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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wild v Secretary of State for Environment, Food and Rural Affairs & Anor [2009] EWCA Civ 1406 (21 December 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1406.html Cite as: [2009] EWCA Civ 1406, [2010] NPC 2

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IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINSTRATIVE COURT
MR JUSTICE KEITH
[2008] EWHC 3461 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2009

Lord Justice Scott Baker:

1. Mr James Wild, who was the claimant in the court below, appeals against the decision of Keith J. on 1 December 2008 who upheld the decision of a planning inspector Ms Doran. She had confirmed on 14 March 2007 an order made on 28 February 2003 by the Dorset County Council ("The County Council"), who are the second respondents to the present appeal, adding a length of footpath to the Definitive Map and Statement. The first respondent is the Secretary of State for Environment, Food and Rural Affairs.
2. The footpath in question is some 660 metres long and runs from Clay Lane to Looke Lane, Puncknowle, Dorset and is shown by the line marked A,B,C,D, on the plan annexed to the inspector's decision letter. Mr Wild is the owner of Puncknowle Manor Estate which was conveyed to him by Galloway Ltd in 2000. The land over which the path passes was not included in the conveyance. However, he claims that his acquisition of the estate conferred on him the title of Lord of the Manor and it is in that capacity that he owns the land over which the path passes. It is common ground that the inspector reached no conclusion on this and that resolution of the issue of ownership is unnecessary for the purposes of this appeal. What is clear is that the land over which the path passes has had no registered owner and has not been the subject of any conveyance.
3. Mr Wild's complaint is that the County Council made an order on 28 February 2003 under section 53 (2) (b) of the Wildlife & Countryside Act 1981 ("The 1981 Act"), known as the Dorset County Council (Footpath from Clay Lane to Looke Lane, Puncknowle) Definitive Map and Statement Modification Order 2003, proposing to add the length of footpath in question to the Definitive Map and Statement and that the inspector made an error of law in confirming the order.
4. An event that requires modification to the Definitive Map and Statement is, per section 53 (3) (c)(i) of the 1981 Act:

"The discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows –

i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the rights subsists is a public path, a restricted byway or, subject to section 54A, a byway open to all traffic."

5. The inspector correctly directed herself that she had to decide whether the evidence showed on the balance of probabilities that a public footpath not shown on the Definitive Map and Statement subsisted. She concluded that the footpath in question did and confirmed the order subject to certain minor modifications that are not relevant to this appeal.
6. Mr Wild was dissatisfied with the decision and applied to the High Court under paragraph 12 of Schedule 15 to the 1981 Act which provides:

"(1) If any person is aggrieved by an order which has taken effect and desires to question its validity on the ground that it is not within the powers of section 53 or 54 or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 11 make an application to the High Court under this paragraph.

(2) On any such application the High Court, may, if satisfied that the order is not within those powers or that the interests of the applicant had been substantially prejudiced by a failure to comply with those requirements, quash the order, or any provision of the order, either generally or insofar as it effects the interests of the applicant.

(3) Except as provided by this paragraph, the validity of an order shall not be questioned in any legal proceedings whatsoever."

7. It is common ground that Keith J. who heard the application, was entitled to interfere with the inspector's decision but only on ordinary judicial review principles. He concluded that the errors she was alleged to have made were not established and that, accordingly, her decision stood. We have to consider whether his conclusion was correct and this involves looking afresh at the inspector's reasoning.
8. There were two main issues before the inspector. First it was argued that the evidence established a presumption of dedication under the criteria in section 31 of the Highways Act 1980. In the alternative, if these criteria were not met, it was contended that there was implied dedication at common law i.e. the evidence was such that it must be inferred that the landowner had dedicated a right of way and that the public had accepted that dedication. The inspector found that the section 31 criteria were not met and it is this alternative finding at common law that concerned the hearing before Keith J. and the appeal before us.
9. The inspector referred to a number of other events at the beginning of the decision letter. In 1972 there was a claim under the Commons Registration Act 1965 that land known as The Drives comprising part of the Order route and an adjacent parcel of land was common land. The Chief Commons Commissioner declined to confirm its registration as common land.
10. In 1978 there was a public inquiry to determine whether or not a bridleway existed over the Order route. The inspector upheld the objection to its being recorded as such on the draft revised Definitive Map.
11. In 1999 an order was made by the County Council following an application to modify the Definitive Map and Statement by adding the route as a footpath. In 2001 an inquiry was held and the inspector confirmed the council's order. His decision was however quashed by consent in the High Court.
12. In 2003 the County Council made a fresh order to add the route to the Definitive Map and Statement as a footpath and it is that order that gives rise to the present proceedings.
13. The inspector in the present case found that the documentary evidence although confirming the long-standing existence of the Order route as a physical feature did not provide categorical evidence of its status. There was insufficient evidence to show the existence of public vehicular rights and the documentary evidence alone could not substantiate the existence of a public right on foot. I should emphasise that what is material is public rights not private rights.
14. In summary the documentary evidence comprised the following:

