Case No: CO/2870/2003
CO/4211/2003
Neutral Citation Number: [2004] EWHC 1217 (Admin) 
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 22 July 2004
Before :

THE HONOURABLE LORD JUSTICE MAURICE KAY
THE HONOURABLE MR JUSTICE RICHARDS
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THE QUEEN
On the application of

	(1) GODMANCHESTER TOWN COUNCIL
     (2) DR LESLIE ERNEST DRAIN	Claimant	
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	SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
                                -and-
     (1) CAMBRIDGESHIRE COUNTY COUNCIL
     (2) YATTENDON ESTATES LIMITED 
	Defendant

Interested Parties	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Official Shorthand Writers to the Court)
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George Laurence QC and Ross Crail (instructed by Zermansky & Partners) for the Claimant
Tim Mould (instructed by Treasury Solicitor) for the Defendant
Edwin Simpson (instructed by Blandy & Blandy) for Second Interested Party
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Judgment
Lord Justice Maurice Kay : 
1.	This is the judgment of the court, to which both members have contributed substantially.
2.	The court has before it two claims concerning the interpretation of what has become known as “the proviso” to section 31(1) of the Highways Act 1980.  The claimants challenge the approach towards the proviso that was adopted in R v. Secretary of State for the Environment, ex parte Billson [1999] QB 374 and followed in R v. Secretary of State for the Environment, Transport and the Regions, ex parte Dorset County Council [2000] JPL 396.  The claims are brought with the support of the Ramblers Association.
3.	The claims arise out of applications made under section 53 of the Wildlife and Countryside Act 1981 for modification orders adding public footpaths to the definitive map and statement of rights of way kept by the relevant surveying authority.  In each case a modification order was made but, as a result of an objection by the landowner, was submitted to the Secretary of State for confirmation pursuant to the provisions of schedule 15 to the 1981 Act.  In each case the outcome of the confirmation process was an inspector’s decision not to confirm the order.  The same inspector, Helen Slade, happens to have acted in both cases.  It is her two decisions that are the subject of the challenge.  
Legislative framework
4.	Section 31 of the 1980 Act provides:
“(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.
(3)  Where the owner of any land over which any such way as aforesaid passes –
(a)  has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and 
(b)  has maintained the notice after the 1st January 1934, or any later date on which it was erected,
the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.
(4)  In the case of land in the possession of a tenant for a term of years, or from year to year, any person for the time being entitled in reversion to the land shall, notwithstanding the existence of the tenancy, have the right to place and maintain such a notice as is mentioned in subsection (3) above, so, however, that no injury is done thereby to the business or occupation of the tenant.
(5)  Where a notice erected as mentioned in subsection (3) above is subsequently torn down or defaced, a notice given by the owner of the land to the appropriate council that the way is not dedicated as a highway is, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner of the land to dedicate the way as a highway.
(6)  An owner of land may at any time deposit with the appropriate council –
(a)  a map of the land on a scale of not less than 6 inches to 1 mile, and
(b)  a statement indicating what ways (if any) over the land he admits to have been dedicated as highways;
and, in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time –
(i)  within six years from the date of the deposit, or
(ii) within six years from the date on which any previous declaration was last lodged under this section, 
to the effect that no additional way (other than any specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgment of such previous declaration, as the case may be, are, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner or his successors in title to dedicate any such additional way as a highway.
…
(9)  Nothing in this section operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years, or being presumed or proved in any circumstances in which it might have been presumed or proved immediately before the commencement of this Act ….”
The Godmanchester claim
5.	On 13 August 1999 Godmanchester Town Council applied to Cambridgeshire County Council as surveying authority for a modification order adding to the definitive map and statement a public footpath around the perimeter of Monks Pit, Godmanchester, linking two points already shown on the Cambridgeshire definitive map as Public Footpath No.4 Godmanchester.  Following an initial refusal by the county council to make the order and a successful appeal, the Secretary of State directed the making of the order.  The order, known as the Cambridgeshire County Council (Public Footpath No. 15 Godmanchester) Definitive Map Modification Order 2002, was made on 20 March 2002.  The owners of the land over which the footpath runs objected to the order, which was accordingly submitted for confirmation to the Secretary of State.  An inspector was appointed, a public local inquiry was held in February 2003, and the decision letter was issued on 21 March 2003.
6.	The modification order was made under section 53(2)(b) and (3)(c)(i) of the 1981 Act, on the basis that evidence had been discovered which, when considered with all other relevant available evidence, showed that a public right of way on foot subsisted or was reasonably alleged to subsist over the footpath.  Before the inspector, the case for the order was presented on behalf of the town council and was based on oral and written witness evidence of public user of the footpath for a period in excess of 20 years, which was claimed to satisfy the requirements of section 31 of the 1980 Act or, in the alternative, to justify an inference of dedication at common law.
7.	The inspector found that, subject to the proviso, the requirements of section 31 were satisfied.  The right of the public to use the footpath had been “brought into question” within the meaning of section 31(2) in April 1999 by the erection of a fence across its route.  The relevant 20 year period for the purposes of section 31(1) was therefore April 1979 to April 1999.  There had been use of the footpath by the public on foot “as of right and without interruption” for that 20 year period.  
8.	The inspector then turned to the proviso.  She directed herself by reference to Dorset, stating:
“24. … In order for it to be presumed that a highway has been dedicated, it is necessary to show that during the 20-year period in question, the landowner made no indication that it was not his intention to dedicate a footpath.  If it can be shown that the landowner did make such intention clear, then any claim must fail.  The Dorset case is relevant to this issue, and the objector drew my attention to it.  It was held that any action on the part of the landowner in this respect had to be contemporaneous (to avoid a retrospective assertion being made) and it had to be overt (i.e. not secretive).  However, it was not considered necessary for that intention to necessarily be made known to the users of the way …”
9.	The inspector referred to various matters which were not sufficient to satisfy her that there was no intention to dedicate.  But there was one piece of evidence which she did consider to be sufficient for this purpose:
“28.  Nevertheless, I have considered carefully the evidence of the letter dated 27 July 1990 to the County Council’s Planning Officer.  This letter makes a clear reference to the problems being experienced by the landowner in relation to trespass.  Several problems are mentioned including the unauthorised vehicular access and the illegal use of the water area.  But the last two sentences are, in my view, the crucial ones.  I therefore quote them in full as follows:
‘We are somewhat reluctant to erect security fencing to prevent pedestrian trespass around those parts of the pit which are not designated as a public footpath but clearly something has to be done to prevent illegal access to the land if the public is unwilling to restrict its movement to the definitive line of the footpath.  Your comments on this point, in particular, would be appreciated.’
29.  Unfortunately, the response from the County Council was not presented to the inquiry, but that does not detract from the nature of the statement I have quoted.  Given that at the time it was written, there was only one footpath on the definitive map (Footpath 4) it is difficult to interpret the letter in any other way than indicating that the landowner did not want pedestrian access round the pit (or lake).  Even if the meaning of the word ‘trespass’ in this context is unclear, I consider that the specific reference to ‘illegal access’ clearly relates to pedestrian activity.
30.  In my view this letter is contemporaneous as it was written during the period of 20-years use prior to 1999.  It is also overt in that it was a letter written openly to a local authority department as part of the planning process connected with the permission to reinstate the area, following the remedial road works to the A14.  As I have indicated in paragraph 24 above, it is not necessary for the contents of this letter to have been made known to the users of the path for it to satisfy the criteria of the 1980 Act.  I must therefore conclude that it does constitute evidence of a lack of intention to dedicate, expressed during the relevant period, and thus the claim does not satisfy section 31 of the 1980 Act.”
10.	In the remainder of the decision letter the inspector rejected the alternative argument that a right of way had been shown to exist at common law.
Dr Drain’s claim
11.	On 20 May 1994 Dr Drain, acting on behalf of the Ramblers Association, applied to Berkshire County Council, the then surveying authority, for a modification order adding to the definitive map and statement a public footpath in the parishes of Streatley and Aldworth linking Byway 24 Aldworth to Footpath 7 Streatley.  Following an initial refusal by the council to make the order and a successful appeal, the Secretary of State directed the successor authority, West Berkshire District Council, to make the order.  The order, known as the West Berkshire District Council Definitive Map and Statement Modification Order 2000, was made on 4 September 2000.  The owners of the land over which the footpath runs, Yattendon Estates Limited, objected to the order, which was accordingly submitted for confirmation to the Secretary of State.  An inspector was appointed, a public local inquiry was held in April 2002, and a decision not to confirm the order was issued in May 2002.  That decision was challenged by way of judicial review and was quashed by consent in September 2002 on grounds that are not material to the present proceedings.  A new inspector was appointed, a second public local inquiry was held in March-April 2003, and a fresh decision letter was issued on 9 June 2003.  It is that fresh decision which is now challenged.
12.	The modification order was made under section 53(2)(b) and (3)(b) of the 1981 Act, on the basis that there had expired in relation to the footpath a period such that the enjoyment by the public of the footpath during that period raised a presumption that it had been dedicated as a public path.  Before the inspector the case for the modification order was presented by Dr Drain and was based on oral and written witness evidence of public user of the footpath from the 1920s onwards, which was claimed to satisfy the requirements of section 31 of the 1980 Act or, in the alternative, to justify an inference of dedication at common law.
13.	In this case, too, the inspector found that, subject to the proviso, the requirements of section 31 were satisfied.  The right of the public to use the footpath had been “brought into question” within the meaning of section 31(2) in 1992 by the erection of a sign reading “Private No Footpath” near each of its end points.  The relevant 20 year period for the purposes of section 31(1) was therefore 1972 to 1992.  There had been use of the footpath by the public on foot “as of right and without interruption” for that 20 year period.  
14.	Turning to the proviso, the inspector referred first to a number of matters that were not sufficient to satisfy her that there was no intention to dedicate.  But she went on:
“49.  However, as I have mentioned in paragraph 38 above, a copy of the tenancy agreement between the Estate and the tenant farmer was presented in evidence, and contained a pertinent clause.  Clause 17 of the agreement relates to game and trespass, and states:
‘… To warn and keep off all unauthorised persons from shooting fishing sporting molesting the game or trespassing over any part of the farm to give notice to the Landlord of any continued acts of trespass and not to allow any footpaths to be created.  To permit the Landlord to take proceedings against trespassers or poachers in the Tenant’s name.  To lay information and give evidence and sign if required notices to trespassers and others to keep off the farm.’
Although this clause appears to deal largely with the protection of the sporting interests in the land, the language is sufficiently broad to include reference to ‘others’.
