The Claimants own Trent Farm in the village of North Muskham in Nottinghamshire. That property lies immediately to the west of the River Trent and has direct access to the River through the garden. There has not been any use, until the making of the Order referred to below, of any public right of way across the Claimants’ property, alongside the River, for a substantial period of time. Earlier attempts to establish a right of way based on user were not pursued due to lack of evidence.

On the 28 June 2006 Nottinghamshire County Council made the North Muskham Restricted Byway No. 7 Modification Order 2006 pursuant to section 53 of the Wildlife and Countryside Act 1981 (“the WCA”) adding to the definitive map a restricted byway across the Claimants’ garden and alongside the river. This addition was based, not on user, but following a careful inspection of historical maps and documents. Following a public inquiry an Inspector, Helen Slade MA FIPROW, appointed by the Secretary of State issued an interim decision letter dated 18 December 2006 proposing to confirm the order subject to a modification. The confirmation of the order was then made on 15 October 2007. The notice of confirmation of the order was published on 18 January 2008.

The effect of the order is to permit the public to pass across the Claimants’ garden as part of a riverside walk. The Claimants opposed the making of the Order and having failed in that regard, now seek to quash the Order and Notice thereof pursuant to paragraph 12 of Schedule 15 to the WCA on the grounds that they are not within the powers of section 53 of that Act.

Section 53 of the WCA requires the surveying authority (in this case the Nottinghamshire County Council) to keep the definitive map under continuous review. Section 53(2) provides:

Section 56 of the WCA provides:

Schedule 15 of the WCA, by paragraph 7 provides for a public inquiry to be held if objections to the order are made and not withdrawn. Paragraph 12 of that Schedule deals with questioning the validity of orders:

Regulations have been made under section 57 of the WCA. The Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 provide by Regulation 4:

In that Schedule to the Regulations one of the requirements is to describe the “path or way to be added” and the italicized words immediately beneath that are:

I have referred to the Schedule to the Regulations because the Claimants complain that the Order does not describe, or adequately describe, the width of the restricted byway to be added to the definitive map. That is of considerable importance to Mrs. Parker since she wants to know exactly what rights the public have and similarly the public need to know where they are entitled to go without trespassing.

However the first ground of the challenge is that the Inspector has misdirected herself by failing to have regard, or failing to have proper regard, to the terms and effect of the Trent Navigation Act 1783. That Act made provision to ensure that the River Trent could be haled and navigated without obstruction. Powers were given for the making and maintaining of paths along the river. The Claimants allege that there was a haling path along the route which is now the subject of the restricted byway order and that a haling route, providing private rights to users of the river to the exclusion of the public, makes it clear that there was never a public right of way along this stretch of the river and that the right of way was never “made” in accordance with the requirements of the local Inclosure Act.

The Claimants submit that the Inspector misdirected herself by first considering only the local Inclosure Act 1771 and Award of 1773, and what was done or not done as a result of those measures, before going on to consider whether the terms of the Trent Navigation Act in someway negated the conclusions she had reached rather than considering the Trent Navigation Act as part of her primary source of evidence to assist her in reaching her original decision on the right of way.

The 1735 Map shows a fording point of the River Trent. It also shows that the first part of Trent Ford Road, which itself is in the vicinity of part of the Order route, physically existed before any enclosure award was made. The Inspector was careful not to draw definite conclusions about the status of this road but accepted, as she was entitled to do, that this map showed a defined route in the immediate vicinity of the Order route. She also accepted that since the route already existed there was no requirement that it be sixty feet wide as was required in the later enclosure procedures. In addition since the road already existed again there was no requirement for it to be “made” or surfaced. The 1735 map also suggested that a route physically existed along the line of Ferry Road, which was also in the immediate vicinity of the Order route.

The arguments relating to width requirements and the requirements to “make” the highway arise from the Inclosure Act and Award to which I now turn.

The area covered by the Order route was the subject of parliamentary enclosure brought by a private Act of Parliament dated 1771 followed by an Award made in 1773. The Council’s position is that the route is clearly set out in the Award and is thus a highway for the purposes set out in that Award. The Claimants argued in front of the Inspector, and argued in front of this Court, that the Award was not carried out in accordance with the requirements of the relevant Act and that there was no evidence that either part of the route comprising the Order route (that is Trent Ford Road and Ferry Road) was ever provided on the ground or used by the public.

The Inspector took the view that the parliamentary enclosure process was a legally binding procedure and that she should therefore start from the premise that it was carried out properly (paragraph 27 Interim Decision). She then went on to say in the same paragraph:

It seems to me that this approach of the Inspector was entirely appropriate and unimpeachable.

