Masters v Secretary of State for the Environment, Transport and the Regions
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROCH |
| Judgment Date | 31 July 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0731-19 |
| Date | 31 July 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: QBCOF/1999/1095C |
[2000] EWCA Civ J0731-19
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD CROWN OFFICE
(HOOPER, J.)
Royal Courts of Justice
Strand,
London, WC2A 2LL
lord Justice Roch
Lord Justice Tuckey and
Lord Justice Mance
Case No: QBCOF/1999/1095C
George Laurence QC & Louise Davies (instructed by Messrs Thrings & Long, Bath, for the Appellant)
John Hobson QC & Philip Coppel (instructed by The Treasury Solicitor for the Respondent)
The issue in this appeal is the meaning of the statutory definition of a byway open to all traffic. The statutory definition is to be found in section 66(1) Wildlife and Countryside Act, 1981. It is "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".
The issue arises because of decisions of the Somerset County Council as the surveying authority and the Secretary of State for the Environment in respect of a public right of way WN 16/11 which runs between a class 3 carriageway, the old Sherborne-Bruton turnpike at its western end and an unclassified road at Sheril's Corner at its eastern end through two adjoining farms known as Higher Clapton Farm and Lower Clapton Farm in the Parish of Maperton in the County of Somerset. Higher Clapton Farm is owned by Mr and Mrs Watts and Lower Clapton Farm is owned by Mr and Mrs Masters. Mrs Masters is the Appellant in this appeal.
The decision of the County Council was to modify the status of that way which had been that of a road used as a public path to that of a byway open to all traffic, using its power to modify its definitive map and statement contained in section 53(2)(b) of the 1981 Act. The decision was contained in the Somerset County Council (No.1) Modification Order 1994 which was made on 10 June 1994. That Order provided:
"1. For the purpose of the Order the relevant date is 2 March 1994.
The County of Somerset definitive map and statement should be modified as described in Part I and Part II of the Schedule and shown on the map attached to the Order.
This Order shall take effect on the date it is confirmed and may be cited as the Somerset County Council (No.1) Modification Order 1994."
Part I of the Schedule of the Order provided that "the present status of this right of way is a road used as a public path. This will be modified to the status of a byway open to all traffic."
That Order would not take effect unless and until it was confirmed by the Secretary of State after holding a public inquiry by an Inspector appointed by the Secretary of State, if there were objections to the modification.
The County Council made a second decision relating to way WN 16/11. That decision was to dismiss an application of Mr & Mrs Masters to delete that route from the definitive map. Mr & Mrs Masters appealed against that decision to the Secretary of State.
The first matter was heard by an Inspector, Mr J. E. Coyne, at an Inquiry held on 12/13/14 and 15 September 1995. Mr Coyne reported to the Secretary of State on 26 July 1996. The Inspector recommended that the Modification Order be confirmed having reached a number of conclusions among which were the following:
That evidence of the dedication of the route as a public highway had to pre-date 1930 because the route had been little used since then and such use as had been made of it since then had been challenged by the owners of the farms and could not amount to dedication.
The owners and occupiers of the two farms, who were the objectors to the proposed Order, conceded that there might be a public footpath over the Order route. The Inspector observed that there was little evidence to support the existence of footpath or bridleway rights. The crucial issues were: Was the route subject to a public right of way? If it was, was it subject to vehicular rights of way? The Inspector considered that it was for the County Council to establish on the balance of probabilities that vehicular rights of way existed over the route.
The Inspector then considered the evidence which consisted of documents, being maps, plans, title deeds, enclosure plans, dating from the middle of the 18th century to the definitive map prepared by the County Council under the Acts of 1949 and 1968 in 1977, in which the route was shown as a road used as a public path. In relation to each document the Inspector set out the submissions that the various parties had made and his conclusions.
At paragraph 8.16 of his report the Inspector wrote:
"The Council have established to my satisfaction that on the balance of probabilities it is appropriate to show the Order route as a BOAT on the definitive map. I have considered whether as a matter of law the RUPP presently recorded can be converted by a section 53 Modification Order to a BOAT. Ultimately this is a matter for the courts to decide but it appears to me that following the Masters application for a Modification Order, the Council were obliged, after proper investigation, to make such an order, that is a Modification Order, as appeared to the Council to be requisite in consequence of the occurrence of "the discovery of evidence by the Council which showed that the highway ought to be shown as a highway of a different description". The Council concluded it was a BOAT, which is a highway of a different description. They could have concluded it was a footpath or a bridleway. Had the Council proceeded by way of section 54, they could have reached the same conclusion that it was one of those other descriptions of highway and then by Order "make such modification" to the map as is requisite. The objective of both sections is "modification" of the definitive map when it is requisite and although section 53 is generally adopted when errors in the definitive map have been identified, nothing in the section limits its use to such situations. The Council being satisfied that vehicular rights did exist and the Order route complied with the definition of BOAT, a description which differs from that of RUPP, had to make some Order under section 53 and were correct to proceed as they did. I do not therefore accept the submission that the Order is fundamentally flawed."
The submission that the County Council's Order was flawed because the County Council had relied upon section 53 and not section 54 of the 1981 Act is not a point that has been pursued before this court.
The Secretary of State's decisions are contained in a letter dated 6 August 1997. The decisions were, first to dismiss the Appellants' appeal against the County Council's refusal to delete the way from the definitive map and statement and, secondly, to confirm the County Council's Modification Order (No.1) of 1994. The Secretary of State stated his decision in this way:
"After careful consideration of all the representations made and for the reasons given above the Secretary of State concludes that, in respect of Mrs Masters' appeal, she has not shown on the balance of probabilities that a mistake was made when RUPP 16/11 was added to the definitive map and that no rights on foot or on horseback exist. He does not propose, therefore, to direct Somerset County Council to make an Order to delete it from the definitive map. Moreover, in respect of the Order, he is satisfied that the combination of evidence from all the various documents is such that it has been shown, on the balance of probability, that public rights of vehicular status exist. With regard to the legal submissions, he shares the Inspector's view that the Council were not in error by making the Order under section 53. He takes the view that the Council were responding to an application made under section 53 and that, as a result of that application, new evidence was discovered and an Order was made. They were not carrying out a review to reclassify the RUPP, in accordance with the terms of section 54. Thus he has decided to accept the Inspector's recommendation that the Somerset County Council (No.1) Modification Order 1994 should be confirmed. The confirmed Order is, therefore, enclosed."
An important part of the Secretary of State's reasons for his decision is to be found in paragraph 18 of that letter:
"It is clear that Mrs Masters is correct in her allegation that maintenance which would be expected on a public road has not been carried out on the route for a very long time, if ever, and that it has been neglected to such a degree that it has not been considered as a public road by anyone, other than the Council, in living memory. It is also clear how some of the events which have taken place over more recent years would suggest that the route was only a footpath, or bridleway at most, eg. the "No Through Road" sign and the references to the route as a footpath by Council officials, both in person and as has been shown on correspondence. However, the fact remains that it has been recorded as a public road since at least 1929, and that there is evidence to show that it was believed by the Council recording it to have vehicular rights. This is supported by its portrayal on various old documents which show it the same as other known roads, the fact that it is a through route linking two other county roads, and by its exclusion from leases and sales, which suggest that it is more than a farm track. Finally, the Secretary of State has considered the examples of other decisions made by the Department on rights of way which were submitted or referred to by Mrs...
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