British Transport Commission v Westmorland County Council. ; British Transport Commission v Worcestershire County Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE SINGLETON,LORD JUSTICE JENKINS,LORD JUSTICE HODSON
Judgment Date22 March 1956
Judgment citation (vLex)[1956] EWCA Civ J0322-2
CourtCourt of Appeal
Date22 March 1956

[1956] EWCA Civ J0322-2

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Singleton

Lord Justice Jenkins and

Lord Justice Hodson

British Transport Commission
and
Westmorland Ocunty Councill
British Transport Commission
and
Worcestershire County Council

THE RT. HON. SIR FRANK SOSKICE, Q.C., and MR. J.?. WIDGERY (instructed by Mr. M.H.B. Gilmour) appeared on behalf of the Appellants the British Transport Commission.

MR HAROLD WILLIAMS, Q.C., and MR. E.S. TEMPLE (instructed by Messrs Sharpe, Pritchard & Co., agents for Mr. K.S. Himsworth, Kendal, and Messrs Sharpe, Pritchard & Co., agents for Mr. W.R. Seurfield, Worcester) appeared on behalf of the Respondent County Councils.

LORD JUSTICE SINGLETON
1

There are two appeals before the Court. The first is an appeal by the 3ritish Transport Commission from a

2

3

and upon the hands delineated on the said plans, and described in the said "books of reference, and to enter upon, take, and use such of the said lands as shall be necessary for such purpose".

4

The Act incorporated a number of Public Acts and in particular the Railways Clauses Consolidation Act, 1845. We have been referred to two sections (in particular) of the Act of 1845. First, section 16, "Works to be executed", of which section I read a part: "Subject to the Provisions and Restrictions in this and the special Act, and any Act incorporated therewith, it shall be lawful for the Company, for the Purpose of constructing the Railway, or the Accommodation Works connected therewith hereinafter mentioned, to execute any of the following Works; (that is to say)"; and I go to the last two headings – "Alterations and Repairs: They may from time to time alter, repair, or discontinue the before-mentioned works or any of them, and substitute others in their stead", and "General Power: They may do all other Acts necessary for making, maintaining, altering, or repairing, and using the Railway".

5

Section 68: "The Company shall make and at all times thereafter maintain the following works for the accommodation of the owners and occupiers of lands adjoining the railway; (that is to say) Guch and so many convenient gates, bridges, arches, culverts, and passages over, under, or by the sides of or leading to or from the railway as shall be necessary for the purpose of making good any interruptions caused by the railway to the use of the lands through which the railway shall be made; and such works shall be made forthwith after the part of the railway passing over such lands shall have been laid out or formed, or during the formation thereof". There is a proviso to section 68 which I need not read.

6

I think it convenient at this stage to draw attention to one case: ( Midland Railway Company v. Gribble 1895, 2 Chancery, page 827), which shows that, apart from section 16 of the Act, and assuming that it applies, there is no obligation on the railway company to keep open a bridge made by way of accommodationworks once the necessity for it has ended. In the case to which I refer Lord Justice Lindley (at page 830) said: "The words 'shall at all times maintain do not mean that the company must maintain it at all times if he does not want it. Having asked for this accommodation and got it, he could if he chose release it; and if he chose to release it there would "be an end of the statutory obligation to maintain it. The maintenance of it is not a public duty; it is a duty to him privately, and, of course, to those claiming under him". Lord Justice Lopes (at page 832) said: "An accommodation work like this passage-way is a work necessary for the purpose of making good any interruption caused "by the or railway to the use of the lands through which the railway is made, the lands on either side "being in the occupation of the same owner. That accommodation work is made by the railway company for a special purpose, that special purpose "being to maintain a communication "between the lands of the same owner or occupier which have "been intersected "by the railway; and, in my judgment, as soon as that special purpose is at an end, and when, as Mr. Bridgeman has admitted, it is practically impossible now to use the work for that purpose, the accommodation being no longer required, the obligation to afford it also ceases".

