Trail Riders Fellowship v Secretary of State for Environment, Food and Rural Affairs Dorset County Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Gilbart J |
| Judgment Date | 12 August 2016 |
| Neutral Citation | [2016] EWHC 2083 (Admin) |
| Docket Number | Case No: CO/1437/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 August 2016 |
[2016] EWHC 2083 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Gilbart
Case No: CO/1437/2016
and
Adrian Pay (instructed by Brain Chase Coles, Solicitors of Basingstoke) for the Claimant
Jonathan Moffett (instructed by Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 20 th July 2016
Approved Judgment
(a) Introduction
This matter relates to the modification of the definitive map of highways in part of Dorset. This is an area of law where acronyms abound. I shall do the best I can to avoid inserting impenetrable clusters of them, but the following short list of acronyms and abbreviations will, I hope, assist the reader.
Types of Highway and Traffic
Legislation etc
Routes in issue
Other acronyms
| BOAT | Byway Open To All Traffic |
| RB | Restricted Byway |
| BR | Bridleway |
| MPV | Mechanically Propelled Vehicles |
| NPACA 1949 | National Parks and Access to Countryside Act 1949 |
| CA 1968 | |
| WCA 1981 | |
| CROWA 2000 | |
| NERCA 2006 | |
| WC(DMS) Regs 1993 | Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 |
| BR3 | Bridleway 3 |
| BR4 A-K | Bridleway 4 including northern part, running from points A to K |
| BR 4 A-E | Bridleway 4 excluding northern part, running from points A to E |
| BR3 application | Application of 4 th March 2004 to upgrade BR3 to a BOAT |
| BR4 application | Application of 25 th September 2004 to upgrade BR4 A-K to a BOAT |
| DMS | Definitive Map and Statement |
| IR | Inspector's Report |
| DL | Decision Letter |
| DCC | Dorset County Council |
| TRF | Trail Riders Fellowship |
| SSE | Secretary of State for Environment, Food and Rural Affairs |
This case relates to the status of parts of bridleways running in or close to the delightfully named parishes of Puddletown, Piddlehinton, Piddletrenthide and Cheselbourne, which lie generally northwards of Dorchester. The route in question runs eastwards from Point A in Piddlehinton, and then after crossing BR 3 and meeting BR 5 at Point C, runs northwards to Point E, where it meets BR 1 which has arrived from the west. From Points A to E, it is accepted that there is a highway. Its status is in issue because of the history of relevant applications and Orders. From E northwards the route and status is contested. The TRF contend that there is a route running northwards to Drakes Lane (point K) which lies west of Cheselbourne. (Points A to K are references to points marked on an ordnance survey map which appeared at page 38 of the hearing bundle)
The NPACA 1949, the CA 1968 and the WCA 1981 all made provision for the recording of minor highways. Three kinds existed: footpaths, bridleways and minor vehicular highways, which were to be shown on the relevant Definitive Map. The third kind came to be known as a BOAT, over which there were rights of passage given to those travelling on foot, horseback, or by vehicles, including mechanically propelled vehicles (MPVs). CROWA 2000 also introduced the RB, over which vehicles other than MPVs could pass.
Until the passage of the NERCA 2006 the DMS was definitive in the sense that if it showed a right of way, that was conclusive evidence that it existed. But it was not definitive in the sense that it excluded higher rights than those rights of way (e.g. for MPVs over what was shown as a footpath) nor in the sense that it was evidence that other highways did not exist. Under s 53 WCA 1981 it is the duty of the surveying authority to keep the DMS under review. It may amend it of its own initiative in the event of evidence coming to light. Further, any member of the public could apply to have the DMS changed, to which applications Schedules 14 and 15 of WCA 1981 apply, to whose terms I shall turn shortly. However by s 67 of NERCA 2006, any existing public right of way for MPVs was extinguished unless it was shown on a DMS.. However that did not apply to an existing right of way where, before the relevant date (in England, 20 th January 2005), an application had been made under s 53(5) of the WCA 1981 for an order modifying the DMS to show it as a BOAT (s 67(3)). An application under s 53(5) WCA 1981 means one made in accordance with paragraph 1 of Schedule 14 of the WCA 1981. A fuller and very helpful description is given by Dyson LJ in R (Winchester College) v Hampshire CC [2008] EWCA Civ 431 [2009] 1 WLR 138 at [7]–[19].