50.  In order for me to interpret the significance of this evidence, I refer to the cases of R v. Secretary of State for the Environment ex parte Billson [1998] (‘Billson’) and R v. Secretary of State for the Environment, Transport and the Regions, ex parte Dorset County Council [1999] (‘Dorset’).  If I apply the findings of Dyson J in Dorset I must consider whether the tenancy agreement constitutes an act sufficient to satisfy what he refers to as the ‘proviso’ of Section 31(1) of the 1980 Act.  In this he was guided by the judgment of Sullivan J in Billson which suggested that any action taken to satisfy the proviso needs to be overt and contemporaneous, but does not necessarily have to be communicated to the users.
51.  Although the tenancy agreement was an agreement only between the parties concerned, it was a legal document and was drafted in accordance with various agricultural legislation in force at the time.  It dates from 1950, but at the inquiry the Land Agent confirmed that it was still in force in 1986 when the tenant farmer retired.  The Company which was formed in 1955 to manage the affairs of the Estate took over all such agreements that had previously been in force.  As the agreement was still extant in 1986, it was in force for a substantial part of the 20-year period I am considering in respect of the Order route.  The tenancy agreement was therefore in my view an overt and contemporaneous expression of the wishes of the landlord in respect of the tenant’s management of the property.  The judgment in Billson makes it clear that the lack of intention to dedicate does not have to be demonstrated throughout the whole period of 20 years, as long as it is manifest for a sufficient part of it.  I consider that 14 years (1972 to 1986) is a sufficient period to qualify.  The accepted interpretation of the proviso means that to satisfy the requirements of Section 31 of the 1980 Act the tenant did not need to put the terms of the clause sufficiently into practice to bring home to users that his landlord had no intention of dedicating any public rights of way across the land.  As I have already concluded in paragraph 48 above that the signage was not effective in this regard, there is no evidence that he did so.  Nevertheless, I conclude that the existence of Clause 17 in the tenancy agreement is sufficiently overt and contemporaneous to satisfy the proviso.  I consequently consider that there is sufficient evidence of a lack of intention to dedicate the public right of way during the relevant period.”
15.	Finally, the inspector concluded that no inference of dedication could be made at common law.  
Issues
16.	There are three issues:
i)	whether the inspector was wrong to apply the approach in Billson and Dorset as to the character of the evidence required to satisfy the proviso, in particular that it is not necessary for the acts relied on to have been communicated to users of the way;
ii)	whether the inspector was wrong to apply the approach in Billson and Dorset that, in order to satisfy the proviso, it is sufficient to negative the intention to dedicate for part of the 20 year period and it is not necessary to prove that throughout the 20 year period there was no intention to dedicate; and
iii)	whether, even if she adopted the correct approach as regards (i) and (ii), the inspector nevertheless erred in finding sufficient evidence to satisfy the proviso in relation to the footpath in Dr Drain’s claim.
17.	The first two issues concern the correct general approach towards the proviso.  The third is a subsidiary issue turning very much on the facts of the particular case.
The character of the evidence required to satisfy the proviso
18.	Mr. Laurence’s attack on Billson and Dorset is put on the basis that the judgments of Sullivan J and Dyson J mark a departure from established principle.  It is therefore necessary to refer to earlier authority, such as it is.  The starting point is Fairey v. Southampton County Council [1956] 2 QB 439 which was concerned with section 1 of the Rights of Way Act 1932 and the proviso which was there expressed in the same terms (see, further, paragraph 36 below).  The ratio of the case is concerned with when the right of the public to use a way is “brought into question” within the meaning of what is now section 31(2).  However, Denning LJ went on to say, obiter, at page 458:
“In my opinion a landowner cannot escape the effect of twenty years’ prescription by saying that, locked in his own mind, he had no intention to dedicate: or by telling a stranger to the locality (who had no reason to dispute it) that he had no intention to dedicate.  In order for there to be ‘sufficient evidence that there was no intention’ to dedicate  the way, there must be evidence of some overt acts on the part of the land owner such as to show the public at large – the public who used the path, in this case the villagers – that he had no intention to dedicate.  He must, in Lord Blackburn’s words, take steps to disabuse those persons of any belief that there was a public right: see Mann v. Brodie (1885) 10 App. Cas. 378, 386. Such evidence may consist, as in the leading case of Poole v. Huskinson (1843) 11 M&W 827, of notices or a barrier: or the common method of closing the way one day a year.  That was not done here; but we must assume that the land owner turned off strangers in so open and notorious a fashion that it was clear to everyone that he was asserting that the public had no right to use it.  On this footing there was sufficient evidence to show that there was no intention to dedicate.”
On this basis, evidence of a lack of intention to dedicate is only “sufficient” if it is of “overt acts” such as to manifest the lack of intention to the users.  
19.	Between 1983 and 1994, the judgment of Denning LJ was considered in a number of cases, in most of which Mr. Laurence appeared as counsel.  In The Queen v. Secretary of State for the Environment, ex parte Blake [1984] JPL 101, Walton J said (at page 102):
“Quite clearly, it was not sufficient for the landowner merely to come along and beat his breast and say that all  was lost, because there was an intention never to dedicate.  That intention had to be manifested by sufficient overt or notorious acts.”
20.	Section 31 was considered by the Court of Appeal in R. v. Secretary of State for the Environment, ex parte Cowell [1993] JPL 851.  In his judgment Rose LJ rejected an argument that “sufficient evidence” in subsection (1) was limited either to or by the matters identified in subsections (3) to (6).  He added (at page 855):
“Although proof of matters there identified would provide sufficient evidence in a particular case, what evidence was sufficient in other cases would necessarily vary from case to case.”
Both Rose LJ and Staughton LJ referred to the dicta of Denning LJ in Fairey, Staughton LJ commenting (at page 857) that the manifestation of intention by some overt act –
“was not said in the section itself, but it seemed a sensible rule.  Subsections (3), (5) and (6) all dealt with acts which were, to a greater or lesser extent, overt; those were examples of how sufficient intention might be demonstrated.  So perhaps it was right to say that evidence of intention had always to be in the form of overt acts.”  
He added:
“But did it have to be overt to every single user of the way on every single day of the year?  There was nothing in the section to say that.  Denning LJ in the Fairey case gave as an example the common practice of closing a way for one day in the year.  He (Staughton LJ) was not sure that that would always be sufficient - for example if the land owners chose to charge a toll on Christmas Day, when nobody would be out riding their horses or on a day when there was a howling blizzard and when nobody would go out, even on a horse.  It might be thought that that was not sufficient evidence of an intention not to dedicate.  Again it was a question of fact.”
21.	In Ward v. Durham County Council (1994) 70 P&CR 585 Sir Donald Nicholls VC said (at page 590):
“In the absence of overt acts demonstrating an intention not to dedicate, such as displaying a ‘no right of way’ notice, the court ought to be slow to find that a landowner’s unexpressed intention not to dedicate is sufficient evidence for the purpose of section 31.”
22.	In O’Keefe v. Secretary of State for the Environment and Isle of Wight County Council [1996] JPL 42 Pill J referred to Fairey, Blake and Cowell and stated (at page 59):
“On the point of construction, there was of course a danger of putting a gloss on the word ‘intention’ in the statute and normally, when intention was at issue, a witness was permitted to say after the event what his intention at the time had been.  In the context of the 1980 Act however, he (Pill J) respectfully agreed that intention had to be made manifest by contemporaneous and overt acts.  The object of the Act, or one of its objects, was to simplify proof of dedication which was presumed upon proof of user.  The statute gave a landowner means of protection against that presumed dedication upon production of sufficient evidence to negative the intention to dedicate during the relevant period of use.  Read as a whole, section 31 contemplated overt acts during the relevant period; use, as defined, on the one hand, acts which negative an intention to dedicate on the other….  Further, it would be a rare case in which a statement after the 20-year period of what the intention had been during that period could be ‘sufficient evidence’ unless made manifest by acts during the 20-year period.”
An appeal to the Court of Appeal was dismissed [1998] JPL 468, but there is no statement of principle regarding this aspect of the case in the judgment of Mummery LJ.
23.	The last of the pre-Billson cases is Jaques v. Secretary of State for the Environment [1995] JPL 1031, a decision of Laws J.  He said (at page 1037):
“.. under section 31 the landowner had to prove merely that he had no intention to dedicate; certainly, he had to prove it by overt acts, directed (as Lord Denning indicated in Fairey) to the public who use the way in question.”
Laws J then found that, in the case before him, the landowner had disproved by overt acts plainly directed to the users any intention on his part to dedicate.  However, he then proceeded to consider section 31(1), observing that “despite the statutory changes, the area of the law remains convoluted”.  Having set out what persons asserting a right of way must prove under the first part of the sub-section, he added (at pages 1037 – 1038):
“Quite plainly, the second part of section 31(1) imported a further requirement.  It meant that even if use of the required quality was proved, the status of right of way would not be established if the landowner demonstrated an intention not to dedicate.  The logical relationship between the two parts of the sub-section entailed that proof of an intention not to dedicate could be constituted by something less than proof of facts  which had to have made it clear to the public that they had no right to use the way: otherwise, once the interested public had established their case under the first part of the subsection, there would be no room for the operation of the second part.  That was not a very satisfactory state of affairs.  It was plain that the landowner had to disprove an intention to dedicate by overt acts directed to the members of the public in question, but equally plain that they need not actually bring home to the public that there was no right to use the way.  He could only conclude that any sufficiently overt act or series of acts indicating an intention to keep the way private would be enough for the landowner’s purposes in relation to the second part of the subsection, though they did not in fact bring home to the public his objection to their using his land.”
24.	We now turn to Billson and Dorset.  
25.	The landowner in Billson succeeded because the users were unable to establish user as of right.  When Sullivan J turned to consider “sufficient evidence” under the proviso, what he said was therefore obiter.  He said this (at pages 394H to 395F):
“Is the deed ‘sufficient evidence’ of the landowner’s intention given that it was not publicised or made manifest to the users of the way?
The authorities cited by Mr. Laurence, ex parte Blake …, ex parte Cowell …,  Ward’s case … and O’Keefe’s case … do no more, in my view, than establish the proposition that evidence of the landowner’s intention must be overt and contemporaneous.  Thus it will not avail the landowner to assert after the event that he had no intention to dedicate, but he is not required to publicise his intention to users of the way.
The only dicta to the contrary are those of Denning LJ in Fairey v. Southampton County Council.  Mr. Laurence accepts that they were obiter.  In so far as they equate the evidence necessary to satisfy the proviso with the evidence necessary to bring home to the public that their right to use the way is being called into question, they go too far, in my view.  
