Trail Riders Fellowship v Secretary of State for the Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 26 January 2015 |
| Neutral Citation | [2015] EWHC 85 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 January 2015 |
| Docket Number | Case No: CO/3431/2014 |
[2015] EWHC 85 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/3431/2014
Mr Adrian Pay (instructed by Messrs Brain Chase Coles Solicitors) for the Claimant
Ms Jacqueline Lean (instructed by Treasury Solicitor's Department) for the Defendant
Hearing dates: 5 December 2014
This claim is brought pursuant to paragraph 12 of Schedule 15 of the Wildlife and Countryside Act 1981 (the 1981 Act) against the decision of an inspector on behalf of the defendant who on 4 June 2014 confirmed with modifications an order entitled the Derbyshire County Council (Byway Open to All Traffic along Bradley Lane between Pilsley village and the A619 – Parishes of Pilsley and of Hassop) Modification Order 2010. The title is somewhat misleading since the modification in question substituted Bridleway for Byway Open to All Traffic (BOAT) in the order. The County Council had sought to designate Bradley Lane as a BOAT, hence the title of the order.
The effect of the designation as a bridleway instead of a BOAT is that no motorised vehicles can use it. It is limited to pedestrians, horse riders or pedal cyclists. The claimant has in the past used it for motorcycles and wishes to be able to continue that use.
That Bradley Lane is a highway is not disputed. In order to decide whether it was a vehicular highway, the inspector had to consider such historical documentary evidence as was available. In addition, if he was not persuaded that the documentary evidence showed that the route was a vehicular highway, he had to consider whether there had been a use by the public as of right and without interruption for a period of twenty years before its status was brought into question (see Section 31 of the Highways Act 1980). The inspector held a public enquiry in December 2012. He concluded that the County Council had not established to the required standard, namely the balance of probabilities, that the route was a vehicular highway. He decided that it should be designated as a bridleway. Objections were raised to the conclusion that it should be designated as a bridleway and so the inspector held a second inquiry in March 2014. His original decision was regarded as an interim decision. Following the second inquiry, he maintained his interim decision.
I should first set out the statutory and common law background. At common law, a highway's classification was threefold. First, it could be a footway, appropriated to the sole use of pedestrians. Secondly, it could be what was described as a pack and prime way, called a bridleway, which was both a horseway and a footway. Thirdly, it could be a cartway, which comprehended the other two and was also a cart or carriageway. A report of a committee which had been set up to consider access to the countryside in 1947 advised that in order to prevent rights of way being forgotten and lost a complete survey should be put in hand so that an authoritative record of rights of way could be prepared. This was dealt with in the National Parks and Access to the Countryside Act 1949 (the 1949 Act). Section 27(1) of the 1949 Act required every county council to carry out a survey of "all lands in their area over which a right of way……is alleged to subsist" and prepare "a draft map of their area showing thereon a footpath or a bridleway…..". Section 27(6) defined the following relevant expressions:-
" 'footpath' means a highway over which the public have a right of way on foot only.
'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.
'road used as a public path' means a highway, other than a public path, used by the public mainly for the purposes for which footpaths or bridleways are so used.
'public path' means a highway being either a footpath or a bridleway".
Much trouble was caused by the definition of 'road used as a public path' (RUPP). It was intended to cover highways which were cartways at common law, but the problem lay in the word 'mainly'. In R v Secretary of State for the Environmentex parte Hood [1975] 1 QB 891 Lord Denning, MR said at p 897F:-
"The object of the draftsman was to include cartways over which there is a public right of cartway, but which are used nowadays mainly by people walking or riding horses….The draftsman intended to exclude metalled roads used by motor cars".
Following resolution of any issues raised in the draft map and statement prepared by a council, a definitive map and statement (DMS) was to be prepared. Section 32(4) of the 1949 Act provided:-
"A [DMS] shall be conclusive as to the particulars contained therein…..to the following extent, that is to say –
(a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date specified in the statement a footpath as shown on the map.
(b) where the map shows a bridleway, or a [RUPP] the map shall be conclusive evidence that there was at the said date a highway as shown on the map and that the public had thereon at that date a right of way on foot and a right of way on horseback or leading a horse, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than the rights aforesaid……"
In the Countryside Act 1968, the 1949 Act was amended to remove the RUPP categorisation. Section 33 applied Schedule 3. The 1968 Act required there to be a special review so that inter alia RUPPs were no longer to be shown. Paragraph 9(1) of Schedule 3 provided:-
"In the special review the draft revision, and the definitive map and statement shall show every road used as a public path by one of the three following descriptions:-
(a) a "byway open to all traffic",
(b) a "bridleway",
(c) a "footpath",
and shall not employ the expression "road used as a public path" to describe any way".
Paragraph 10 sets out the test to be applied for reclassification of RUPPs. It reads….. "The considerations to be taken into account are:-
(a) whether any vehicular right of way has been shown to exist,
(b) whether the way is suitable for vehicular traffic having regard to the position and width of the existing right of way, the condition and state of repair of the way and the nature of the soil…..".
The 1981 Act repealed and replaced the material provisions of the 1949 and 1968 Acts. Sections 53 to 58 of the 1981 Act set out the approach for categorisation of highways which now (subject to some amendments in the Countryside and Rights of Way Act 2000 (the 2000 Act)) must be applied. Section 53 requires that the DMS be kept under continuous review. Section 53(2) requires the relevant authority to make such modifications to the DMS as appear to it to be requisite in consequence of inter alia the discovery by the authority of evidence which shows that a right of way which is not shown in the DMS subsists or is reasonably alleged to subsist (s.53(3)(c)(i)).
Section 56 of the 1981 Act provides that a DMS shall be conclusive evidence in relation to each of the three categories, namely footpath, bridleway and BOAT. But in relation to footpaths and bridleways, the designation in the DMS was to be without prejudice to any question whether the public had any right other than those shown in the DMS. The 2000 Act by s.47 made further provisions where DMSs' continued to show RUPPs and provided that any such way should be shown as a "restricted byway", which s.48(4) defined as meaning a right of way by foot, or horseback or leading a horse and for vehicles other than mechanically propelled vehicles.
Section 66 of the 1981 Act gives definitions which follow, for footpaths and bridleways, those which had been contained in the 1949 Act. A BOAT is defined to mean:-
"a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths and bridleways are so used".
I should refer in addition to the Local Government Act 1929. This transferred to county councils responsibility for all highways in rural districts for which the district council was highway authority. These were termed 'county roads', but road as defined simply meant a 'highway repairable by the inhabitants at large'. Thus 'road' in the Act did not necessarily connote a vehicular use. Bakewell RDC showed the order route on a map which was handed over to the County Council (called a handover map) as an 'unscheduled other district road'. It is described as 'bad, grass grown and little used'. It is recorded by the County Council as a non-classified highway (NCH). Neither of these classifications necessarily imply that there is or was a right of vehicular use.
This claim is brought under Paragraph 12 of Schedule 15 to the 1981 Act. Schedule 15 sets out the procedural requirements which must be followed before any order such as that in issue in this claim is made. Paragraph 12 provides:-
"12. (1) If any person is aggrieved by an order which has taken effect and desires to question its validity on the ground that it is not within the powers of section 53 or 54 or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 11 make an application to the High Court under this paragraph.
(2) On any such application the High Court may, if satisfied that the order is not within those powers or that the...
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