Burrows v Secretary of State for Environment Food and Rural Affairs

This case concerns Howley Mill Lane, Morley, Leeds (‘the Lane’). The Lane is currently designated as a footpath on the definitive map produced by the West Riding County Council the predecessor to the current local authority, Leeds City Council. The accompanying statement to the definitive map identifies the path as having a width of about 6 feet. The local authority has prepared a Modification Order which would re-designate the Lane as a bridleway. The Order would also modify the statement so as to show the bridleway having a width between 1.8metres and 3 metres. There were objections to these modifications. Accordingly, the local authority was required to submit the Modification Order to the Secretary of State for Environment, Food and Rural Affairs (‘the Secretary of State’) for confirmation. The objectors included the Claimant who owns land adjacent to the Lane. The Secretary of State appointed an inspector, David Woodrow, to conduct an inquiry which was held in March 2003. Mr Woodrow’s report of 9^th May 2003 confirmed the Order. The Wildlife and Countryside Act 1981 Schedule 15 paragraph 12 allows a person aggrieved by an Order to question its validity by an application to the High Court and the Claimant has made such an application. In order to succeed he must show that the Inspector erred in law.

A local authority’s duties in relation to the definitive map and statement are set out in s.53 of the Wildlife and Countryside Act 1981. This provides:

In the present case, the Inspector found that the Lane ought to be designated as a bridleway rather than a footpath for two reasons. The first was that the evidence showed that the Lane was a bridleway in 1953 i.e. at the time the definitive map was prepared. In this context the Inspector must have been intending to rely on s.53(3)(3)(c)(ii). His second reason was that, in any case, the Lane had been used as a public bridleway for 20 years from 1963 to 1983. If this was so, the map would need to be modified by s.53(3)(b). There is a dispute as to whether the Inspector had the power to alter the widths of the Lane as set out in the definitive statement, but the Defendant argues that this was justified by s.53(2)(c)(iii) i.e. because of the discovery of evidence which showed that other particulars contained in the map and statement required modification.

While the first reason for designating the Lane as a bridleway and the alteration of its widths may be regarded as corrections of the map and statement as they were originally prepared and by reference to matters as they stood in 1953, the Inspector’s second reason for designating the Lane as a bridleway followed from his findings that the conditions were fulfilled for the later acquisition of a public right of way by a form of prescription. These conditions are set out in Highways Act 1980 s.31 which says:

In the present case, the objectors alleged that there could be no prescriptive right because of a notice that had been placed at the entrance to the Lane. The Inspector said this:

Mr. Hirst on behalf of the Claimant criticises the Inspector’s approach. He says that the Inspector was wrong to treat the notice as ‘informal’. He says that the notice clearly indicated that (apart from the footpath) there was no public right of way and that the only other right (again apart from as a footpath) was for access. He says that the word ‘road’ as a matter of ordinary English, but particularly in West Yorkshire, means a way which is used by horse riders as well as vehicles and that the notice thus clearly challenged the existence of any public right (again apart from the use of the lane as a footpath). He also says that the Inspector fell into error in focussing on how the notice would have been understood by members of the public. The proper approach was to ask what the notice evidenced about the owner’s intention.

Mr Morshead, for the Defendant, says that in order to prevent prescriptive rights accruing the notice must be inconsistent with the dedication of the way as a highway (see Highways Act 1980 s.31(3)(a)). In the context of the present dispute, it must, more precisely, be inconsistent with the dedication of the way as a bridleway as opposed to a footpath. Mr Morshead concedes that if the only relevant circumstance had been the notice relied on by the objectors, the test might well have been satisfied. However, the notice had to be considered in its physical context. It was next to the public footpath sign. It was also placed near a part of the Lane which had been covered with tarmac. The Inspector had visited the site.

