Suffolk County Council v Mason
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Morris of Borth-y-Gest,Lord Hailsham of St. Marylebone,Lord Edmund-Davies,Lord Fraser of Tullybelton |
| Judgment Date | 29 March 1979 |
| Judgment citation (vLex) | [1979] UKHL J0329-1 |
| Court | House of Lords |
| Date | 29 March 1979 |
[1979] UKHL J0329-1
House of Lords
Lord Diplock
Lord Morris of Borth-y-Gest
Lord Hailsham of St. Marylebone
Lord Edmund-Davies
Lord Fraser of Tullybelton
Upon Report from the Appellate Committee to whom was referred the Cause Suffolk County Council against Mason and others That the Committee had heard Counsel as well on Monday the 19th as on Tuesday the 20th days of February last upon the Petition and Appeal of Edgar Stanley Lorimer Mason of Denes Holiday Village, Kessingland, Suffolk, Karl Stewart Richardson of Hungry Hall, Witham, Essex, Charles Stewart Richardson of Rectory Wood Cottage, Colam Lane, Little Baddow, Chelmsford, Essex, Hubert Wethered Thorn of Ormond House, 3, Duke of York Street, St. James's, London, SW1Y 6JS and Paul Arthur Lorimer Mason of Denes Holiday Village, Kessingland, Suffolk praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 7th day of February 1978 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Suffolk County Council lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Civil Division) of the 7th day of February 1978 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments if not agreed between the parties.
My Lords,
On the definitive map and statement prepared by the East Suffolk County Council in 1956 under section 32 of the National Parks and Access to the Countryside Act 1949 there was shown as a "footpath" a right of way in the Parish of Kessingland which is commonly known as "Marsh Lane". It runs in a general southerly direction from the village some little distance inland from what is now the sea-shore. No alteration affecting this "footpath" was made on the first revised definitive map prepared by the county council under section 33 of the Act, for which the review date was 1st January 1961; and there has not yet been any further review. Since the 1st January 1961, however, archaeological researches undertaken by the Rector of Somerleyton have incontrovertibly shown that Marsh Lane was originally a public highway leading to an ancient port from which the sea has since receded, and had continued to be used by the public as a cartway until the middle of the 19th century when such use ceased. The question in this appeal is whether the fact that Marsh Lane is still shown as a "footpath" on the definitive map that is now in force is conclusive evidence that the only purpose for which it can be used now by the public is as a right of way on foot only.
The appellants are the owners of a caravan site by the sea-shore to which Marsh Lane would provide convenient vehicular access. They claim that it is available to be used for that purpose by members of the public who are their customers. The respondents, the successors to the East Suffolk County Council, dispute this claim. In order to settle the dispute they commenced proceedings against the appellants in the Queen's Bench Division by way of originating summons claiming a declaration:—
"that on a true construction of the National Parks and Access to the Countryside Act 1949 the fact that the First Revised Definitive Map of the East Suffolk County Council covering Lothingland Rural District shows the way known as Marsh Lane in the Parish of Kessingland as a footpath is conclusive evidence that at the relevant date 1st January 1961, the said Marsh Lane was a highway over which the public had a right of way on foot only."
(The wording of this declaration follows the wording of section 32(4)(a) of the Act with the substitution for the word "footpath" of the definition of that term to be found in section 27(6).)
The appellants counterclaimed for a declaration that Marsh Lane was in 1835 and still remains a public highway over which the public has a full right of way, including a right of way for the passage of vehicles.
Sir Douglas Frank, Q.C., (sitting as a deputy judge of the Queen's Bench Division) followed the decision of Bristow J. in Attorney-General v. Honeywill [1972] 1 W.L.R.1506 in preference to a dictum of Brown L.J. in Reg. v. Secretary of State for the Environment, Ex parte Hood [1975] 1 Q.B.891. He refused to make the declaration claimed by the county council and made one in accordance with the appellants' counterclaim. An appeal by the county council from this judgment was allowed by the Court of Appeal. They made a declaration in the terms sought by the county council and dismissed the appellants' counterclaim. In this appeal to your Lordships' House the appellants seek to reverse the judgment of the Court of Appeal only in so far as it made the declaration claimed by the county council. They have abandoned their own counterclaim.
The law of highways forms one of the most ancient parts of the common law. At common law highways are of three kinds according to the degree of restriction of the public rights of passage over them. A full highway or "cartway" is one over which the public have rights of way (1) on foot, (2) riding on or accompanied by a beast of burden, and (3) with vehicles and cattle. A "bridleway" is a highway over which the rights of passage are cut down by the exclusion of the right of passage with vehicles and sometimes, though not invariably, the exclusion of the right of driftway, i.e. driving cattle, while a footpath is one over which the only public right of passage is on foot.
At common law too a public right of way of any of the three kinds has the characteristic that once it has come into existence it can be neither extinguished nor diminished by disuse, however long the period that has elapsed since it was last used by any member of the public—a rule of law that is the origin of the brocard "Once a highway, always a highway".
So, like Sir Douglas Frank, I approach the question of construction of the National Parks and Access to the Countryside Act 1949 with the presumption that unless its terms are so plain and free from ambiguity as to compel a contrary conclusion, Parliament cannot have intended that existing public rights of way should be extinguished or diminished by what is demonstrably a mistake made by an administrative authority responsible for carrying out the provisions of the Act.
My Lords, I agree with my noble and learned friend Lord Morris of Borth-y-Gest that if one applies a literal construction to the words used in those provisions of the Act which state the evidential consequence of the entry of a footpath on the definitive map ( viz. section 32(4)(a) and the definition of "footpath" in section 27(6)), it leads inexorably to the conclusion that the entry on a definitive map of a right of way as a "footpath", even though it be as the result of a mistake, is conclusive evidence that there is no more extensive public right of passage over it than passage on foot. Nevertheless, it seemed to me at first that this conclusion, which, like my noble and learned friend, Lord Hailsham of St. Marylebone, I found startling, might be avoided by giving a purposive rather than a literal construction to the Act; but further reflection has convinced me that a purposive construction also leads to the same result though by a route that involves close consideration of the scheme of Part IV of the Act taken as a whole.
The purposes for which the Act was passed are set out in the long title. Those that are relevant to the instant appeal are:—
"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."
The provisions which give effect to these purposes are contained in Parts IV and V of the Act; those relating to the recording of public paths by showing them on a definitive map being found in Part IV, sections 27 to 41. The relevant definitions for this Part make it clear that the public paths referred to in the long title are rights of way restricted to, or mainly used by, pedestrians or horse-riders. They are to be found in section 27 which deals with the survey and preparation of a draft map. This is the first step in the procedure leading to the preparation of the definitive map on which public paths are to be recorded. Subsection (6) provides:—
"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;
'bridleway' means a highway over which the public have the following, but no other, rights of way, that is to say, a right of way on foot and a right of way on horseback or leading a horse, with or without a right to drive animals of any description along the highway;
'horse' includes pony, ass and mule, and
'horseback' shall be construed accordingly;
'public path' means a highway being either a footpath or a bridleway;
'right of way to which this Part of this Act applies' means a right of...
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