R v Secretary of State for the Environment and Another, ex parte Billson
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 16 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0216-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/3886/96 |
| Date | 16 February 1998 |
[1998] EWCA Civ J0216-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice,
Strand,
London, WC2.
Mr Justice Sullivan
CO/3886/96
MR J. HOBSON appeared as Counsel on behalf of the Secretary of State for the Environment.
MR G. LAURENCE QC AND MISS L. DAVIES appeared as Counsel on behalf of Mr Billson.
MR C. COCHRANE QC AND MR R. RUNDELL appeared on behalf of the Landowner.
(As approved by the Judge)
Monday, 16th February 1998
(For Approval by the Judge)
Ranmore Common is a wooded area to the north-west of Dorking. It is traversed by a number of public footpaths and bridleways that are shown on the Definitive Map and also by Ranmore Common Road. There are also a number of tracks across the common. The tracks connect at various points with defined footpaths and bridleways and with Ranmore Common Road. The tracks have been used extensively by members of the public, both on foot and on horseback.
In March 1990 the landowner put up barriers obstructing that use. The applicant considered that the tracks were public rights of way and so on 31st January 1993 he asked the County Council for an order under section 53 subsection (2) of the Wildlife and Countryside Act 1981 modifying the Definitive Map and statement to include eight tracks as bridleways, one of them being upgraded from a footpath on the Definitive Map to a bridleway.
On 1st December 1993 the County Council declined to make the modification order and so the applicant appealed to the Secretary of State under paragraph 4 of schedule 14 to the 1981 act.
On 13th March 1995 the Secretary of State directed the County Council to make a modification order. The County Council did so, making the Surrey County Council Bridleways Numbers 587, 588, 589, 590, 591, 592, 593 and 528 (Wotton) Definitive Map Modification Order 1995.
Making the order is only the first step in what was becoming a lengthy process. The 1981 act gives an opportunity for objections to be made to a modification order. The landowner, Mr White, objected, and so the Secretary of State held a public inquiry before deciding whether or not to confirm the order. The decision as to whether or not to confirm the order was transferred to the Inspector, Mr Mellor LLB, who held an inquiry in May 1996.
By a letter dated 16th August 1996 the Inspector decided not to confirm the order so that the tracks have not been added, or in one case upgraded to the list of bridleways that are shown on the Definitive Map.
It is a curiosity that whilst a decision to confirm an order may be challenged by way of an application to the High Court under paragraph 12 of schedule 15 of the 1981 act, no such right is given if, as happened in this case, the Secretary of State declines to confirm an order. Hence the applicant challenges the Inspector's decision by way of an application for judicial review, and the matter comes before me nearly 8 years after the barriers were first erected.
Since there was no evidence of any express dedication of the tracks as rights of way, the applicant relied on section 31 of the Highways Act 1980. So far as material that provides:
"(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
(2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in subsection (3) below or otherwise.
(3) Where the owner of the land over which any such way as aforesaid passes -
(a) has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and
(b) has maintained the notice after the 1st January 1934, or any later date on which it was erected,
the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway."
"(5) Where a notice erected as mentioned in subsection (3) above is subsequently torn down or defaced, a notice given by the owner of the land to the appropriate council that the way is not dedicated as a highway is, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner of the land to dedicate the way as a highway.
(6) An owner of land may at any time deposit with the appropriate council -
(a) a map of the land on a scale of not less than 6 inches to 1 mile, and
(b) a statement indicating what ways (if any) over the land he admits to have been dedicated as highways:
and, in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time -
(i) within six years from the date of the deposit, or
(ii) within six years from the date on which any previous declaration was last lodged under this section,
to the effect that no additional way (other than any specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgment of such previous declarations, as the case may be, are in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner or his successors in title to dedicate any such additional way as a highway."
The other enactment upon which the Inspector's decision turned was section 193 of the Law of Property Act 1925, which provided:
"(1) Members of the public shall, subject as hereinafter provided, have rights of access for air and exercise to any land which is a metropolitan common within the meaning of the Metropolitan Commons Acts 1866 to 1898, or manorial waste, or a common, which is wholly or partly situated within [an area which immediately before 1st April 1974 was] a borough or urban district, and to any land which at the commencement of this Act is subject to rights of common and to which this section may from time to time be applied in manner hereinafter provided:
Provided that -
(a) such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority; and
(b) the Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent to the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected, or for protecting any object of historical interest and, where any such limitations of conditions are so imposed, the rights of access shall be subject thereto; and
(c) such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon;"
"(2) The lord of the manor or other person entitled to the soil of any land subject to rights of common may by deed, revocable or irrevocable, declare that this section shall apply to the land, and upon such deed being deposited with the Minister the land shall, so long as the deed remains operative, be land to which this section applies."
"(4) Any person who, without lawful authority, draws or drives upon any land to which this section applies any carriage, cart, caravan, truck, or other vehicle, or camps or lights any fire thereon, or who fails to observe any limitation or condition imposed by the Minister under this section in respect of any such land, shall be liable on summary conviction to a fine not exceeding [level 1 on the standard scale] for each offence."
Section 193 was relevant because the then owners, Cubitt Estates Limited, had applied section 193 to Ranmore Common by an expressly revocable deed dated 12th December 1929 ("the Deed"). Thereafter, part of the common was conveyed to the National Trust in 1959, which revoked the Deed insofar as it affected its land in 1962.
The part of the common on which the disputed tracks are located was purchased by Farmstiles Limited on 31st October 1984. Farmstiles were not told, and did not know, of the existence of the Deed at that time.
After the barriers had been erected, Mr White, a Director of Farmstiles, made a statutory declaration under section 31 subsection (6) of the 1980 act. That declaration acknowledged the existence of certain bridleways and footpaths across the common, but it excluded the disputed tracks from the list of rights of way.
On 20th June 1990 Farmstiles were told of the existence of the Deed by Mole Valley District Council. On learning of its existence, the company revoked the Deed on 15th October 1990. On 1st November 1991 the land was transferred to Mr White.
It is not in dispute that the putting up of the barriers in March 1990 brought the right of the public to use the tracks into question for the purposes of section 31 subsection (2)...
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