I agree that the adequacy or otherwise of the notice in its context as an expression of the landowner’s intention was a question of fact for the Inspector. If the Inspector had asked himself the wrong question, he would have erred in law, but I do not accept that it is to be inferred from his decision that the Inspector did ask himself the wrong question. In any event, there is not a sharp distinction between the two alternatives: the one which Mr Hirst said was correct and the one which he said was wrong. The inference as to the intention of the person who erected it is (in the absence of any evidence to the contrary) naturally to be drawn from how the notice would be likely to be understood by members of the public who saw it in its context.

The Inspector would also have erred in law if he had reached a perverse view as to the intention to be attributed to the person who erected the notice, but I do not consider that it is right to characterise his finding as perverse or irrational. On the contrary, they were findings that it was open to him to reach. The authorities which Mr Hirst cited, Rafique v Trustees of the Walton Estate (1993) 65 P&CR 356 and Smith v Brudenell-Bruce [2002] 2 P&CR 51 do not support the proposition that the Inspector’s decision in the context of the facts of the present case was perverse.

Even if I were wrong about this, there is a further reason why the Claimant cannot succeed in his challenge to the Inspector’s decision that the public had acquired a right to use the lane as a bridleway.

A notice is only effective for the purposes of s.31(3) if it has been erected by the owner of the land over which the way passes. It would also, of course, be sufficient if the notice was erected by a person acting on the authority of the owner. Mr. Morshead submits that the Inspector made no finding that the notice in question had been erected by an owner of land over which the lane passed. Mr. Hirst says that this is wrong. He points to the sentence in paragraph 18 of his decision where the Inspector said of the notice: ‘I accept that this was likely to have been put up by some person with an interest in the matter, though no evidence was given as to who this might have been.’

I agree with Mr Morshead that the Inspector did not find that the notice had been erected by an owner or a person with the owner’s authority. I do not accept Mr. Hirst’s argument to the contrary. In the following paragraph, the Inspector said this: ‘Consequently, assuming that the notice was indeed erected by, or with the authority of, a person who owned the lane – as distinct from owning land adjacent to it or served by it… [my emphasis]’. If in paragraph 18 the Inspector had indeed made a finding that the notice had been erected by an owner of the land over which the way passed, there would have been no need for him in paragraph 19 to have made an ‘assumption’ that this was the case. On the other hand, paragraphs 18 and 19 can be read harmoniously together if the expression ‘some person with an interest in the matter’ is understood as extending beyond those who owned the land over which the way ran and as including, for instance, those who owned land which was adjacent to the way or was served by it. In other words, the finding in paragraph 18 was that the notice had been erected by someone who may or may not have been an owner of the land over which the way passed, but who because of such ownership or for some other reason had an interest in the matter. I do not accept, therefore, that paragraph 18 contains the finding which is necessary for the Claimant to succeed. Paragraph 19 plainly makes an assumption that the notice was erected by an owner of the land over which the way passes, rather than making a finding that this was so.

Mr Hirst canvassed the possibility that it would be sufficient if the notice had been placed by his client or someone else who had a private right of way over the lane. He contended that the owner of an easement over land ought to be included in the category of ‘owner’. This submission is defeated by Highways Act 1980 s.31(7) which provides that for the purposes of s.31 ‘owner’ means a person who is entitled to dispose of the fee simple in the land. A person who has only an easement is not entitled to dispose of the fee simple in the land over which the easement may be exercised.

Mr Morshead raised a further objection to the Claimant’s reliance on the notice. He observed, correctly, that a notice will only be effective if it has been maintained by the owner after the time that the notice was erected – see s. 31(3)(b). He observed that the Inspector had found that the notice was in existence in 1975, but only in 1975 and that there was no evidence that the notice had been maintained until the end of the 20 year period in question i.e. until 1983. Mr. Hirst responded that s. 31(3)(b) does not require the notice to have been maintained for any particular period. It was sufficient that it had some degree of permanence. He observed that in the case of Cotton v Secretary of State for the Environment [1997] COD 276 (the parties also provided me with a transcript of this decision) the landowner had put up notices made of cardboard each year. The notices were held to be insufficient to express the owner’s intention not to dedicate the paths in question, but it was not suggested that the notices would anyway have been insufficient because of the fact that they were made of cardboard.

