Guidance

Rights of Way Section: Advice Note No 6 - The Sunningwell Judgment and the Meaning of “As Of Right”

Published 1 October 2000

This guidance was withdrawn on 20 November 2024

This advice note relates to policy and legal guidance matters, this responsibility falls outside of the remit of the Inspectorate. It has therefore been decided that rights of way advice notes produced by the Inspectorate will no longer be updated and will be archived on GOV.UK.

Applies to England and Wales

1. Introduction

1.1. This Advice Note explains the Sunningwell judgment (R-v-Oxfordshire County Council and Another ex parte Sunningwell Parish Council [1999] 3 WLR 160) so far as it relates to the meaning of use “as of right” in section 31 of the Highways Act 1980.

1.2. This Advice Note is publicly available. It is not an authoritative interpretation of the law.

2. Background

2.1. When considering Sunningwell and, in particular, what constituted 20 years’ user as of right under section 22(1) of the Commons Registration Act 1965, the House of Lords drew a comparison with section 1(1) of the Rights of Way Act 1932 - now enshrined in section 31(1) of the Highways Act 1980 - where the words “as of right” appeared. In deciding Sunningwell, the House of Lords considered the 1996 case of Steed (R -v- Suffolk County Council ex parte Steed (1996)75 P&CR 102), which drew on three other cases: Hue v Whiteley (Hue -v- Whiteley [1929] 1 Ch 440, 445), Jones v Bates (Jones -v- Bates [1938] 2 All ER 237), and O’Keefe v the Secretary of State for the Environment (O’Keefe -v- SSE [1996] JPL 42).

2.2 The House of Lords held that Steed had been wrongly decided. They were of the view that an aside by Mr Justice Tomlin in Hue v Whiteley resulted in an additional requirement being imposed on the words “as of right” which was contrary to the principles of prescription and for which there was no authority. In passing judgement in the House of Lords, Lord Justice Hoffman suggested that Tomlin J’s aside resulted in a view developed in Jones v Bates that the state of mind of the users should be considered. Lord Hoffman doubted that was what Tomlin J had intended. He said,

I rather doubt whether, in explaining this term parenthetically as involving a belief that they were exercising a public right, Tomlin J. meant to say more than Lord Blackburn had said in Mann v. Brodie, 10 App.Cas. 378, 386, namely that they must have used it in a way which would suggest to a reasonable landowner that they believed they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which…depends upon evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose, the actual state of mind of the road user is plainly irrelevant.

([1999] 3 WLR 169 (at H))

3. The correct test

3.1. The House of Lords decided that the proper test for user as of right is an objective test based on evaluation of the actual user: was it without force, without stealth and without licence (nec vi, nec clam, nec precario). Lord Hoffman rejected any necessity for subjective examination of the state of mind of the users which the Hue, Jones and O’Keefe cases had come to be viewed as an authority for:

My Lords, in my opinion the casual and, in its context, perfectly understandable aside of Tomlin J. in Hue v. Whiteley has led the courts into imposing upon the time-honoured expression “as of right” a new and additional requirement of subjective belief for which there was no previous authority and which I consider to be contrary to the principles of English prescription. There is in my view an unbroken line of descent from the common law concept of nec vi, nec clam, nec precario to the term “as of right” in the Acts of 1832, 1932, and 1965.

([1999] 3 WLR 171 (at A))

Lord Hoffman went on to say:

In the case of public rights, evidence of reputation of the existence of the right was always admissible and formed the subject of a special exception to the hearsay rule. But that is not at all the same thing as evidence of the individual states of mind of people who used the way. In the normal case, of course, outward appearance and inward belief will coincide. A person who believes he has the right to use the footpath will use it in the way in which a person having such a right would use it. But user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not. Where Parliament has provided for the creation of rights by 20 years’ user, it is almost inevitable that user in the early years will have been without any very confident belief in the existence of a legal right. But that does not mean that it must be ignored.

([1999] 3 WLR 171 (at C))

4. Summary

4.1 The House of Lords held that evidence as to the status or reputation of a way is admissible, but evidence as to the state of mind of the users is not part of the test of user as of right. If it emerges that users did not consider that they were exercising public rights that does not mean that the evidence of use is to be discounted. On the contrary, user “as of right” does not require that the public believe they are using a way as of right.