(a) A one inch Ordinance Survey Map of 1871 which showed the Order route albeit with a slightly different alignment to that of today.

(b) A map of 1826 which shows the Order route but did not distinguish between public and private roads.

(c) A Tithe Map of 1841 which again showed the Order route but which for reasons explained by the inspector did not assist in establishing the route's status.

(d) A map relating to the Finance Act 1910 which again showed the Order route but the route was excluded from hereditaments. The inspector said that this did not assist because there was more than one credible explanation.

(e) A sale plan prepared in 1913 for the sale of Puncknowle Manor Farm Estate by auction and a plan when the Estate was again sold in 1952, which the inspector thought were inconclusive, although the 1913 plan showed public routes colour-washed and the Order route uncoloured. She pointed out it was a sale of private property rather than the definition of public rights.

(f) Various Parish Council Minutes that took the matter no further.

(g) An aerial photograph in 1971 that showed the Order route between A and C was well used with a defined vehicle width track accessing adjacent fields. North of C to D there were clear indications of a trodden way. The inspector did not accept Mr Wild's submissions that the route from C to D was overgrown and impassable although a 1997 aerial photograph showed it more overgrown.

15. It is unnecessary for me to recite the evidence that the inspector heard, both orally and in the form of written statements, about use of the Order route.
16. The inspector began by correctly setting out the main issue she had to decide namely whether the whole of the evidence showed on the balance of probabilities that a footpath not shown on the Definitive Map and Statement existed and that the Map and Statement required modification. She referred to section 31 of the Highways Act 1980. Section 31 (1) provides:

"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."

Section 31 (1A) is irrelevant to the present appeal.

Section 31 (2) provides:

"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".

Section 31 (3)

"Where the owner of the land over which any such way as aforesaid passes –

(a) has erected in such a 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 to negative the intention to dedicate the way as a highway."

It is not necessary for present purposes to refer to the remainder of the section save to mention that sub-section (9) preserves the old common law rule. It provides:

"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."

17. The inspector pointed out that the County Council considered the evidence produced sufficient to give rise to the presumption under section 31. She said she had to focus on the date on which the right of the public to use the claimed footpath was brought into question and whether the claimed footpath was used by the public as of right and without interruption for a period of not less than 20 years ending on that date, and whether there was sufficient evidence that there was during this 20 year period no intention on the part of the landowner to dedicate the claimed footpath.
18. The alternative issue, which gives rise to this appeal, was whether, in the event that section 31 of the Highways Act 1980 was not satisfied, the evidence as a whole showed that the owners of the land over which the Order route passes had dedicated a footpath to the public. She noted at para 6 that:

"An implication of dedication at common law may be shown if there is evidence from which it may be inferred that a land-owner has dedicated a right of way and that the public has accepted the dedication. Such acceptance is usually shown by use of the route by the public."

