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NORMAN CHARLES BUCKLAND AND PATRICIA JOAN BUCKLAND AND DAVID HUBERT CAPEL v. SECRETARY OF STATE FOR ENVIRONMENT TRANSPORT AND REGIONS [2000] EWHC Admin 279 (11th January, 2000)
Case No CO/1682/1998
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Crown Office)
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday, 11 January 2000
Before:
MR JUSTICE KAY
NORMAN CHARLES BUCKLAND
AND
PATRICIA JOAN BUCKLAND
AND
DAVID HUBERT CAPEL
-V-
THE SECRETARY OF STATE FOR THE ENVIRONMENT
TRANSPORT AND THE REGIONS
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
Mr George Laurence QC (instructed by Thrings & Long) appeared on behalf of
the Applicants.
Mr John Hobson (instructed by the Treasury Solicitor) appeared on behalf of the
Respondent
Judgment
As Approved by the Court
Crown Copyright ©
Tuesday, 11 January 2000
JUDGMENT
MR JUSTICE KAY:
This is an application brought by the applicants under paragraph 12 of
Schedule 15 to the Wildlife and Countryside Act 1981 ("the 1981 Act") against
the decision of the Secretary of State acting by his Inspector dated 8 January
1998 by which he confirmed the County Council of Avon Definitive Map and
Statement Modification Order No 1. 1994 with modifications.
Factual background to the application
The route in question runs between the villages of Winscombe and Barton and
is known for a part of the route as Barton Drove. Prior to the modification
with which the case is concerned it has always been shown on the definitive map
as two footpaths.
The Modification Order made pursuant to section 53 of the 1981 Act purports
to show those paths as upgraded to bridleways. Objections were raised to the
order and as a result an inquiry under paragraph 7 of Schedule 15 to the 1981
Act was held. Following that inquiry, the Inspector concluded that the
documentary evidence supported vehicular highway rights and in consequence, by
paragraph 70 of his first decision letter dated 18 April 1997 indicated that
the Secretary of State was minded to confirm the order subject to the
modification that the route would fall to be shown as a Byway open to all
traffic ("BOAT") and not as a bridleway. The proposed modification to the
order required that a further opportunity be given for objections and
representations pursuant to paragraph 8 (2) of Schedule 15 of the 1981 Act. A
further local inquiry was held on 18 November 1997 following which the
challenged decision to confirm the order modified to show a BOAT was made by
letter dated 8 January 1998.
Statutory Framework
The former Avon County Council (predecessor to the North Somerset Council)
as the surveying authority were under an obligation pursuant to section 53 of
the 1981 Act to maintain a definitive map and statement recording rights of way
and to keep it under continuous review. Upon the occurrence of certain
required to modify the map and statement. Section 53(3) specifies the events
as:
"(a) the coming into operation of any enactment or instrument, or any other
event, whereby-
(i) a highway shown or required to be shown in the map and statement has been
authorised to be stopped up, diverted, widened or extended;
(ii) a highway shown or required to be shown in the map and statement as a
highway of a particular description has ceased to be a highway of that
description; or
(iii) a new right of way has been created over land in the area to which the
map relates, being a right of way such that the land over which the right
subsists is a public path;
(b) the expiration, in relation to any way in the area to which the map
relates, of any period such that the enjoyment by the public of the way during
that period raises a presumption that the way has been dedicated as a public
path;
(c) the discovery by the authority of evidence which (when considered with all
other relevant evidence available to them) shows-
(i) that a right of way which is not shown in the map and statement subsists
or is reasonably alleged to subsist over land in the area to which the map
relates, being a right of way to which this Part applies;
(ii) that a highway shown in the map and statement as a highway of a
particular description ought to be there shown as a highway of a different
description; or
(iii) that there is no public right of way over land shown in the map and
statement as a highway of any description, or any other particulars contained
in the map and statement require modification."
