Kind, R (on the application of) v Secretary of State for Environment, Food & Rural Affairs

By this application for judicial review made with the permission of Davis J granted on the 19^th January 2005, the claimant Mr Kind (“the Claimant”), suing on behalf of himself and fellow members of the Trail Riders Fellowship, seeks an order quashing the decision of the Defendant (by her Inspector) (“the Decision”) in a decision letter dated the 17^th August 2004 (“the Decision Letter”) not to confirm the Wiltshire County Council (Sheet SU1 6NE and SU1 7SE) (Preshute 12) Rights of Way Modification Order No 14, 2003 (“the Order”). The Order modifies the Wiltshire Definitive Map and Statement to show Preshute 12 as a byway open to all traffic instead of as a bridleway. The sole reason for the refusal of the Inspector to confirm the Order was that the public vehicular rights over Preshute 12 had been extinguished by the earlier reclassification pursuant to paragraphs 9 and 10 of Schedule 3 of the Countryside Act 1968 (“the 1968 Act”) as a bridleway of Preshute 12, which had previously been shown in the definitive map and statement as a “road used as a public path” (“a RUPP”). The issue of law raised is whether upon the true construction of the 1968 Act the reclassification effected such an extinguishment. The Defendant is sued because currently she has responsibility for modifications to Definitive Maps and Statements.

The 1949 Act

The Hobhouse Committee in paragraph 21 of its 1947 report expressed the view that, in order to prevent rights of way being forgotten and lost for all time, it was essential that a complete survey should be put in hand forthwith so that an authoritative record of rights of way in this country might be prepared before it was too late. This report led to the enactment of the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”). Part IV of the 1949 Act had the heading “Public Rights of Way” and the subheading “Ascertainment of footpaths, bridleways and certain other highways”. Section 27 of the 1949 Act as the first stage in the statutory process of ascertainment of public rights of way required every county council in England and Wales (referred to in Part IV of the 1949 Act as “surveying authorities”) to carry out a survey of all lands in its area over which certain kinds of public rights of way were alleged to subsist, and to prepare a draft map of its area showing such rights of way to which this Part of the 1949 Act applied wherever in its opinion they subsisted or were reasonably alleged to have subsisted “at the relevant date”. The Part applied to three types of right of way which were defined in section 27(6). Section 27(6) was to the following effect:

“The relevant date” was defined in section 27(3) as such date, not earlier than 6 months before the date on which notice of the preparation of the draft map was published pursuant to section 29, as the authority might determine. Section 27(4) provided for the annexation to the draft map of a statement specifying the relevant date and containing in respect of any way shown on the draft map such particulars appearing to the authority to be reasonably alleged as to its position and width or any limitations or conditions affecting the public right of way over it as the authority thought expedient to record in the statement.

Section 29 of the 1949 Act required notice of preparation of the draft map and statement to be advertised, and provided for objections as to anything contained in (or omitted from) them and determination by the authority of such objections, with a right of appeal to the Minister.

The second stage in the process of ascertainment of public rights of way was the preparation of a provisional map and statement under section 30. This was the draft map and statement modified to reflect the outcome of the objection procedures (if any) which had taken place pursuant to section 29.

Section 31 entitled an owner, lessee or occupier of land over which there was according to the provisional map and statement a public right of way to apply to quarter sessions for a declaration that at the relevant date (a) there was no public right of way over the land or (b) there were rights of a different kind from those shown over the land or (c) the position or width of the land over which the right of way subsisted was not as indicated in the provisional map and statement or (d) the right of way was subject to limitations or conditions not shown in the provisional map and statement.

The third and final stage was the preparation under section 32 of the definitive map and statement, being the provisional map and statement adjusted as necessary to reflect any declarations made under section 31.