Because of the conclusions which I have already reached on this aspect of the case, it is not necessary for me to reach a concluded view on this issue. Had it been necessary, I would not have accepted Mr Morshead’s submissions in this regard. I do not think that Cotton helps Mr Hirst. In the first place the sufficiency or otherwise of the notices in that case for the purpose of s.31(3)(b) simply was not debated. In the second place, there was evidence that the signs were put up each year. Thus the case says nothing about the efficacy of a cardboard sign put up on a single occasion. On the other hand, I do not accept Mr Morshead’s submission that a notice, once erected has to be proved to have been maintained until the end of the 20 year period. The section does not say for how long the notice must have been maintained. Under s.31(3) a notice is relevant because it constitutes sufficient evidence to negative the intention of the landowner to dedicate the way as a highway. That in turn is relevant because those asserting that a public right of way has come into existence must show that the way has been actually enjoyed by the public as of right and without interruption for a full period of 20 years (see s.31(1)). It is clear that the notice does not have to have been maintained throughout the whole length of the 20 year period. In my view, the erection and maintenance of a notice for some substantial time during that period will show that there was no intention to dedicate the way as a highway. Consequently, the 20 year period will be interrupted.

The purpose behind s.31(3)(b) seems to be two-fold. Firstly, it makes real the likelihood that the notice will be seen by members of the public. The requirement in s.31(3)(a) that the notice be ‘visible to persons using the way’ demonstrates that a notice will only be effective to raise a presumption of the owner’s lack of intention to dedicate if there is a real opportunity for the public to see the notice and not one which is merely transitory. A notice in paper and pen which was liable to be washed out in the first shower of rain would probably not serve this purpose. Secondly, maintenance of the notice may show persistence by the landowner despite opposition from those who may claim that the public is entitled to use the way. Parliament clearly contemplated the possibility that members of the public who used the way might take issue with the notice and tear it down or deface it. Section 31(5) allows a landowner whose notice is treated in this way to give notice to the appropriate council and the presumption that he intends not to dedicate his land to the public will be preserved. Alternatively, though, that presumption may be preserved by ‘maintaining’ the notice in accordance with s.31(3)(b).

The issue of maintenance of the notice was not explored at the Inquiry. Those asserting the existence of a right of way did not, it seems, rely on this provision as a reason why the Inspector should find that the notice was insufficient. Mr. Hirst, who appeared for the Claimant at the Inquiry, tells me that there was evidence that the sign was a metal one. There was not any evidence that it had been torn down or defaced. It was no longer in existence at the time of the Inquiry, but the hearing took place long after the end of the 20 year period relied on in support of the dedication of the way. Mr Morshead said that the only evidence in relation to the notice was that it had been present in 1975. That was not quite accurate. The Inspector records that some users of the lane remembered seeing the notice. They are unlikely to have done so at a distance of some 25 years if the notice had had only a transitory existence. For all of these reasons, I would not have dismissed the present claim because the notice did not satisfy s.31(3)(b).

After hearing the submissions of the parties on the previous issue I indicated that I had come to the conclusion that the challenge to the ’20 year’ aspect of the Inspector’s decision had failed. In consequence the Inspector’s decision that the path should be designated as a bridleway would stand whether or not the Claimant’s challenge to his alternative route for reaching the same conclusion was successful. In these circumstances, my decision on this aspect would not be critical to the outcome of the claim. After some brief oral discussion, I was invited to give a decision on the challenge to the alternative route on the basis of the parties’ skeleton arguments without further oral elaboration.

The original survey for what became the definitive map took place in about 1951. The lane, then referred to as Path No. 96, was described under the heading ‘type of path e.g. footpath, bridleway, or road used as a public path’ as ‘C.R.F.’ This stands for ‘Cartroad used as footpath’. In 1952 the local authority gave notice of the publication of the draft map and statement. This described the lane as a bridleway.

