Slough Borough Council v Secretary of State for Environment Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 03 August 2018 |
| Neutral Citation | [2018] EWHC 1963 (Admin) |
| Docket Number | Case No: CO/819/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 August 2018 |
[2018] EWHC 1963 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/819/2018
Mr Tim Buley (instructed by HB PUBLIC LAW) for the Claimant
Mr Ned Westaway (instructed by THE GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Hearing dates: 17 JULY 2018
Judgment Approved
Slough Borough Council is under a duty, by virtue of the Wildlife and Countryside Act 1981, the 1981 Act, to keep its Definitive Map and Statement under review and, where new evidence so requires, to propose amendments to it. It did so in respect of a right of way along Blandford Road North, BRN, in Slough. It proposed that it be added as a bridleway. It made an Order to that effect: The Slough Borough Council Bridleway 93 Modification Order 2015. There were objections, importantly that it should be shown as a Byway Open to All Traffic, BOAT, not as a bridleway, so that mechanically propelled vehicles could pass along it. The objections required resolution by an Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs. He held a public Inquiry. His interim decision was that the right of way should be shown as a BOAT, and of a greater width. This proposed modification to the Order entailed a round of written representations. His final decision was that the Order should be confirmed with the modification showing the right of way as a BOAT, but not of the greater width he had initially proposed.
He did not find that there had been a statutory dedication of the way for vehicular use since this required twenty years use of the way by the public as of right and without interruption before the right was brought into question. Nor did he find that there was a dedication based on the documentary evidence. He found instead that there had been a dedication at common law.
The Council challenges that decision pursuant to paragraph 12 of Schedule 15 to the 1981 Act, on the conventional statutory challenge grounds that the decision was outside the powers of the Act or that procedural requirements had been breached to the prejudice of the Council, in particular the duty to give reasons for the decision dealing with the principal issues.
The Council's grounds of challenge fall into two groups: first, a series of challenges to the Inspector's findings on common law dedication, many of which turn upon the significance of the evidence of cycle use, vehicular use before 1961 when its use by vehicles was blocked, and the way in which it was said that he had ignored the significance of that blocking for his assessment of whether there had been an earlier dedication for vehicular use at all. The second challenge was based on the effect of s67 of the Natural Environment and Rural Communities Act 2006 which, subject to a disputed exemption for highways maintainable at public expense shown in a list kept under s36 Highways Act 1980, extinguished the rights of users of bridleways by mechanically propelled vehicles. If so, the Definitive Map and Statement could not be modified to show such rights, even if up to that point BRN had been a BOAT.
The Decision Letters in relation to Ground 1
I start with the interim Decision Letter:
“2. It is not disputed that a public right of way subsists. The Council believes that a bridleway has been dedicated under statute or common law over the varying width specified in the Order. In contrast, two of the objectors (Mrs Young and Mr Phillips) rely on dedication at common law. In this respect, reliance is placed on the available historical documentary evidence and the user evidence provided. They submit that a vehicular highway with a width of 30 feet should be recorded in the definitive map and statement.
…
29. I have concluded that the evidence is not supportive of the existence of the highway over the historical route shown on the pre-inclosure maps. The inclosure award itself only made provision for a private road over part of this route. Having regard to my conclusions regarding the other pieces of documentary evidence, I do not find on balance that an implication of the dedication of a public right of way can be inferred from this evidence. Further, I am not satisfied that the submissions made by Mr Phillips in relation to the Highways Act 1835 have any bearing on my decision in light of the documentary provided. The Order therefore needs to be determined in relation to the user evidence provided.
…
30. Whilst the Council relies upon dedication under Section 31 of the 1980 Act, it accepts that there is sufficient evidence to infer the dedication of a public bridleway prior to 1959 under common law. This view takes into account the evidence of use by pedestrians, cyclists and horse riders. If it can be established that a public right of way of a particular status was dedicated at common law those rights will exist irrespective of the subsequent use by the public during the potential periods for the purpose of statutory dedication.