Paragraph 9 of the First Schedule to the 1949 Act allowed a 6 week period from the publication of notice of its preparation for the validity of the definitive map and statement to be challenged in the High Court on the ground that they were not within the powers of the Act or that any requirement of the legislation had not been complied with at any stage of the above process. Paragraph 10 provided that (subject to any such challenge) the map and statement were not to be questioned in any legal proceedings whatsoever.

Section 32(4) provided that a definitive map and statement were to be conclusive as to the particulars contained therein to the extent specified in that subsection, and that : (a) where a footpath was shown, the map was to be conclusive evidence that there was at the relevant date a footpath as shown (and that there was no higher right); and (b) where it showed a bridleway or a RUPP, the map was to be conclusive evidence “that there was at the said [relevant] date a highway as shown on the map, and that the public had thereover 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.” I shall refer to the provision commencing “so however” as “the Proviso”.

Section 33(1) of the 1949 Act required each surveying authority to review and revise its definitive map and statement at periodic intervals having regard to any events of the kinds specified in section 33(2) which had occurred since the relevant date (or the last preceding review date). These events included “(e) the discovery by the authority of new evidence such that, if the authority were then preparing a draft map under the foregoing provisions …, they would be required … to show on the map, as a highway of a particular description, a way not so shown” at the time of the review. The new evidence alone had to be sufficient for this purpose.

Section 34 provided that the revised map and statement were to be prepared in three stages corresponding to the stages of preparation of the original definitive map and statement, ie in draft, provisional and definitive forms, and the provisions of sections 28 to 32 inclusive were to apply.

The 1968 Act

Section 31 of the Countryside Act 1968 (“the 1968 Act”) made the amendments to Part IV of the 1949 Act set out in Schedule 3 to the 1968 Act. The sidenote to section 31 (“the Sidenote”) reads: “Public paths; amendments as respects procedural and minor matters”. These amendments included the addition of a circumscribed power to revise the map and statement in the event of discovering new evidence, or evidence not previously considered by the authority, showing that there was no public right of way over land shown as a highway on the map. There was no such power under the 1949 Act.

Part II of Schedule 3 simplified the procedure applicable to reviews begun under section 33 of the 1949 Act after commencement of the 1968 Act. Instead of three stages there were to be only two. The revised map and statement were to be prepared in draft form and objections to the revisions were to be invited by advertisement. Following a local inquiry the Minister was to take a decision on any duly made objections and representations and to give the authority such directions to modify the draft as appeared to him necessary to give effect to his decisions. The authority had then to prepare the revised map and statement by making such modifications to the draft as the Minister had directed.

Paragraph 9 in Part III of Schedule 3 to the 1968 Act (which I shall refer to as Paragraph 9) required each surveying authority in the course of the first review begun by it after the coming into force of the 1968 Act (to be known as “the special review”) to reclassify each RUPP (whether or not shown as such in the last definitive map and statement) as a footpath, a bridleway, or a “byway open to all traffic” and not to use the expression RUPP to describe any way. The provision for reclassification was only introduced into the Bill in the House of Commons at the last moment and there was no debate on it. Paragraph 9(2)(b) provided that an entry describing a way as a “byway open to all traffic” should be conclusive evidence of the existence on the date of publication of a public right of way for vehicular and all other kinds of traffic. Paragraph 11 provided that objections to any such reclassification were to be dealt with by the Minister in the manner laid down in Part II of Schedule 3 (as summarised above).

Paragraph 10 (which is the critical statutory provision for the purposes of this application and which I shall refer to as Paragraph 10) reads as follows:

“The considerations to be taken into account in deciding in which class a road used as a public path is to be put shall be:

(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;

(c)

where the way has been used by vehicular traffic, whether the extinguishment of vehicular rights of way would cause any undue hardship.”