Implicit in Mr. Laurence’s submissions is the existence of a very fine line between acts that are sufficiently ‘open and notorious’ to be capable of bringing the landowner’s intention not to dedicate to the attention of the public, and those which are not so open and notorious that they succeed in bringing the user of the way into question.  His approach seems to me to leave little if any scope for the operation of the proviso.  The landowner must not keep his intention locked in his own mind, but whether his acts are fairly described as overt or covert must be a question of fact for the inspector.  One can imagine far-fetched hypothetical examples: writing a letter to oneself and placing it in one’s desk drawer; but the inspector was entitled to conclude in this case that the formal execution of a deed addressed to ‘all men’ and depositing that deed with the appropriate government department was a sufficiently overt act.
I accept that the analogy with section 31(6) is not precise, because Parliament created a specific means of negativing intention, and the declaration has to be deposited with a highway authority and renewed every six years, but it is fair to observe that Parliament did not feel that it was necessary to bring the existence of such a declaration to the attention of the public using the way.  It is true that in order to be effective under section 31(3) the notice has to be visible to persons using the way, but erecting such a notice is merely one way of establishing a contrary intention, and is deemed to be sufficient in the absence of proof of a contrary intention.  One would expect that the evidential threshold required to bring the landowner within such a deeming provision would be relatively high.”
26.	In Dorset, Dyson J expressly adopted the reasoning of Sullivan J in Billson.  It is common ground that the judgment of Dyson J on the proviso is part of the ratio of the case.  It is essentially the foundation of Mr. Mould’s submission to us  It is necessary to set it out at some length.  Dyson J said  (at pages 406 to 407):
“On the face of it, the language of the proviso is straightforward.  All that is required is that there be sufficient evidence of lack of intention to dedicate.  Coming to the matter untutored by previous authority, one may be forgiven for thinking that what Parliament intended was that the tribunal of fact simply decide as a matter of fact whether there is or is not sufficient evidence of intention to dedicate.  Indeed, in Cowell, Rose LJ emphasised that it is a question of fact.  Staughton LJ made the point that the need for an overt act is not to be found in the statute.  In O’Keefe Pill J referred to the danger of putting a gloss on the word ‘intention’.  I accept that as a matter of fact the tribunal of fact will rarely, if ever, find that there is sufficient evidence of lack of intention to dedicate in the absence of overt and contemporaneous acts on the part of the owner.  I do not, however, think that such a requirement can be spelled out of section 31(1) as a matter of construction. 
In my judgment, Parliament left it to the tribunal of fact to decide whether the evidence in any given case is sufficient for the purposes of negativing the intention to dedicate.  The section states no criteria as to what constitutes ‘sufficient evidence’, although in section 31(3) and (6) two particular examples are given as to what will suffice ….  [I]t cannot be suggested that sub-sections (3) and (6) are exhaustive of the circumstances in which there will be sufficient evidence.  They are (the only) two examples of what, as a matter of law, will amount to sufficient evidence.
I would therefore not place any gloss on the proviso at all.  But if a gloss is justified, it seems to be common ground that it cannot be that advocated by Denning LJ.  As explained by Sullivan J … the intention not to dedicate does not have to be brought home to the users, since otherwise, in view of section 31(2), there would be no role for the proviso at all.  Furthermore, as explained by Laws J, the relationship between the two parts of section 31(1) itself demands that, in disproving an intention to dedicate, the owner need not bring home to the users that there was no right to use the way ….
It is necessary to stand back from the textual criticism to which the various obiter dicta have been subjected, and seek to ascertain the purpose of the proviso.  It is clearly to protect the landowner, by enabling him to defeat a claim of presumed dedication by proving that he did not intend to dedicate.  The only requirement imposed by Parliament is that there should be sufficient evidence of that intention.  In my view, there is no reason in logic or policy why the only evidence that can be sufficient is of overt acts which are aimed at the users, but which do not bring home to them the owner’s objection.  As Staughton LJ pointed out in Cowell, the overt acts rule (if that is what it is) is a sensible rule of evidence, since it prevents a landowner from asserting after the event that he had no intention to dedicate.  The rule that the owner must bring his objection home to the users is relevant to section 31(2) since, as Denning LJ made clear in Fairey, one of the objects of that sub-section is to give users the opportunity to meet the owner’s challenge.  But I can see no reason to construe the proviso to section 31(1) as imposing a requirement that falls somewhere between what I have called the overt acts rule and that which is required for the purposes of section 31(2).”
27.	In the present cases the Inspector expressly relied upon and applied Dorset and, to a lesser extent, Billson.  For the applications to this court to succeed on this issue, Mr. Laurence accepts that he must persuade us they are wrong – indeed we must be “convinced” of error to be justified in not following them, particularly Dorset:  Huddersfield Police Authority v. Watson [1947] KB 842, 848.   He seeks to convince us by the following submissions: 
i)	Although there is no previous binding authority to this effect, the earlier cases are strongly persuasive authority in favour of a requirement that “sufficient evidence” connotes evidence of overt acts which come or are likely to come to the attention of users.  This is apparent from the judgments of Denning LJ in Fairey (“overt acts…. such as to show the public at large”), Walton J in Blake (“overt and notorious acts”, “indicated quite clearly to the whole world”), Staughton LJ in Cowell  (“overt acts” which might not be sufficient if it were unlikely that they would be observed), Sir Donald Nicholls VC in Ward (the example of “an overt act demonstrating an intention not to dedicate” being “displaying a ‘no right of way’ notice”), Pill J in O’Keefe (drawing on the passages to which we have just referred and relating “overt acts” to “steps … taken … to disabuse users of the belief that the way had been dedicated”) and Laws J in  Jaques (“overt acts directed … to the public who use the way in question” which “need not actually bring home to the public that there was no right to use the way”).  Sullivan J and Dyson J failed to appreciate the consistency  and force of this line of persuasive authority.
ii)	It is erroneous to suggest that construing the proviso as requiring acts which come or are likely to come to the attention of users leaves it without a role.  Some acts will be such as to render it impossible for the users to establish that the user had been “as of right” for twenty years but others, while not having that effect, may be sufficient to enable the landowner to establish the absence of an intention to dedicate, provided that they were likely to come to the attention of the users.
iii)	Section 31(3), (5) and (6), although only examples of “sufficient evidence”, justify the inference that what is required is acts that give users at least a reasonable opportunity of becoming aware of them and their significance.
iv)	It cannot have been the policy of the legislation to enable the proviso to be satisfied by proof of acts, still less a state of mind, of which users are unlikely to have contemporaneous knowledge.  Such a policy would enable a well-advised landowner to defeat a public right by an undisclosed and private act.  It would tip the balance between the interests of the landowner and the public in favour of the landowner.
v)	Such an approach is inconsistent with the policy of the Act as recently articulated by the House of Lords in R v. Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335, which was decided after Billson and Dorset.  In Sunningwell, Lord Hoffmann referred to the unpredictability of litigation concerning public rights of way before the Rights of Way Act 1932.  He said (at p358G):
“The purpose of the Act of 1932 was to make it unnecessary to infer an actual dedication and, in the absence of specific rebutting evidence, to treat user as of right as sufficient to establish the public right.”
And (at p359C):
“In passing the Act of 1932, Parliament clearly thought that the previous law gave too much weight to the interests of the landowners and too little to the preservation of rights of way which had been for many years in de facto use.  As Scott LJ pointed out in Jones v. Bates [1938] 2 All ER 237, 249, there was a strong public interest in facilitating the preservation of footpaths for access to the countryside ….”
Thus, submits Mr. Laurence, the landowner should have to show his hand openly at the time of the user, just as the users show their hand openly by using the way.  The evidence of a lack of intention to dedicate should be sufficient for that purpose, not just sufficient to satisfy an inspector or a court after the event.
28.	We do not purport to set out each and every way in which Mr. Laurence formulated and reformulated his lengthy submissions but we believe that we have summarised their essence.  They may appear to be formidable but, in our judgment, they are flawed for the reasons advanced in Billson and Dorset, as further developed by Mr. Mould in his submissions to us.
29.	Such is the extent of our agreement with the judgment of Dyson J in Dorset that it is almost otiose for us to say much more on this issue.  However, we are disposed to say:
(1) We agree with Sullivan J and Dyson J that the dicta of Denning LJ in Fairey should not be followed.  We agree with what Laws J said in Jaques about the relationship between the two parts of section 31(1).
(2) We reject the submission that Sullivan J and Dyson J failed to appreciate the consistency and force of a line of persuasive authority.  To a significant extent the passages relied upon by Mr. Laurence were conditioned by the dicta of Denning LJ with which we respectfully disagree.
(3) Like Dyson J, we consider that it is misleading to speak of “the overt acts rule”.  In our judgment, there is no such rule of law in relation to the proviso.  The words of the statute simply do not require it.  Indeed, we question whether it is properly described as a “rule” of evidence.  What can be said is that, in the absence of something overt and contemporaneous, a landowner will generally find it difficult to point to “sufficient evidence” of a negative – a lack of intention to dedicate.  Ultimately, however, what is “sufficient evidence” outside the specific circumstances contemplated by section 31(3)-(6) is, as Rose LJ said in Cowell, something that “would necessarily vary from case to case”.
(4) It follows that there is no requirement that evidence of a lack of intention to dedicate must be brought to the notice of the users or be likely to come to their attention.
(5) Questions of “the balance” between the users and the landowners are matters of policy.  Section 31(1) and its predecessor assist the users by providing for a deemed dedication upon proof of twenty years’ enjoyment as of right and without interruption, provided that the landowner cannot rebut the presumption by proving a lack of intention to dedicate.  That is as far as Parliament sees fit to go in addressing the balance and it is neither necessary nor desirable for us to go further.
(6) We are unpersuaded that the decision of the House of Lords in Sunningwell requires us to depart from Billson and Dorset.  Sunningwell is not concerned with the proviso in section 31(1).  Its subject-matter is the state of mind of users who are seeking to establish enjoyment “as of right”.
30.	For these reasons, we conclude that Dorset was correctly decided and that the Inspector in the present cases was right to apply it to the evidence before her.  In these circumstances, Mr. Laurence accepts that he can only succeed in the claims or either of them upon the other issues to which we now turn.
The meaning of “during that period” 
31.	Mr Laurence introduced this issue as a “postscript”, by a relatively late amendment of the grounds.  His enthusiasm for it grew even during the course of the hearing.  If the court rejects his submissions on the previous issue, he sees this as an alternative way of achieving what he submits to be an appropriate balance between the interests of users and the interests of landowners in the operation of section 31.
32.	Mr Laurence’s basic submission is that, when the proviso refers to sufficient evidence that there was no intention “during that period” to dedicate the way as a highway, the expression “during that period” is to be read as meaning “throughout that period”.  In order to satisfy the proviso, therefore, there must be sufficient evidence to show that there was a continuous intention not to dedicate throughout the 20 year period.
33.	A similar argument was advanced by Mr Laurence without success in Billson. Sullivan J held:
“I do not accept Mr Laurence’s submission that for the proviso to operate at all there must be evidence that there was no intention to dedicate for the whole of the 20-year period.  Whilst ‘that period’ is a reference back to the 20-year period, ‘during that period’ is not be equated with ‘throughout that period’.  Thus, if there is sufficient evidence that for say five or ten years during the 20-year period a landowner who objected to riders or walkers across his land had no intention to dedicate, that would defeat a claim of dedication under section 31(1). I consider that such an approach is consistent with that adopted by Balcombe LJ in Ex parte Cowell [1993] JPL 851 in respect of the effect of a section 31(3) notice which is not maintained throughout the whole of the relevant period.  It is effective for the period during which it is maintained.  If the evidence shows that there was no intention to dedicate for only a very short period during the 20 years questions of de minimis may well arise.  They would have to be resolved on the facts by the inspector hearing the evidence” (395G-396B).
34.	In common with the rest of what he said in relation to the proviso, Sullivan J’s observations on the “during” issue, although obiter, were carefully considered.  Further, his approach was again followed by Dyson J in Dorset, though the specific point does not appear to have been the subject of further argument.  Dyson J held at p.408 that an objection made by the landowners in 1975 was “the clearest overt act which evidenced the owners’ intention not to dedicate” and that the inspector had been reasonably entitled to conclude that the objection “had continuing effect into the 20 year period ending in August 1995”.  Having referred in that respect to a letter dated 10 October 1977 which the inspector had treated as sufficient evidence of the owners’ continuing intention not to dedicate the way, Dyson J concluded:
“That was sufficient evidence that there was no intention to dedicate during the 20 year period ending in August 1995. In my view, it is impossible to impugn the Inspector’s decision on this point.”
35.	It seems to us that, in order to persuade this court to depart from the approach adopted in Billson and Dorset, Mr Laurence must surmount the same hurdle as in relation to the previous issue: he must convince us that Sullivan J and Dyson J were wrong.
36.	His first submission raises a point not advanced in the previous cases.  It is based on the statutory predecessor to section 31 of the 1980 Act, namely section 1 of the Rights of Way Act 1932.  In its original form section 1 read:
“(1) Where a way, not being of such a character that user thereof by the public could not give rise at common law to any presumption of dedication, upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of twenty years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way, or unless during such period of twenty years there was not at any time any person in possession of such land capable of dedicating such way.
(2) Where any such way has been enjoyed as aforesaid for a full period of forty years, such way shall be deemed conclusively to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way.”
The words we have italicised in subsection (1), which Mr Laurence conveniently refers to as the second proviso, and the whole of subsection (2) were subsequently deleted by amendment.  They are relied on, however, as casting light on the proper construction of the first proviso to subsection (1) and, therefore, of the statutory successor to that proviso in section 31(1) of the 1980 Act.
37.	The background to the second proviso was that at common law an intention to dedicate land as a highway could be inferred only against a person who had the capacity to dedicate it; and, in particular, where the land was in settlement, there could be no valid dedication unless all parties interested in the settlement were sui juris and concurred or could be presumed to concur.  The second proviso reflected the common law position by providing that there could be no deemed dedication if it was proved that at no time during the 20 year period was there a person in possession with the capacity to dedicate, as in a case where the land was in settlement for the whole of the period.  Mr Laurence’s submission is that, since “during such period of twenty years” in the second proviso plainly meant “throughout such period of twenty years”, and like expressions in the same subsection must bear the same meaning, it follows that “during that period” in the first proviso must also have meant “throughout that period”; and the meaning of the expression cannot have changed between then and the inclusion of the same proviso in section 31(1) of the 1980 Act.  
38.	We reject that submission.  In the case of the second proviso, the need to prove that the criterion was met throughout the 20 year period arose out of the use of the additional words “at any time”.  Those words are strikingly absent from the first proviso.  Had it been the legislative intention to require sufficient evidence that there was no intention to dedicate “at any time” during the 20 year period, i.e. to require proof of the lack of such an intention throughout the period, one would expect the same formula to have been used as in the second proviso.  In our judgment, therefore, Mr Laurence’s reference to section 1(1) of the 1932 Act works against his case rather than in favour of it.
39.	The rest of the argument based on the language and structure of the statutory provisions can be considered by reference to section 31 of the 1980 Act, though corresponding points could be made about section 1 of the 1932 Act.  Mr Laurence points to an element of continuity inherent in the provisions of section 31(3)-(6).  By subsection (3) a notice is sufficient evidence to negative the intention to dedicate if the owner has erected it in the manner specified and “has maintained the notice after the 1st January 1934, or any later date on which it was erected”.  Subsection (6) treats the deposit of a map and statement as having continuing effect only if followed up, at intervals not exceeding six years, by appropriate statutory declarations.  It is submitted that such provisions support the view that the proviso requires proof of a continuing lack of intention to dedicate throughout the 20 year period.  
40.	In our view the subsections do not take matters very far.  It is true that they refer in each case to a continuing state of affairs.  They do not specify, however, that that state of affairs must continue for the whole of the 20 year period in order for the subsections to apply.  On the face of it, their effect is to create a statutory presumption of sufficient evidence to negative the intention to dedicate for so long as the conditions laid down continue to be met.  They are neutral on the question whether the intention must be negatived throughout the 20 year period or whether it suffices to negative it for part of the 20 year period.  Moreover, even if section 31(3)-(6) were to be read as applying only where the relevant state of affairs continued for the whole of the 20 year period, it would not follow that the general terms of the proviso in section 31(1) were to be read in the same way.  There would be no illogicality in requiring strict conditions to be met in order to give rise to a statutory presumption in the landowner's favour, while leaving it open for assessment on the facts of an individual case whether acts of a character, or in respect of a period of time, insufficient to meet the strict conditions were nevertheless sufficient evidence to negative the intention to dedicate.
41.	Mr Mould posits a case where, during the first years of the 20 year period, there is no evidence that the landowner intended not to dedicate, but during the latter part of the period the landowner deployed one of the means provided for in section 31(3)-(6) as evidencing his lack of intention to dedicate.  On the claimants' approach the action taken by the landowner would be incapable of amounting to sufficient evidence to displace the rebuttable presumption of dedication, because there would be no evidence of such intention subsisting throughout the 20 year period.  That, submits Mr Mould, cannot reasonably be said to have been the legislative intention.  The purpose of the provisions is to give the landowner confidence that continuing public use of his land for passage will not, of itself, give rise to a public right being established against him.  It cannot be right that such protection will not be achieved unless and until 20 years have elapsed since the landowner acted under the provisions.
42.	Mr Laurence, on the other hand, submits that it cannot have been the legislative intention to allow claims by the public to be defeated as easily as will be the case if the approach in Billson and Dorset is followed on the "during" issue as well as the first issue. That approach would not only enable claims to be defeated by evidence of an intention not to dedicate after, say, 19 years of use of the way by the public as of right and without interruption (or after, say, 38 years of the 40 year period that formerly existed under section 1(2) of the 1932 Act), but would also enable them to be defeated by sharp practice after, say, 21 years of such use had passed.  At that point the landowner could do some private act (in the sense of an act that did not come to the knowledge of users of the way) sufficient to negative the intention to dedicate but insufficient to bring into question the public's right to use the way.  He could then wait for some time before doing an act sufficient to bring the right into question.  Once the right was brought into question, the 20 year period would be calculated back from that time; and the landowner, by his earlier private act, would have engineered a situation in which there was sufficient evidence to negative the intention to dedicate during the 20 year period.  That line of reasoning is relied on as reinforcing the case for construing "during that period" as meaning "throughout that period" if it is held that private acts are sufficient to negative the intention to dedicate. 
43.	We prefer Mr Mould's submissions as to legislative intent.  In our view it is more likely that the legislature intended the statutory presumption of dedication to be rebuttable by sufficient evidence to negative the intention to dedicate for part of the 20 year period (subject to the question of de minimis) than that it intended to require the landowner to prove the lack of an intention to dedicate throughout the 20 year period.  The possibility of sharp practice, as identified by Mr Laurence, is not a strong enough reason for adopting the construction he puts forward.  Even if a claim under the statute could be defeated by such a device, it might well still be possible to infer a dedication at common law.  Although Mr Laurence described this as very much a last throw, it is something to which a decision-maker could be expected to give particularly close attention in circumstances of the kind envisaged.
44.	A further aspect of Mr Mould's case to which we should refer is his submission that the effect of section 31 of the 1980 Act and of its statutory predecessor is that 20 years’ user as of right and without interruption creates a statutory presumption of a continuing intention to dedicate, which may be rebutted in accordance with the proviso by showing that the continuity is broken.  In our view it is wrong to talk in terms of a continuing intention to dedicate.  Where at common law a period of user as of right gives rise to an inference of dedication, the inference is of dedication at a point of time before or at the same time as the earliest user:  see e.g. Halsbury’s Laws, 4th ed. (2004 reissue), vol.21, para 118, and Turner v. Walsh (1881) 6 App Cas 636, as quoted in Williams-Ellis v. Cobb [1935] KB 310, 324-5.  In those circumstances it does not make sense to talk of a continuing intention to dedicate during the period of user.  The same must apply in relation to the statute:  if 20 years’ user gives rise to a deemed dedication, what is deemed to have occurred is a dedication at a point of time rather than a continuing intention to dedicate over the 20 year period.  Rejection of Mr Mould’s argument on that point, however, does not entail rejection of his wider submission that Billson and Dorset were correctly decided on the “during” issue.  There is no reason in principle why the statute should not provide that, where 20 years’ user gives rise to a presumption of dedication at some point of time, the presumption may nonetheless be rebutted by sufficient evidence that for part of those 20 years there was no intention to dedicate.
45.	To the extent that the decided cases under section 31 of the 1980 Act or its statutory predecessor cast any light on the "during" issue, they tend to support the construction adopted in Billson and Dorset.  
46.	In Fairey, Birkett LJ said of section 1 of the 1932 Act:
“It does not profess to alter the general law as to the manner in which public rights are deemed to have come into existence.  The important change is in the length of time which is enough to establish the intention.  If the way can reasonably be presumed to have been dedicated as public, then proof of public user for 20 years past is now enough, if the user has been ‘as of right’, without interruption, and it is not proved by the landowner that the intention to dedicate the way was not continuous during the 20 years …” (p.460, emphasis added).
Mr Laurence makes various criticisms of that passage, including what is said about the relationship between the common law and the statute (a point upon which we have already touched), but the fact remains that Birkett LJ clearly read the proviso in a way that is contrary to the claimants’ submissions on the “during” issue:  he regarded it as sufficient for the landowner to prove that at some part of the 20 years there was no intention to dedicate.
