The Queen (on the application of John David Andrews) v Secretary of State for Environment Food and Rural Affairs Wiltshire County Council and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 08 May 2014 |
| Neutral Citation | [2014] EWHC 1435 (Admin) |
| Date | 08 May 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8503/2012 |
[2014] EWHC 1435 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: CO/8503/2012
George Laurence QC and Edwin Simpson (instructed by Winston Solicitors LLP) for the Claimant
Jonathan Moffett (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 26–27 February 2014
Introduction
This case raises the question of whether the then Secretary of State, by her Inspector, was right to dismiss an appeal against the decision of Wiltshire County Council refusing an application made by the Claimant to the Council for it to modify the Definitive Map for its area to include upon it a public bridleway that does not currently appear on that map.
In order to answer that general question it is necessary –
(a) to construe the meaning of a particular section of an Act of Parliament given the Royal Assent over 200 years ago on 2 July 1801;
(b) to consider whether the decision of a High Court Judge (Schiemann J, as he then was) in May 1993, in a case brought by the same Claimant in which the Claimant conceded the interpretation point in issue in the present case –
(i) is decisive of that point in this case in the sense that part of the judge's reasoning involved reaching a conclusion that negates the basis of the Claimant's current argument;
(ii) if so, whether it was "plainly wrong" for him to have done so;
(iii) if the judge in fact made no decision on the point, whether, in the light of further evidence and further argument, the original concession as to the meaning of the relevant section was wrongly made;
(c) irrespective of the answers to the foregoing issues, to consider whether another section of the 1801 Act has the effect of making the "Inclosure Award" in 1841 (which purportedly created the relevant bridleway, pursuant to the local Act passed in 1816 which incorporated provisions of the 1801 Act) "binding and conclusive" and not susceptible now to challenge.
Thus identified the issues seem ideal for a student moot and somewhat remote from the usual day to day work of the Administrative Court. However, the claim (which is brought with the support of the Ramblers Association) is a "test case" and, I am told, between 500–1000 other public rights of way across private land might be capable of being established in other parts of England and Wales if the Claimant's argument succeeds.
Whilst the issues may seem arcane, they are important. In the first place, those seeking more widespread public access across private land will wish to see the argument succeed. Equally, however, there will be many private landowners whose land is not currently exposed to public access in this way who will be troubled by the thought that it may become thus exposed. The landowner of the farmland in Wiltshire that is the subject of the current case has been made the Second Interested Party to these proceedings and, not unnaturally, has expressed considerable concern that, if it succeeds and a public bridleway has to be created across his land where there has been no such bridleway before, considerable interference with (and loss of profitability of) his arable farming operations would result.
It is not, of course, for the court effectively to choose between these two viewpoints, but merely to decide whether, according to the law, the claimed bridleway should be incorporated on the definitive map.
Historical background
It will be difficult to understand how this issue comes to arise without some appreciation of the historical context in which the Inclosure Consolidation Act 1801 ('the 1801 Act') was passed and the social conditions that gave rise to the general need to create rights of way, both public and private, across what would otherwise be private land. It will be equally difficult to do full justice to the social and economic history of the general process of enclosure in the space of a few short paragraphs, but that general process will be familiar to those who can remember something of their school history lessons. The whole topic has been the subject of many academic and other commentaries.
Whilst enclosure (then spelled 'inclosure') is often defined in legal dictionaries in a form such as "the act of freeing land from rights of common, commonable rights, and all rights which obstruct cultivation by vesting it in some person as absolute owner" ( A Concise Law Dictionary, Osborn, 5 th ed., 1964), those dispossessed of the right to use common land and the open fields that once characterised the British landscape and rural social system will have seen it in rather less positive terms. In The Making of the English Working Class (1963), E. P. Thompson characterised the process as "a plain enough case of class robbery".