Paragraph 10 provides that in the reclassification process the three considerations stated are to be the only considerations to be taken into account. The first consideration, namely whether any vehicular right of way has been shown to exist, sets a precondition to the classification as a byway: only if a vehicular right of way has been shown to exist can the RUPP be reclassified as a byway. The second and third considerations only come into play if a vehicular right of way has been shown to exist; if this is shown, the second and third considerations of suitability and undue hardship of extinguishment may require reclassification as a bridleway. (Reclassification as a footpath under the second and third considerations is not possible where vehicular rights have been shown to exist: see R v. Secretary of State for the Environment ex parte Hood [1975] 1 QB 891.)

The 1981 Act

Part III of the Wildlife and Countryside Act 1981 (“the 1981 Act”) has the heading “Public Rights of Way” and the subheading “Ascertainment of public rights of way” and includes sections 53 to 66. The provisions in Part III of the 1981 Act repealed Part IV of the 1949 Act and Schedule 3 to the 1968 Act and replaced them with the provisions of sections 53-58 of and Schedules 14 and 15 to that Act as from the 28th February 1983. The system of periodic reviews of the definitive map and statement was abolished and a rolling review system was introduced in its place.

Section 53(2) of the 1981 Act required each surveying authority on its own initiative or on application by any person to make by order such modifications to the map and statement as appeared to it requisite in consequence of the occurrence of any of the events specified in section 53(3) as soon as reasonably practicable (a) after the commencement date (in the case of events which had occurred before commencement) and (b) after they had occurred (in all other cases). The events specified in section 53(3) include (in paragraph (c)) the discovery by the authority of evidence which (when considered with all other relevant available evidence) shows that:

Section 54 of the 1981 Act required surveying authorities, as soon as reasonably practicable after the commencement date, to review RUPPs remaining on their definitive maps (and accordingly in respect of which no reclassification had taken place pursuant to the 1968 Act) and make modification orders reclassifying them as follows:

The provisions of Schedule 15 to the 1981 Act apply to orders made under sections 53 and 54 of the 1981 Act. Schedule 15 provides (in paragraph 2) that a modification order shall not take effect until confirmed by the authority or the Secretary of State. It lays down the procedure for an opposed order to be submitted to the Secretary of State for confirmation and the holding of a public local inquiry or hearing (paragraphs 7-10). The decision whether or not to confirm the order (with or without modifications) is to be made by an Inspector appointed by the Secretary of State for the purpose and is to be treated as the Secretary of State’s decision (paragraph 10). The validity of an order which has taken effect may be challenged in the High Court under paragraph 12 of Schedule 15 on the ground that it is not within the powers of section 53 or section 54 or that any of the requirements of Schedule 15 have not been complied with in relation to it. There is no statutorily prescribed procedure for challenging a decision to refuse to confirm a modification order and accordingly a claim for judicial review is the only procedure available for that purpose.

Section 56(1) of the 1981 Act provided that a definitive map and statement shall be conclusive evidence as to the particulars contained therein to the extent specified in that subsection. Where the map shows a footpath, that is conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had a right of way on foot over it, but without prejudice to the existence of higher rights. Where the map shows a bridleway or a RUPP, that is conclusive evidence “that there was at the relevant date a highway as shown on the map, and that the public had thereover 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 those rights”. Where the map shows a byway open to all traffic, that is conclusive evidence that at the relevant date there was a highway as shown on the map over which the public had a right of way for vehicular and all other kinds of traffic.

The relevant date is defined in section 56(2). If the way was shown on the map otherwise than in pursuance of a modification order made under Part III of the 1981 Act, it is the date specified in the statement as the relevant date for the purposes of the map. If it is shown on the map in pursuance of such an order, it is the date (not earlier than 6 months before the making of the order) which is specified in the order as the relevant date.