47.	Mr Simpson also drew our attention to certain observations of Denning LJ in the same case.  In the context of his finding that the Rights of Way Act 1932 was retrospective, Denning LJ referred to the interval of 17 months between the time when the Act was passed (12 July 1932) and the time when it came into operation (1 January 1934).  He stated:
“If a notice were put up before 1933, it would have this effect: if the 20 years had not then run, the notice would prevent a public right being acquired; whereas if it had already run, the notice would serve as an emphatic assertion that the path had heretofore been used by tolerance of the owner and not by right of the public ….”
Mr Simpson relies on the passage as showing that Denning LJ was of the view that a notice put up for only the last part of the 20 year period would negative the intention to dedicate within the meaning of the proviso.  We consider it more likely, however, that, as Mr Laurence submitted in reply, Denning LJ’s point was simply that the erection of a notice would cause the right of the public to use the way to be brought into question (see section 1(6) of the 1932 Act) and that he was not expressing any view about the operation of the proviso.  On the “during” issue, therefore, we derive no assistance one way or the other from Denning LJ’s judgment.
48.	Blake concerned a challenge to a decision of the Secretary of State, accepting an inspector’s recommendation, that a path known as Green Drive had not been dedicated as a bridleway.  Walton J held that the starting point was section 31 of the 1980 Act, in relation to which there were two essential matters:  the first was the question of 20 years’ user as of right and without interruption, and the second was the proviso.   In relation to the proviso, he stated that the onus was upon the landowner, Sheffield City Council, “to show that they had no intention during the relevant period, or during sufficient part of the relevant period, to dedicate the land” (p.103). That suggests that he thought it sufficient for the intention to dedicate to be negatived for part of the period.  
49.	That view is supported by what Walton J went on to say in relation to the first factual matter relied on, namely the erection of a notice:
“It was impossible for Sheffield to rely upon the specific defence in section 31 since it was quite clear that although the notice was put up, it was not maintained in position for the whole of the period.  But that did not prevent the fact that there was one there at the commencement of the period from being taken into consideration.
The inspector had established that there was in position, on the balance of probabilities, of course, until around 1956, a notice stating that the user of the path was entirely permissive.  Although Sheffield could not rely, under the terms of section 31, upon the special defence of a notice, it was at the least a strong public statement available to be seen by all those using Green Drive that it was only being used permissively.  If this was right, that demonstrated by itself that there was no intention on the part of Sheffield to dedicate the road as a highway of any sort until after around 1956.  The bearing of this on the case was obvious; between 1956 and 1973, when all access to horse riders was cut off, there was less than 20 years.  This aspect of the matter by itself would be fatal to the applicant’s case” (pp.103-4).
50.	Although he appears to have considered that a notice needed to be maintained for the whole of the period in order to come within the specific “defence” in section 31(3), he plainly regarded the presence of the notice for part of the period as sufficient to negative the intention to dedicate under the general terms of the proviso.  It is true that the language used, with its reference to permissive user, harks back to the issue of user as of right; but the issue with which he was dealing was the proviso, and it was in the context of the proviso that he considered this aspect of the matter by itself to be fatal to the applicant’s case.  That point is not affected by the fact that he went on to examine other evidence of an intention not to dedicate and concluded that Sheffield had made out its case that “it had at all material times and for all material periods indicated quite clearly to the whole world that it was not proposing to dedicate the Green Drive as a bridleway” (p.104).
51.	In “Cowell” it was held that the charging of a periodic toll could amount to sufficient evidence that there was no intention to dedicate.  This is not in itself inconsistent with the claimants’ case that there must be a continuing intention not to dedicate throughout the 20 year period:  as the claimants submit, recurrent or even sporadic acts might be such that, taken together, they could properly be held to amount to sufficient evidence of a continuing intention.  The central reasoning in Cowell therefore adds nothing on this issue.  At the end of the judgment, however, Balcombe LJ made this observation:
“Their Lordships had cited all the relevant cases save one which he would mention because it had formed part of Mr Laurence’s argument:  R v. Secretary of State for the Environment, ex p. Blake [1984] JPL 101 where Walton J (rightly in his view, although criticised by Mr Laurence) held that a notice which was not maintained throughout the whole of the relevant period necessary under section 31(3) could nevertheless be relied on as evidence that during the time that notice was displayed, the way was being used with the permission of the landowner, and therefore, during that period at least, there was not user ‘as of right’ ….”
That observation, endorsing what was said by Walton J in Blake, was picked up by Sullivan J in Billson and so provides a direct link between Blake and Billson.  For reasons already given when considering Blake, we take the view that Blake supports the approach taken in Billson towards this issue.  
52.	In conclusion, although we were at one point attracted by Mr Laurence's submissions on this issue, we are very far from convinced that the approach adopted in Billson and Dorset was wrong.   Indeed, we consider the approach to be supported by the statutory language, the balance of the argument about legislative intent and the earlier authorities.  
53.	Accordingly we take the view that the inspector was correct in both decisions to direct herself on this issue by reference to Billson and Dorset.  
The subsidiary issue in Dr Drain’s claim
54.	A subsidiary issue in Dr Drain's case is whether, even if she was right to follow the approach in Billson and Dorset, the inspector erred in finding sufficient evidence to satisfy the proviso on the facts of the case.  Mr Laurence's submission runs as follows.  As can be seen from paragraph 51 of her decision, the inspector based herself solely on clause 17 of the 1950 tenancy agreement entered into between the then owner of the freehold, Lord Iliffe, and the tenant.  When in 1955 Yattendon Estates Limited ("the company") acquired the freehold, the benefit and burden of the covenants in the tenancy agreement passed to it by operation of law.  The company's automatic succession to the benefit of the covenant in clause 17 was not, however, an expression of any intention on its part for the purposes of section 31(1) of the 1980 Act with regard to the relevant footpath.  It would be wholly artificial to attribute to the successor in title, simply by virtue of the succession and the continuance of the tenancy, Lord Iliffe's intention in imposing the covenant in the first place.  The inspector therefore erred in law or reached an unreasonable conclusion in finding that the tenancy agreement was an overt and contemporaneous expression of the company's intention not to dedicate.
55.	In our draft judgment as originally released to counsel, we said that we did not accept that what the inspector said on this issue was to be read as a bare finding on the legal consequences of succession to the tenancy agreement:  the finding needed to be read in the context of "the factual position as revealed in the unchallenged evidence before her".  Counsel for the claimant contended that our conclusion was based on a false premise, in that some of the evidence to which we referred was in fact challenged at the inquiry.  We therefore deferred the handing down of the judgment and invited further written submissions.  We have reconsidered the relevant part of the judgment in the light of the submissions received.  In the result, we accept that our original reasons require modification but we adhere to the conclusion expressed in our original draft.
56.	It was not in issue before the inspector that the company which acquired the freehold and succeeded to the tenancy agreement in 1955 was a family company which was formed in that year to manage the affairs of the Estate.  The land agent who, as the inspector stated, confirmed at the inquiry that the tenancy agreement was still in force in 1986 when the tenant farmer retired was Mr Petter.  It was not in issue that Mr Petter had been employed by the company since 1972.  He gave evidence that "[t]he Estate never had any intention of dedicating this track as a public path" and that "[e]mployees of the Estate have always been instructed to challenge members of the public who are found using the track".  He was cross-examined on both points.  In relation to the former he made no concessions.  In relation to the latter, however, he did make concessions.  Moreover it appears from other parts of the decision that on the evidence as a whole, which included a large body of evidence from users of the path, the inspector did not accept the company's case that use of the path had been subject in practice to continual challenge by farm-workers and gamekeepers over the material period (see especially paragraphs 28 and 36).  In the circumstances it would in our view be unsafe to infer that the inspector accepted Mr Petter's evidence as to the instructions given to employees of the Estate to challenge members of the public who were found using the path.  We proceed on the basis that it was a point on which she made no finding, express or implied.  We also take into account that, although Mr Petter confirmed that the tenancy agreement continued in force, there is nothing to show that he made specific reference to clause 17.
57.	The relevant factual position is therefore more complex than we had understood it to be when writing our original draft judgment.  There remains, however, the uncontested fact that the succession to the tenancy agreement in 1955 was by a family company formed to manage the affairs of the Estate.  It is clear that the inspector also heard evidence about the management of the Estate by the company during the relevant period.  This included Mr Petter’s evidence about the continuance in force of the agreement and his evidence, which was challenged but was not the subject of concession, that the company never had the intention of dedicating the track as a public path.  In our judgment the inspector's finding in relation to clause 17, when viewed against that background, should be read not as a bare finding on the legal consequences of succession and continued existence of the tenancy agreement, but as a positive finding that the company "took over" the agreement, including the covenant, with the same intention as Lord Iliffe had in entering into the agreement in the first place, and that the agreement was indeed an overt and contemporaneous expression of the company's wishes in respect of the tenant's management of the property.  
58.	On that basis, which we consider to be a fair reading of the decision, the claimant's case on the subsidiary issue falls away:  it is plain that there was no error of law and that the finding was reasonably open to the inspector.  It is therefore unnecessary for us to decide whether the bare fact of succession by operation of law to a tenancy agreement containing clause 17, and the continued existence of the agreement thereafter, would have been a sufficient basis for a finding that the successor in title did not have the intention to dedicate.  It may, however, be helpful for us to indicate that we were very far from persuaded by Mr Laurence's submissions on this issue.  There seems to us to be a strong case that, just as the terms of clause 17 of the tenancy agreement could properly be regarded as a continuing expression of the intention of Lord Iliffe so long as he was owner of the freehold, so they could properly be regarded as a continuing expression of the intention of the company following its acquisition of the freehold and its succession to the benefits and burdens of the agreement.  It is true that the benefits and burdens of the agreement passed by operation of law; but they passed only because of the deliberate acquisition of the freehold, which must be taken to have been done by the company with full knowledge of the legal consequences; and the agreement remained in force thereafter for over 30 years with no evidence of any attempt by the company to vary or determine it.   In those circumstances it is difficult to see any artificiality in attributing to the successor in title the same intention as the original owner of the freehold with regard to clause 17. 
59.	We therefore find against the claimant on the subsidiary issue in Dr Drain’s case.