Section 66 provides the following definitions:
"bridleway" means a highway on which the public have the following, but no
other, right of way, that is to say, a right of way on foot and a right of way
on horseback or leading a horse, with or without a right to drive animals of
any description along the highway;
"byway open to all traffic" means a highway over which the public have a right
of way for vehicular and all other kinds of traffic, but which is used by the
public mainly for the purpose for which footpaths and bridleways are so
used;
.....
"footpath" means a highway over which the public have right of way on foot
only, other than such a highway at the side of a public road;
....."
Judicial interpretation of section 66
The meaning of the definition of a BOAT has been the subject of judicial
interpretation and two conflicting views have been expressed at first instance.
One of the cases is the subject of an on-going appeal to the Court of Appeal
and it will be for that Court to determine which of the competing views should
prevail. Counsel invited me to consider the matter in detail. In the light of
the fact that the Court of Appeal will shortly consider the matter and because
I do not consider that it is necessary to resolve the issue to decide this
case, I intend to do no more than consider the conflict briefly, to express my
provisional view and to explain why either view leads to the same conclusion on
the point that arises in this case.
The first of the two conflicting views is that of Dyson J in R v
Wiltshire County Council ex parte Nettlecombe [1998] JPL 707. That was
a case in which there was no evidence of current use of the highway. Mr
Laurence Q.C., who appeared for the applicant in that case and who appears for
the applicants in this case, successfully argued that in the absence of any
evidence of current use, it could not be said that it was a highway "which was
used by the public mainly for the purpose for which footpaths and bridleways
are so used."
Dyson J. said at page 711
"First the language of the definition is clear and unambiguous. It is
expressed in the present tense, and refers to current use, not past or future
or potential use. Secondly I cannot think of any policy reason why Parliament
should have intended an authority to carry out the difficult exercise of
speculating into the future as to two possible uses of highways. Finally, I
find nothing odd in the notion that in relation to byways open to all traffic,
Parliament was concerned not with rights of way, but with actual use. The aim
and object of Part III of the 1981 Act is to protect the interests of walkers
and riders in the countryside. It is entirely sensible and rational to say
that the benefit of the definition map and statement should be accorded to
pedestrian and equestrian uses of bridleways and footpaths i.e. highways over
which such users have right of way, and to say in relation to highways over
which the public have right for vehicular and other kinds of traffic, that the
protection of the definition map and statement is accorded only if they are
actually used by the public mainly for the purpose for which footpaths and
bridleways are used."
The commentary in the journal at page 714 reads:
"The first substantive point which Dyson J. makes is that the authority can
only make an order modifying the definitive map and statement so that a right
of way is shown as a "byway open to all traffic" if there is evidence that the
path is at present used for vehicular traffic. It is not sufficient to show
that in the past such a right had existed, if it is not currently used by the
public."
That view was repeated by Mr Laurence in an article which he wrote in "Rights
of Way Law Review" October 1998 page 87. At page 91, he makes the submission
that he has made in this case:
"It is, therefore, submitted that for a track to qualify for inclusion on the
map as a BOAT as defined in section 66(1):
(1) it must be shown to be, as a matter of status, a public vehicular
carriageway;
(2) it must be shown, as a matter of fact, to be currently used by the
public on foot, on horseback and with vehicles;
(3) it must also be shown that the combined public pedestrian and equestrian
user predominate over the public vehicular user."
The conflicting judicial view is that expressed by Hooper J. in Masters v
Secretary of State for the Environment and another (unreported -
judgment 1 October 1999). Hooper J. in that case himself raised the question
of the correctness of the decision in Nettlecombe, counsel for
the Secretary of State not having sought to argue that it was wrongly decided.
Mr Hobson, who appeared for the Secretary of State in that case as in this
case, frankly acknowledged that it had not occurred to him to argue that
Nettlecombe was wrongly decided until the intervention of Hooper
J. but he asserts, as he is quite entitled to do, that he was persuaded that
Hooper J's point was good and on behalf of the Secretary of State, he maintains
that position.
