total misapprehension of the character and purpose of a skeleton argument, whether prepared pursuant to an order of the Court or not. It is a guide to, or a précis of, the submissions which the advocate considers to be properly maintainable and which he is able properly, and intends, to address to the Court. On his instruction, Counsel is bound to bring to bear his independent judgment on the merits of the case, and if his judgment materially differs from that of his predecessor, he is duty bound without delay so to inform his client and (if he is legally aided) the legal aid authority. It is not proper for him blindly to adopt and follow the course advised by his predecessor. If (by reason of a change of counsel or second thoughts) changes in the submissions (or additions or deletions of contentions) in a skeleton argument are called for, they should immediately be made, though it may be for the Court to decide whether it should be open to counsel to advance a new argument when to do so may occasion an injustice. The wholesale adoption of the amended skeleton in this case led to a waste of Court time and costs.

7. Mr Moriarty began by advancing each of the contentions contained in the skeleton, though plainly he realised that they were unmaintainable. Within a few moments of opening his case, under questioning by me, he (perfectly properly and correctly) conceded that all save one of the grounds lacked any substance in law and he rightly abandoned all of them save for that one. The majority of the grounds abandoned related to the conduct of the Second Respondent leading up to the making of the Order, the alleged insufficiency of the material before it to justify the adoption of this course and the failure of Dr Goultry to investigate complaints made about this conduct. Mr Moriarty however conceded that these matters do not constitute grounds for challenging the Order: see e.g. Isaac & Isaac v. Secretary of State for the Environment and Devon CC 10 November 1995, unreported transcript pages 9-17 (Sedley J). The wholesale abandonment of the arguments in the amended skeleton argument can only have been a surprise to the Applicant if (which I would not readily assume) Mr Moriarty had not advised her of his views on their merits. But whether he did so or not cannot affect the legal consequences of the concessions.

“25. I turn now to consider the user evidence under Section 31(1) of the Highways Act 1980 where a right of way as a footpath may be established by presumed dedication: ‘Where a way over any land, other than a way of such 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 twenty 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’. The period of twenty years is to be calculated retrospectively from the date when the right of way of the public to use the way is brought into question. The statutory period of twenty years has no fixed starting point, but only a finishing point. For the right of the public to be brought into question the landowners must challenge it by some means sufficient to bring home to the public that they are challenging their right to use the way, so that they may be apprised of the challenge and have a reasonable opportunity of meeting it.

27. Mr & Mrs Huntington purchased Nanshutt Hall Farm in 1965 and I therefore have to consider if there was any time between 1965 and 1971, being the first date of their statutory declaration, that they indicated their intention not to dedicate the footpaths shown on the Order that run across their land as public rights of way. To do this they must have taken some overt action to disabuse to the public at large of any belief that the way is public. It is not sufficient for Mr & Mrs Huntington to say that they had decided or believed that the way is not public, or to say that they had told a walker on the path that they had no intention to dedicate the way. The customary means of showing a contrary intention is by a notice with such words as ‘Private path’, or ‘No public right of way.’ For a notice to be effective its wording must clearly deny a public right of way. In this case the gate at the entrance to Nanshutt Hall Farm carried the word ‘Private’, but no evidence was given when this word was fixed to it. However, a signed statement from Mr and Mrs Huntington stated that when they purchased the farm in 1965 there was a notice on the farm gate with the word ‘Private’, although no evidence was given when or by whom it was fixed. Despite the evidence of the single word ‘Private’ on the entrance gate to the farm this is not sufficient to clearly indicate an intention not to dedicate the track as a public right of way.

28. There is no evidence of any overt action taken by Mr and Mrs Huntington between 1965 and 1971 to indicate to the public their intention not to dedicate those paths shown in the Order which cross their land as rights of way. Therefore I determine that the 25 November 1971 being the date of the statutory declaration is the date when the use of the path as a right of way was first called into question. I shall particularly examine the evidence of those persons who used the path between 1951 and 1971, being the period of 20 years before Mr Huntington made the statutory declaration.

29. There are 13 witness evidence forms, two in addition to the original 11. Eight signatories attended the inquiry and affirmed the correctness of their statements. Several witnesses stated that they had used the footpaths for the whole of their lifetime or as children with or without their parents. In these cases I have calculated the years of use as from the witnesses eighteenth year when they were adults and discounted the years when they walked the paths as children or young people. On this basis twelve witnesses used the footpath on or before 1951, the earliest in 1925, and twelve witnesses walked the path at some time or another between 1951 and 1971.

