Applegarth v Secretary of State for Environment Transport & Regions
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY |
| Judgment Date | 28 June 2001 |
| Neutral Citation | [2001] EWHC 487 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4792/2000 |
| Date | 28 June 2001 |
[2001] EWHC 487 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
MR JUSTICE MUNBY
QUEEN'S BENCH DIVISION
Mr Justice Munby
CO/4792/2000
Mr Applegarth appeared in person Mr Michael Bedford appeared on behalf of the Secretary of State
This is an application pursuant to paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 by John Speed Applegarth, who is and has at all material times been the owner of a property known as Boldon Hall. Mr Applegarth acts in person. He has taken enormous trouble in researching and preparing his case which he has presented, both on paper and orally, with, if I may say so, great care, skill, lucidity, courtesy and moderation.
Boldon Hall is in what users of Pevsner would consider County Durham. Immediately prior to local government re-organisation in 1974 what I will call 'old' County Durham included the whole of historic Durham up to the River Tyne save for South Shields which was a County Borough. At that time the area in which Boldon Hall lies was in the Urban District of Boldon and consequently within the jurisdiction of Durham County Council ("DCC"). In 1974 parts of old County Durham on the south bank of the River Tyne, including importantly the area in which Boldon Hall lies, were removed from County Durham and incorporated in the new Tyne and Wear County Council ("TWCC"). Following further local government re-organisation the area in which Boldon Hall lies was incorporated in the new South Tyneside Metropolitan Borough Council ("STMBC"). It is common ground that the local authorities with responsibility for highway matters in the area in which Boldon Hall lies have been successively DCC, TWCC and now STMBC.
The present dispute relates to a strip of land, which as I understand it is the principal access to Boldon Hall and which for convenience, and without making any assumptions or assertions either as to it's physical state or its legal status, I will refer to as the road. It is common ground that Mr Applegarth has vehicular rights of access over the road: precisely what those rights are is a matter of controversy, to which I must return in due course. TWCC asserted and STMBC asserts, though Mr Applegarth disputes, that the road is also a public bridleway.
It is common ground that under the National Parks and Access to the Countryside Act 1949 it was the obligation of DCC to prepare a Definitive Map and Statement showing public rights of way. It is also common ground (i) that it was open to DCC either to prepare one Definitive Map and Statement for the whole of old County Durham or to prepare different such documents for different parts of old County Durham and (ii) that DCC in fact chose the former procedure. It is further common ground that DCC prepared its Definitive Map and Statement in 1952 (the "relevant date" being 1 November 1952), that the Definitive Map and Statement was reviewed by DCC in 1957, 1962 and 1967 (the "relevant date" being 1 October 1967), and that at the time of local government re-organisation in 1974 DCC was in the course of conducting, though it had not completed, a limited special review under Schedule 3 of Part III of the Countryside Act 1968 (the "relevant date" for which was 1 January 1973). Finally it is common ground that the road was not recorded on the Definitive Map and Statement as a public right of way either at the date of the limited special review or, indeed, at any time prior to local government re-organisation in 1974.
The dispute between Mr Applegarth and TWCC and, more recently, STMBC goes back many years and is enormously complicated. There is no need for me to set out the history. It culminated, for present purposes, in the making by STMBC on 10 August 1995 of a modification order under section 53(2)(b) of the 1981 Act the effect of which, if validly confirmed by the Secretary of State in accordance with Schedule 15 to the 1981 Act, was to add the road to the Definitive Map and Statement (that is, to the Definitive Map and Statement prepared by DCC in 1952, as reviewed by DCC in 1957, 1962 and 1967) and show it as a public bridleway.
Mr Applegarth objected to the order. His objection was heard before an Inspector, Sir Norman King KBE, at a public local inquiry in 1996. Sir Norman decided not to confirm the order, his decision being set out in a decision letter dated 11 March 1997. His decision was challenged by STMBC by way of judicial review and on 19 May 1998 Carnwath J made an order by consent quashing the decision. The question of confirmation of the order therefore fell to be redetermined by the Secretary of State. Mr Applegarth and STMBC agreed to proceed by way of written representations rather than by public inquiry. This time the Inspector was Mr Brian Drury JP MA MEd. By his decision letter dated 24 November 2000 —a lengthy document running to over 28 pages —he decided to confirm the order.