19. It is clear from reading the inspector's decision that the main thrust of the case was directed to presumed dedication under section 31 of the 1980 Act, which in the event was not established.
20. As I have said, the inspector found that the documentary evidence confirmed the long-standing existence of the Order route as a physical feature. She went on to consider at paragraph 27 onwards the date on which the right of the public to use the claimed footpath was brought into question. She said the County Council's case was that it was in late January or early February 1998 when gates at the Clay Lane end of the route were locked and about the same time a notice was erected saying "No public right of way. Nature conservation area." On the other hand, Mr Wild put it at September or October 1978 when Mr Carter, the agent for the JR Bridgman Estate objected to the route as a bridleway at the public inquiry into bridleway status.
21. The inspector noted that the 1978 inquiry concerned a First Special Review of the Definitive Map. The Order route was shown by the County Council as a bridleway on the Revised Draft Map and the inquiry resulted from two objections dated 1975 sent to the Department of the Environment objecting to its inclusion, one on behalf of Looke Farms Ltd. and the other from Mr Carter on behalf of the Trustees of the Bridgman Estate. Both objections stated the same three grounds, that there was no existing right of way along the proposed route, that there was no evidence of a public user along the proposed route, and that there was no need for it. The inspector did not consider that the objections were sufficient in themselves to challenge the public's right to use the Order route in 1975 because there was no evidence that they were communicated to the users at that time. However, notwithstanding the 1978 inquiry was investigating bridleway rights, she thought it more likely than not that the objections were sufficient to bring into question the public's right to use the way as a highway at that point. She therefore concluded "that the airing of the objections at the 1978 inquiry was sufficient to bring into question the public's right to use the way on foot as well as on horseback and that at least some of the users were made aware of that challenge at that time". Accordingly the 20 year period for the purposes of section 31 of the 1980 Act was 1958 to 1978.
22. The inspector considered the evidence of use during that period and concluded she was not satisfied the use was sufficient throughout the whole of that 20 year period to satisfy deemed dedication under section 31.
23. From paragraph 56 onwards she went on to consider implied dedication at common law. She said, and she was plainly correct on this, that it was open to her to examine the evidence of use during the period between September/October 1978 and January/February 1998 when the public's right to use the route was again brought into question (a period falling short of the necessary 20 years for deemed dedication) together with the earlier use to see whether implied dedication was made out at common law.
24. The forerunner of section 1 of the Highways Act 1980 was section 1 of the Rights of Way Act 1932. Until the Rights of Way Act 1932, the position had been governed solely by the common law and it was the unsatisfactory nature of the common law that led to that Act. Lord Hoffmann traced the historical perspective in Regina (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2008] 1 AC 221. He explained at para 4 that English law differs from civilian systems such as the law of Scotland by having no doctrine of acquisition of rights public or private by long user. Instead it treats user since time immemorial, that is to say since 1189, as raising an irebuttable presumption that the right had a lawful origin in grant to a predecessor in title or dedication to the public at large. He went on:

"5. In the case of a public right of way, a lawful origin had to be found in dedication by the land-owner at some unknown date in the past. Such dedication was analogous to the lost modern grant of a private easement. Juries were told that they could find such a dedication on evidence of user openly and as of right by members of the public and were often encouraged to do so. The reason for juries and judges being willing to make and accept findings that there had been a dedication or a lost modern grant was of course the unfairness of disturbing rights which had been exercised without objection for a long time. In Scottish law, this policy was given effect by the more logical method of allowing such user to create the rights. But in England the policy of the law was not openly acknowledged. Instead, juries were told that in order to uphold the public right, they had to find as a fact that there had been an act of dedication accompanied the necessary animus dedicandi on the part of the land-owner: see Poole v Huskinson ...1843) 11 M&W 827.

6.As a matter of experience and common sense, however, dedication is not usually the most likely explanation for long user by the public, any more than a lost modern grant is the most likely explanation for long user of a private right of way. People do dedicate land as public highways, particularly in laying out building schemes. It is however hard to believe that many of the cartways, bridle paths and footpaths in rural areas owe their origin to a conscious act of dedication. Tolerance, good nature, ignorance or inertia on the part of the landowners over many years are more likely explanations. In Jones v Bates [1938] 2 All ER 237, 244 Scott L.J. said that actual dedication was "often a pure legal fiction [which] put on the affirmant of the public right an artificial onus which was often fatal to his success". In Jaques v Secretary of State for the Environment [1995] JPL 1031, 1037 Laws J. called it an "Alice in Wonderland requirement".

7.Nevertheless, juries and other tribunals of fact did frequently find that such acts of dedication had taken place, no doubt for the reason I have suggested. So much so that in Folkestone Corpn v Brockman [1914] AC 338 it was argued that, in the absence of evidence of facts inconsistent with such a dedication they were obliged to make such a finding. But this submission was rejected by the House of Lords and it became settled that user was no more than evidence from which dedication could be inferred. It was open to the jury to ascribe the user to toleration or some other cause. Since, as I have said, some other cause was in real life more likely, it became difficult to predict when or for what reason a jury would have sufficient sympathy with the users of the highway to find that there had been a dedication."