Hooper J. recognised that he could only depart from the decision of Dyson J. if
he was sure it was wrong but he concluded that it was. He reached that
conclusion by setting out a number of conclusions which he characterises as
"extraordinary" if Dyson J's interpretation is correct. Having then considered
Dyson J's reasoning he concludes that the section cannot have been intended to
have a literal meaning and that it must be taken as "referring to a type of
highway and not seeking to limit byways to those which are currently and
actually `used by the public mainly for the purpose for which footpaths and
bridleways are so used'".
With respect to the view expressed by Hooper J., it is my clear understanding
that the interpretation of a statute by means other than the language of the
section only becomes permissible when the language is not clear and
unambiguous. Like Dyson J., I have no difficulty in concluding that the
language of this section is "clear and unambiguous" and requires evidence of
current use. I should, therefore, have had no hesitation in deciding the point
that arose in Nettlecombe in the same way as Dyson J.
I do not, however, begin to accept the interpretation of Dyson J.'s judgment
contained in the commentary. Nowhere, so far as I can see, did the judge
decide that there needs to be evidence of current vehicular use equestrian use
since without it the definition cannot be satisfied but no more than that.
I reject a number of the submissions made by Mr Laurence as to wider aspects of
the definition:
(i) I see no reason why there has to be evidence of current vehicular use. Mr
Laurence's argument is that "mainly" must imply some vehicular use but I reject
that argument. As I rather inelegantly put it during the course of argument,
exclusively is simply the extreme form of mainly in this context. All that
needs to be demonstrated is that the pedestrian and equestrian use outweighs
the vehicular use and it matters not whether the latter is limited or
non-existent.
(ii) I equally reject the argument that there needs to be demonstrated both
pedestrian and equestrian use. Mr Laurence compares the definition of a BOAT
in Section 66 with the definition of a "road used as a public path" (RUPP) in
the National Parks and Access to the Countryside Act 1949 which defined a RUPP
as "a highway, other than a public path, used by the public mainly for the
purposes for which footpaths or bridleways are so used." He particularly
points to the use in the definition of "purpose" in the singular and the
replacement of "or" in the reference to footpaths and bridleways with the word
"and". I do not accept that this change has the significance suggested. Under
the definition of a RUPP it was arguable that one could not aggregate
pedestrian use with equestrian use when making the comparison with vehicular
use. As I read the definition of a BOAT, that matter is put beyond question.
The only exercise required is to see whether the combined pedestrian and
equestrian use, if any, is greater than any vehicular use.
The Section 66 point in the present case
I do not intend to say more about the conflict as to the definition of BOAT
because in the present case no matter which of the definitions prevails, the
conclusion in my judgment is the same.
Clearly if Hooper J. is right, provided this is a highway along which the
public have a right of way for vehicular and all other kinds of traffic, this
is a BOAT.
If the view of Dyson J. is, as I believe to be the case right, the issue is
whether there is evidence of pedestrian and equestrian use to outweigh such
evidence as there is of vehicular use. It seems perfectly clear that, since
there is a part of the route where there is no defined track or anything of
that kind and since there are a number of obstructions that would prevent
vehicular use, there was no current vehicular use. Hence if there is evidence
of some current pedestrian use and/or equestrian use, this will suffice.
The Inspector is his decision letter of 18 April 1997 at page 10 refers to
evidence from the Ramblers Association (which organisation supported the
objection of the landowner to reclassification of the footpaths as anything
more than footpaths) gave evidence of regular use between 1972 and 1992 and
spoke of one member having walked Barton Drove for 46 years from 1950. A
registered charity owned a holiday home for children with special needs nearby
and referred to Barton Drove being in constant use by children in groups of up
to 60 throughout the camp's history since 1888.
In the light of this unchallenged evidence, the Inspector could only conclude
that there was current pedestrian use and it seems clear from the tenor of both
the Inspector's decision letters that he did indeed accept such use (see e.g.
paragraph 37 of the second decision letter).
