It is a sobering thought that very little has changed in nearly 20years.
The following is part of Lord Rothericks’ speech on November 7th 2000.
“The amendments to Schedule 15 to the 1981 Act made by Amendment No. 161 reflect the fact that………
….. the function of the Secretary of State is confined to resolving appeals on the accuracy of the recording by the public authority, not ruling on the correctness of a decision on whether a right of way exists. That function will pertain to an independent tribunal.
§New Section 11(1)(c) reflects the need for reasons to be given for executive decisions to verify their correctness.
Again, there is no current requirement for the Secretary of State to give reasons for his decisions.
That is particularly important when there is a statutory appeal to the High Court solely on points of law that can be manifest only if a fully reasoned decision is given.
§Amendments Nos. 169 and 170 to Section 31 of the Highways Act 1980 would remedy the unfair treatment meted out to the landowner by the interpretations of that section. Too many spurious claims have been passed as good because the public authority, the Secretary of State and finally the courts rely on antiquated legislation that had its roots in common law but that has so deviated from it that it has become no more than a pretence to open up private ways.
§The landowner generally has no defence against such claims which more often than not are brought about many years after a supposed dedicator is dead and buried.
While the word of the claimant is usually accepted at face value, the landowner once again has an enormous burden of proof to discharge. Even if he has never seen anybody and there has therefore been no need to erect notices, he is still presumed to have dedicated and his word is disbelieved.
That gives rise to many abuses. Some sense should be restored to the provision, in line with the original common law from which it derives. Nowadays the intention of the owner counts for very little. Acts of kindness and generosity are by law taken as generating a legal obligation.
The trespasser acquires rights, even he knew that he was committing a wrong in the first place.
§I turn to Amendment No. 171. New subsection (12) is aimed at putting a stop to claims which, in order to succeed, are delayed before being made.
Having carried out all the necessary searches that do not reveal a right of way, a new owner might later be faced with a claim that he cannot defend as it relates to a period in which he was not responsible for the land.