Recognition Of A Footpath

December 17th, 2014 by James Goudie KC

In Powell v SoS, Doncaster Borough Council Interested Party [2014] EWHC 4009 (Admin) the claimants applied for Judicial Review of an Order made by the Council and confirmed by an Inspector following a Public Inquiry.  The Order was for recognition of a footpath as a right of way.  The application was refused by Dove J.  He held that the correct approach in determining whether there had been use “as of right” was, first, to examine the quality of the use relied upon, and then, once the use had passed the threshold of being of sufficient quantity and suitable quality, to assess whether any of the vitiating elements applied from the “tripartite test” (neither force/ nor secrecy/nor licence) (nec vi/nec clam/nec precario). The Judge ruled (para 32) that it was “absolutely clear” from the authorities that there was no justification for imposing an additional test as to whether the quality of the use was such that a reasonable landowner would be expected to intervene to resist it.  He said (para 33) that the tripartite test is the law’s way of assessing whether or not it would be reasonable to expect that the use would be resisted by the landowner.  He concluded (para 36): “The tripartite test is to be applied objectively from how the use would have appeared to the owner of the land.  The application of that test is all that is required”.

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