There was evidence of equestrian use. It was this evidence that had caused the
authority to re-classify the footpath as a bridleway. The Inspector concluded
in this regard:
"On balance, taking into account all the relevant evidence both before and
during the inquiry including the written representations and my site visits, I
find that it is more likely than not that it cannot be safely presumed that the
entire Order route has been dedicated as a bridleway in accordance with Section
31 of the 1980 Act."
Whilst this clear finding rules out the possibility of classification as a
bridleway, there is no clear finding as to whether there was current equestrian
use since the Inspector did not approach the issues in a way that gave rise to
this question. However, I have indicated if the pedestrian use outweighed the
vehicular use, it is unnecessary to demonstrate current equestrian use. Thus
the Inspector's failure to consider this aspect is not fatal to his
decision.
The Inspector's conclusion that the route was a highway
The second limb of the challenge to the Inspector's decision relates to his
conclusion that the route was a highway over which the public have a right of
way for vehicular and all other kinds of traffic. Mr. Laurence advances his
argument in this regard in a number of distinct ways but it is helpful first to
look at the basis of the Inspector's finding in this regard.
In his initial decision letter of 18 April 1997, the Inspector gives the
following description of the route:
"7. The Order route, known as Barton Drove, is approximately 2 kilometres in
length and runs from Winscombe Hill in the parish of Winscombe and Sandford in
a generally westerly direction to the road known as Camp Lane. ....
8. The route starts at a point P on the Order map, as Footpath AX29/23 and
initially takes the form of a hard stony surfaced track approximately 7 to 8
metres wide between well-defined boundaries, used as a vehicular access from
Winscombe Hill to properties fronting on to Barton Drove.
9. The track follows a generally westerly route passing the entrance to Old
Quarry Farm about 1.07 kilometres west of point P. West of this section the
way narrows in parts, to a minimum width of approximately 5 metres and the
surface changes from hardcore and stone to earth and grass. The route
continues as a tree-lined track with a width generally of about 7 metres for a
further 350 metres approximately, passing through a timber gate and stile, and
then via a second stile set in a post and wire fence with a farm gate, to a
third fence across the track containing a stile giving pedestrian access into
an open pasture field. Within the field some 160 metres of timber post and
rail fence has been erected across the field.
10. On the western side of the field the Order route connects via a further
stile with what appears to be the configuration of an ancient earth and grass
surfaced track about 7 metres wide which runs for the next 100 metres
approximately to a timber farm gate (referred to in evidence as the Drove gate)
some 70 metres south-east of the private house known as Barton Rocks, at point
Q on the Order map. Here definitive footpath AX29/23 ends and the route
continues to the west as part of footpath AX29/39 which also runs generally
north from point Q around the east side of the house to connect with Barton
Road. Immediately south of the house the line of the Order route is again
indistinct on the ground. To the west of the house a further gate gives access
to a section of the route which has obvious hedged boundaries, approximately 7
metres apart, and connects, via a stony surfaced track, with Camp Lane at point
R on the Order map."
The Inspector then goes on to deal with a diversion of the footpath route
(AX29/39) which had subsequently been made pursuant to a Diversion Order and an
Extinguishment Order at the request of the owners of Barton Rocks which
diverted the footpath further to the south of Barton Rocks but nothing in the
argument in this case has turned upon that diversion.
Although the Order which had led to the inquiry had designated the route as a
bridleway, the authority submitted to the Inspector that the route should be
reclassified as a BOAT. Its submissions were founded upon the 1797 Winscombe
and Sandford Inclosure Award and a number of ancient maps. The Inclosure Award
declared "the several and respective roads, ways, paths, passages and other
conveniences hereinafter set out" which included:
"BARTON ROAD .... Also one other private Road or Way of twenty four feet wide
beginning at a certain place in the said Winscombe Road marked on the said
Winscombe plan with the Roman letter C and extending from there Westward to a
certain other place marked on the said plan with the Roman letter D and which
said last mentioned Road or Way is delineated on the said Winscombe plan and
there is described and called by the Name of Barton Road ..."
