R (Winchester College) v Hampshire County Council
| Jurisdiction | England & Wales |
| Judge | Mr George Bartlett QC |
| Judgment Date | 28 November 2007 |
| Neutral Citation | [2007] EWHC 2786 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5797/2007 |
| Date | 28 November 2007 |
[2007] EWHC 2786 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr George Bartlett Qc
(Sitting as a Deputy High Court Judge)
Case No: CO/5797/2007
George Laurence QC and Ross Crail (instructed by Knights Solicitors) for the Claimant,
Timothy Mould QC (instructed by Head of Corporate and Administrative Services, Hampshire County Council) for the First Defendant
John Litton (instructed by Treasury Solicitor for the Interested Party)
Hearing date: 13–14 November 2007
Introduction
In this application for judicial review the claimants challenge the lawfulness of the decision of the defendant, Hampshire County Council, on 12 April 2007 refusing to reconsider decisions made by them on 22 March 2006 to make orders modifying the definitive right of way map for Hampshire by upgrading two rights of way to the status of byways open to all traffic. The claimants are landowners whose land is crossed by one of the rights of way. Their contention is that by reason of the operation of section 67 of the Natural Environment and Rural Communities Act 2006 such public rights of way for mechanically propelled vehicles as may have existed over the rights of way in question immediately before the commencement of that section on 2 May 2006 were extinguished on that date so that any order made pursuant to the decisions of 22 March 2006 would be unlawful. The interested party, the Secretary of State for Environment, Food and Rural Affairs, as the minister with powers and duties under this Act and related statutes, is concerned with the proper construction of the section and related provisions.
The public rights of way
The public rights of way in dispute lie in open countryside to the south- east of Winchester. As at present shown on the definitive map they consist of Chilcomb Bridleway 3, which runs south-westwards from the small village of Chilcomb for about half a mile to a metalled road called Morestead Road, and a restricted byway, Twyford RUPP16, that continues south-westwards from Morestead Road for nearly 2 miles across Twyford Down to the B3335 Coxs Hill to the north of the settlement of Twyford. Together the two rights of way form a continuous route. The claimants the Warden and Fellows of Winchester College own land that is crossed by RUPP 16. This is leased to and occupied by Hockley Golf Club. The claimants Humphrey Feeds Limited also own land that is crossed by RUPP 16.
The legislative and general factual background
Under Part IV of the National Parks and Access to the Countryside Act 1949, county councils as surveying authorities were required to maintain a definitive map and statement showing three categories of highway ? footpaths, where the public right of way was on foot only; bridleways, where the public right of way was on foot or horseback or leading a horse; and roads used as public paths (RUPPs) which were defined as highways other than footpaths or bridleways used by the public mainly for the purposes for which footpaths and bridleways are so used. The 1949 Act was amended by the Countryside Act 1968 so as to require surveying authorities to reclassify each RUPP shown on their definitive maps as either a footpath or as a bridleway or as a “byway open to all traffic” (BOAT) in accordance with specified criteria. This reclassification was far from complete when the relevant provisions of the 1949 and 1968 Acts were replaced by Part III of the Wildlife and Countryside Act 1981.
Section 54 of the 1981 Act required surveying authorities, as soon as reasonably practicable, to review all RUPPs remaining on their definitive maps and make modification orders reclassifying each as (a) a BOAT, if a public right of way for vehicular traffic had been shown to exist; or (b) a bridleway, if (a) did not apply and bridleway rights had not been shown not to exist; or (c) as a footpath, if neither (a) nor (b) applied. “Byway open to all traffic” was defined in section 66 of the Act as “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.”
Section 53 of the Act, to which I will refer in more detail later, contains provisions relating to orders modifying the definitive map and statement. It contains a duty on the part of the surveying authority to make modifications on the occurrence of certain events, and it applies Schedule 15, which contains the procedural provisions relating to modification orders. Under Schedule 15 there is provision for the making of objections and the holding of a local inquiry where objections have been made, and an order does not take effect until it is confirmed (by the authority if the order is unopposed, by the Secretary of State if opposed).
Section 53 of the 1981 Act also contains provision in subsection (5) enabling a person to apply to the authority for a modification order to be made, and Schedule 14 contains the procedural provisions relating to such applications.
In 2000, with the reclassification of RUPPs still being far from complete, the Countryside and Rights of Way Act 2000 was enacted. Section 47(2) provided that every way which, immediately before commencement of the Act was shown in any definitive map and statement as a RUPP, should be treated instead as a “restricted byway”. Under section 48(4) a restricted byway is a highway over which the public have restricted byway rights, with or without the right to drive animals, but no other rights of way; and restricted byway rights are rights of way on foot, on horseback or leading a horse, and for vehicles other than mechanically propelled vehicles. There was also provision in section 48(9)-(11) to the effect that the Act should not operate so as to prevent the operation of section 53 of and Schedules 14 and 15 to the 1981 Act where, before commencement, an order under section 53(2) or an application under section 53(5) had been made. The 2000 Act in addition made provision for the extinguishment in 2026 of unrecorded rights of way for mechanically propelled vehicles over byways. It also inserted into the 1981 Act (as section 53B) a requirement that every surveying authority should keep a register of applications under section 53(5).
The reclassification provisions of the 2000 Act reflected the growing public concern that unmade minor vehicular ways in the countryside, green lanes, enjoyed by walkers and those on horseback, were being damaged by off-road vehicles and motorcycles. That concern was recognised in a consultation document published by Defra in 2003. In a foreword the Rural Affairs Minister, Alun Michael, said:
“As Rural Affairs Minister, I have been approached by many individuals and organisations who are deeply concerned about problems caused by the use of mechanically propelled vehicles on rights of way and in the wider countryside. I share these concerns, having seen for myself examples of damage to fragile tracks and other aspects of our natural and cultural heritage in various areas of the country. There is considerable concern about behaviour that causes distress to others seeking quiet enjoyment of the countryside.
….
I do not think that it makes sense that historic evidence of use by horse drawn vehicles or dedications for vehicular use at a time before the internal combustion engine existed can give rise to rights to use modern mechanically propelled vehicles. Those who suffer from vehicle misuse find this incomprehensible and in this paper we offer new proposals that are intended address what many have come to view as the inappropriate and unsustainable way in which vehicular rights are acquired and claimed on rights of way.”
In due course the Natural Environment and Rural Communities Act 2006 was enacted, and in section 67 it provided for the extinguishment of all existing public rights of way for mechanically propelled vehicles over ways which, immediately before commencement, either were not shown on the definitive map and statement at all or were so shown but only as a footpath, bridleway or restricted byway. Certain exceptions to this extinguishment provision were made in the section, and these proceedings are concerned with two of them: where, before 20 January 2005, an application under section 53(5) of the 1981 Act had been made to reclassify a right of way as a BOAT; and where, before commencement (2 May 2006), the authority had determined such an application.
Sections 47–50 of the 2000 Act (including in particular the provision reclassifying RUPPs as restricted byways) were brought into force on 2 May 2006, and section 67 of the 2006 Act (together with other provisions in Part 6 of that Act) was brought into force on the same day but immediately after the commencement of sections 47 to 50 of the 2000 Act.
Certain other matters should be mentioned as part of the general factual background. The first is that the task given to surveying authorities of preparing and updating definitive maps is a formidable one, requiring as it does extensive research into great numbers of historical documents and the evaluation of a range of evidence for numerous minor ways. Mr George Laurence QC with his unequalled experience in this field described the work done in this respect by the...
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