On 28 December 2000 Mr Applegarth issued his proceedings in the High Court. The relief he seeks is (i) an order to quash the decision by Inspector Drury " as being unsound in law and perverse to the documentary evidence" and (ii) a declaration that no public rights of way exist over the road. In the details of his claim he sets out seven 'Grounds of Appeal' which embody nine 'Submissions'. He also filed a skeleton argument dated 10 February 2001 which identifies seven 'Issues' and adds a further 'Submission', in effect a further ground of what Mr Applegarth would call appeal. At the commencement of the hearing before me on 11 June 2001 he helpfully handed in the note of argument, cross-referenced to the documents, which he had prepared for his own use. Mr Michael Bedford of counsel who appeared before me on behalf of the Secretary of State had prepared a skeleton argument dated 29 May 2001, paragraph 1.2 of which contained in tabular form a helpful and as it seems to me accurate analysis of the inter-relationship between the various 'Grounds', 'Submissions' and 'Issues'.
Part 2 of Mr Bedford's skeleton argument contained a dispassionate and accurate summary of the background to the case. I take from paragraphs 2.6 and 2.7 of his skeleton the following summary of the Inspector's findings:
"The basis on which the Inspector confirmed the order was that he was satisfied that the requirements for deemed dedication of a highway under section 31(1) of the Highways Act 1980 were met and as such there had been an "event" within section 53(3)(b) of the 1981 Act so as to justify the making of the order under section 53(2)(b) and its confirmation under paragraph 7 of Schedule to the 1981 Act. In particular the Inspector reached the following conclusions:
(1) the right of the public to use the way had been brought into question by the actions of Mr Applegarth in 1979;
(2) the relevant 20 year period was therefore 1959 to 1979;
(3) throughout that period there was public use of the way as a bridleway as of right;
(4) within that period there was no effective interruption of the way;
(5) there was not sufficient evidence of a intention on the part of the landowner not to dedicate the way as a highway;
(6) the way was of such a character that public use of it could give rise at common law to a presumption of dedication.
In particular the Inspector rejected Mr Applegarth's case that private rights reserved under an 1888 conveyance in favour of Mr Applegarth (amongst others) were incompatible with the subsequent creation of public rights over the way."
I need not set out sections 53(2)(b) and 53(3)(b) of the 1981 Act. I shall set out the material parts of section 31 of the Highways Act 1980 a little later.
I can now turn to deal in turn with each of Mr Applegarth's complaints about the Inspector's decision. I agree with Mr Bedford that it is convenient to do by considering in turn each of Mr Applegarth's 'Grounds', including in each case the relevant 'Submissions' and 'Issues'. I start with Grounds 1 and 2 which can, I think, conveniently and appropriately be considered together.
Before doing so, however, I should make clear the nature of the court's function. Mr Applegarth does not have a right to "appeal" to the High Court. Paragraph 12 of Schedule 15 to the 1981 Act gives him, as a "person aggrieved" a right to "make an application to the High Court". The effect of paragraphs 12(2) and 12(3) is that I cannot interfere, whatever my own view of the merits of Mr Applegarth's contentions might be, unless I am "satisfied" either (i) that the modification order made by STMBC on 10 August 1995 is not within the powers of sections 53 and 54 of the Act or (ii) that Mr Applegarth's interests have been "substantially prejudiced" by a failure to comply with the requirements of Schedule 15. Even if I am so satisfied my only power is to "quash" the modification order in whole or part. It follows that I have no power to grant Mr Applegarth any declaration or other relief.
I ought also to add, as both Mr Applegarth and Mr Bedford will, I am sure appreciate, that it is neither necessary nor appropriate for me to deal in this judgment with the detail of every submission they made. I should, however, make it clear that I have of course considered very carefully everything that Mr Bedford and, more particularly Mr Applegarth, put in front of me, whether in their written materials or in the course of their oral submissions.
Grounds 1 and 2
The issue here, as Mr Applegarth identifies it (Issue 1), is as to the procedures the Inspector should have followed given the basis upon which...
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