30. The 20 years user must be as of right and not as a result of permission granted by the landowner. Therefore Section 31(1) of the Highways Act cannot apply to those users of the path who might actually have had permission to use it such as being related to the landowner or his employees. Some witnesses occasionally walked the paths to visit friends or relatives, or for business purposes but not only for these reasons. All witnesses declared that they walked the paths in the belief that they had a right to walk the paths for pleasure and recreation. Twelve witnesses could not recall seeing any notices and only one witness wrote that he had seen a notice, but there is no indication of where or when. I therefore conclude from the totality of the user evidence, and on the balance of probability, that the track had been used by walkers for more than twenty years before 1971 and therefore the track will have acquired a right of way as a footpath by presumed dedication.

10. It was a most significant feature of the hearing before Dr Goultry that the Owners, who purchased the Land in 1965 and accordingly were the persons best equipped to give any evidence in support of their objections relating to use during the critical years 1965-1971, deliberately absented themselves from the inquiry and sent as their spokesperson and representative their daughter who (as she told Dr Goultry) was too young during this 6 year period to have any relevant recollection. The daughter apparently made a tape of the hearing before Dr Goultry and there is before me a transcript prepared by her and the Owners from this tape. This transcript is (as Mr Moriarty conceded) self-evidently incomplete and may not be entirely reliable. The Respondents quite reasonably had not prior to this hearing checked the transcript against the tape because every indication had been given that the contents of the transcript were only relied on in support of other contentions now abandoned, and in particular contentions relating to the conduct of the Second Respondent leading up to the making of the Order. But I agreed at the request of Mr. Moriarty de bene esse to read the transcript and allow it to be referred to. Plainly the transcript can be no substitute for the advantage enjoyed by Dr Goultry in seeing and hearing the witnesses give their evidence. But with the guidance of Mr Moriarty I made a thorough going journey through the transcript and (as Mr Moriarty had to concede) it provided full support for the findings of fact by Dr Goultry. In particular, there was evidence of only one witness, Mr. Green, to the effect that he had been stopped by the Applicant from using the path before 1971. (All other witnesses spoke of incidents after 1971). Mr Green himself evidently had some difficulty in giving the date of this incident, which he recalled as having happened some 30 or 25-30 years before the hearing - a matter which the Applicant could have clarified in her evidence, but refrained from doing. Nonetheless Dr. Goultry in paragraph 27 of his decision gave credit for this one incident as he did also for the single notice marked “Private” which he found to be established. He held that (notwithstanding these two facts) there was insufficient evidence in the circumstances of this case to make a finding of a manifestation by the freehold owner or the lessee of an intention not to dedicate.

11. This was an issue of fact for Dr Goulty to decide and (as it seems to me) he was perfectly entitled on the evidence so to decide: indeed (so far as is material) I think that his decision was plainly correct. It is perhaps fair to say that from the tenor of his submissions to me that my conclusion can scarcely have been any surprise to Mr Moriarty. I accordingly reject the challenge made to the decision of Dr Goultry on the ground that it was contrary to the evidence, or (more correctly) was beyond the range of responses open to a reasonable decision-maker.

“The matter of the tenancy agreement in 1944 between Mr JJ Nicholas and the Ecclesiastical Commissioners was raised. I am of the opinion that this does not help one way or the other. There is no evidence that Mr Nicholas took any action concerning this matter. It could be that the footpath was already in existence in which case he could not be accused of allowing a footpath to be created; and if on the other hand he took no action to prevent a footpath being created he would have been in breach of the agreement, but that would not negate the 20 year use for presumed dedication. I therefore attribute no evidential value to this party of the tenancy agreement.”