25. The law relating to private easements such as rights of way was reformed by the Prescription Act 1832 and this provided a model for the 1932 Act a century later, but the 1932 Act had variations including that section 1 (1) contained a proviso that the presumption of dedication could be rebutted by "sufficient evidence that there was no intention during that period to dedicate such way."
26. Now the crucial point for the present case is that where a public right of way cannot be established under the 1932 Act one is driven back to the common law, for the 1932 Act, and its successor the Highways Act 1980, supplemented the common law rather than replaced it.
27. The recent reported cases have been concerned with the statutory position rather than the position at common law. It is necessary therefore to go back to the authorities before the 1932 Act. The root authority is Poole v Huskinson (1843) 11 M & W 827. Parke B said at page 830 that "there may be a dedication to the public for a purpose, as for a footway, horse-way or drift-way; but there cannot be a dedication to a limited part of the public". He added "in order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate – there must be an animus dedicandi, of which user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight on a question of intention, than many acts of enjoyment".
28. Turner v Walsh (1881) 6 App Cas 636 was a Privy Council appeal from the Supreme Court of New South Wales. It was held that the same presumption from user should be made in the case of Crown lands in New South Wales as with a private owner. Sir Montague Smith, giving the judgment of their Lordships, said at page 642:

"The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and the presumption, if it can be made, then is of a complete dedication coeval with the early user. You refer the whole of the user to a lawful origin rather than a series of trespasses. It may be that in this case the evidence of user prior to 1861 was alone sufficient to establish the presumption of dedication; but the strength of that presumption is increased by the subsequent user, and would certainly have been much diminished if the user had been discontinued after 1861."

29. In Mann v Brodie (1885) 10 App. Cas 378 Lord Blackburn having cited the passage from Parke B in Poole v Huskinson to which I have referred went on:

"But it has also been held that where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disturb them of that belief, it is not conclusive evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was."

30. In Leckhampton Quarries Co Ltd. V Bullinger [1904] 20 TLR 559 Swinfen Eady J put it this way:

"The question I have to consider is whether there has been such open and uninterrupted user of the paths in question by the public, as that a dedication to the public by the owner of the land over which the ways extend ought to be implied. Although there must be an intention on the part of the owner to dedicate, this intention may be inferred from user extending over a considerable period, where the owner has not taken steps to exclude persons, or to show that the enjoyment is by his licence and during his pleasure."

31. The leading authority is, however, Folkestone Corporation v Brockman [1914] AC 338. That was a case in which the House of Lords upheld a decision of justices that the owner did not intend to dedicate a road as a public highway and that there was in fact no dedication of the road as a highway for foot passengers or otherwise prior to 1836 when the Highways Act 1835 came into operation. Lord Kinnear, having cited Lord Blackburn in Mann v Brodie (1885) 10 App Cas 378, 386 and Parke B in Poole v Huskinson said at 352:

"the points to be noted are, first that the thing to be proved is intention to dedicate, and secondly, that while public user may be evidence tending to instruct dedication, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and with the acquiescence of the owner of the fee."

32. Lord Loreburn regarded the law as correctly stated by the Privy Council in Turner v Walsh (1881) 6 App Cas 636. He then said:

"Two things have to be made good, that the user has been sufficient in its duration and character, and that the presumption then arising has not been rebutted."

33. Against that background I turn to consider how the inspector approached implied dedication at common law. She had, of course, concluded that there was insufficient evidence of use throughout the 20 year period prior to 1978 to satisfy deemed dedication, but she went on to examine the evidence of use during the period of 1978 to 1998 when, as she put it, "the public's right to use the route was again brought into question". It seems to me therefore that the quantity and nature of the use in the post 1978 period was of importance. She summarised the evidence in paragraphs 57 to 62 and said this:

"63.Notwithstanding that I attach less weight to the untested evidence, and discount use that may have been in connection with the land, that is use in exercise of a believed right of common or of a private right rather than use as a through route, I conclude that the public were using the Order route for recreation in increasing numbers and frequency during the period 1978 to 1998. In addition, there is evidence of use prior to this, with user increasing from the 1970s onwards. I consider that use was without force, without secrecy and without permission. I consider the level and frequency of use to be commensurate with the locality, and sufficient for the landowner to have been aware that it was taking place, particularly for the section A-C which is open to view, although the physical nature of the section C-D would have meant users were less likely to have been observed, nevertheless there is in my view good evidence that it was used."

