Trail Riders Fellowship (Claimant) Secretary of State for the Environment, Food and Rural Affairs (Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 18 July 2017 |
| Neutral Citation | [2017] EWHC 1866 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/762/2017 |
| Date | 18 July 2017 |
[2017] EWHC 1866 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Holman
CO/762/2017
Mr Adrian Pay (instructed by Brain Chase Coles) appeared on behalf of the Claimant
Mr Mark Westmoreland Smith (instructed by the Government Legal Department) appeared on behalf of the Defendant
(As approved by the judge)
The essential facts and the issue
This is a statutory application to the High Court pursuant to paragraph 12 of schedule 15 to the Wildlife and Countryside Act 1981 (the 1981 Act) by a claimant who is aggrieved and questions the validity of a modification order made pursuant to section 53(2)(b) of that Act. By paragraph 12(2) of schedule 15 this court may, if satisfied that the order was not within the powers under section 53, quash the order or any provision of the order.
The essential facts are as follows. There is within the area of the Hertfordshire County Council a "route" known as Oakridge Lane. This is about 675 metres long from a point identified as point A, where it merges with the A51 road (Watling Street) at its northerly end, to a point F, where it becomes a public vehicular highway near Hill Farm at its southerly end. Between these points Oakridge Lane is a path or track which passes through open fields and countryside. It is common ground that there had formerly been a long-established vehicular right of way which was continuous between points A and F such that it was lawful to ride a motorbike continuously along Oakridge Lane from point A to point F or vice versa.
Oakridge Lane did not previously appear at all on the Definitive Map and Statement (DMS) maintained by Hertfordshire County Council pursuant to section 53 of the 1981 Act. The British Horse Society applied to Hertfordshire County Council to modify their DMS to add Oakridge Lane as a restricted byway upon the DMS, thus formally recording the right of horses to be ridden along it. However, a restricted byway does not confer or include a right of way for mechanically propelled vehicles.
The claimant in this application is the Trail Riders Fellowship or TRF. The TRF is a national organisation whose objectives are:
"to preserve the full status of vehicular 'green lanes' and the rights of motorcyclists and others to use them as a legitimate part of the access network of the countryside …"
The TRF became aware of the application made by the British Horse Society and contended, and now contend, that the DMS should be modified to show the whole of Oakridge Lane, not as a restricted byway, but as a byway open to all traffic (a BOAT).
A lengthy procedure then ensued, which it is not necessary to describe in any detail. Inspectors were appointed by the defendant Secretary of State. The decision of a first inspector was made and later quashed. A second inspector, Susan Doran BA Hons, MIPROW, made three sequential decisions on 14 January 2015, 5 May 2016 and 6 December 2016. The third and last of those decisions is the operative one, although the substance of her reasoning, so far as is material to the present application, remains contained in paragraphs 13 to 23 of her first decision, which is substantially reaffirmed and reiterated in the subsequent decisions.
The essential conclusion of the inspector is that Oakridge Lane is a BOAT between point A and a point which she identified as point C, and a BOAT between a point which she identified as point E and point F; but that it is only a restricted byway between points C and E. The modification order now under challenge gives effect to that conclusion by adding to the DMS BOATs from points A to C and from points E to F, but adding only a restricted byway between points C and E. The distance between points C and E is about 110 metres.
The practical effect is that, according to the rights now recorded in the DMS, a motorbike or other mechanically propelled vehicle may be lawfully ridden in either direction between points A and C and between points E and F, but not over the 110 metres between points C and E. This in turn means that a motorbike or other mechanically propelled vehicle can no longer lawfully travel the whole length of Oakridge Lane from one end to the other.
The issue on this application is whether in reaching her conclusion the inspector erred in law such that the order is not within the powers under section 53 of the 1981 Act and should be quashed. It is common ground that if the inspector made a material error of law, the resulting order is not within the powers.
