Paul Garland and Haroun Salaman v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Sir Patrick Elias,Stuart-Smith LJ,Bean LJ |
| Judgment Date | 20 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1098 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2020/1414 |
[2021] EWCA Civ 1098
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (PLANNING COURT)
TIMOTHY MOULD QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
CO/3695/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lord Justice Stuart-Smith
and
Sir Patrick Elias
Case No: C1/2020/1414
The Appellants represented themselves
Ned Westaway (instructed by Government Legal Department) for the Respondent
Hearing date: 8 July 2021
Approved Judgment
Introduction.
There is a track which runs between Sanway Road in Byfleet and Wisley Lane in Wisley, which is known locally as Muddy Lane. The Definitive Map and Statement (“DMS”), which is a map providing a definitive statement of the various legal rights of way in the area, had shown it as a footpath which therefore could only be used by pedestrians. In fact cyclists and, much less frequently, horses have for many years also used the track. In view of this use, on 1 June 2013, two cycling groups, the Woking Cycle Users Group and the Elmbridge Cycle Group, applied to the Surrey County Council for an order modifying the DMS so as to describe the track as a bridleway. This would entitle both bicycles and horses lawfully to use the track. The Council, as the relevant Surveying Authority for the area, has a duty to keep the map under continuous review, and this includes altering the designation of a highway if it is shown that a different designation is appropriate: see section 53 (2)(b) read with section 53(3)(a)(ii) of the Wildlife and Countryside Act 1981 (“WCA”). Following a consideration of various objections made by the Appellants, amongst others, and a detailed report from the Council's Countryside Access Officer, who supported the modification, the Council acceded to the cycling groups' application and made the Order on 20 July 2016. It is inelegantly, if accurately, called the Surry County Council Footpath No. 129 Byfleet, 3 Wisley (Part) and 566 (Wisley) Definitive Map Modification Order 2016 (“the Order”).
Eleven objections were lodged against the Order. They included objections from the Appellants who have since 2006 been the joint owners and occupiers of a dwelling which fronts onto the Western section of the Order route. In view of these objections, by paragraph 7 of Schedule 15 to the Wildlife and Countryside Act 1981 the Order had to be sent to the Secretary of State for confirmation and he appointed an Inspector to conduct a local public inquiry. By paragraph 10 of Schedule 15 to the WCA, the case was one where the Inspector was required to take the decision on behalf of the Secretary of State.
The Inquiry took five days between 22 May 2018 and 20 March 2019. Interested parties were able to advance their evidence and to cross-examine opponents. The Appellants were present throughout. The Inspector twice visited the Order route, one being an accompanied visit and the other not.
The Inspector had to determine, in the light of the evidence before him and on the balance of probabilities, whether the description of the track as a footpath was wrong so that it should be re-designated as a bridleway. The argument advanced before him was that the nature of the use by bicycles in particular was sufficient to show that there had been a deemed dedication of the track as a bridleway either by statute, pursuant to section 31 of the Highways Act 1980, or at common law. The Inspector found that there had not been an uninterrupted user claimed as of right for twenty years prior to its status being brought into question, as section 31 required, and therefore no statutory dedication could be established. However, he held that there was dedication at common law. In the course of reaching that conclusion, the Inspector had to consider a submission advanced by the Appellants that the use of the track as a bridleway constituted a public nuisance. It was contended that pedestrians walking part of the track which went under the M25 motorway were in danger from horses using that part of the route. If this had been established, it would have prevented any dedication from arising. The Inspector rejected that submission and confirmed the Order.
The Appellants applied to quash the Order pursuant to paragraph 12 of Schedule 15 to the WCA. This provides the only means by which an Order of this kind can be challenged. As Charles J explained in R (Elveden Farms Limited) v Secretary of State for Environment, Food and Rural Affairs [2012] EWHC 64 (Admin), the permissible grounds of challenge are essentially the same as in an ordinary application for judicial review.
