Ian Dove QC of No5 Chambers, instructed on a public access basis, delivered a victory for his client, TW Logistics, in a decision that was promulgated on 17th September 2012.
At the inquiry which resumed, after a 6-month extension, on 24th July 2012, Ian Dove QC argued against the Order, dated 15 September 2010, which proposed to modify the Definitive Map and Statement for the relevant area by adding public footpaths at Mistley Quay, Essex. The Order was made by Essex County Council, following a Schedule 14 Appeal and direction by the Secretary of State. ECC took a neutral stance at the Inquiry. Mr Horlock, argued in support of the Order. 
In essence Inspector Doran had to make a decision as to the sufficiency of the evidence in showing, on the balance of probabilities, whether a footpath, which is not shown on the Definitive Map and Statement, subsists and whether the Map and Statement therefore required modification.
Mr Horlock’s submissions and evidence base were centred on claimed use by the public. 
Either presumed dedication as set out in the test under Section 31 of the Highways Act 1980, or by implied dedication under common law had to be found in order for the Inspector to find against Mr Dove QC and the confirm the Order. 
Under the 1980 Act, the claimed footpaths had to be used by the public as a right, without interruption, for no less than 20 years ending on the date on which their right to do so was brought into question; and there needed to be sufficient evidence that during this 20 year period, there was no intention on the part of the landowner to dedicate the claimed footpaths.
In the alternative, Mr Horlock had to evidence that, as prescribed by common law, a right of way had been created through expressed or implied dedication and acceptance.
Mr Horlock offered grounds on which the route carried public rights, including the presence of an ancient milestone on the route, on which point historically there was some indecision, the Council initially concluding it was an all purpose highway, however upon further evidence finding that it could not conclusively be established. The Inspector additionally was confronted with a lack of evidence of such a milestone in the Ordinance Survey maps – little weight was therefore attached.
The Inspector dismissed the existence of public houses, a rowing club and dwelling on the Quay, asserted by Mr Horlock, as being evidence that such a public right existed. 
As a whole the evidence base was found to be conflicting, and on the balance of probabilities the Inspector found that it did not support the historical existence of a public right of way over the Order route.
There was considerable debate as to what should be considered “the date on which their right to do so was brought into question” under the 1980 Act. In this instance, the Inspector agreed with Mr Horlock, that while the date of the application was 2001 (asserted by TWL to be the relevant date) as a result of several other instances in which it was called into question, Mr Horlock’s date of 1963 (the date on which notices were evidenced as being present prohibiting admission) was considered the end of the 20 year period. 
The claimed route was found to be of such a character that it would not give rise at common law to any presumption of dedication. 
Ian Dove QC argued that the claim was defeated as it fell under s 55 1949 Act which makes it a criminal offence to trespass where a notice is exhibited prohibiting entry. While there was no evidence presented of notices existing in the past, since the land was formerly an operational railway it is likely they would have. Mr Horlock’s distinction between “railway” and “tramway” was rebutted and the Inspector did not find compelling his submission that use was capable across the railway as a result of it being privately owned land. The Inspector reiterated the obvious: criminal trespass cannot give rise to the acquisition of a public right.
Given the passage of 50 – 70 years, limited weight was accorded to witness statements, especially without the benefit of scrutiny and testing at the Inquiry. Witness evidence described times spent as children and teenagers at the Quay but not all witnesses described using the Order route as a whole.
The Inspector was satisfied that claimed use had been by the public and on balance the evidence showed that interruptions were not intended to prevent public access. The Witness evidence showed that for years they accessed the Quay cutting across the land at various points – however, this use was found to be consistent with accessing the Quay as a whole rather than use of a more or less defined route.
The Inspector’s decision fell on the nature of access to the Quay being broad, making a land owner’s lack of intention to dedicate a point which did not alter the conclusion.
It was not necessary for the Inspector to make a determination on the human rights grounds advanced by Ian Dove QC on behalf of TWL under Art 6 and Art 1 of the First Protocol (delay and wholly disproportionate interference with property respectively), as a conclusion had been made: based on the evidence, claimed public use was not on the Order route. The Order was therefore not confirmed and no changes are to be made to the Definitive Map and Statement.
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