The Queen (on the application of John David Andrews) v Secretary of State for Environment Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls |
| Judgment Date | 01 July 2015 |
| Neutral Citation | [2015] EWCA Civ 669 |
| Docket Number | Case No: C1/2014/2480 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 July 2015 |
[2015] EWCA Civ 669
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
Mr Justice Foskett
Neutral Citation Number: [2014] EWHC 1435 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lady Justice Gloster
and
Lord Justice Sales
Case No: C1/2014/2480
George Lawrence QC and Edwin Simpson (instructed by Winstons Solicitors LLP)) for the Claimant
Jonathan Moffett (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 8th and 9th June 2015
Master of the Rolls:
This is the judgment of the court to which each of its members has contributed.
The appellant appeals from the dismissal by Foskett J of his claim for judicial review of the decision of one of the Secretary of State's Inspectors to dismiss his appeal against the decision of Wiltshire County Council ("the Council") not to amend the definitive map and statement ("the definitive map") for the county to show two sections of public bridleway across an arable field in the parish of Crudwell. The field is currently owned by the Interested Party, Mr Jonathan Blanch. The two sections of bridleway are 10 and 15 feet wide respectively.
The appeal turns on the proper interpretation of the Inclosure Consolidation Act 1801 ("the 1801 Act"). In particular, it raises the question of whether section 10 of the 1801 Act, when incorporated into a local enclosure Act, empowered enclosure commissioners to create public bridleways, as opposed to private bridleways.
Foskett J held, consistently with the decision of Schiemann J in R v Secretary of State for the Environment, ex p Andrews (1996) 71 P & CR 1 ("the Andrews No 1 decision"), that section 10 of the 1801 Act empowered enclosure commissioners to create only private bridleways.
Relevant background
Enclosure was the process by which traditional communal arable farming in open fields was abolished and land was enclosed and put to the use of a single owner. Enclosure awards were drawn up by enclosure commissioners, who acted pursuant to the authority of an Act of Parliament. In the 18 th century, the most common method of authorising an enclosure project was by a local Act of Parliament.
In the late 18 th century, with a view to encouraging a second wave of enclosures, which it was hoped would lead to an increase in the gross national output of agricultural produce, it was considered desirable to streamline the process of enclosure and make it cheaper and more attractive to prospective landowners. The result was the 1801 Act whose long title was:
"An Act for consolidating in one Act certain Provisions usually inserted in Acts of Inclosure; and for facilitating the Mode of proving the several Facts usually required on the passing of such Acts."
Subsequent to the enactment of the 1801 Act, local Acts authorising enclosure in a particular area could simply incorporate its provisions by reference, together with any other provisions considered to be desirable.
One such local Act was "An Act for Inclosing Lands in the Parish of Crudwell, in the County of Wilts" which received the Royal Assent on 20 June 1816 ("the Crudwell Act"). Pursuant to the first provision of the Crudwell Act, one Daniel Trinder ("the Commissioner") was appointed as "the sole commissioner for dividing allotting and enclosing the ….open fields and commonable lands" of the Parish of Crudwell.
The first section of the Crudwell Act also appointed the Commissioner:
"for putting this Act in execution; subject to the Rules, Orders, Directions and Regulations of the [1801 Act] (which shall be applied deemed and taken as part of this Act) except in such cases only as the same are hereby varied or altered."
The Commissioner made the enclosure award in respect of the Parish of Crudwell in 1841 ("the Crudwell Award"). He purported to award and appoint one 15 foot wide public "bridle road" numbered X on the award map or plan and one 10 foot wide public "bridle path" numbered XVII on the map or plan both across what is now Mr Blanch's land.
These are not shown on the definitive map. On 10 January 2012, pursuant to section 53(5) of and Schedule 14 to the Wildlife and Countryside Act 1981 ("the 1981 Act"), the appellant applied to the Council to have the definitive map amended to make good the omission.
The circumstances in which the Council may modify the definitive map are set out in section 53 of the 1981 Act, which so far as material, provide:
"(2) As regards every definitive map and statement, the surveying authority shall—
……
(b) ….keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after [the commencement] date, of any of [the events specified in subsection (3)], by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event.
(3) The events referred to in subsection (2) are as follows—
……….
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows—
(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path, a restricted byway or, subject to section 54A, a byway open to all traffic."
The Council rejected the application in reliance on the Andrews No 1 decision. The appellant appealed to the Secretary of State. His case on appeal was that the relevant public bridleways had been created by the Commissioner acting pursuant to powers conferred on him by the Crudwell Act which incorporated the relevant provisions of the 1801 Act; and that the incorporation of the 1801 Act conferred on the Commissioner the power to create public bridleways.
The Inspector appointed by the Secretary of State considered that he was bound by the decision in Andrews No 1 and dismissed the appeal. In that case, Schiemann J accepted the agreed position of the parties (including the present appellant) that section 10 of the 1801 Act conferred only a power to create private bridleways and footpaths and not public bridleways and footpaths.
The appellant sought judicial review of the Inspector's decision. The claim was dismissed by Foskett J. The judge himself gave permission to appeal to this court.
The 1801 Act is no longer in force. It was repealed by the Commons Act 1899. Nevertheless, it lies at the heart of this appeal since it was in force when the Commissioner purported to set out and appoint the two bridleways with which we are concerned in the Crudwell Award. We have been told that there are believed to be between 500 and 1000 cases in England and Wales where public footpaths and bridleways set out and appointed by commissioners are not currently recorded in the relevant definitive maps.
The 1801 Act was a general clauses Act. That is to say that it had no effect in and of itself, but rather set out model provisions that could be incorporated into subsequent local Acts ("the post-1801 Acts") where it was thought to be desirable to do so. Section 44 provided that post-1801 Acts could make provisions different from or additional to those set out in the 1801 Act. The preamble to the 1801 Act explained that:
"Whereas, in order to diminish the Expense attending the passing of Acts of Inclosure, it is expedient that certain Clauses usually contained in such Acts should be comprised in one law, and certain Regulations adopted for facilitating the Mode of proving the several Facts usually required by Parliament on the passing of such Acts…."
In broad terms, the scheme of the 1801 Act was as follows. Where it was necessary to do so, the commissioner was to determine the boundaries of the parishes, manors, hamlets or districts to be enclosed, a determination which could be subject to appeal to the Quarter sessions (section 3). The commissioner was then to carry out a survey and valuation of the land to be enclosed and draw up a plan (section 4).
Before making any allotments, the commissioner was to set out and appoint such public carriage roads and highways at least 30 feet wide over the land to be enclosed as he judged to be necessary. This was provided for by section 8 whose heading read:
"Commissioners before making Allotments shall appoint publick Carriage Roads, and prepare a Map thereof to be deposited with their Clerk, and give Notice thereof, and appoint a Meeting, at which, if any Person shall object, the Commissioners, with a Justice of the Division, shall determine the matter. Where Commissioners may be empowered to stop up any old Road, it shall not be done without the Order of two Justices, subject to Appeal, to Quarter Sessions."
The body of section 8 provided:
"Be it further enacted, That such Commissioner or Commissioners shall, and he or they is and are hereby authorized and required, in the first Place, before he or they proceed to make any of the Divisions and Allotments directed in and by such Act, to set out and appoint the publick Carriage Roads and Highways, through and over the Lands and Grounds intended to be divided, allotted, and inclosed, and to divert, turn, and stop up, any of the Roads and Tracts, upon or over, all, or any Part of the said Lands and Grounds, as...
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