Van McKellar | Partner

Keep Walking This Way

In my recent article about Public Rights of Way I advised that we were awaiting a court’s decision on whether a public right of way existed over our client’s land.

That judgement has now been issued and finds in our clients’ favour; put shortly, the court held that our clients’ land was not burdened by a Public Right of Way.

Why did the court so decide?

The principal reason is that the court, having carefully assessed the parties’ evidence, decided that such evidence as had been led was insufficient to prove what was required to establish a public right of way existed and that in certain of the key regards.

Firstly, the court held that there was no proof of use by members of the public. Clearly, for the path to be a public right of way it must be proved to have been used by the public. In this case, the court held that the only evidence proved was use by a neighbour and that that evidence was irrelevant. That is because the court was satisfied on the legal argument we advanced, that evidence of use by a neighbour (and his family and employees) could not be argued, legally, to amount to evidence of use by the public. As use by the neighbour (and his family and friends) was the only evidence led, the court held there was no case for our client to answer.

The court then further held that in any event such evidence as had been led (had it been relevant) did not amount to sufficient proof of sufficient ‘use’ of the claimed path in several important respects, including that the existence of a definite route for the required 20 year period was not proved; regular and frequent use of that path for the 20 years was not proved; and nor was that such use having been uninterrupted for 20 years.

As the court acknowledged in reaching its decision we and our client spent a considerable amount of time amassing the necessary evidence to rebut the asserted case, with over 100 documents and 9 Affidavits of witness evidence lodged with the court. While a time consuming and onerous task, as the court’s decision was based on the evidence and, as stated above, found that their land is not burdened by a public right of way that was time well spent!

Van McKellar

Van McKellar

Dispute Resolution Team

“I see my role as a problem solver – seeking to understand the factual basis of my clients’ disputes and applying a legal and commercial analysis in seeking to resolve them, whether by negotiation or by means of litigation or some other alternative means of dispute resolution.”

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