Two recent cases relating to definitive map applications serve as a warning to landowners and developers. In both cases, public highways were held to exist and the judgements were to the detriment of the use (and possible future development) of the land in question.
Definitive maps: the legal position
Local authorities are required to keep and maintain “definitive maps” which record and describe the location and status of different types of highway. Notwithstanding the name, these maps are not guaranteed to be fully comprehensive; at any given point in time, public rights of way could be in existence which, for a variety of reasons, have not been recorded.
The Wildlife and Countryside Act 1981 (WCA 1981) (as amended by the Countryside and Rights of Way Act 2000) sets out the current requirements relating to definitive maps. Each local authority must keep its definitive map under review and make orders modifying the map (section 53(2), WCA 1981) whether on its own initiative, on application by any person or on the occurrence of certain events.
Case 1: Ali v Secretary of State for Environment, Food and Rural Affairs (April 2015)
The first case of Ali involved a footpath and was heard before the High Court. It has placed the provisions of section 31(1) of the Highways Act 1980 under scrutiny.
Section 31(1) provides that land is deemed to have been dedicated as a highway where the public has enjoyed a right of way over it as of right and without interruption for 20 years. It is possible for this presumption to be rebutted if the landowner is able to produce sufficient evidence that there was no intention for the way in question to be dedicated as a highway during that period.
In Ali, the alleyway in question had been in public use for many years as an access route to local shops. The local authority made an order to modify the definitive map to include a new footpath over an alleyway on the basis of the deemed dedication under section 31(1). However, the owner of the alleyway sought to rebut this on the basis that he had locked the door to the alleyway over Christmas each year. He argued that this was done with the intention of informing the public that he did not intend to dedicate the land as a highway.
The High Court dismissed the owner's application. The Court reasoned that as the shops were closed over the Christmas period, the public would not have attempted to use the alleyway. On that basis, the public would have had no knowledge that the door had been locked and that access had been denied. In turn, the Court stated that this meant that the closure of the alleyway at Christmas was unlikely to have affected the public’s general use of it and did not amount to an "overt act" demonstrating the landowner’s intentions.
Whilst it is clear that the circumstances which would amount to sufficient interruption over the 20 year period will be dependent upon the facts of each case, Ali should still serve as a warning to landowners in England and Wales. If a landowner has no intention of dedicating its land for use as a highway, it should ensure that sufficient steps are taken to overtly communicate that lack of intention to the public. In terms of communicating the intention, landowners should remember that the "intention" test is objective and not what the landowner subjectively intended. The test is whether a reasonable user of the path would understand that the landowner is intending to disabuse the user of the path of the notion that the path is a public highway. This test was laid down in the House of Lords in R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs, which was considered in Ali.
For landowners based north of the border, it is worth noting that whilst a right of way can be created in Scotland if certain criteria similar to the English criteria are met - primarily that the route has been in use by the public for a period of 20 years and that it connects two public places - there is no direct equivalent of the definitive map (nor any other public record of rights of way) and most rights of way have not been formally asserted. On that basis, a direct replication of the situation faced in Ali is unlikely to arise in Scotland. As with the English position, however, the Scottish 20 year period must be “without interruption” and the principles relating to degree and sufficiency of interruption are relevant in both jurisdictions. Explicit public notices and enthusiastic locking of gates are common tactics, but there is no guarantee of certainty and each case will be considered on its own facts.
Case 2: R (Andrews) v Secretary of State for Environment Food & Rural Affairs and others (July 2015)  EWCA Civ 669
The second case of Andrews was heard by the Court of Appeal and involved a bridleway. The Court held that a local authority was wrong to refuse to amend its definitive map where an inclosure commissioner (IC) had purported to create a public bridleway under section 10 of the Inclosure Consolidation Act 1801 (ICA 1801).
The IC had power under section 10 of the ICA 1801 to “appoint such private roads, bridleways and footways … as he or they shall think requisite…”. The High Court held that section 10 enabled the IC to create private bridleways, as opposed to public bridleways. The Court of Appeal disagreed, took a purposive construction of the legislation and held that section 10 enabled the IC to create new public bridleways and footpaths.
The key point to note from this case is that there are estimated to be up to 1,000 public footpaths and bridleways which have been created by commissioners in England and Wales, none of which are currently recorded in the relevant definitive maps. It is possible that the Andrews case will be regarded as a “test case” which confirms that the IC has wider powers than anticipated and, in turn, could lead to more public footpaths and bridleways being established.