Part of the land ran over land owned by the British Transport Commission (‘BTC’). In 1953 BTC gave notice of objection claiming ‘None of the way is a public path or a bridleway or a road used as a public path.’ There was a hearing as to this objection. A typed note at the foot of the document recording BTC’s objection says: ‘At hearing Transport Commission’s representative stated that Mr. Preston of Haigh Park Farm (land owner) pays £5 per year to Messrs. J.B and W Hirst Ltd. for right to use portion of the road as access to his fields. There has been no interruption of use for pedestrians on the part of the Commission.’ The Inspector recorded that there was evidence of a handwritten note expanding on the hearing of BTC’s objection. According to the handwritten note, the hearing took place on 23^rd October 1957 and the evidence concerning Mr Preston’s payment had been that it was for vehicular use. This was of significance because Mr Preston’s payment would not then have been evidence contrary to the public having a right to use the lane as a bridleway.

It appears that BTC had been involved in litigation concerning the Rights of Way Act 1932 and whether this had had retrospective effect. The Court of Appeal had held that it did in Fairey v Southampton County Council [1956] 2 QB 439. Thus if the public had used a way for 20 years without interruption there would have been a presumption of dedication by the owner of the land under the 1932 Act even though the 20 year period had terminated before the Act had been passed. The case was referred to in a letter to the local authority and dated 30^th September 1958. The Inspector described the letter as having come from BTC, but it may alternatively have come from a local authority in Winchester. In any event, the Inspector records that it was stated in evidence at his Inquiry that following the decision of the Court of Appeal, BTC had withdrawn its remaining undetermined objections, but because of the stage that the process had reached in relation to the lane, it was too late to do so.

The Inspector commented that there was no evidence as to the date of the notices on which BTC had presumably relied. He observed that the user evidence went back 71 years. The Inspector thought that it was significant that other landowners had not objected to the designation of the lane as a bridleway. He had also observed earlier in his decision that although the archived survey forms did not record the nature of the uses, the County claim at the time that the way should be recorded as a bridleway was presumably because of more detailed user statements which had since been lost. On all the evidence, the Inspector concluded that the original designation of the lane as a footpath was mistaken and that there was already a right of way along the lane on horseback at the time of the original definitive map.

The Claimant challenges this conclusion for the following reasons:

The Defendant responds to these challenges as follows:

As between these contentions, I consider that the Defendant’s responses to the Claimant’s challenges on this part of the case are sound.

However, I do think that the Inspector’s decision in this regard is open to a different criticism. His jurisdiction was dependent on ‘the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows …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.’ – see s.53(3)(c)(iii). It is plain that the section intends that a definitive map can be corrected, but the correction (via this route as opposed to s.53(3)(a) or (b)) is dependent on the ‘discovery of evidence’. An Inquiry cannot simply re-examine the same evidence that had previously been considered when the definitive map was previously drawn up. The new evidence has to be considered in the context of the evidence previously given, but there must be some new evidence which in combination with the previous evidence justifies a modification. I asked Mr Morshead what new evidence there was in the present case. He pointed to the new evidence from users that was assembled for the present Inquiry (in most cases, these statements were dated some considerable time before the Inquiry was held). Some of these users were able to speak to the use of the lane by horse riders going back to the 1940s or even the 1930s. The difficulty with this argument is that the Inspector did not rely on any of this new evidence. It was not therefore this evidence which showed the need to modify the map. Mr. Morshead pointed also to the handwritten note regarding the payment of £5 by Mr Preston showing that this was for the right to drive vehicles over the way. I do not see how this could qualify as ‘discovered evidence’. After all, the handwritten note, as I understand it, was a record of the evidence which had been given at the hearing of BTC’s objection. Section 53(3) must require the discovery of evidence which was not produced to the decision maker who made or approved the existing version of the definitive map.