Having set out the various roads and ways, the award provided:
"... AND WE THE SAID COMMISSIONERS do hereby order, direct and award that the
several Private Roads or Ways hereinbefore particularly mentioned and described
to be set out and appointed in, on, over and along the Commons or Waste Lands
hereinbefore mentioned shall always be and remain of their several and
respective widths and Breadths aforesaid between the ditches or walls and other
fences for the use and benefit of all and every the Owners, Tenants and
Occupiers of the several and respective Divisions and allotments, pieces and
parcels of ground hereinafter mentioned to be by us set out, allotted, inclosed
and awarded to them respectively with free liberty, power and authority for
them and all and every other person or persons whomsoever having any OCCASION
whatsoever to go travel, pass and repass through, upon and over the same Roads
and Ways and every or any or either of them on foot or on Horseback with
Horses, Cattle, Carts and other Carriages Loaded or unloaded at their and every
of their free wills and pleasure or otherwise howsoever as and when and as
often as they or any or either of them shall think FIT AND PROPER.."
The Award then made provision for the payment of all "charges and expenses" of
maintenance and repair. In respect of those in the parish of Winscombe, the
private road which had been set out was "from time to time and at all times for
ever hereafter" to be maintained and repaired "by all and every the Owners,
Tenants and Occupiers" at their joint expense in accordance with the Winscombe
Commons or Waste Lands Rate for which the Commissioners made provision.
The central and eastern parts as shown on the Inclosure Map coincided with the
Order route and the authority argued that notwithstanding the description of
the road in the Award as a "private road", the "extemely precise language
employed by the Commissioners" showed that they specifically intended the
private roads to be as available for general public use, including vehicular,
without restriction, as the King's Highway. Hence it was argued that the route
since it was not adopted as a classified or unclassified road fell to be
recorded as a BOAT. It was further argued that the description of the road as
"private" referred merely to the responsibility for maintenance and since it
fell not merely on those landowners and tenants whose land bordered the route
but all or most of the landowners and tenants of the parish named in the rate,
it effectively fell on the whole parish.
A number of ancient maps were produced. The 1817 Mudge Old Series Map showed a
route through to the hamlet of Barton on the line of the Order route.
Greenwood's Map of 1822 showed a route for most of the way but was unclear at
its Western end.
The 1840 Winscombe Tithe Map showed an enclosed lane as far as the Drove gate
and another further west. However that part of the route which is undefined on
the land today ran over tithable land and was not shown.
More modern maps starting with the 1886 and 1903 Ordinance Survey Maps showed a
n enclosed lane running in the East to the Drove gate and an unenclosed track
thereafter.
Itthat Barton Drove appeared at the time of the survey to be in public use as a
road, albeit gated in places. Thus it was said on the balance of
probabilities, Barton Drove was a highway passable to vehicular traffic, in the
form of a track wider than a footpath or bridleway, for very many years and
hence there was a clear common law presumption that it was public.
The contentions of the objectors, including the applicants, so far as they are
relevant, were first that the designation of the way as a "private" road must
mean something different from a public road, second that the user provision in
the Inclosure Award was different for public roads and private roads and hence
the user provision for Barton Road could not be equated to that of a public
road, and third that on the evidence it was clear that in the region of Barton
Rocks house the private road was never set out. A road awarded in an inclosure
does not become a public road until it is set out and taken up by the public.
No evidence was available that this had happened.