Conclusion
60.	For the reasons given above, the challenge to the approach adopted in Billson and Dorset fails, and both claims must be dismissed.
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LORD JUSTICE MAURICE KAY:  For the reasons set out in the judgment now handed down, these two applications for judicial review fail and are dismissed.  
MR MOULD:  My Lord, I ask for an order to that effect in both cases and that the applications each be dismissed with the Secretary of State's costs, to be subject to detailed assessment, if not agreed, between the parties.
LORD JUSTICE MAURICE KAY:  Mr Laurence, there can be no doubt about that costs order, can there?
MR LAURENCE:  We have already made it clear, my Lord, I think, in our preliminary submissions on costs that that is so.
LORD JUSTICE MAURICE KAY:  Incidentally, thank you very much for pointing out the typographical error in paragraph 51.
MR LAURENCE:  I do not know how it crept in, my Lord, because it was not there in the draft.
LORD JUSTICE MAURICE KAY:  I know.  It has come back in from somewhere or other.
MR LAURENCE:  And it makes me fear that I might have failed to spot some other similar typographical errors.
LORD JUSTICE MAURICE KAY:  But we make it clear that in paragraph 51, where it says "in 'Cowell'" in inverted commas, "Cowell" should be italicised rather than in inverted commas.  
MR MOULD:  My Lord, I will sit down in case Mr Simpson has an application.
LORD JUSTICE MAURICE KAY:  Yes.  Mr Simpson? 
MR SIMPSON:  My Lord, I do also apply for costs on behalf of the estate.  My Lord, I hope you have my outline costs submissions on that ‑‑ 
LORD JUSTICE MAURICE KAY:  Yes.
MR SIMPSON:  ‑‑ which are, I think, on the page behind divider 4 in the bundle helpfully provided by my learned friend, at page 6, at the beginning of paragraph 14.  My Lord, I would like to add to what is there in writing.  We say this is a case of the exceptional kind, as recognised in the Bolton decision.
LORD JUSTICE MAURICE KAY:  Nobody doubts you, one, your right to be here or the fact that you did play an additional role, but is that enough to take it into the exceptional category? 
MR SIMPSON:  My Lord, we say that it is and we say it is precisely for the reasons that were found to apply in the Bolton case itself.  My Lord, as I set out in my written submissions, in the actual Bolton case the developer was entitled to assessment of his costs and the reason for that in that case was that the Secretary of State was primarily concerned with a major issue of policy.  We say that this case is the same, that here the Secretary of State was properly and primarily concerned with the main issue.
LORD JUSTICE MAURICE KAY:  Just remind me, was that costs at first instance or on appeal in the Bolton case? 
MR SIMPSON:  That was costs at first instance, I believe.  There is a copy of the Bolton case at the back of my submissions.  Certainly, it was made clear by the House of Lords then that costs were more likely to be appropriate in circumstances at first instance rather than before the higher court.  My Lord, that is made clear at the bottom of page 1178.
MR RICHARDS:  But also, just above that, at 1178 is the basic principle that the developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard or that he has an interest which requires separate representation.  There was not going to be a separate issue because it was all to do with the reasoning of the inspector, which was being defended by the Secretary of State, even in relation to the subsidiary issue.
MR SIMPSON:  My Lord, I think we would say two things to that ‑‑ that there were potentially two separate issues: first, the subsidiary issue; secondly, what we term the remedial issue, which is whether it would appropriate to quash the decision without sending it back to be reheard.  But, my Lord, also we would say to that that in the Bolton case, despite the fact that it was recognised that all the issues were capable of being dealt with by counsel for the Secretary of State, nevertheless it was not enough to prevent a second award of costs being appropriate.  
We say the same is true here, where the state was properly only concerned with the outcome in its case and not concerned with the wider issues than the main issue and just as in the Bolton case it is appropriate for costs to be awarded. 
LORD JUSTICE MAURICE KAY:  Thank you very much.  Mr Laurence?
MR LAURENCE:  May it please, my Lord.  My Lord, you have the Bolton case at tab 4 and if your Lordships have it in front of you, I just remind you that at letter B on page 1178 Lord Lloyd says this:
"The house will be astute to ensure that unnecessary costs have not been incurred.  Where there is multiple representation, the losing party will not normally be required to pay more than one set of costs unless the recovery of further costs is justified in the circumstances of the particular case."
He then refers to the position which obtained prior to this decision, at letter C, where he says:
"In such cases ‑‑ that is to say, under section 288 of the Town and Country Planning Act ‑‑ the developer has usually been regarded as having a separate interest, which he is entitled to protect at the local authority's expense."
One infers that his Lordship means, if he wins, he is entitled to protect it at the local authority's expense:
"This practice was recognised by Simon Brown J in Waverley.  However, (inaudible) in the Court of Appeal cast doubt on the current practice.  In that case the developer had been awarded the whole of his costs in the court below and the Secretary of State got nothing.  The Court of Appeal held, in my view correctly, that this was wrong.  The Secretary of State should have been awarded the whole of his costs.  The Court of Appeal could not, however, touch the award of costs in favour of the developer since the developer was not represented on the appeal.  But Leggatt LJ said:

'If the developer had not been awarded any part of his costs, he might not have been able to complain,' 

and went on:

'In my judgment, in circumstances such as these, where the issues argued on behalf of two or more respondents are identical, the court should be disposed to make only one order for costs."

MR RICHARDS:  You say in this case that the issues were identical? 
MR LAURENCE:  I do, and the critical thing is really at letter H:
"The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard ‑‑ that is to say, an issue not covered by counsel for the Secretary of State ‑‑ or unless he has an interest which requires separate representation."
What this case is then all about is how, albeit that the first of those does not apply, as it plainly does not here ‑‑ what Mr Simpson has to persuade you, I respectfully suggest, is that his client required separate representation, and you get a certain amount of guidance by looking at the particular circumstances of this case.  Insofar as you look at them, it is perfectly plain, in my respectful submission, that you can understand why the decision was reached as it was in that case.  
What Mr Simpson, I think, is really saying is that, because Mr Mould had two major points, the first and second issue, of considerable public importance to deal with, that somehow left in doubt whether he would deal properly with the third and other issue, which for convenience we call the "subsidiary issue", which was also before the court.  Mr Mould not only did not fail to deal with that properly, for the very reasons that he gave, albeit somewhat amplified by the statement of Mr Petter, which he, Mr Mould, produced for the court, his submissions on that were upheld.
MR RICHARDS:  And it was in his skeleton argument and it was clear he was going to take the point? 
MR LAURENCE:  Yes.
MR RICHARDS:  There is a further matter that Mr Simpson alleges, concerning remedies essentially.  But of course that would be on the hypothesis that the estate lost the case, which can hardly be a case for awarding costs in the estate's favour.
MR LAURENCE:  So I would respectfully submit, my Lord.  I can expand, if I need to, by reference to what has happened post the draft judgment.  Insofar as Mr Simpson did make contributions ‑‑ one of them you referred to at paragraph 47 ‑‑ it was to make some submissions about the proper significance to be attached to some words of Denning LJ, interesting submissions which your Lordship rejected for the reasons that I have suggested to you, and for the rest he attempted to persuade you not to look at the material we wanted to adduce post draft judgment, which also failed.  
It was nice to have him here, it always is, and his client was certainly entitled to take the view that for comfort it would be pleased to have him present in court.  But that is not the kind of case, I respectfully say, where a second set of costs should be visited on the claimant in the Dr Drain case.
LORD JUSTICE MAURICE KAY:  Thank you.  Do you want to say anything else, Mr Simpson? 
MR SIMPSON:  My Lord, I would just pick up the question of the state of play at the time of skeleton arguments.  My Lord, I do not have copies of the skeleton arguments here but I do recall in my skeleton argument, I believe, making reference to the fact that the Secretary of State's attention in its skeleton argument had indeed been focused almost exclusively on the main issue. That was certainly a major part, as a matter of fact, in the late decision of the estate to participate in the proceedings.
LORD JUSTICE MAURICE KAY:  But these things can be dealt with by communication and cooperation between parties effectively on the same side well in advance of the hearing.   
MR RICHARDS:  Well, paragraph 31 of Mr Mould's skeleton argument in relation to clause 17 is in effect, albeit in a summary form, the basis upon which the court decided the matter at the end of the day.
MR SIMPSON:  My Lord, I am not going to revisit the amount of contribution that I may or may not have had at the hearing, although I have had significant contribution since the hearing. 
LORD JUSTICE MAURICE KAY:  Thank you.  In this case the claimants will pay simply one set of costs in favour of the Secretary of State.  We do not think the case is such as to depart from the normal solution, applying the criteria set out in the Bolton case.  The Secretary of State was taking the points that Mr Simpson was anxious be dealt with by the court and, as my Lord said in argument a few moments ago, the issue of remedies, if the claimants had won, is a rather odd peg upon which to hang an order for costs in circumstances in which they have lost.  
So, for all those reasons, we make simply one order for costs, although we adopt what Mr Laurence said, that it was a pleasure to have Mr Simpson here.
MR LAURENCE:  My Lord, a further matter arises and that is concerned with the question of permission to appeal.  Now, my Lord, before I address you briefly on that and just in case I forget, can I mention that I discussed with both my learned friends as to whether your Lordships would give us an extension of time, either, if you refuse us permission to appeal, to ask the Court of Appeal for permission to appeal or, if you grant us permission to appeal, for filing the notice of appeal?  
My Lord, it is simply that the vacation is rapidly coming up and one just knows from experience that in those circumstances it is terribly helpful if one has a little bit of extra time.  We have not, of course, been able to discuss this case, because of the embargo, either with our immediate clients or those who stand behind them, who are the Ramblers' Association, as your Lordship has already mentioned in the judgment.  In those circumstances ‑‑
LORD JUSTICE MAURICE KAY:  You must never feel inhibited about asking the presiding judge for permission to discuss a day or so before, if that is something that you have a problem about.  Of course, there is an embargo and you ought not to discuss, but increasingly, where appeals are under consideration, people seek and quite often are granted permission to take instructions.  It is not being held against you that you have not in this case; I am merely encouraging you on future cases.  Put it that way. 
MR LAURENCE:  If I may say so, that sounds like abundant common sense and indeed in the post‑judgment issues that arose in this case it might have been helpful if we had realised we should really have come and asked your Lordships if we could discuss.  
Well, we have not and we did not and so Mr Mould and Mr Simpson, for their parts, very kindly agreed that if your Lordships are prepared to extend our time until Tuesday, 31st August, pursuant to your powers in paragraph 52.3:
"An application for permission to appeal may be made‑ 
"(a) to the lower court at the hearing at which the decision to be appealed was made; or 
"(b) to the appeal court in an appeal notice." 
My Lord, over the page:
"Where the appellant seeks permission from the appeal court, it must be requested in the appellant's notice.  The appellant must file the appellant's notice at the appeal court within such period as may be directed by the lower court ‑‑
LORD JUSTICE MAURICE KAY:  We certainly have the power. 
MR LAURENCE:  Your Lordship has the power:
" ... or, where there is no such direction, within 14 days."