It is the contention of the Claimant TRF that the whole route from A to K is a highway usable by vehicles. There is a dispute about the existence of such a highway north of Point E. TRF's contention is that there is evidence which shows that the route from A to K was a highway open to all traffic, drawn from historical materials, of which I say more below. An application that the whole route should be shown as a BOAT was made on 25 th September 2004 by an organisation called Friends of Dorset's Rights of Way (FoDRoW). The principal issue in this litigation relates to that application, and whether it was made in accordance with paragraph 1 of Schedule 14 of WCA 1981.
(b) The making of the application, and subsequent procedures
I shall describe some aspects of the procedure in greater detail in due course. It suffices for the present to note that there is one procedure for the surveying authority to follow when considering whether to modify the DMS (in this case pursuant to an application), which appears in Schedule 14 of WCA 1981 (as amended), and a further procedure to deal with the confirmation of any consequent Orders (Schedule 15). In essence if there are unresolved objections to a proposed Order, the Order must be submitted to the SSE for confirmation. The SSE may, and usually does, cause a public inquiry to be held (Schedule 15 para 7). There are provisions relating to the powers of the SSE to confirm an Order (paragraph 8).
In this case the application was submitted on 25 th September 2004 by FoDRoW. Having identified the grid references of the start and finish of the claimed BOAT, and a map, it went on:
"We attach copies of the following documentary evidence …………….. in support of this application
Cheselbourne Inclosure, DRO Ref Inclosure 79; D/COO:H/T/20
Piddlehinton Inclosure, DRO Ref Inclosure 21A;
Piddletrenthide Inclosure, DRO Ref Inclosure 67"
It identified the landowners it thought were affected. It included copies of the three Inclosure awards 79, 21A and 67, but it did not include copies of the document D/COO:H/T/20. (NB "DRO" is a reference to the Dorset Records Office)
It also included a statement of its reasons for asserting the existence of the BOAT. Evidence from south of Point E did not depend on those documents. But north of Point E, they were relevant. Point K, as already noted, lies on Drakes Lane. The case for the applicant (and now for TRF) was that the route from E to K was part of a public carriage road which continued around the western side of Cheselbourne, heading towards Melcombe Bingham, a settlement north of Cheselbourne. It did so on the basis that the Piddlehinton Inclosure map of 1835 stated with regard to the route running northwards at Point E that it led "to Hareput Lane." The application statement went on to refer to the document D/COO:H/T/20 as referring to "land at Melcombe Bingham including cottages in Harput Lane" which it took as indicating that Harput Lane is at Melcombe Bingham. It then contended that
"Hartfoot, Harfoot and Harput are all different spellings of an old name for Melcombe Bingham. It is so close to a variety of names used for Melcombe Bingham, which is also in the location we would expect to find Hareput Lane, that it is highly likely that Hareput Lane is in fact Melcombe Bingham. The inclosure map and award thus describes public carriage road B as continuing to what is today Melcombe Bingham. The most likely route to follow to Melcombe Bingham would have been along the claimed route and no other possible routes have been identified."
One can tell at once that this was a brave submission being made. Such evidence as there was showing that the Hareput Lane referred to on the Inclosure Award to the south lies in the vicinity of Melcombe Bingham depended on what was shown in the document D/COO:H/T/20.
After the application had been made, the TRF made further submissions, referring to further documents and maps.
On 20 th November 2006 DCC refused the application. FoDRoW made an appeal to the SSE under paragraph 4(1) of Schedule 14 of WCA 1981. The then Inspector considered that there was clear evidence of vehicular rights over the section A to E but not over E to K [112]. That Inspector also considered that the application to upgrade BR4 between A and K to a BOAT must fail because the application was defective, in that the documents D/COO:H/T/20 had not been provided. Although the evidence showed vehicular rights over points A to E, the effect of s 67(6) NERCA 2006 was to extinguish them because of the omission [122].
DCC was required to make the appropriate Order upgrading the stretch from A to E as an RB. (There were also proceedings relating to another bridleway BR3). FoDRoW then ceased to exist and TRF took over conduct of the relevant applications. Once DCC published the modification Order on 9 th April 2010, TRF objected, on the basis that the route from point A to point K should be shown as a BOAT. (It also objected to another part of the same Order) In its...
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