The statutory framework
(i) Definitive map and statement
Part IV of the National Parks and Access to the Countryside Act 1949 first made provision for authorities to make, publish and maintain "a definitive map and statement" (DMS) of the public rights of way in their area. The Act made detailed provisions as to the preparation of such maps and statements in draft and then provisional form, and for challenges to the draft or provisional map and statement. At the conclusion of that process, a DMS was, by section 32(4), conclusive as to the particulars contained within it and, in summary, as to the status of any given right of way. Section 33 of the 1949 Act made provision for periodic review and revisions of the DMS.
Part IV of the 1949 Act has been superseded and in substance replaced by Part III of the Wildlife and Countryside Act 1981 which now makes similar provision for preparing, maintaining, reviewing and revising the DMS. Section 56 of the 1981 Act now provides that a DMS "shall be conclusive evidence as to the particulars contained therein …", substantially as in the replaced section 32(4) of the 1949 Act.
Section 53(2)(b) of the 1981 Act requires an authority "by order" to make such modifications to the definitive map and statement as appear to them to be necessary in consequence of certain events specified in subsection (3). These events include at paragraph (c):
"(c) the discovery by the authority of evidence which … shows -
(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist …;
(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; …"
It was pursuant to section 53(3)(c)(i) of the 1981 Act that the process was first triggered in this case to add Oakridge Lane to the DMS by the modification order ultimately made pursuant to section 53(2)(b).
(ii) List of streets
The function and purpose of the DMS is clearly to record in a way which is "conclusive" (in accordance with the provisions of the 1981 Act) the existence and course or alignment of rights of way. Quite separate and distinct are the provisions of Part IV of the Highways Act 1980 (the 1980 Act) which relate to the maintenance of highways which are maintainable at public expense. Section 36(6) of the 1980 act provides that:
"The council of every county … shall cause to be made, and shall keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense."
The word "street" is very widely defined in that Act and includes "any highway, road, lane, footway, alley or passage", and it is common ground that Oakridge Lane falls within that definition of a street. A list of streets (LoS) is a public document which is required to be kept available for public inspection (see section 36(7) of the 1980 Act). A LoS may serve a range of purposes, but it is apparent that its essential and primary purpose is to enable anyone to find out whether or not a given street or highway is maintainable at public expense and, if so, by which authority. There is no provision in relation to a LoS corresponding to the "conclusive" provisions of section 56 of the 1981 Act in relation to a DMS.
(iii) The Natural Environment and Rural Communities Act 2006 and the extinction of certain rights of way for mechanically propelled vehicles
Part 6 of the Natural Environment and Rural Communities Act 2006 (NERCA) made provision for the ending of certain existing unrecorded public rights of way. As is clear from the government's consultative document quoted at paragraph 160 of the judgment of the Court of Appeal in Fortune v Wiltshire County Council [2012] EWCA Civ 334, [2013] 1 WLR 808, the avowed broad purpose of Part 6 of NERCA was to extinguish the right to drive modern mechanically propelled vehicles over so-called "green lanes" in reliance upon ancient, but unrecorded, rights of way based upon horse-drawn vehicles. However, rights which were already recorded in certain forms before the commencement of the Act were preserved. So far as is material, section 67 of NERCA provides as follows.
"67. Ending of certain existing unrecorded public rights of way
(1) An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement -
(a) was not shown in a definitive map or statement, or
(b) …
But this is subject to subsections (2) to (8).
(2) Subsection (1) does not apply to an existing public right of way if -
(a) …
(b) immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (list of highways maintainable at public expense)
…"
It is common ground in this case...
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Public Rights of Way
...and Rural Affairs [2006] EWHC 2703 (Admin). Trail Riders Fellowship v Secretary of State for the Environment, Food and Rural Affairs [2017] EWHC 1866 (Admin), where an inspector’s decision was quashed as she had wrongly treated the HA 1980, s 36(6), list of streets maintainable at public ex......