- Court of Appeal clarifies the legal test of public nuisance to a landowner’s capacity to dedicate higher public rights to existing public rights of way (Garland v Secretary of State for Environment, Food and Rural Affairs)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Local Government analysis: An existing public right of way can be upgraded to higher public rights by either deemed dedication under section 31 of the Highways Act 1980 (HA 1980); presumed dedication at common law; or dedication by express agreement of the landowner eg an existing public footpath being upgraded to a public bridleway. The question for the Court of Appeal in this case was the relevance and appropriate legal test of public nuisance to the legal capacity of a landowner to dedicate such new higher rights. The court confirmed that a landowner does not have authority to dedicate higher public rights over an existing public right of way where such dedication will give rise to a public nuisance. Whether there is a public nuisance to the existing public rights is a matter of judgement for the decision maker. The public nuisance is to be assessed at the time of dedication which for deemed or presumed dedication would be the period of long use which justifies the inference of dedication. Written by Brendon Lee, associate at HCR Hewitsons LLP.
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