Enclosure has been said to be "synonymous in common usage with physically shutting off a piece of land with a fence, hedge or wall" ( The Enclosure Maps of England and Wales, 1595–1918, Kain, Chapman and Oliver, Cambridge University Press, 2011). The effects on the rural landscape and rural life were, of course, profound and those effects did not escape the attention of some of the poets of the period. One was William Barnes of the Blackmore Vale in Dorset (who was born in 1801). His poem in Dorset dialect entitled 'Rusticus Dolens or Inclosures of Commons' was composed in 1834. Another was John Clare (1793–1864) of Helpston in Northamptonshire. This short passage from his poem 'Remembrances', thought to have been composed in about 1832, shortly after the Captain Swing riots, evokes in a memorably pungent and powerful poetic style features of the anti-enclosure sentiments of the time:
"…
Enclosure like a Buonaoparte let not a thing remain
It levelled every bush and tree and levelled every hill
And hung the moles for traitors – though the brook is
running still
It runs a naked brook cold and chill."
Enclosure as a legal and physical concept pre-dates the period of history of which the 1801 Act forms an integral part. However, the broad period from the mid-18 th century to the mid-19 th century saw a great deal of enclosure activity, most of it achieved through local Acts of Parliament called 'Inclosure Acts'. In Volume I of the report commissioned by David Lloyd George, then Chancellor of the Exchequer, in 1912 and published in 1913 entitled "The Land, The Report of the Land Enquiry Committee", Dr Gilbert Slater in the 'Historical Outline' to the report recorded this:
"Early in the eighteenth century there begins the great series of private acts of enclosure, of which 4000 in all, covering some 7,000,000 acres, were passed before the general Enclosure Act of 1845. During the same period it is probable that about the same area was enclosed without application to Parliament."
The speech of Viscount Maugham LC in Searle v Wallbank [1947] AC 341, 347–350, contains an illuminating history of the process albeit recounted for a purpose different from the need to understand the history for the purposes of the present case.
I have had the advantage of seeing the fruits of research conducted by the two experts who have submitted reports in this case, Dr Yolande Hodson, BSc, PhD, FSA, FBCartS, and Dr Stephen Hollowell, BEd, MA (Ed), MA (Loc. Reg. History), PhD. Both have considerable experience and expertise in this general area: Dr Hodson is a "map historian" (not, she would emphasise, an "economic historian" or an expert in the history of the enclosure movement); Dr Hollowell would appear to have a slightly wider historical expertise given his MA in "local and regional history" and his PhD in Northamptonshire inclosure, but would not, I think, claim to rival Dr Hodson's expertise in the interpretation of historical maps. Both are very familiar with the kind of records that exist for consideration in this context.
Acknowledging my indebtedness to their industry, it is possible to encapsulate the rather wider economic setting for the changes that took place and to appreciate the backdrop to the 1801 Act. In his report Dr Hollowell recorded the following:
"In the eighteenth century, the most commonly used method of introducing an inclosure project was by Private Act of Parliament …. The peak years of inclosure activity were in the late 1770s and were associated with food shortages caused by the American War of Independence. From the landowners' point of view, inclosure can be considered as a form of investment and one which had very high returns. The inclosure projects that gave the highest rates of return tended to be clustered during that early period of peak activity. Other inclosure projects which promised lower financial returns were left aside: such as those involving mountain and moorland; fens and marshes (that also needed draining); small pockets of land; inclosure projects that were likely to attract opposition or land that was already being leased out for an above-average rent.
By the late 1790s, Britain was at war with France and there had been a succession of bad harvests, which led in turn to sharp increases in the price of grain and bread and then the occurrence of food riots. The desire for a General Act to make inclosure easier and cheaper had been suggested for some time by agricultural improvers such as Arthur Young 1. By the end of the eighteenth century, the inclosure schemes that had earlier been rejected...
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The Queen (on the application of John David Andrews) v Secretary of State for Environment Food and Rural Affairs
...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 Before: THE MASTER OF THE ROLLS Lady Justice Gloster and Lord Justice Sales Case No: C......