Case No: B2/2012/2017
Neutral Citation Number: [2013] EWCA Civ 570
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
(MR RECORDER THORP) 
 
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday, 26th April 2013
Before:

LORD JUSTICE LAWS
LORD JUSTICE LEWISON
and
LORD JUSTICE LLOYD

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	SINGH & ANR
	
Respondents	
	
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AKHTAR
(Administratrix of the Estate of
Mr Basharat Hussain Deceased)	

Appellant
	
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(DAR Transcript of 
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Mr Ian Pennock (instructed by Stachiw Bashir Green) appeared on behalf of the Appellant

Mr Jonathan Wright (instructed by McManus Seddon Runhams) appeared on behalf of the Respondents
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Judgment
Lord Justice Lewison:

1.	Mr and Mrs Singh were at the relevant time the owners of a triangular-shaped parcel of land at the rear of Great Horton Road in Bradford.  The conveyance from which their title derived was made on 15 April 1965.  That conveyance contains the grant of a right of way at all times and for all purposes over and along the whole of the back road leading into Great Horton Road.  Great Horton Road was a public highway maintainable at public expense.  

2.	Mr Hussain, who lived at 806 Great Horton Road, derived title from the same vendor as Mr and Mrs Singh: Metcalfe and Vickers Limited.  

3.	The conveyance from which he derived title was made in 1958.  It described the property as being bounded on the northwest by the centre of the back road and on the southwest by the centre of a side road.  It included the reservation of a right of way of so much of the back road and the side road as were included in the conveyance.  It is now common ground that the back road referred to in Mr and Mrs Singh’s deeds is the same land as a side road referred to in Mr Hussain’s deed.  

4.	Mr and Mrs Singh claimed that Mr Hussain had committed an actionable interference with their right of way by building a wheelchair access ramp on part of the land over which the right of way ran.  Mr Recorder Thorp held that their claim was well-founded and granted an injunction requiring the ramp to be removed.  

5.	Although a number of points were argued at trial, there is only one point that arises on this appeal.  Mrs Akhtar, who is Mr Hussain’s widow and administratrix of his estate, argued that the reservation and subsequent grant of the right of way was invalid because by 1958 the land in question was vested in the Highway Authority as a highway maintainable at public expense.  

6.	There are two questions wrapped up in that contention.  First, was the land a highway at all and, if so, was it a highway maintainable at public expense?  The judge correctly directed himself as to these two questions at paragraph 29 of his judgment.  It was Mrs Akhtar’s case that the side passageway became a highway maintainable at public expense.  The judge described the information that came from the local authority as “conflicting”.  Inquiries made of the local authority revealed that the road was not recorded on the council’s definitive list of highways repairable at the public expense; but there was a letter to which we have been referred from the Bradford City Council, which revealed the existence of a footpath, designated public footpath 122 Bradford West, which “abuts the site, as shown on the enclosed plan”.  A comparison of the plan attached to that letter, and the plan attached to a stopping-up order which was relied upon as extinguishing any public rights of way, appears to show that the public footpath does not run over the triangular piece of land with which we are concerned.  Be that as it may, these questions were not ventilated as they should have been at the trial.

7.	Mr Pennock submitted that the side passageway became a highway no later than 1917, which is 20 years after the first of the conveyances in evidence, dated 1897, on which the side passageway was described as an “intended” road.  The allegation in the defence that the side passageway was a highway repairable at public expense was not admitted on the pleadings.  Consequently, in accordance with CPR Part 16.7, it was up to Mrs Akhtar to prove that part of the case.   In order to make good that allegation, Mrs Akhtar would have had to show that the side passageway was used by the public in such a manner as to give rise to an inference of dedication and acceptance.  There is now a statutory presumption of dedication after use by the public for a period of 20 years.  That statutory presumption is contained in section 31(1) of the Highways Act 1980.  The origins of that presumption are to be found in section 1(1) of the Rights of Way Act 1932.  The 1932 Act was not a codification of the common law but a substantive change.  The statutory presumption, therefore, cannot found a conclusion that the side passage became a highway by 1917.  Had there been evidence of use by the public for 20 years before 1958, then the statutory presumption might have been relied on.  

8.	What, then, was the evidence?  The judge said in paragraph 33 of his judgment: 

“...while there is evidence that there are lights on the back passageway and on the path, I have noted that there is no significant evidence as to the use of that path or where it leads to.  It is right to say that the evidence on the matter is silent but in order to find that members of the public would regularly use that particular snicket or passageway, and certainly in order for me to find that they would have used that snicket or passageway as a regular route pre-1958, in my judgment I would have required some more evidence than I have before me today.”

That, as it seems to me, is a finding of fact that Mrs Akhtar had not established that the side passageway was a highway at all.  That finding of fact is, in my judgment, overlooked in the Grounds of Appeal, where there is no specific challenge to that finding.  It may be that to some extent the parties were at cross-purposes at trial, but, as I have said, the position on the pleadings plainly required Mrs Akhtar to prove the allegation that there was a highway maintainable at public expense, and it seems to me to be clear from Mr Wright’s skeleton argument, which he gave to Mr Pennock at the outset of the trial, that the question whether there was indeed a highway was a live issue.
 
9.	Mr Pennock has this morning applied to rely on further evidence, consisting of three ordnance maps, dating respectively from 1893, 1908 and 1932.  Those maps are indicative of features on the ground rather than rights over what is shown on those maps.  Moreover, as Mr Wright points out, the old editions of ordnance maps could have been obtained well before trial in the 18 months or so that this case took to get to trial.  I would not regard those ordnance maps as being properly admitted on this appeal and, even if they were, they do not displace the Recorder’s clear findings of fact.

10.	So far as I can see from the case papers, there is no evidence at all of any actual use by the public, still less evidence of actual use by the public for 20 years.  It is true that the council made a stopping-up order over the triangular piece of land, but I do not consider that that makes up the deficiency in the evidence.  Absent a finding of fact that the side passageway was indeed a highway, there can be no question of statutory vesting.  If there is no question of any statutory vesting, then Metcalfe and Vickers Ltd were competent to reserve a right of way over the side passageway and subsequently to grant that right of way to Mr and Mrs Singh’s predecessors in title.

11.	Accordingly, on that short ground, the appeal must fail.

Lord Justice McCombe:

12.	I agree.

Lord Justice Laws:

13.	So do I.  

Order:  Appeal dismissed