7

The question which arises for determination is whether, on the 1st August, 1952, a public right of way existed over a bridge spanning the lines of the railway between Kendal and Windermere and within the borough of Kendal. The bridge was an "accommodation work" provided by the Kendal and Windermere Railway Company and was necessary because the railway ran across the land of an owner on both sides of that which became the line, so that the bridge was necessary for the use of his land. Paragraph 2 of the Case sets out certain facts which had to be considered by the Court of Quarter Sessions for the County of Westmorland in circumstances which I will detail in a moment. The Railway Company having made an application, the Court of Quarter Sessions found these facts: "(a) The said lines of railway were constructed in or about the year 1847 by theAppellants' predecessors in title under powers contained in the Kendal and Windermere Railway Act, 1845.

8

"(b) At the date of the construction of the said railway no public right of way existed on or near to the line of the said way numbered 29". That is a reference to a marking of the alleged right of way on the plan which was exhibited.

9

"(c) The said "bridge was constructed by the Appellants' predecessors in title at or about the time of the construction of the said railway in order to facilitate access between the land on either side of the said railway which was severed by the construction of the same.

10

"(d) The said "bridge was constructed solely as a private accommodation crossing for the benefit of the owners and occupiers or the lands so severed as aforesaid and no express dedication to the public of the way there over has at any time been made.

11

"(e) Since the construction of the said railway members of the public have used the said way numbered 29 and the said bridge in such manner and for such period as to give rise to a presumption that the same had been dedicated as a highway if the owner of the soil were capable of such dedication.

12

"(f) The owners from time to time of the soil of the said way, other than the Appellants and their predecessors in title as owners of the said railway have at no time been under such a disability as would render them incapable of dedicating the said way as a highway and have made no application to Quarter Sessions for such a Declaration as was sought by the Appellants in these proceedings nor has such an application been made by any lessee or occupier (other than the Appellants) of the soil of the said way.

13

"(g) If and when the Appellants cease to be bound to maintain the said bridge for the benefit and convenience of the owners or occupiers of the lands severed by the said railway for whose benefit and convenience the same was originally constructed, by reason of the rights of the said owners andoccupiers having "been released "by agreement or abandoned or having otherwise ceased to "be exercisable, the Appellants would demolish and discontinue the said bridge, it being their practice so to deal with accommodation works as opportunity arises.

14

"(h) There is no likelihood of the Appellants wishing to construct additional lines of rails under the said bridge or its approaches unless substantial new industrial development takes place in the area served by the said railway. There is no prospect of any such development.

15

"(i) The continued existence of the bridge will not cause any danger to the running of the Appellants' trains and the operation of the railway".

16

Sub-paragraph (j) deals with the question of expense which would result if the bridge had to be kept in its present condition at a time when it might be discontinued other wine; and the cost is (as shown in sub-paragraph (j) comparatively small: indeed, sub-paragraph (k) contains this: "In so far as it is a matter of fact, the expenditure involved in the maintenance of the bridge is quite compatible with the present and future execution of the purposes for which the land is vested in the Appellants".

17

Let me add to those findings of fact that so far as I have heard and read there is no evidence to show that the user by the public of the footpath over the bridge has ever caused any inconvenience to the British Transport Commission or to their predecessors in title.

18

On the 16th December, 1949, there was passed the National Parks and Access to the Countryside Act, 1949, part IV of which places a formidable duty on County Councils. Section 27, sub-section (1) provides: "Subject to the provisions of this part of this Act, the council of every county in England or Wales shall, as soon as may be after the date of the commencement of this Act, carry out a survey of all lands in their area over which a right of Way to which this Part of this Act applies is alleged to subsist, and shall, not later than the expirationof three years after that date or of such extended period as the Minister may in any particular case allow, prepare a draft map of their area, showing thereon a footpath or a "bridleway, as may appear to the council to "be appropriate, wherever in their opinion such a right of way subsisted, or is reasonably alleged to have subsisted, at the relevant date". Sub-section (6) of section 27 contains certain definitions, including, "'footpath' means a highway over which the public have a right of way on foot only, other than such a highway it the side of a public road".

19

Section 30 provides for the preparation of provisional maps and statements; and section 3l, sub-section (1) provides: "At any time within twenty-eight days after the publication of...

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