R v Secretary of State for the Environment, ex parte Burrows
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE GLIDEWELL,LORD JUSTICE RUSSELL |
| Judgment Date | 23 November 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1123-6 |
| Docket Number | 89/1204 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 1989 |
[1989] EWCA Civ J1123-6
Lord Justice Purchas
Lord Justice Glidewell
and
Lord Justice Russell
89/1204
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
CROWN OFFICE LIST
SIMON BROWN J.
NEILL L.J. & PILL J.
Royal Courts of Justice
MR. P. BIRTS (instructed by Messrs Boyle and Ormerod, Aylesbury) appeared on behalf of the Appellant (Applicant) Roger Simms.
MR. G. LAURENCE (instructed by Messrs Sharpe Pritchard, London agents for Messrs Straw & Pearce, Loughborough) appeared on behalf of the Appellant (Applicant) R.J. Burrows.
MR. D. OUSELEY (instructed by the Treasury Solicitor) appeared on behalf of the Respondents (Respondents).
There are two causes before the court. The first one is a substantive motion for judicial review by Roger Simms of Denham Farm, Quainton, Buckinghamshire brought by order of the Court of Appeal (Lord Donaldson M.R., and Balcombe and Nicholls L.JJ.) of 14th June 1989 to be heard by the Court of Appeal ("the Simms application"). The second is an appeal from the refusal to grant an order for judicial review by the Queen's Bench Divisional Court (Neill L.J. and Pill J.) of an application by Richard John Burrows and Chapman Estates (Leicester) Limited ("the Burrows appeal"). I shall hereafter, albeit inaccurately, refer to both causes as appeals. Both raise the same important issue of principle, namely the true construction of section 53 and section 56 of the Wild Life and Countryside Act 1981 ("the 1981 Act"). With the consent of the parties, both appeals have been heard together and this judgment covers both.
In the Burrows appeal the applicants sought an order of mandamus directed to the Secretary of State for the Environment ("the Minister") to entertain and decide an appeal brought by them under paragraph 4 of Schedule 14 to the 1981 Act from a refusal of the Leicestershire County Council to make a draft modification order in relation to the definitive map for Leicestershire. The application sought the redefinition of a highway, J.75, shown as a bridleway in the plan, which had been prepared under the provisions of Part IV of the National Parks and Access to the Countryside Act 1949 ("the 1949 Act"). The applicants contended that it was incorrectly recorded and should have been described as a footpath. In a report to the Planning and Recreation Sub-Committee of the Environment Committee of Leicestershire County Council, which was considered by that sub-committee on 17th October 1985, the officers recommended that the definitive map should be amended by altering bridleway J. 75 to a footpath. This recommendation was not accepted by the committee. The applicants then appealed to the minister. In his decision letter dated 11th April 1988 the minister dismissed the appeal without considering the merits of the case. Paragraph 3 of his letter stated:
"The Department takes the view that the decision [ Rubinstein v. Secretary of State for the Environment] not only precludes the making of orders under section 53 of the Act which seek to delete a right of way from a definitive map and statement by reference to the provisions of section 53 (3) (c) (iii), but also orders which purport to downgrade a right of way shown on the map and statement by reference to section 53(3)(c)(ii) e.g. from bridleway to footpath".
The Simms application seeks an order of mandamus directed to the minister in similar terms to that in the Burrows appeal, namely to consider an appeal against a decision by the Buckinghamshire County Council refusing to make an order modifying the definitive map and statement prepared by them under section 53 of the 1981 Act by deleting two bridleways, numbers 21 and 21A, under the provisions of section 53(3) (c) (iii) of the 1981 Act. Mr. Birts informed the court, and he was not challenged in any way, that his client, Mr. Simms, had available a substantial body of evidence to show that the inclusion of bridleways 21 and 21A on the definitive map for Buckinghamshire was an administrative error for which there was no historical or factual justification. As he submitted, his client seeks the opportunity to redress this injustice.