The relevant conclusions of the Inspector are set out in his decision letter as
follow:
"64. I turn now to the documentary evidence and crucially, it seems to me, to
the Shipham and Winscombe Inclosure Award. In my view this document carries
greater weight than others cited in the inquiry, for example the Tithe maps
because it discharged an express obligation to set out and appoint roads. I
acknowledge that there is considerable legal controversy about the evidential
value of such documents, as illustrated by the contradictory interpretations of
the wording of this Award by opposing counsel for the parties. I further
accept that the Award must be considered in the light of all other available
relevant evidence when assessing whether the terms used in it imply vehicular
use by a class of persons large enough to constitute "the public". In that
context I have taken into account the Tithe map, and the objectors' contention
that the fact that route was recorded as running over tithable land a mere 40
years after the Inclosure suggests that it was not then regarded as public
highway. I also note that the Tithe map shows that while the majority of the
Inclosure was carried out, many of the smaller "Private Roads" were not shown,
neither was the western end of Barton Drove, a pattern repeated in later OS
maps. And finally I have noted your Council's responses to all these
arguments, recorded above.
65. In the light of the foregoing considerations, and the evidence as a whole,
in my view the issue turns on the language of the Inclosure Award itself. I
consider that the wording used is very specific and, it seems to me,
deliberately comprehensive. Given the plain and ordinary meaning of words I
find no room for misinterpretation, and conclude that the Commissioners plainly
intended that the private roads, including the present Barton Drove, should be
all-purpose roads for anyone who wished to use them, not restricted to a
limited class of user. In that regard I share the view expressed by your
Assistant County Archivist who described the objectors' suggestion that the use
of the phrase "..having any occasion.." points to an intended restriction of
use, as clutching at straws given the striking tenor of the clause as a whole.
I conclude that, notwithstanding the use of the word private to describe the
Order route, unrestricted public rights of way including vehicular rights were
undoubtedly granted. In so doing I am not deterred by the arrangements
specified in the Award for maintenance of the way, accepting your Council's
contention that effectively, that responsibility was allocated not just to the
affected landowners but to the whole parish.
66. With regard to the section of the Order route between points Q and R, I
accept that some of the documentary evidence is less specific as to status than
on the remainder of the route. The Tithe map in particular shows part of the
route running over tithable land, although I note that your Council suggests an
explanation for this. This section is shown generally unenclosed in the OS
maps. However, taking the evidence as a whole, I believe it more likely than
not that the section Q to R was intended to be of the same public status as the
remainder, probably forming part of a through route, and I reject the
objectors' suggestion that the Inclosure Award in that section never became
effective because it was not evidently set out in the manner of the rest. The
evidence showed, in my view, that despite obstruction and neglect, the defined
route existed on the ground between points P and R.
67. I conclude that, on a balance of probability, at the time of the Inclosure
Award the public were granted and thereafter exercised vehicular rights of way
along the whole of Barton Drove. The subsequent decline in popularity of the
road, as alternative routes, modes of transport and agricultural practice
developed, has not diminished those rights and cannot do so in the absence of
an Order lawfully stopping them up."
As earlier indicated, because the Inspector had not confirmed the Order in the
form proposed, i.e. as a bridleway, a further inquiry was held. At the second
inquiry the point was taken by the objectors that the Commissioners had no
power to create public roads which did not conform to the criteria in the
enabling Act. The relevant Act was the Shipham and Winscombe Inclosure Act of
1797. This Act empowered the Commissioners to:
"Set out and appoint such Public Carriage Roads ... as they shall think
necessary and proper, all of which shall be and remain of the Breadth of Forty
Feet at the least."
The Commissioners were also "empowered and required" to
"Set out and appoint ... such Bridle Roads and Footways, and private Roads and
Ways ... in, over, upon, and leading to and from such Commons and Waste Lands
hereby intended to be divided and inclosed as they shall think requisite".
There was no width prescription in the case of private roads. The Act also
provided that a surveyor should be appointed to form the public roads and put
them in good and sufficient repair. He should certify when he had done this
and deliver his certificate to the Justices at Quarter Sessions within three
years. Thereafter the public roads were to be kept in repair "in the same
manner" as other public roads within the said parishes of Shipham and
Winscombe". In the case of the private ways they were to be kept in repair "by
such persons and in such manner" as the Commissioners should direct and
appoint.