…
37. The parties agree that the dedication of a public right of way occurred prior to 1959. Although the personal evidence is limited after such a lengthy period of time, the evidence points to widespread use by the public. In reaching this conclusion, I give particular weight to the detailed evidence of Mrs Watson. The Council accepts that this use included use by cyclists. It is also apparent that motor vehicles used BRN on occasions prior to the action taken in the early 1960s. The evidence of Mrs Watson indicates that the use by motor vehicles was not confined to residents of BRN.
38 An issue arises out of the acknowledged use by cyclists. Whilst I note that Mrs Young challenges particular aspects of the judgment in the case of Whitworth and ORS and Secretary of State for Environment, Food and Rural Affairs 2010 (“Whitworth”), I am bound by this judgment. However, a right to cycle on a bridleway did not exist prior to the passing of the 1968 Countryside Act. Mr Phillips draws attention to Section 85 of the Local Government Act 1988, which extended the definition of a carriage to include bicycles.
39. The council accepts that the dedication of a bridleway can be inferred at common law following public use that included cyclists. Nonetheless, this cycling would have been viewed at the time as being of a vehicular nature. This is distinct from the issue decided in Whitworth. In these circumstances, it is not in my view appropriate to adopt the principal highlighted by the Council from Whitworth, namely that I should infer the form of dedication least burdensome to the landowner. There is also some evidence of use of a through route by motor vehicles. The erection of the structures in the early 1960s to deter use by four wheeled vehicles occurred too late in respect of the accepted earlier dedication of a highway. Having regard to the above, I conclude on the balance of probabilities that a vehicular highway subsists.”
The final Decision Letter needs to be read with the interim DL, as the Inspector stated in [1]:
“8. The Council accepts that the evidence of use by pedestrians, horse riders and cyclists is sufficient to infer the common law dedication of a bridleway prior to 1959 [30]. It is apparent to me that the significant public use followed on from the housing development that occurred in the area after 1952. Therefore, the dedication could have been contemporaneous to this use rather than in relation to the earlier evidence of use, which is limited to Mr Harvey and Mr Jago. Nonetheless, if the dedication is taken to be coeval to the earliest evidence of use, Mrs Jago states that her late husband cycled along BRN in the 1930s. Mr Harvey's use of the route on foot commenced in 1940.
9. The legal position at the time was that a cycle constituted a vehicle and there was no right for cyclists to ride on a bridleway [38]. Therefore, the cycling use would count towards the dedication of a vehicular highway. This means that the landowner should not have interpreted the use by cyclists to be supportive of the acceptance of the dedication of lesser public rights. Further, the evidence of Mrs Watson was clear that when she moved house in 1956/57 she observed the use of BRN by motor vehicles until a chain link fence was erected in the early 1960s [32 & 34]. It cannot be determined when the use by motor vehicles commenced but clearly there is the potential for such use to have coincided with the completion of the properties in the area.
10. It remains my view on balance that the evidence is supportive of the dedication of a vehicular highway rather than a public bridleway. As it is accepted that this highway was dedicated prior 1959, it is not necessary for me to comment on the more recent evidence of use. I address later the issue of whether the route should be recorded as a restricted byway or BOAT.”
The statutory provisions relevant to Ground 1
Section 31 of the Highways Act 1980 , the 1980 Act, provides:
“(1) Where a way over any land, other than a way of such 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”
The Wildlife and Countryside Act 1981 provides in section 53:
“(2) As regards every definitive map and statement, the surveying authority shall –
(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of...
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Table of Cases
...2 P & CR D23, [2010] All ER (D) 270 (Feb) 85 Slough Borough Council v Secretary of State for Environment, Food and Rural Affairs [2018] EWHC 1963 (Admin) 26 Stacey v Sherrin (1913) 29 TLR 555, KBD 10, 58 Steel v Houghton (1788) 1 Hy Bl 51, 126 ER 32 26 Steel v Prickett (1819) 2 Stark 463, 1......
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Creation of Rights of Way
...a recent case where tolerance was relevant, see Slough Borough Council v Secretary of State for Environment, Food and Rural Affairs [2018] EWHC 1963 (Admin). 68 Dawes v Hawkins (1860) 8 CB NS 848. 69 Jaques v Secretary of State for the Environment [1995] JPEL 1031. See also R v Lloyd (1808)......