The application was heard by Timothy Mould QC sitting as a Deputy High Court Judge in the Planning Court. There were numerous grounds of challenge but they were all rejected. The Appellants appealed to this court on a variety of grounds but the only set of grounds on which permission was granted by Stuart-Smith LJ related to the Inspector's finding that the route's re-designation as a bridleway would not constitute a public nuisance.
Common law dedication and public nuisance.
There are three conditions necessary to establish common law dedication:
a. the owner of the land over which the alleged right of way runs must have capacity to dedicate it;
b. the owner did in fact expressly or impliedly dedicate it;
c. there had been acceptance of the dedication by the public.
In practice, dedication usually has to be implied because the landowner rarely dedicates expressly. Acquiescence will often suffice, as Lord Blackburn noted in Mann v Brodie (1885) 10 App Cas 378,386.
Evidence of user by the public will be relevant both to the question of implied dedication and to the question whether there has been acceptance by the public.
There is, however, a limitation on the power of a landowner to dedicate his land. In Bakewell Management Ltd v Brandwood [2004] 2 AC 519, Lord Scott of Foscote observed that whilst a landowner may authorise a use prohibited by statute (this being contrary to the previous understanding of the law), he could not authorise something which would amount to a public nuisance:
“It would not, in my opinion, have been open to the landowner to have dedicated the footpath as a public vehicular highway if use by the vehicles would have constituted a public nuisance to pedestrians using the highway.” (para.42).
In adopting this approach, Lord Scott approved a dictum by Stuart-Smith LJ in Hereford and Worcester County Council v Pick [1996] 71 P & CR 231, 239. In that case the evidence was that persons were riding bicycles and motorcycles on a particularly narrow section of a footpath. The judge observed that this would be dangerous for pedestrians and he added:
“That being so, it would constitute a nuisance and no rights could be acquired as a result of such conduct”.
This was also the principle on which, in Sheringham Urban District Council v Holsey (1904) LGR 744, Joyce J refused to accept that a narrow lane used by pedestrians, being no more than four feet four inches wide at one point and enclosed by buildings, had been dedicated by usage for the use of carts. It would be “positively dangerous to allow a lane of this width to be used for wheeled traffic”. The judge also observed that:
“The user for wheeled traffic was in its inception and has all along been a public nuisance and no length of time can legalise it.”
It is now firmly established, following R v Rimmington [2005] UKHL 63; [2006] AC 459 that the crime of public nuisance involves “an injury suffered by the community or a significant section of it”: per Lord Bingham of Cornhill, para.37. In the context of highways a public nuisance will typically be the result of an unlawful obstruction interfering with the right of passage, but as the Hereford and Worcester and Sheringham cases show, it might also be conduct which endangers other users of the highway. The fact that cyclists or riders may without the exercise of due care be a danger to themselves, however, is not a ground for finding a public nuisance.
Whether an act amounts to a public nuisance is a question of fact to be determined by the Inspector: see R v Mathias (1861) 2 F & F 574.
The Inspector's Decision Letter.
The focus of this appeal is the Decision Letter of the Inspector. It provides the legal justification for the Order being made. I will briefly set out the basis of the Inspector's decision, focusing in particular on those aspects which potentially bear upon the public nuisance question.
For the purposes of the statutory dedication it was necessary for the Inspector to find when the status of the claimed route was brought into question and to find twenty years open and uninterrupted user thereafter. The Inspector considered at some length, under the heading of verbal challenges, barriers and signs, the evidence which was said to demonstrate that landowners had objected to the presence of cyclists and horse riders using the track. He found that barriers were constructed which were designed to prevent the use by motor vehicles but not to stop the use by cyclists. However, he also held that there was evidence that from late 1999 there were signs designed to stop cyclists using the footpath. There was therefore no uninterrupted 20 year usage from the period when use of the route had been interrupted by the...
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