The 1771 Act was petitioned by the owners and proprietors of various properties within the Townships of North Muskham, Holme and Bathley, all within the parish of North Muskham. As was common with Inclosure Acts of this time a procedure was set out involving the appointment of Commissioners and a Surveyor following which a survey of the parish was carried out followed by the setting out of the public and private roads and ways. Thus the Act provided:

The words “shall and may” were interpreted by the Inspector as endowing the commissioners with the authority to carry out the instructions which they had been given. Thus “shall” indicated that they must do something and “may” gave them the authority to carry out the instruction. The commissioners were then given discretion to do what they considered to be “necessary and convenient” in carrying out their instructions. She further decided that the fact that the instruction to “make” such highways was included in the paragraph before the phrase “necessary and convenient” suggested that the manner of making up was also discretionary. As she said it was necessary to exercise caution in determining the standard of surfacing which would be expected at that time, and not to judge it by current expectations. Thus in some instances no form of surfacing would have been necessary.

In my judgment this approach of the Inspector was entirely appropriate and unimpeachable.

The Inspector next considered the wording in the Act dealing with fences and ditching:

The Inspector found that this requirement did not, as suggested by the expert witness for the Claimants, mean that every highway had to be fenced and ditched and be sixty feet wide. The commissioners were given a discretion in that the requirement for the width to be delineated only applied to those carriageways which they considered convenient to ditch and fence and the stipulation as to width only applied, and could only have applied, to those highways which the commissioners newly set out. As the Inspector said, rightly in my view, where an existing highway crossed land already enclosed as a result of previous processes it might have been constrained by the fencing of the earlier enclosures which may or may not have allowed a width of sixty feet.

All the highways, that is those recently set out and made and pre-existing highways, had to be included in any Award as those highways omitted would be included as part of the lands to be enclosed.

The Inspector also considered the need, under the Act, for the highways to be fenced in the light of submissions on the part of the Claimants that the Act made it clear that all highways needed to be fenced. The Council argued to the contrary. Again the Inspector found that there was a discretion and in my view that conclusion, and the conclusions set out in this judgment in the immediate preceding paragraphs, cannot be criticized.

The 1771 Act required that an Award be drawn up and supplemented by a map. There was a requirement to identify the locations of the proposed highways and the position and width had to be recorded in the Award. As was pointed out by Mr. Mitchell, Counsel for Nottinghamshire, in his submissions there was a right of appeal for those aggrieved with anything done pursuant to the Act to be exercised within 6 months.

The Award was duly drawn up and in due course was enrolled in the Court of Common Pleas as evidence that the Award was legally completed. It is the wording of the Award which provides the description of the highways which make up the Order route.

The description of the Order route, as claimed by the Council, was described in the Award in these terms:

It is this wording which the Inspector found compelling as to the existence of the highway. The argument against urged upon the Inspector, and again upon me, was that the public right of way was never made up and never came into being. Much reliance was placed upon the decision of Cubitt v. Lady Maxse [1873] LR 8 C.P. 704. The Inspector accepted the principle that for highways to have been validly created by statute, they needed to have been set out in accordance with provisions of the Act. She set out a short passage from the judgment of Keating J. in these terms:

Mr. Hobson Q.C. for the Claimants criticized the Inspector for not setting out the passage from Keating J.’s judgment immediately following:

However in my judgment Mr. Hobson’s criticism is unfounded. As the Inspector decided, the Maxse case involved the much more prescriptive and exacting requirements of sections 8 and 9 of the General Inclosure Act 1801.

This map produced by a Mr. John Chapman showed a route in the immediate vicinity of the Order route and is shown by the key to be an “inclosed road”. Other roads are marked as uninclosed. The crossing of the river by way of a ford is also marked. The map lends weight to the fact that the route in the Inclosure Act and Award did exist and/or had in fact been made.

This Act provides the pivotal point of the Claimants’ case. The Trent Navigation Act was passed to ensure the navigability of the River Trent and made provision to ensure that the River could be haled and navigated without obstruction. Thus the Navigation company was given powers;

Provision was made for the paying of rent to landowners and for tolls to be levied for use of the navigation. All owners and occupiers through whose land the path was to be made were to have the right to use the path as a “footpath, bridleway or driftway for their cattle and that no other person may use the same” (Clause XCII).

Once the haling paths were set out and made then, subject to any public rights of way, the paths were private ways and under the control of the Navigation company.

Neither this Act, nor any other of the Navigation Acts contained any provision for extinguishing public highway rights. Since at various points on the river, both in the vicinity of the Order route and elsewhere, there were both fords and ferries it was inevitable that a haling path would, at the least, cross and be contiguous with certain public rights of way.

The Inspector said at paragraph 84 of her Interim Award that she did not think that:

Further as to the 1794 Map or deposited plan (with the Navigation Act 1794) while the Inspector agreed that there was a dotted line, designating a haling route, along the River Trent at North Markham she did not accept that the document was capable of legally denying the existence of a public highway. I shall return to this matter later.

