Alleyway Access and the Case of Ali – rebutting the statutory presumption of highway dedication

Owners of alleyways through which the public regularly exercise a right of way will do well to heed the judgement in this case.

In a recent judgement (Ali v Secretary of State for Environment, Food and Rural Affairs (2015)) the High Court tackled the statutory presumption of highway dedication in relation to a claim with an appropriately named claimant.

Where the public have enjoyed a way over land as of right and without interruption for 20 years it is deemed to have been dedicated as a highway unless a landowner can demonstrate that there was no intention to dedicate (s31(1) Highways Act 1980).

In Ali, an alleyway had been in public use for many years as an access to local shops. An order was made under section 53(2) of the Wildlife and Countryside Act 1981 to modify the definitive map to include a new footpath over the alleyway on the basis of deemed dedication. The owner of the alleyway sought to quash the order, citing evidence of the closure of the alleyway during Christmas periods. Such closure, argued the landowner, was sufficient to demonstrate to the public that he did not wish to dedicate the alleyway.

The High Court dismissed the application. Use of the alleyway was primarily for access to local shops which would have been closed during the Christmas period and so the public would not have been seeking to use it during that time. Such closure of the alleyway was therefore unlikely to have affected the public’s general use of it and did not amount to "overt acts" demonstrating the landowner’s intentions.

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