Mr. Morshead’s third response was that no point appears to have been taken at the 2003 Inquiry as to whether there was newly discovered evidence and this was why the Inspector did not address the issue in his report. Again, I do not find this to be a satisfactory answer. In the proceedings before the High Court a claimant is entitled to question the validity of a modification order on the grounds that it is not within s.53. If the Inspector’s reasons for approving the modification did not depend in part on the discovery of evidence then a necessary condition for modification was not satisfied. The failure to take the point at the Inquiry may be relevant to costs, but the ability (or duty) to modify the definitive plan cannot be acquired by default.

Therefore, if the re-examination of the position as it stood in the 1950s had been the only basis for re-designating the lane as a bridleway, I consider that the modification would have been unjustified. However, it is not the only basis. The later acquisition of a public right by 20 years user was an independent basis for modifying the designation.

The 1951 survey of the lane had shown it to be about 20 feet wide at Scotchman Lane but at the junction with F.P. 44 it becomes about 12 feet wide. There were no objections to these descriptions of the width of the lane. However, in 1958 the local authority amended the width to 6 feet. For the purposes of the present modification, the local authority reviewed the Ordinance Survey plans going back to 1854. In addition, internal memoranda from the Council showed that the original definitive map and statement had given the width of the lane as 6 feet as an arbitrary measure designed to limit the Council’s liability. In this context, therefore, there was ‘discovered evidence’ and Mr Hirst did not suggest otherwise.

However, he contended that it was not within the power of a local authority to modify a statement of a path’s width. He relied on Wildlife and Countryside Act 1981 s.56. This says:

Mr Hirst argues that s.56(1)(e) distinguishes between ‘position or width’ on the one hand and ‘limitations and conditions’ on the other. A statement that a path is subject to limitations or conditions is without prejudice to any question as to whether it is subject to any other limitations or conditions at that date. The statement as to position or width is unqualified by a similar proviso.

I reject this argument. The conclusive character of the definitive map and statement is not intended to preclude the duty of the local authority to modify them where one of the events in s.53(3) occurs – see R v Secretary of State for the Environment ex parte Simms [1990] 3 All ER 490 CA. Thus, for instance, discovered evidence (when considered with all other relevant evidence) might establish that there is no public right of way over land shown on the map and statement as a highway – see s.53(3)(c)(iii). There would then be a duty to modify the definitive map and statement. This duty would arise because of s.53. The proviso in s.56(1)(a) would not allow for such a change since it contemplates rights additional to those marked on the map, not the removal of a highway which has been included. But the s.53 duty will still prevail. Similarly, the scope of the proviso to s.56(1)(e) is simply immaterial to the duty under s.53(3)(c)(iii) to modify particulars which are shown to be incorrect. The term ‘particulars’ is plainly broad enough to include the width of the way as indicated in the statement accompanying the definitive map. I would regard this as clear as a matter of ordinary language, but s.56 also clearly treats the width of a way as an example of such particulars – see the opening words of s.56(1) and s.56(1)(e) itself. Since Parliament is likely to have given the same meaning to the term ‘particulars’ in the two sections, to this limited extent s.56 is of assistance in construing s.53.

Mr Hirst advanced as a second argument based on s.53(4). This says:

I do not accept that this is the correct construction of the subsection. Its purpose is to extend what might otherwise be thought to be the duty to make modifications so as to make clear that that duty includes the addition of the specified particulars. Mr Hirst’s argument would treat the purpose as being to limit the duty. The language of the subsection does not justify that approach. Nor could Mr Hirst suggest why Parliament might have wished to preserve in aspic (as Mr Morshead put it) a statement as to the width of a path when it is clear that the map could be modified by deleting the whole path if new evidence warranted this. I agree with Mr Morshead that this would be contrary to the greater powers of modification which the 1981 Act was intended to introduce and which the Court of Appeal acknowledged in the Simms case.

Consequently, I do not agree that the Inspector exceeded his powers or otherwise erred in law when he approved the modifications to the width of the lane.

It follows that this claim must be dismissed.