The objectors, therefore, contended that the Commissioners had no power to set
out public carriage roads of less than 40 feet, and subject to the other
requirements of the Act. The Commisioners could not avoid the requirements in
relation to public roads by calling them private roads and granting rights to
everyone to "pass and repass" on them.
The authority presented no new evidence at the second inquiry and relied on its
earlier contentions.
In his second decision letter, the Inspector concluded:
"33. ..... I have noted the submission of the PC that my earlier conclusion
with regard to the intentions of the Inclosure award Commissioners was wrong
because, if my supposition was correct, the Commissioners were acting outside
the authority transferred to them, having regard to the precise terms of the
enabling legislation. After further review of the cited documents, all of which
were before the first inquiry, and in the light of opposing interpretations of
them at the second inquiry, I reject that view and see no reason to alter the
conclusion expressed in my letter dated 18 April 1997. It seems clear to me
that the Commissioners necessarily had implied powers to state who might use
the "private Roads and Ways", and I remain entirely satisfied that the language
that they chose to employ in that regard was so precise as to allow of no other
reasonable interpretation. I conclude that they intended, with lawful
authority, that the entire Order route should be a public vehicular highway,
and that it so became.
34. In arriving at this conclusion, I have taken account of the objectors
re-stated opinions on the evidence concerning the setting out of the claimed
road, and of their analysis of patterns of user of local ways at the time of
the Award, but I do not find either argument persuasive."
The applicants attack the Inspector's findings in a number of ways:
1. It is argued that the Inspector was wrong to conclude that the language of
the award, on a proper construction, operated to confer public status on the
private roads. Reference is also made in this regard to the repair provisions
and the Inspector's conclusions about them
2. The Commissioners had no jurisdiction to set out by their award public
carriage roads of a breadth less than forty feet wide. Insofar as the
Inspector was right to treat the award as having purported to set out Barton
Road as a public carriage road, it was ineffective in law to do so.
3. There was no evidence that Barton Road had been certified by a surveyor as
being fully formed as required or that the certificate had been allowed and
confirmed by the justices as required.
4. There was no evidence to support the conclusion that "on a balance of
probability at the time of the Inclosure Award the public were granted and
thereafter exercised vehicular rights of way along the whole of Barton Drove".
On behalf of the Secretary of State, Mr Hobson made the following
submissions:
1. The wording of the Award indicates the clear intention of the Commissioners
to set out Barton Road as a public carriageway.
2. The wording of the 1797 Act indicates that they lacked the power to do
this.
3. However, this lack of power would not prevent a way which is created
pursuant to an award becoming a public highway. Whether a public way does
result depends upon a consideration of all the relevant circumstances. These
include, of course, the terms of the award. Of these terms, the most important
must be the provision as to user.
4. If a way is actually created in accordance with the terms of an award which
makes it clear that the public are permitted to pass and repass with carts and
carriages without any restriction, a public carriageway will have come into
existence.
5. Accordingly if the whole length of Barton Road had been laid out in
accordance with the Award, and this was e.g. revealed on the Tithe Map, this
would be overwhelming evidence that the public rights had come into existence
and could not be disputed.
6. However although the whole length was not laid out in accordance with the
Award, a substantial length of it plainly was. Furthermore the way as laid out
was not an isolated stretch e.g. serving a particular farm, but was part of a
through route. Persons using the route after it was created would do so because
it was a way over which the public had the right to pass and repass, pursuant
to the Award.
Mr Hobson then considered various aspects of the documentary evidence and
invited the court to conclude that the Inspector was entitled to reach the
conclusion at which he arrived.
Conclusions
It is clear that a public highway may be created in a number of ways and once a
highway it will remain a highway. It may be expressly so created by statute.
An Act of Parliament may authorise the creation of a highway in some other way
but any provisions and conditions of the Act will have to be satisfied before
the purported creation of the highway becomes effective in law. In either of
these cases, the way becomes a public highway without any necessity for the
public accepting it and using it unless that it is a condition imposed by the
statute. If the way is not created as a highway in this way, it will only
become a public highway if the evidence establishes either express dedication
or user such as to give rise to the presumption of dedication.
