Right of way inspector: Public use of land held under the Public Health Act 1875 and Open Spaces Act 1906 “by right” not “as of right”

If members of the public have been using paths laid out in a park, or area of open space, to travel between various points, can they establish a right of way over those paths by presumed dedication if that use has continued for 20 years? Section 31 of the Highways Act 1980 provides for a ‘presumption of dedication’ to the public to be raised where a way has been enjoyed “as of right”, without interruption from the landowner, for at least 20 years. Use “as of right” is use that is nec vi, nec clam, nec precario (without force, not in secret, and not on the basis any permission). In an interim decision issued in 2016 in relation to Wharton Park, Durham, the Secretary of State’s inspector had concluded that public use of paths within the park was “as of right”, not “by right”, even though she accepted that most of the park was held by Durham County Council (“DCC”) under the Public Health Act 1875 “for the purpose of being used as public walks or pleasure grounds”. DCC objected to the interim decision and the same inspector held an inquiry in July 2017. In her final decision, issued on 4 August 2017, the inspector stated that legal submissions made on behalf of DCC at the recent inquiry had led her to “reappraise” her interim decision. The inspector now accepts that where the public use paths laid out on land held under the Public Health Act 1875, this use will be “by right”, not “as of right”, such that the presumption of dedication does not arise. The inspector noted DCC’s submisssion, drawing on Hall v Beckenham Corporation [1949] 1 KB 716, that it had not been in a position to exclude public use of the paths, and that it would have been odd to consider the users of the paths trespassers, given the statutory basis on which the land has been held. The inspector came to the same conclusion, in principle, about the other part of the park she now accepts has been held under the Open Spaces Act 1906, having stopped short of that conclusion in her interim decision. Paragraphs 52 to 87 of the inspector’s final decision deal with this issue of the use being “by right”, not “as of right”, and are likely to be of interest in other cases raising similar issues. Gwion Lewis acted for the order-making authority, Durham County Council, at the inquiry in July 2017.