Section 55 of the 1981 Act made provision for surveys and reviews under the 1949 Act which were ongoing at the date of commencement of the 1981 Act. By section 55(1) the Secretary of State was empowered to direct the relevant authority to complete, or to abandon, the survey or review. Section 55(5) provided that, where a review was abandoned after the preparation of a draft revised map and statement and the expiry of the period allowed for representations or objections thereto, the authority should by order modify the map and statement under review so as:

Wiltshire County Council (“the Council”) is and has always been the surveying authority for the purposes of the definitive map legislation for the County of Wiltshire. The original Definitive Map and Statement for the County of Wiltshire prepared by the Council under the 1949 Act (relevant date 16 November 1952) included in the Parish of Preshute a RUPP (referred to as Preshute 12) commencing on the London-Bath A4 road at Elm Tree Cottage (now known as Coach Inn Cottage) and leading north then north-east for 1186 yards to unclassified road 5060.

The second review carried out by the Council under the 1949 Act (being the first review begun by it after the coming into force of the 1968 Act and, accordingly, the special review within the meaning of Part III of Schedule 3 to that Act), was begun but not completed as at the date of commencement of the 1981 Act. In the draft revised map and statement prepared by the Council prior to that date of which the relevant date was the 31st May 1972, Preshute 12 was shown as a bridleway. This was pursuant to the proposal of Preshute Parish Meeting in a questionnaire completed on the 29th October 1968 that it should be so reclassified on the basis that it was not used by vehicular traffic and its surface was not suitable for such use. No objections were made to that reclassification, and so when the Wiltshire Definitive Map and Statement were modified pursuant to section 55(5) of the 1981 Act by (among other orders) the Wiltshire County Council (Sheets SU 16 NW, SU 16 NE, SU 16 SW and SU 16 SE) Rights of Way Modification Order No. 3, 1991 (the relevant date of which was the 27th August 1991), Preshute 12 was reclassified as a bridleway.

On the 6th February 2003, the Council made the Order modifying the Wiltshire Definitive Map and Statement to show Preshute 12 as a byway open to all traffic instead of a bridleway. The Order (which was made on the Council’s own initiative) was made in reliance on section 53(3)(c)(ii) of the 1981 Act, ie. on the basis that the Council had discovered evidence which (when considered with all other relevant available evidence) showed that Preshute 12 ought to be shown as a byway open to all traffic rather than a bridleway.

Nineteen objections to the Order were received, including from Mr A. Hawkins (who at that time owned Coach Inn Cottage) and Mr D. McCormick (who owns part of the land crossed by Preshute 12). The Order was accordingly submitted for confirmation to the Defendant, who appointed an inspector (“the Inspector”) pursuant to paragraph 10 of Schedule 15 to the 1981 Act to decide on her behalf whether or not to confirm the Order. The Inspector held a public local inquiry (“the Inquiry”) on the 22nd June 2004. On the 17th August 2004 he issued the Decision Letter, by which he refused to confirm the Order. The Inspector found that the historical documentary evidence presented at the Inquiry in support of the Order (which he described in paragraph 7 of the Decision Letter as “generally accepted or not challenged by the objectors”) “overwhelmingly suggests that by the time of the preparation of the Definitive Map for the area, the Order route had been established as a public vehicular route for a long time”: paragraph 15 of the Decision Letter. The Inspector’s sole reason for refusing to confirm the Order was his acceptance (having had regard to, among other things, the circular letter issued in March 2004 by the Department for Environment Food and Rural Affairs to the Chief Executives of all local authorities in England (“the Letter”) and brought to the attention of the Defendant’s inspectors by means of the Planning Inspectorate Rights of Way Section Advice Note No. 18 (April 2004) (“Advice Note 18”)) of the submission advanced by the objectors that the public vehicular rights over Preshute 12 had been extinguished by the reclassification procedure carried out under the 1968 Act. Paragraph 30 of the Decision Letter reads: “… although I accept that the historical evidence proves that the Order route carried public vehicular rights for a long period, these ceased to exist in 1972 and the Order should not therefore be confirmed”.

