Highways: Presumption of dedication

Council making definitive map modification order - order adding bridleway to map - inspector concluding presumed dedication of the way - National Assembly for Wales confirming order - claimant objecting - whether inspector erred - section 31 of Highways Act 1980 - claim dismissed


 Fernlee Estates Ltd v City and County of Swansea and another: Queen's Bench Division: Administrative Court: Mr Justice Scott Baker: 18 May 2001

The claimant developer owned land that had largely been developed for housing.

The first defendant (the council) made a definitive map modification order, under section 53(3)(b) of the Wildlife and Countryside Act 1981 (the order), which added a bridleway to the definitive map.


The second defendant (the National Assembly) appointed an inspector to confirm or reject the order and a local inquiry was held, at which the claimant was the sole statutory objector.

The order was based upon a presumed dedication, pursuant to section 31 of the Highways Act 1980, which provided:


&#149 Where a way over any land...

has actually been enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.


- The period of 20 years...

is to be calculated retrospectively from the date when the right of the public to use the way is brought into question.


The inspector decided that the right was brought into question in late May 1996.

He concluded that the part of the route shown as AB was used by the public at the beginning of the 20-year period, that the route was used without interruption for the full 20-year period and that there was no evidence of an intention not to dedicate during that period.

The National Assembly accordingly confirmed the council's modification order.

The claimant sought to challenge that decision, contending, among other things, that its long-running building works were an interruption to any public use of the way.


Held: The claim was dismissed.



The inspector was entitled to accept the evidence he did, and to conclude that section AB was in use in 1976.

To constitute an interruption for the purposes of section 31(1) of the Highways Act, there had to be an actual physical interruption preventing enjoyment of the way, as opposed to acts that challenged, but did not prohibit, the user (Merstham Manor Ltd v Coulsdon and Purley Urban District Council [1937] 2 KB 77).

A mere absence of continuity in the de facto use would not interfere with the enjoyment of a right of passage (Jones v Bates [1938] 2 All ER 237).


Interruption meant interruption of fact, although the circumstances of, and the intention with which the barring of the way took place, were relevant.

On the evidence before him, the inspector was justified in concluding that there was no interruption of the kind envisaged by section 31.

Nor was there any evidence upon which he could properly have found an intention not to dedicate.


Milwyn Jarman (instructed by T Llewellyn Jones, of Neath) for the claimant; Louise Davies (instructed by the solicitor to the City and County of Swansea) for the first defendants; Graham Walters (instructed by the National Assembly) for the second defendant.