In this case, I am in no doubt that the Commissioners did not have power under
the Act of 1797 to create a public highway otherwise than in accordance with
the precise powers given under the statute. It was not open to them to
circumvent the conditions necessary before a road would become a public highway
by purporting to create a private way but to make it open to the public at
large. Thus irrespective of the precise meaning of the user provision in the
award, the Inclosure award cannot have created a public highway. Mr Hobson is
right, in my judgment, to concede that the Commissioners did not have the power
to set Barton Road as a public carriageway.
Equally, I am satisfied that Mr Hobson is right when he submits that this lack
of power does not prevent a way which is created pursuant to an award becoming
a public highway. Where such a way is accepted by the adjoining landowners as
a public highway and used by the public at large as a public right of way then
notwithstanding the original lack of power to create a public highway in the
purpoas a result of the user acquire the status of a public highway. However,
to reach such a conclusion it is necessary first to acknowledge that the award
of the Commissioners did not in itself create a public highway and that the
purported creation is ultra vires. Then, and only then, is it possible to look
and see whether the evidence of user is sufficient to give rise to the
presumption.
The difficulty from the Respondent's point of view in this case is that nowhere
does the Inspector follow such a line of reasoning. In the original decision
letter, he says in terms:
"I conclude that, on a balance of probability, at the time of the Inclosure
Award the public were granted (emphasis added) and thereafter
exercised vehicular rights of way along the whole of Barton Drove."
In the second decision letter, he says:
"It seems clear to me that the Commissioners necessarily had implied powers to
state who might use the "private Roads and Ways", and I remain entirely
satisfied that the language that they chose to employ in that regard was so
precise as to allow of no other reasonable interpretation. I conclude that
they intended, with lawful authority, that the entire Order route should be a
public vehicular highway, and that it so became."
There can be no doubt, in my judgment, that the Inspector was working on the
clear basis that the Commissioners were entitled to create a public highway in
the way in which they dealt with Barton Road. That I am satisfied was a wrong
approach and as a result although he did consider matters of user he did so
from that fundamentally flawed position. He did not subject the evidence of
possible user to critical examination in the light of the initial unauthorised
act of the Commissioners.
As Mr Hobson points out, if there was evidence that the whole length of Barton
Road had been laid out in accordance with the award, that might provide very
powerful evidence that a public highway had come into existence but Mr Hobson
overstates the position when he adds to the submission that the presumption
could not be disputed. Such a situation would still require any other evidence
to be examined to see if it pointed in a different direction.
However, in this case, the evidence did not permit of a firm conclusion that
the whole route had been laid out, and the Tithe map provided evidence to
suggest that at the date of the document, the land over which it is suggested
part of the route ran was treated as tithable land.
A number of possibilities arise as a result of the lack of evidence of the
laying out of the whole route, particularly since no good reason has been
suggested why the route should have been completed only to the point at which
it seems clear that it ceased to be laid out in accordance with the award.
Could it be that the Commissioners appreciated that they were acting ultra
vires either of their own motion or on the objection of one of those over whose
land the road would run and abandoned the project?
No such possibility would merit consideration in a case where the route was
completely laid out but in a case such as this it seems to me that the decision
maker has to acknowledge the various possibilities and then go on and consider
all the available evidence before arriving at his conclue failed to acknowledge
that the Commissioners had no power to create a public highway in the guise of
a private road, the Inspector seems to have gone straight to an assumption that
the road must have been used by the public. That it seems to me must
invalidate his decision, which, since it is impossible to reach any clear
conclusion as to what the outcome would be but for this flaw, cannot stand.
There are arguments advanced on both sides as to what the correct conclusion is
on the evidence, but it is not for the court to evaluate that evidence and
reach its own conclusion.
It follows, therefore, that I quash the decision of the Inspector.
© 2000 Crown Copyright
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