Mr. Simms' case is that bridleways BR.21 and BR.21A, far from being used as a bridleway, have never been used to his recollection or that of his father even as footpaths. It is not necessary in this judgment to go into further details except to record that in March 1980 solicitors acting for the Simms family made formal objections to Buckinghamshire County Council and were informed by a letter of 11th November 1980 that a public inquiry would be held into their objections. This was overtaken by the passing of the 1981 Act. The matter was, however, pursued to the point where an appeal under the 1981 Act was made to the minister. This received from the minister in his decision letter of 20th July 1988 a similar reference to the judgment of Taylor J. (as he then was) in Rubinstein v. The Secretary of State for the Environment [1989] 57 P.& C.R.111. Thus, the argument before the court in both causes was directed to the justification, or otherwise, of the minister's refusal to hear the appeals under the provisions of the 1981 Act because of the decision in Rubinstein's case.
The case in the Burrows appeal was first presented by Mr. Laurence. The procedure, which was agreed between the parties and seemed appropriate to the court, was that after Mr. Laurence had concluded his submissions then Mr. Birts presenting the Simms application should follow and that Mr. Ouseley, who appeared for the minister, should then respond to both. I turn to consider the statutory provisions which are relevant to both appeals. Before proceeding I would wish to acknowledge the gratitude of the court for the skilful presentation of the statutory provisions and the authorities by all three counsel in presenting their respective cases. These have been of great assistance. In order properly to achieve the construction of section 53 and section 56 of the 1981 Act it is necessary first to have regard to the general history which led up to the passing of the 1981 Act.
At common law the rule was and remains "once a highway, always a highway". There is no extinctive presumption or prescription arising from the non-exercise of rights of passage; saving only when this arises from natural causes such as inroads of the sea or landslips: see Dawes v. Hawkins (1860) 8 C.B.N.S.848. Apart from the old procedure by way of writ ad quod damnum, in order to extinguish or even vary a right, intervention by the statute has always been necessary. There are numerous examples of such statutes in connection with compulsory purchase powers, etc. The general powers are now contained in the provisions of the Highways Act 1980.
The preamble to the 1949 Act, so far as is relevant, reads:
"…To make further provision for the recording, creation, maintenance and improvement of public paths and for securing access to open country, and to amend the law relating to rights of way;…and for matters connected with the purposes aforesaid".
Notwithstanding the reference in the preamble to
"creation…of public paths"
the relevant parts of Part IV of the 1949 Act (sections 27 and 28) appear under the subheading
"Ascertainment of footpaths, bridleways and certain other highways".
Sections 27 and 28 provided for the preparation of a draft map after a comprehensive investigation to ascertain the existence of footpaths, bridleways, etc. Sections 29 and 30 provided for representations and objections by interested parties to the draft maps and statements. Section 31 provided for the judicial determination of disputes between landowners and others by legal process in the quarter sessions. Section 32 provided for the initial recording of the results of the processes under sections 27 to 31 in the form of a "definitive map and statement". Section 33 provided that thereafter at five yearly intervals, or sooner as appeared appropriate to the authority, the map and statement should be reviewed having regard to "events" as therein defined. There can be no dispute that an object of the Act was to avoid tiresome and expensive litigation between individuals over disputed rights of way. Thus, in section 32(4) the Act provided that the definitive map and statement should be conclusive
"as to the particulars contained therein"
in accordance with the provisions of the subsections of that section to which I shall have to refer in greater detail later. One of the central questions raised in these appeals is the degree and area over which the map and statement is to be "conclusive" having regard to the provisions in section 33 for periodical review of the map and statement themselves.
Section 27, so far as is relevant, provided:
"27(1) Subject to the provisions of this Part of this Act…[the authority]…shall prepare a draft map of their area, showing thereon a footpath or bridleway, as may appear to the council to be appropriate, wherever in their opinion such a right of way subsisted, or is reasonably alleged to have subsisted at the relevant date".
Section 27(2) provided that the map should also show
"a road used as a public path" ("R.U.P.P.")
Section 27(6) contained the following important definitions:—
"In this Part of this Act the following expressions have the meanings hereby respectively assigned to them, that is to say—
'footpath' means a highway over which the public have a right of way on foot only, other than such a highway at the side of a public road;
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