5. Mr Moriarty at the close of his reply (having faintly raised the matter earlier and met with some reluctance on my part to allow him to do so) stated that he wanted to preserve for raising in the Court of Appeal a totally new point (“the New Contention”), namely that as a matter of law, on the premise that the user commenced no earlier than the grant of the Lease, the existence of the Lease precluded any inference of dedication by the freeholder in this case. I was invited to proceed on this premise because Dr Goultry made no finding of fact whether the public user predated the Lease (though he clearly received unchallenged evidence to this effect). Dr Goultry made no finding because this issue was not raised before him and accordingly he was not invited to make a finding and had no need to do so. I told Mr Moriarty that, if he was to preserve the New Contention, he had unequivocally to seek to make the contention before me. He thereupon stated that he wished to do so. The New Contention was never argued before Dr Goultry, and never maintained even in the Amended Notice of Motion or the amended skeleton argument. I did not think that it was not open to the Applicant to make the contention for the first time at this stage. Mann J in London Parachuting Ltd v. Secretary of State for the Environment [1986] JPL 428 at 429 is reported as approaching a similar attempt as follows:

15. The following morning no such skeleton was prepared, but Mr Moriarty told me that the Applicant had withdrawn his instructions and wished to address me herself. The Applicant then addressed me and it soon became apparent that the reason why she had withdrawn Mr Moriarty’s instructions was dissatisfaction with his concession the previous day that none of the contentions made in the skeleton argument was maintainable save for the one I have referred to. She sought an adjournment to prepare argument on the conceded issues as well as on the New Contention. The Respondents vigorously objected to any adjournment. Mr Moriarty had already (properly) made concessions on her behalf which bound her; there had already been more than enough adjournments; and no costs occasioned by an adjournment would in any likelihood be recoverable from the Applicant since she was legally aided. I made it clear that I would confine the Applicant to the New Contention, and not allow her to open the issues already conceded: this would be quite unjust and unreasonable. I also said that I would allow a short adjournment to permit her to prepare to argue that she should be entitled to maintain the New Contention and to argue its merits. Counsel for the Respondents properly reminded the Applicant that, if the Applicant at the adjourned hearing argued herself, with legal aid withdrawn she would be fully exposed to an order for costs in respect of the adjourned hearing. The Applicant immediately made clear that she wanted at all costs to avoid this risk and would seek to reinstruct Mr Moriarty, who had by this time left the court. I adjourned the hearing for a few days at the Applicant’s request to enable her to instruct Counsel, or prepare herself, to argue what alone I had indicated that I would permit to be argued. I directed the Respondents to provide her with a full skeleton and copies of all authorities and passages in textbooks intended to be relied on by them. They provided her with these later the same day.

16. The adjourned hearing took place on the 23rd July 1998, when the Applicant was represented by Mr Nigel Ley. Mr Ley had prepared, and he submitted to me, a skeleton argument which conceded that leave was necessary and sought leave to raise the New Contention. The skeleton argument, besides addressing the New Contention, addressed also a multitude of issues no longer alive (if ever alive) in the proceedings. In so doing he totally ignored my direction as to the issues on which I would hear argument. He requested an adjournment because, as he told me, he had only been instructed the previous evening and had not had the opportunity to do the research required. (It may be doubted whether the time would have been insufficient if he had confined his attention (as he should have) to the New Contention.) He wanted an adjournment until a date during October. An adjournment until the following week (the last week of term) would impose tight constraints upon him, but was better than nothing. It was far from clear that my other commitments and the commitments of Counsel for the Respondents allowed for any hearing that last week of term. The Respondents opposed the application for the adjournment. Mr Ley was quite unable to tell me why he was instructed so late: he said he believed that Mr Moriarty was unable to attend because he was instructed at a planning inquiry, but he was unable to say when the Applicant first knew that this was so.

17. Having read Mr Ley’s skeleton, I took the view that justice required that there should be no adjournment. I was not prepared to allow argument on anything save in respect of the New Contention. Mr Ley’s skeleton addressed the issues of leave and the merits and could be elaborated upon in oral argument by him before me. The impelling need to save further costs and delay outweighed the advantage of an extended period for research. All parties then addressed me on the question of leave and the merits. At the conclusion of this argument, Mr Ley repeated his request for an adjournment, and when I refused, requested that his client be allowed to address me. I refused: it was sufficient that she was legally represented and her Counsel had addressed me.

18. Notwithstanding the submission of Mr Ley, I remain of the view that I cannot or should not allow the Respondent to argue the New Contention. As I have already pointed out, a decision on the New Contention in favour of the Applicant involves assuming a fact in her favour to which evidence was not directed and in respect of which a finding was neither invited or made. I may add that the conduct of these proceedings by the Applicant (most particularly the succession of adjournments) has been oppressive. Every indulgence has been given: enough is enough.

