Norfolk County Council (Billingford) Modification Order 2012.
Order Ref: FPS/X2600/7/106.
Interim decision: 6 February 2014 (not amended in the final decision of 7 January 2015).
Inspector Mark Yates.
Many years ago, when PINS was still an approachable organisation, looking to engage with its ‘customers’, and trying to improve its performance and engagement, the then Chief Inspector, the estimable Brian Dodd, on hearing that yet another inspector, in yet another case, had misapplied the double-negative s.54 test, told me, ‘I tell them to write out the statutory provision exactly as it appears in the Act … if they do that it is harder to go wrong …’ Well, plainly that is a lesson that did not get through to all.
In his paragraph  Mr Yates sets out the statutory requirements for deemed dedication (my emphasis): “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.” Nearly right, but no biscuit.
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 …” Can you spot the difference?
In this case the date of ‘bringing into question’ was found to be “2010”, and the necessary period of 20 years of user to be “between 1990 and 2010.” ‘Between’ in this usage seems to mean, ‘in the period separating two points in time.’ So ‘between 1990 and 2010’ means the period between 31 December 1990, and 31 December 2009, and that amounts not to 20 years passage of time, but to 19 years, while s.31(1) of the Highways Act 1980 requires a “a full period of 20 years.”
Since the Act demands a ‘full period of 20 years’, finding that the date of bringing into question was one of the 365 days during 2010 (but not knowing which day) must surely demand a period of user reaching back 20 years from (the start of) 1 January 2010, which is to (the start of) 1 January 1990. If the date of bringing into question was later in 2010 than 1 January, but not known, then there is a full period of 20 years accounted for in this approach, but a notional 1 January 1990 is not satisfied by “between 1990 and 2010.” “Between 1989 and 2010” would bracket a full period of 20 years.
What does PINS say in Consistency Guidelines? In [5.3] “Under s31 HA80 dedication of a route as a public highway is presumed after public use, as of right and without interruption, for 20 years, unless there is sufficient evidence that there was no intention during that period to dedicate it. The 20 year period runs retrospectively from the date of bringing into question.” Again, the statutory requirement is not properly set out here. Needs fixing?