The questions of statutory construction raised on this application are:

The Claimant contends that on the true construction of the legislation:

The Defendant, by contrast, contends that on the true construction of the legislation:

The Defendant’s stance in these proceedings, though a departure from previous understanding and practice, is consistent with the view of the law expressed by her Department in the Letter and brought to the attention of the Defendant’s inspectors by means of Advice Note No 18, in which it was said that:

“There is uncertainty about whether the re-classification of a road used as a public path as a bridleway under Part III of Schedule 3 to the 1968 Act has the effect of extinguishing any vehicular rights that may have been shown to exist over the road used as a public path. The courts do not appear to have looked specifically at this point.

While the effect of the 1968 Act has not been tested, there is support for the view that the intention was to extinguish vehicular rights. Defra has concluded that claims for byways open to all traffic where the ways concerned were roads used as public paths before reclassification as bridleways under the 1968 Act should be rejected.”

This application is of the nature of a “test case”, with a view not just to overturning the particular decision under challenge, but also to resolving, in the public interest, the wide-reaching questions of statutory construction raised on this application. The Defendant accepted in her summary of grounds for contesting the claim that the underlying questions raised a properly arguable point of some importance in the law of highways, and did not oppose the grant of permission to proceed.

There are two issues of construction of Paragraphs 9 and 10 of Schedule 3 to the 1968 Act. The first is whether reclassification of a RUPP as a bridleway effects any form of extinguishment of public vehicular rights. The second is whether, if it does, the extinguishment is immediate and permanent or whether the extinguishment is temporary only and in this case whether the rights can be revived on a subsequent review. It is common ground that, if the reclassification effects a permanent extinguishment, there can be no subsequent revival of the rights under the provisions of the 1968 or 1981 Acts.

Extinguishment or No Extinguishment

Under the 1949 Act and the 1968 Act (both now repealed), by reason of section 32(4) of the 1949 Act (which remained unaltered by the 1968 Act) when the definitive map and statement showed a bridleway, the entry was conclusive evidence that there was a public right of way on foot and by horseback, but by reason of the Proviso the entry did not exclude the possible existence of a public right of way for vehicular purposes. In a word the entry did not extinguish the existence of public rights of way for vehicular purposes. (The position is the same under section 56 of the 1981 Act.) Paragraphs 9 and 10 must be viewed against this background. The issue raised is whether a RUPP reclassified pursuant to Paragraphs 9 and 10 as a bridleway does not have the ordinary incidents of that status and in particular whether the vehicular rights are extinguished and the Proviso had no application.

There are three substantial obstacles in the path of RUPPs reclassified as bridleways lacking these incidents. The first is the general principle of statutory construction that a provision should not be construed as extinguishing existing public rights unless it expressly so provides or an intention to do so is so clear that it must necessarily be implied. There is no such express provision: all that is present is a reference to extinguishment in Paragraph 10(c). The second is the Sidenote. The language of the Sidenote speaking of “procedural and minor matters” scarcely fits the extinguishment of substantive rights. The third is the extraordinary distinction which the construction would have required to be drawn between entries of bridleways not the result of reclassification (to which the Proviso would have applied) and entries of reclassified bridleways (to which the Proviso would have had no application).

The question before me is accordingly whether notwithstanding these obstacles Paragraph 10 clearly and unambiguously made clear the intention that upon reclassification of a RUPP as a bridleway all existing public vehicular rights were to be extinguished.

This issue has been the subject of observations in a number of cases but has not previously been the subject of decision. The view was expressed obiter by Lord Denning MR and Browne LJ in Regina v. Secretary of State for the Environment ex parte Hood [1975] 1 QB 891 (“Hood”) at 899D and 903G that on reclassification of a RUPP as a bridleway public vehicular rights could be extinguished. The issue did not arise in that case and there does not appear to have been argument on the issue. The question did arise and was argued in the case of R v. Secretary of State for the Environment ex parte Riley [1990] 59 P&CR 1. Macpherson J held that he did not have to decide the question, but after argument he expressed the inclination to the view that the dicta in Hood were incorrect and that reclassification as a bridleway left open the possible existence of public vehicular rights since the 1968 Act continued unaltered the definition of bridleway (by which, in the context, it is plain he meant that the 1968 Act had left the effect of the proviso in section 32(4)(b) unaltered) and contained no positive word about extinguishment save for the one reference in Paragraph 10(c). Beyond those dicta there is a passage to which I should refer in the judgment of Roch LJ in Masters v. Secretary of State for the Environment, Transport and the Regions [2000] 4 PLR 134 (“Masters”) at 147B which reads as follows:

“[The] provisions [of Paragraph 10] were not re-enacted in the 1981 Act because, as Mr Laurence conceded, it was thought by Parliament that those provisions conflicted with the common law rule that, once the public have a right of way of a certain type over land, then in order to extinguish or even vary such a right, intervention by statute, either directly or indirectly, should be necessary.”

Neither Lord Denning nor Browne LJ in Hood nor Roch LJ in Masters referred to or (as it appears to me) had in mind the considerations referred to by Macpherson J and in particular the fact that the Proviso remained unaltered by the 1968 Act.

The thrust of the argument in favour of holding that reclassification of a RUPP as a bridleway effects an extinguishment of vehicular rights is that, unless such reclassification has this effect, it has no substantive legal effect at all and that Parliament cannot have so intended and that the key unlocking Parliament’s intention is to be found in the reference to extinguishment in Paragraph 10(c). It is argued that, unless reclassification effects extinguishment, all it does is to entitle the surveying authority to show the RUPP in the definitive map and statement as a bridleway instead of (as really it is) a byway open to all traffic.

The likely explanation, as it seems to me, for the problem of construction now facing the court is that at the late stage in the legislative process when the provisions for reclassification were introduced Parliament (like the three Court of Appeal judges to whose judgments I have referred) did not have in mind that the Proviso had remained unaltered. In my judgment the legislation cannot and should not be construed as a sidewind repealing or amending the effect of the Proviso. Like Macpherson J I do not think that the necessary implication can be read into the 1968 Act that vehicular rights should be extinguished and the provisions of section 32(4)(b) can be construed as amended so as to render the Proviso inapplicable to a reclassified bridleway. I find some support for this view in the Sidenote which indicates that the statutory provisions are not intended to have any such substantive effect. I should add that reclassification as a bridleway may have had the practical effect of discouraging the public from using the highway for vehicular purposes and indeed of encouraging applications under other legislation to stop up or extinguish those rights.

Temporary or Permanent Extinguishment

Since I do not think that there was any extinguishment, it is unnecessary to consider whether, if the reclassification did effect an extinguishment, the extinguishment was temporary only until the next revision of the definitive map and statement. I shall only say that I incline to the view that extinguishment would have been only temporary if the reclassification had been made on the ground that no vehicular right of way had been shown, leaving open the possibility that new evidence of the existence of the vehicular rights might become available and be adduced on a subsequent review. I have however difficulty in seeing how the extinguishment would only be temporary if (as in this case) the reclassification was made on grounds of unsuitability or lack of undue hardship. The scheme of the three Acts provides for reconsideration in the light of new evidence as to whether vehicular rights are shown to exist, but not as to whether the vehicular rights should be extinguished on the other two grounds.

I accordingly quash the Decision. The appropriate relief is the grant of a declaration and the grant to the Claimant of liberty to apply.

I should record in this judgment two matters. The first is that I received invaluable assistance (oral and written) from all counsel Mr Laurence, his junior Miss Crail and Mr Karas. The second is that after I had reserved judgment a Mr Burroughs sent me a letter and a number of documents to assist me. I sent copies to both counsel and invited any comments on the contents. Mr Laurence and Miss Crail made limited comments. Whilst I appreciate the concern and efforts of Mr Burroughs, his contribution has had no impact on the substantive content of this judgment.