So I would ask your Lordship just, as it were, to bear that in mind when coming to the principle matter that I want to address you about, which is the grant of permission to appeal.  
My Lord, what we had to say about that, which I just invite your Lordship to remind yourself of at tab 1 in the green file of post‑judgment submissions, was this:
"The cases concern two points on the construction of section 31, which will affect almost every case in the country concerning claims to public rights of way.  The effect of the construction of the section upheld by the court is to put the well advised landowner in a position to defeat any claim based on section 31, as the court itself appears to recognise at paragraph 43 of the draft judgment.  The net result will be a return to the common law.  

"The question is whether a construction which thus emasculates the section can possibly be the correct one or whether the construction contended for by the claimants in either or both respects more truly represents the legislative policy and intention.  

"We respectfully submit that there must, in those circumstances, be a realistic, as opposed to fanciful, prospect of success on appeal and of persuading the Court of Appeal that the views of the judge must be followed or (inaudible) in [the cases we mentioned].  It cannot, as your Lordships thought, be regarded simply as conditioned by his dictum.  

"We also submit that it must be in the public interest for the claimants to be permitted to argue in a higher court for their construction of the section.  

"In those circumstances there is some other compelling reason within the subrule why the appeal should be heard.  Dyson J granted permission to appeal in Dorset ... "

As my Lord, Richards J, pointed out in argument:
" ... despite, or perhaps because of, having given the issue his customary careful treatment, and since then the case of Sunningwell has confirmed that the key difference between common law dedication and section 31 deemed dedication is that in the former cases it is open to the fact finder to ascribe the landowner's attitude to tolerance, leading to difficulty and unpredictability for claimants relying on the common law, of which it was Parliament's object, in providing them with a statutory alternative in 1932, to relieve them.  

"In these circumstances, it is respectfully submitted that, despite the treatment of the issue by your Lordships, the case for the grant of appeal is, if anything, stronger than when Dyson J gave permission."
Could I just remind you in relation to what I say about the case of Sunningwell ‑‑ what Lord Hoffmann pointed out for the first time in any decided case was that at common law it was open to a jury to refuse to infer an intention to dedicate and to ascribe the attitude of the landowner, instead, to tolerance.  
The relevance of that for the way in which your Lordships dealt with my submissions on "during", when, if you remember, you say in the judgment, at a passage that I perhaps ought to just remind you of ‑‑ it is clearly encapsulated where you address ‑‑ you record my submissions at paragraph 42 on this point, my Lord, and go on at paragraph 43 to say:
"We prefer Mr Mould's submissions as to legislative intent."

And you set out the reasons as to why you do that.  
You do not deny, my Lords, that in a proper case, or in a case where the landowner is aware of his position, it would be possible for him so to engineer things that there was a period towards the end of the 20 years period when he could establish lack of intention to dedicate.  Then you go on to say:
"Even if a claim under the statute could be defeated by such advice, it might well still be possible to infer a dedication at common law.  Although Mr Laurence described this as very much a last throw, it is something to which a decision maker could be expected to give particularly close attention in circumstances of the kind envisaged."
But my Lord, we are talking about a case where, ex hypothesi, the reliance on section 31 would be founded, post Sunningwell, very much on the appreciation, that we now all know since Sunningwell, that the landowner's attitude is capable of being ascribed to tolerance in a case where you rely on common law.  
So, quite apart from the additional problems that you have about the common law ‑‑ the possible lack of capacity to dedicate ‑‑ you have this problem, that you have to infer an actual intention to dedicate and, where it is possible, to ascribe that instead to tolerance.  There is high authority in the Folkstone case for saying ‑‑ I think it was Lord Kinnear or someone who said:
"I know of no principle to require us to assume an intention to dedicate rather than tolerance."

That is of not very great comfort, those closing words at paragraph 43, to somebody who is faced by a landowner aware of the possibility of defeating a claim by recourse to the device discussed.  
My Lord, all that goes to the second of the two main issues.  As to the first, your Lordships may remember that in the course of the post‑judgment submissions we invited you to deal expressly with the question whether what Mr Petter had to say in his statement would by itself have been sufficient to establish lack of capacity to dedicate.  What Mr Petter said was:
"The estate never had any intention of dedicating this track as a public path."

We invited you to deal with that because what we submitted was that it was implicit in what your Lordships were holding in the draft judgment that it would be enough, subsequent to the expiry of the 20‑year period, for the landowner truthfully to say, "We never had any intention of dedicating this track as a public path."
Your Lordships have not dealt with that point.  You have not acceded to my invitation to deal with it.  What you have done, however ‑‑ and it is of some assistance to spelling out the point that I am trying to make ‑‑ is to say, "You can take that into account in coming to the view that you did come to on the subsidiary issue."
If your Lordships give us permission to appeal, what we will be saying to the Court of Appeal is that on the first issue there is no escape from the fact that a landowner in a proper case ought to be able to say there was nothing overt or contemporaneous at all during the 20‑year period.  But, like Mr Petter, what I say to you is, the estate at no time had any intention of dedicating the path.  Well, almost any landowner can truthfully say that.  That is because it is almost unheard of to find that somebody intends to dedicate a public right of way without actually doing something practical to do it in terms.  
So, my Lord, the Court of Appeal will necessarily be asked by us to consider this first issue against that extreme case, which is likely to arise in every case, and if the court says, "Well, that cannot be enough to satisfy the proviso," then it is plain that the line does have to be drawn somewhere else, and what we then want to argue is that the line should be drawn by requiring something to be done which comes to the attention, or is capable of coming to the attention, of the public, rather than being of a purely private aspect.  
I know that the case has been ‑‑ and I tried, your Lordships recall, in my lengthy submissions to make sure that, consistent with intellectual honesty, we put every point that could fairly be put in front of your Lordships so that it could be properly dealt with.  That, of course, is capable of rebounding against me because it is possible for Mr Mould to submit, as he now does, "Well, your Lordships have looked at the issue with very great care and you have come to the conclusion that Dyson J was right."  
There was, however, a fistful of Court of Appeal and other decisions beforehand that contained dicta helpful to our position on this and it is undoubtedly true, as Lord Hoffmann said in the Sunningwell case, if I can just remind your Lordships of the passage without actually asking you to turn it up necessarily ‑‑ what he says is ‑‑ it is at the end of his judgment:
"Miss Cameron cautioned your Lordships ... "
Page 359 at tab 3: 
" ... against being too ready to allow tolerated trespasses to ripen into rights.  As Bowen LJ said in (inaudible) nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners under the fear that their good nature may be misunderstood."

That highly reputable statement of a philosophy really Lord Hoffmann answers like this:
"On the other hand, this consideration, if carried too far, would destroy the principle of prescription.  A balance must be struck.  In passing the Act of 1932, Parliament clearly thought that the previous law gave too much weight to the interests of the landowner and too little to the preservation of rights of way which had been for many years in de facto use.  As Scott LJ pointed out in Jones v Bates, there was a strong public interest in facilitating the preservation of footpaths for access to the countryside." 
My Lord, I can tell you from my own experience that additions to the rights of way network in recent years are almost always the result these days of the application of section 31, and what we want to be allowed to try to persuade the Court of Appeal is that your Lordships have struck the balance in the wrong place on issues 1 and 2 and that if your decision goes unchallenged, the truth of the matter is that, whether a landowner is well advised or not, there is very little that he is going to have to do in order to be able to adduce evidence sufficient one way or another to satisfy the proviso as that has been explained in your Lordships' judgment.  If he is well advised, in addition he will be able to engineer things in the way discussed towards the end of the judgment.  
So what we are asking is for your Lordships, recognising the public importance of these two issues, to give us permission to appeal on them.  Maybe I can hear what my learned friends say in opposition to that and reserve a possible application in relation to the subsidiary issue when your Lordships have decided whether you would be willing to give me permission to appeal on the two matters that are central to this case.
MR RICHARDS:  Are you or are you not seeking permission to appeal on the subsidiary issue? 
MR LAURENCE:  If you say no on these two issues, it is not clear to me that I would have any better prospect of getting permission to appeal on the subsidiary issue.  If your Lordships are willing to grant me permission to appeal on the two main issues, then I do want to ask you also for permission to appeal on the subsidiary issue and just say one or two things about that.
LORD JUSTICE MAURICE KAY:  Thank you, Mr Laurence.  We do not need to trouble you, Mr Mould, thank you.
We refuse permission to appeal in relation to the first two issues.  As regards the first issue, it has received extensive recent attention, initially from Sullivan J in Billson, in greater depth and more recently from Dyson J in Dorset County Council and now from this Divisional Court.  We take the view that there is no real prospect of success and there is no other compelling reason to grant permission to appeal.  
As to the second issue, the meaning of the words "during that period", likewise we find no real prospect of success and no other compelling reason.  
Mr Laurence makes it clear that any application in relation to what he has described as the subsidiary issue was to be parasitic upon success in obtaining permission to appeal on one or other of the first two grounds.  So we refuse permission to appeal entirely.  However, we do grant an extension to 31st August for lodging an application for permission in the Court of Appeal.  
We shall complete the pro formas in the course of the day and they will be available to the parties before the end of the week.  
May we thank you all very much indeed.