34. The inspector said at paragraph 71 that even if it was accepted that the land over which the Order route ran had belonged to the Lord of the Manor as manorial waste it had not been adequately demonstrated who the Lord of the Manor was during the period 1978 to 1998 and therefore there was no evidence of contrary intention by the landowner, whoever he was, with regard to the Order route during this period and arguably earlier.
35. Mr Upton, for the appellant, does not seek to go behind the inspector's finding that ownership of the footpath had not been established, but the critical point seems to me to be that there was a possibility that he and his predecessors owned it. Indeed, I would go so far as to say that on the evidence there were no other candidates. The fact that there was a possibility that he and his predecessors owned the land in my judgment makes the challenge to the Definitive Map and Statement in 1978 of great importance. As concluded by the inspector, from the moment of the 1978 inquiry there was public knowledge that it was challenged that the Order route was a public footpath. It must be inferred that the users knew they were using the path against that challenge, but the inspector does not deal with this. The state of mind of the users seems to me to be relevant to the status of the track. It was common knowledge that an objection had been made to the public use of the track by someone who might be the owner.
36. It is true that the inspector said at paragraph 71 that had the trustees of the JR Bridgman Estate been the landowner following findings of the 1978 inquiry she thought it likely they would have taken action to prevent public use of the order route; that no action was taken until early 1998 when the gates were locked across the route at Clay Lane and therefore it could not be assumed who the Lord of the Manor was in the period 1978 – 98. She also said that their objection in 1975 did not state that they were or were not the landowners and that despite their objection no other actions of contrary intention were taken by them. However, what the inspector overlooks, is the impact of the 1975 objections at the 1978 inquiry and how they might be relevant to the nature of the use of the Order route thereafter. The objections at the 1978 inquiry seem to me to be no different in principle from those same objectors, had they chosen to do so, putting up a notice on the Order route saying there was no a right of way. As Moses L.J. pointed out in argument, it is not necessarily reasonable to expect those claiming ownership to object all over again when they had already done so prior to 1978 and at the 1978 inquiry.
37. The inspector expressed her finding at para 72 in the following terms:

"I find that there has been longstanding use of the Order route by the public as or right, certainly throughout the period 1978 – 1998, and there is evidence of earlier use, becoming more frequent from the 1970s. I conclude, on the balance of probabilities that the landowner, whoever that was, must have been aware of the use, and took no contrary actions to rebut an inference of dedication. It follows in my opinion that the conduct of the landowner and the use by the public of the way are sufficient to conclude that the Order route has been dedicated by the landowner as a public right of way, and that the dedication has been accepted by the public."

38. In my judgment she fell into error in this passage. She found in the first sentence use between 1978 and 1998 "by the public as of right," but she makes the finding that the use was as of right without dealing with the fact that it was public knowledge that someone who at the very least might be the owner of the way had raised public objection at the 1978 inquiry.
39. The inspector's conclusion that it followed from the fact that whoever the landowner was he must have been aware of the use and took no action to rebut an inference of dedication and that that was sufficient for her to conclude that the Order route had been dedicated by him as a public right of way and that the dedication had been accepted by the public is also open to question because it overlooks the impact of the objections at the 1978 inquiry.
40. Speaking of private rights of way and easements Lord Hoffmann pointed out in R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1AC 335, 351A that the unifying element in the three vitiating circumstances nec vi, nec claim, nec precario was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right – in the first case because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third because he had consented to the user but for a limited period. He then quoted a passage from the speech of Fry J in Dalton & Angus & Co (1881) 6 App Cas 740. 773 in which he said that: "The Courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest".
41. Whilst Sunningwell laid to rest the concept that "as of right" meant user which was not only nec vi, nec claim, nec precario but also in the honest belief on the part of the user of a legal right, in my judgment the fact that the use was against the background of the 1978 objections and the consequential public knowledge that there was objection to public use of the footpath was very relevant to the issue whether the owner, whoever he was, had acquiesced in the use. This was in my judgment critically important for the inspector in making the decision whether dedication on the part of the owner could properly be inferred from the evidence of use.
42. Lord Hoffmann, having cited the passage from Lord Blackburn's speech in Mann v Brodie to which I have referred at paragraph 28 went on at 352 H:

"My lords, I pause to observe that Lord Blackburn does not say that there must have been evidence that individual members of the public using the way believed there had been a dedication. He is concerning himself, as the English theory required, with how the matter would have appeared to the owner of the land. The use by the public must have been as Parke B said in relation to private rights of way in Bright v Walker 1 CM and R 211, 219. "openly and in the manner that a person rightfully entitled would have used". The presumption arises, as Fry J said of prescription generally in Dalton & Angus & Co 6 App Cas 740. 773, from acquiescence."

