Paul Garland and Haroun Salaman v The Secretary of State for Environment, Food and Rural Affairs

Hearing date: 5 December 2019

Approved Judgment

Timothy Mould QC:

This claim is an application made under paragraph 12 of schedule 15 to the Wildlife and Countryside Act 1981 [‘the WCA’] to quash the Surrey County Council Footpath No. 129 Byfleet, 3 Wisley (Part) and 566 (Wisley) Definitive Map Modification Order 2016 [‘the Order’]. The Interested Party made the Order on 20 July 2016 under the powers conferred by section 53(2)(b) of the WCA. Following a public inquiry into objections to the Order, including those made by the Claimants, the inspector appointed by the Defendant decided that the Order should be confirmed for the reasons given in his decision letter [‘the DL’] dated 22 July 2019. On 9 August 2019 the Interested Party gave notice of confirmation of the Order.

The modification order

The effect of the Order is to change the status of the sections of highway that together form the Order Route, namely FP129 Byfleet, part of FP3 Wisley and FP566 Wisley, from footpath to bridleway. The Order Route is known locally as Muddy Lane. It consists of a track that runs between Sanway Road in Byfleet and Wisley Lane in Wisley. The Order Route passes under the M25 motorway, through an underpass provided for that purpose when the relevant section of the M25 was constructed in the early 1980s. At that time, the Order Route was shown on the Definitive Map and Statement [‘the DMS’] with the status of a footpath. The M25 Motorway (Chertsey – South of Byfleet Section Side Roads) Order 1978 authorised the diversion of the footpath along the Order Route through the newly constructed underpass.

On 1 June 2013 two local cycling groups, the Woking Cycle Users Group and the Elmbridge Cycle Group, applied to the Interested Party for an order modifying the DMS so as to show the Order Route as a bridleway. The application was supported by user evidence whose principal assertion was that the Order Route had long been used by cyclists. It was on the basis of this alleged use that the application for modification of the DMS was put forward.

Since 2006 the Claimants have been the joint owners and occupiers of a dwelling known as Bayan which fronts onto the western section of the Order Route. The Claimants own the land over which the Order Route runs between Wisley Lane and the M25, namely FP 566 (Wisley) and part of FP3 (Wisley). The Claimants wrote a number of letters to the Interested Party setting out their objections to the application for a modification order. They were joined by other objectors, including a Mr Drummond. The Interested Party's Countryside Access Officer wrote a detailed report in which she concluded that the evidence of use of the Order Route by the public on bicycles was sufficient reasonably to allege that the Order Route should be recorded as a bridleway. The Claimants submitted a detailed written critique of the officer's report and on 8 June 2016 both appeared before the Interested Party's Planning and Regulatory Committee to speak in opposition to the officer's recommendation. Nevertheless, the Interested Party's Committee resolved to make the Order.

The Order was made on 20 July 2016. 11 objections were made to the Order. Both Claimants were amongst those who objected. In accordance with paragraph 7 of schedule 15 to the WCA, the Order was submitted to the Defendant for confirmation. The Defendant appointed the inspector who opened a public inquiry on 22 May 2018. As the inspector records in a footnote on the first page of the DL, the Claimants appeared throughout the inquiry (which sat for 5 days between 22 May 2018 and 20 March 2019) and presented the case in opposition to the Order, speaking as joint owners of land crossed by the claimed route to the south west of the M25 motorway. The Claimants were able to cross-examine witnesses who gave evidence in support of confirmation of the Order and to give their own evidence in opposition. The Claimants (one of whom is a retired solicitor and the other a non-practising barrister) presented detailed and closely argued closing submissions, which they had reduced to writing. The legal issues that the Claimants raised before me had in substance also been raised before the inspector.

The inspector made an unaccompanied inspection of the Order Route on 21 May 2018. On 20 March 2019 he carried out an accompanied site inspection, just before the parties delivered their closing submissions.

The Inspector's decision

In DL5, the inspector said that the Order had been made under section 53(2)(b) of the WCA, relying on an event specified in section 53(3)(c)(ii) of the WCA. If he was to confirm the Order, therefore, he needed to be satisfied that the evidence discovered showed that highways shown in the DMS as highways of a particular description ought to be shown there as highways of a different description. The evidential test to be applied was the balance of probabilities.

In DL6 the inspector referred to deemed dedication under section 31 of the Highways Act 1980 [‘the HA’], which requires consideration of whether there has been use of a way by the public as of right and without interruption for a period of twenty years prior to its status being brought into question; and, if so, whether there is evidence that any landowner demonstrated a lack of intention during this period to dedicate a public right of way.

In DL7 the inspector said that if dedication under section 31 of the HA was not applicable, it was necessary for him to consider whether there had been a dedication of the Order Route as a bridleway at common law. Dedication at common law required consideration of three main questions: firstly, whether the owner of the land over which the alleged way ran had the capacity to dedicate a highway; secondly, whether there was express or implied dedication by the landowner; and thirdly, whether there had been acceptance of the dedication by the public. Evidence of the use of the way by the public as of right may support an inference of dedication and may also show acceptance of the dedication by the public.

The Inspector first addressed the issue of deemed dedication of the Order Route as a bridleway under section 31 of the HA. In DL9 he found that the Order Route would have been obstructed physically for a period of time during the construction of the M25 and prior to the opening of the M25 to the public in the local area in late 1983. In DL11 to DL36, in the light if the oral and written evidence before him, the inspector addressed in detail the question when the status of the Order Route as a bridleway was first brought into question. In DL36, he found that the status of the Order Route as a bridleway was brought into question by ‘no entry’ signs that were erected in the latter part of 1999 at the earliest. He stated that he did not find that there was evidence to show that any earlier action was sufficient to challenge use of the Order Route by cyclists or horse riders. In the light of his finding in DL36, in DL37 the inspector concluded that the it could not be shown that there had been use for a continuous period of 20 years following the interruption caused by works to construct the M25 in 1983 (and the realignment of the Order Route at that time). Moreover, as a matter of law, deemed dedication could not have arisen during the relevant 20 year period in relation to that section of the Order Route that had been owned by the Ministry of Transport, since section 31 of the HA does not ordinarily apply to Crown land. Accordingly, the inspector turned to consider whether the evidence of use of the Order Route by cyclists and horse riders nevertheless justified the inference of a dedication and acceptance as a bridleway at common law.

The inspector addressed that decisive question in DL38 to DL49. In DL49 he concluded on the balance of probabilities that the dedication of a public bridleway over the Order Route at common law was to be implied from the evidence of use and the conduct of the landowners prior to the erection of the “no entry” signs in late 1999. In DL50 and DL51, the inspector rejected a submission advanced by the Claimants that use of the Order Route as a bridleway constituted a public nuisance with the result that there could be no dedication at common law. In DL52 and DL53 he addressed issues raised by the Claimants in relation to the physical character of the Order Route, its width and whether its dedication as a bridleway was compatible with the statutory functions of Highways England as strategic highway authority with responsibility for the M25 motorway.

In DL55, the Inspector reached his overall conclusion that the Order should be confirmed. His formal decision is recorded in DL56.

The relevant legislation

The statutory procedure for modification of the DMS is set out in section 53 of and schedules 14 and 15 to the WCA.

Section 53(2)(b) of the WCA requires the surveying authority (in this case, the Interested Party) to –

“…keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence…of [any of the events specified in subsection (3)], by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event”.

Section 53(3)(c)(ii) of the WCA specifies the following...