29 January 2016
Inspector Michael Lowe
Tests for user evidence: calling into question.
In a brief (387-word) decision letter, Mr Lowe goes through the formalities for confirming a user-evidenced-based order to add a public footpath in Swansea. This is necessary because two objections, subsequently withdrawn, caused the order to be sent to the Welsh Ministers.
Mr Lowe finds that the council made the order on the basis of a 20-year period of user between 1991 and 2011, and recites the s.31 tests to be applied, including “… a period of 20 years ending with the date that the public use of the way was brought into question.” Mr Lowe does not state the date on which the public’s use was brought into question, although establishing this is fundamental to determining whether there is a full 20-year period established.
‘Between’ means ‘in the period separating (two points in time)’, and so “between 1991 and 2011” refers to the period midnight 31 December 1991 to midnight 31 December 2010, and that is but 19 years at most by our arithmetic. If Mr Lowe meant ‘in the period spanning 1991 and 2011’ he would have 21 years available, New Year to New Year, but the period of user during 1991, and the date of challenge (both apparently untested) would be crucial.
Readers who are avid web-surfers might think that they have seen this issue before, and they would be right. On 3 October 2015 a report on the decision letter of Inspector Mark Yates in FPS/X2600/7/106 noted that in his paragraph  Mr Yates sets out the statutory requirements for deemed dedication (emphasis added): “The relevant statutory provision, in relation to the dedication of a public right of way, is found in Section 31 of the Highways Act 1980 (‘the 1980 Act’). This requires consideration of whether there has been use of a way by the public, as of right and without interruption, for a period of twenty years prior to its status being brought into question.”
S.31 of the Highways Act 1980 actually says: “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 …”