43. Mr Buley, for the Secretary of State, relies on a passage from Lord Hoffmann's speech at 354 G:

"To require an inquiry into the subjective state of mind of the users would be contrary to the whole English theory of prescription which as I hope I have demonstrated, depends on evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose the actual state of mind of the land user is irrelevant."

44. That, however, was not what this case was about. The critical question was whether the owners, whoever they were, had acquiesced in the use of the Order route as a public way and in consequence that dedication on their part could be inferred.
45. Mr Buley rightly makes the point that it is not the law that you cannot infer dedication if you cannot identity the owner. It is a factor to be taken into account that the 1978 objectors were not positively identified as the owners but it is no more than that. The fact is that there were objections in 1978 by persons who could very well have been the owners and in those circumstances the inspector should have gone on to explain how she was able to find that there was acquiescence by the owner or owners (whoever they were) and consequently an implication of dedication. In my judgment there is force in the submission of Mr Upton that the inspector concentrated too much on the use of the Order route to the exclusion of the other issues of acquiescence and dedication.
46. The inspector's conclusion that it followed that, whoever the landowner was, he must have been aware of the use and took no action to rebut an inference of dedication and that the dedication had been accepted by the public completely overlooks the impact of the objections at the 1978 inquiry. As the authorities make clear, it does not follow as night follows day that because there has been use there has been dedication by the owner; it is necessary to look at all the circumstances. There are various questions to be asked. Public user is the first question, then comes acquiescence and finally dedication.
47. As Mr Upton, for the appellant, put it, the inspector should have dealt with the consequences of not concluding who was or was not the owner of the order route. The objections in 1978, whoever made them, were relevant to the status of the track because they were made by someone who might have been the owner.
48. The point at which I part company with Keith J. is at paragraphs 14 and 15 of his judgment where he said:

"The criticism of the inspector, therefore, is that in reaching the conclusion that the use by the public of the path as a footpath in the period from 1978 to 1998 – when considered alongside the use by the public of the path as a footpath before then – was sufficient to infer that the path had been dedicated by the landowner for use by the public, she ignored the fact that during the period from 1978 to 1998 the members of the public who had used the path as a footpath must have been aware that it had not been dedicated in view of the objections raised at the inquiry in 1978.

15. In my view, this argument gets the focus all wrong. The question for the inspector was not so much what the members of the public who used the path thought about whether the path had been dedicated to the public's use. The question for the inspector was rather whether the owner had done anything to show the public at large that he had not intended to dedicate it for the publics use: see, for example, what Denning L.J. (as he then was) said in Fairey v Southampton County Council [1956] 2 QBD 439 at p 458. It may be that the agent of the trustees of the estate of a previous owner of Puncknowle Manor Estate had objected to the use of the path as a footpath. But (a) there was nothing before the inspector which suggested that the trustees of the estate of the previous owner of the Puncknowle Manor Estate were the landowners at the time of objection had been made, and (b) in any event, the inspector had expressly found in paragraph 71 of her decision that had the Trustees been the owners at the time she would have expected them to have taken action to prevent the public from using the path. In fact, nothing would was done until the 1990s when gates at one end of the path were locked. The effect of that finding was the owners, whoever they were, had not done anything after 1978 until 1998 to show the public, that they were not intending to dedicate it to the public's use. The inspector must therefore be treated as having found that the inactivity on the part of the landowners, whoever they may have been, had neutralised such effect on the issue of dedication which the objection made at the 1978 inquiry might have had."

I find the last sentence difficult to follow. The County Council does not support this conclusion, Miss Hannett's submission being that the 1978 inquiry had no bearing on the present question because the objection was not found to be that of the owner. I do not follow what is meant by "neutralised such effect on the issue of the dedication". If the objection at the 1978 inquiry was relevant, which in my view it was, it was not necessary to look for "neutralisation". Objection followed by inactivity hardly seems to me to give rise to acquiescence from which dedication is to be inferred

Conclusion

49. In my judgment the inspector made an error of law in failing to have regard to the fact that objection had been raised publicly at the 1978 inquiry by a person or persons who might have been the owner or owners of the Order route. Accordingly, her decision was flawed on Wednesbury grounds: it should have been set aside by Keith J. and I would allow the appeal from his decision. I should add for completeness that the County Council sought by a respondent's notice to uphold Keith J's decision for further reasons not given by him. Suffice it to say that none of the grounds overcomes the hurdle that the inspector failed to give regard to the fact that objection had been made at the 1978 inquiry by someone who could well have been the owner.

Lord Justice Moses :

50. I agree.

The Chancellor :

51. I also agree.