British Transport Commission v Westmorland County Council. ; British Transport Commission v Worcestershire County Council
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Morton of Henryton,Lord Radcliffe,Lord Cohen,Lord Keith of Avonholm |
| Judgment Date | 14 May 1957 |
| Judgment citation (vLex) | [1957] UKHL J0514-1 |
| Date | 14 May 1957 |
| Court | House of Lords |
[1957] UKHL J0514-1
House of Lords
Viscount Simonds
Lord Morton of Henryton
Lord Radcliffe
Lord Cohen
Lord Keith of Avonholm
Upon Report from the Appellate Committee, to whom was referred the Cause British Transport Commission against Westmorland County Council and British Transport Commission against Worcestershire County Council (Consolidated Appeals), that the Committee had heard Counsel, as well on Monday the 4th, as on Tuesday the 5th, Wednesday the 6th and Monday the 11th, days of March last, upon the Petition and Appeal of the British Transport Commission, whose Principal Office is situate at 222 Marylebone Road, London, N.W.l, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 22d of March 1956, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Petition and Appeal of the British Transport Commission, whose Principal Office is situate at 222 Marylebone Road, London, N.W.l, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 22d of March 1956, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet (which said Appeals were, by an Order of this House of the 2d day of October last, ordered to be consolidated); as also upon the printed Case of the Westmorland County Council and the Worcestershire County Council, lodged in answer to the said Appeals; and due consideration had this day of what was offered on either side in these Appeals;
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Orders of Her Majesty's Court of Appeal, of the 22d day of March 1956, complained of in the said Appeals, be, and the same are hereby, Affirmed, and that the said Petitions and Appeals be, and the same are hereby, dismissed this House.
My Lords,
These consolidated appeals, in which the British Transport Commission are Appellants and the Westmorland County Council and the Worcestershire County Council respectively are Respondents, raise a question of general importance. It will be sufficient to state the facts and contentions in regard to the appeal in which the Westmorland County Council are Respondents. The same conclusion must be reached in both cases.
The appeal in the Westmorland case is brought from an Order of the Court of Appeal whereby that Court unanimously dismissed an appeal from a decision of the Divisional Court of the Queen's Bench Division which had been given upon a Case Stated by Quarter Sessions of the Peace for the County of Westmorland. The Case Stated was consequent on an Order of Sessions dismissing an application by the Appellants for a declaration that no public right of way existed over a bridge spanning certain lines of railway owned and occupied by the Appellants in the Borough of Kendal in the same county.
The jurisdiction of Quarter Sessions arises in this way. By section 27 of the National Parks and Access to the Countryside Act of 1949 the council of every county in England and Wales are required to carry out a survey of all lands in their area over which a public path is alleged to subsist and to prepare a draft map of their area showing such footpath whenever in their opinion such a right of way subsisted or is reasonably alleged to have subsisted at the relevant date as therein defined. The council are then required to publish in the prescribed manner a notice of the preparation of the draft map and of the places where it may be seen and to hear objections as to anything contained in or omitted from it. Having made a determination on any such objection, the council are next required to make a provisional map incorporating its determination and to advertise the preparation thereof and the places at which it may be inspected. At any time within 28 days of the publication of such notice the owner, lessee or occupier of any land on which the map shows a public path or a road used as a public path may apply to Quarter Sessions for a declaration that at the relevant date there was no public right of way over the land, and unless Quarter Sessions are satisfied that at that date such a right of way did exist they must make a declaration accordingly. By section 31 (7) of the Act provision is made for an appeal to the High Court by way of Case Stated on a point of law.
Pursuant to their obligations under this Act the Respondents, the Westmorland County Council, prepared a provisional map of the Borough of Kendal and showed on it a footpath numbered 29 which crossed certain lines of railway owned and occupied by the Appellants by means of an overbridge, which I will presently describe. The relevant date for the purpose of the Act was the 1st August, 1952.
On the 12th November, 1954, the Appellants applied to the Justices of the County of Westmorland sitting as an Appeals Committee of Quarter Sessions for the county for a declaration that on the 1st November no public right of way existed over the overbridge. This application was heard on the 5th April, 1955, and was refused, and in due course a Case was, pursuant to the Act, stated for the opinion of the High Court.
It is necessary that I should recite the facts precisely as they are found in the Case Stated. After reference to the application the Case proceeded as follows:—
"(A) The said lines of railway were constructed in or about the year 1847 by the Appellants' predecessors in title under powers contained in the Kendal and Windermere Railway Act, 1845.
(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.
(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.
(D) The said bridge was constructed solely as a private accommodation crossing for the benefit of the owners and occupiers of the lands so severed as aforesaid and no express dedication to the public of the way thereover has at any time been made.
(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.
(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.
(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 and occupiers 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.
(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.
(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.
(J) The bridge is a strong and durable edifice likely to last indefinitely with comparatively small repairs. The cost of demolishing it would be at the very least £700. It has not been repaired for at least eight years and if it is to remain it will require repairs within the next two or three years which we estimate will cost £250 and there after maintenance at a cost which we estimate at £150 in every period of ten years. Accordingly we find that the annual cost of maintenance capitalised would be appreciably less than the cost of demolition. In every case the costs referred to are calculated at present day prices.
(K) 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."
By way of amplification of the facts as stated it should be added that the Kendal and Windermere Railway Act, 1845, incorporated ( inter alia) the Lands Clauses Consolidation Act. 1845, and the Railways Clauses Consolidation Act, 1845. Section 68 of the latter Act required the Railway Company to make and at all times thereafter maintain for the accommodation of the owners and occupiers of lands adjoining the railway ( ...
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