19. At common law, in a case when the path ran over continuously tenanted land, there was no rule of law precluding dedication: what was required in such a situation was to establish the consent or acquiescence of the freeholder in the continuous public user and such consent or acquiescence might be inferred: see Powers v. Bathurst (1880) 49 LJ Ch 294. Such consent or acquiescence could readily be inferred where there was a break between the tenancies. As I have already said, in view of the fact that the New Contention was not raised at the hearing before Dr Goultry, it was unnecessary for the Second Respondent to direct evidence to the question, or invite Dr Goultry to decide, whether the public user in this case began prior to the date of the Lease, and accordingly Dr Goultry made no finding on this question. I cannot and should not decide this question of fact, and as the New Contention depends on an answer to this question, the New Contention cannot be decided.

20. I should however add that, even if there were a finding that the public user began after the date of grant of the Lease, this would not alter the outcome. This is not a case where dedication depends on compliance with the common law rules: reliance is placed on Section 31(1) of the Highways Act 1980. Section 31(4) of that Act makes clear that, notwithstanding that the Land has at all times been tenanted, proof of the freeholder’s concurrence or acquiescence to establish a public right of way is not required to establish dedication: instead his overt and contemporaneous objection to use as a public way is now required to preclude a public right of way arising from use for 20 years as of right. Dr Goultry held that there was no such objection. Mr Ley submitted that the words in Section 31(1) “other than a way of such a character that use of it by the public could not give rise to any presumption of dedication” (which he referred as the “proviso”) excluded from its ambit cases where the path ran over tenanted land. Section 31(4) makes clear that a tenancy is no such bar. The “proviso” would appear to be directed at the situation when the Land is vested in an owner who has no power to dedicate: see Halsbury’s Laws Vol 21 paragraph 72.

7. I therefore hold that this appeal lacks any substance and I accordingly dismiss it. I should add that the expenditure of public money occasioned by these proceedings must be enormous. They have been completely wasted. In my view legal aid should never had been granted to the Applicant; at the least legal aid should have been withdrawn when Mr Moriarty was instructed. From what the Applicant told me, it is apparent that, if legal aid had been withdrawn, she would not have gone on with the proceedings, for very much her first consideration has been the avoidance of any risk of an immediately enforceable order for costs being made against her.

judgment expressed my views. The first matter to be dealt with is the costs of the proceedings. There can be no issue, and there is no issue, that costs ought to be ordered in favour of the respondents against both applicants in respect of the period up to and including the commencement of the hearing of the application before me. At the commencement of the hearing it was agreed that the matter should thereafter proceed as an application by Mrs Huntingdon alone and accordingly costs incurred thereafter before me should be ordered against Mrs Huntingdon alone. The question has arisen as to whether costs should be ordered against the applicants on an indemnity basis. My mind has waivered on this question, but the view that I take on balance is that I should not order indemnity costs. I take a very serious view of the way this case has been conducted. I cannot myself apportion responsibility between those involved. But, at the end of the day, I do not order indemnity costs. The next issue that arises is whether separate costs should be ordered to be paid to both respondents. I have been referred by Mr Reed, counsel on behalf of Mrs Huntingdon, to the case of Bolton v. Metropolitan District Council v. The Environment Secretary [1995] 1 PLR 1170 at 1171. It seems to me that my discretion in this case ought to be exercised in favour of ordering two sets of costs of the two respondents. A separate application has been made against each of them. It seems to me that both of them justly and properly have appeared on the application and justice requires that they should have their costs.

9. I should add two further matters in relation to the order. First of all, I direct that the Taxing Master on the legal aid taxation of the applicant's costs take account of the comments made in my judgment on the conduct by the applicants of the proceedings and the merits of the matter. I should also direct that a copy of the judgment should be sent to the Legal Aid Board for them to give consideration as to whether an investigation should be mounted as to why legal aid was granted.

England and Wales High Court (Administrative Court) Decisions

HUNTINGDON v. SECRETARY OF STATE FOR ENVIRONMENT v. CORNWALL COUNTY COUNCIL [1998] EWHC Admin 802 (30th July, 1998)

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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Huntingdon v Secretary Of State For Environment & Anor [1998] EWHC Admin 802 (30 July 1998) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/802.html Cite as: [1998] EWHC Admin 802