The law in relation to the creation of highways was not really in issue before me. Where a highway is created by statutory powers, no user by the public or any act of any party is necessary to complete the creation R v. Lyon (1825) 5 Dow and Ry KB 497; R v. Leake Inhabitants (1833) 5 B & Ad 469.

Where the statute merely authorizes the setting out or making of a public road, then, in the absence of user amounting to adoption by the public of the road in an unfinished condition, no highway comes into existence until the road has been set out and made in substantial conformity with the statutory requirements. However if the public regularly uses a road which has never been completed in the manner required by statute, a dedication and acceptance of it by the public as a highway in its unfinished condition may be inferred Cubitt v. Lady Maxse (1873) LR & CP 704.

In the case of Buckland et ors v. Secretary of State for the Environment [2000] 1 WLR 1949 Kay J. summarised the position in his conclusions at p. 1960:

The Inspector set out the issue that she considered she had to decide in paragraph 12 of her Interim Decision:

She then reminded herself that section 32 of the Highways Act 1980 requires a tribunal, such as the public inquiry before her, to take into consideration any map, plan or history of the locality, or other relevant document which is tendered in evidence, giving it such weight as is appropriate, before determining whether or not a way has been dedicated as a highway.

Having referred to the heavy reliance upon the Inclosure Act and Award and the issue as to “whether or not it is valid in respect of the Order route” she then went on in the next paragraph and said:

Having reached the preliminary conclusion that the 2 parts of the route she was considering, Trent Ford Road and Ferry Road, were indeed public highways she then turned to consider whether the evidence showing the presence of a towing path had the effect of precluding the existence of a highway.

It is because of this 2 stage process that Mr. Hobson Q.C. submitted before me on behalf of the Claimants that there was a misdirection. Instead of considering the matter in the round and reaching a conclusion the Inspector misdirected herself by reaching a conclusion on the highway without the evidence of the Trent Navigation Acts in her mind. It was only after she had reached a conclusion following a consideration of the Inclosure Act and Award that she turned to consider the Navigation Acts to see if “the evidential weight of the Inclosure Award ought to be overturned” (paragraph 75.)

The first submission made is based on the fact that the Trent Navigation Act 1783 limits the users of the haling path to a limited class of users. It gives a right to the owners of land through which the route passed to use it as a footway, driftway or bridleway but otherwise prohibits anyone else from using it. Thus the clause in the Act (clause XCII) is granting private rights of user. That, it is submitted, is both legally and evidentially inconsistent with use of the same stretch of land as a public highway. Secondly by clause XVII of the 1783 Act the haling path is to be maintainable at the expense of the Navigation Company which, it is argued, is incompatible with the common law principle then applicable that a highway be maintained by the parish.

The Claimants’ argument continued that the reason that the conflict between a public right of way and a private right of way was not addressed in the Act of 1783 was that no public right of way had come into existence at that time. No right of way had been “made” and until it was made there was no obligation upon the parish to maintain it. It was thus submitted that since the Navigation Act was passed only 10 years after the Inclosure Act and provided for the Navigation Company to make and maintain the haling path, the public right of way never came into existence.

I was shown the deposited plan which went with the Trent Navigation Act 1794 which had marked upon it a haling path in the immediate vicinity of the order route which provided some evidence that the earlier Act of 1783 had been acted upon and a haling path had been created.

It was then submitted that the Inspector approached the evidence in an impermissible two stage process as I have alluded to in paragraph 43 and 44 above.

It was submitted by Mr. Palmer on behalf of the Secretary of State, supported by Mr. Mitchell for Nottinghamshire, that the Inspector was entitled to reach the conclusions that she reached and indeed was correct in those conclusions. They argued that if there was in existence at the time of the Inclosure Act a road already made to the standard of the time there was no obligation to do more and such a highway would not be extinguished by the legislation. It was sufficient in respect of such a road to set it out and appoint it in the Award as a highway. If it was already made it could not be necessary or convenient to re-make it.

Similarly the Defendants argued that it could not be the case that it was intended to extinguish any existing road which was not 60 feet wide, or to insist upon fences or ditches where they were not appropriate (such as alongside the river). The 60 foot requirement, it was submitted, was for newly made up roads where ditches or fences were thought convenient.

The evidence that a road existed over at least a part of the Order route prior to the Inclosure Act was compelling. A physical route was shown over Ferry Road in the 1735 map and was still there when the land was surveyed in 1774. Thus the evidence of the existing road together with the clear words of the Award made it clear that the route was a highway in 1773.

The Defendants next submitted that the Trent Navigation Act provided a power and a duty of the Navigation Company to make “sufficient and convenient” paths and ways for haling along the river. This did not mean that where there was already an existing and convenient route along Ferry Road which, by reason of its status as a public right of way, could already be used for haling the Navigation Company had to somehow make another path. That would be unnecessary on the grounds of sufficiency and convenience.

It was denied by the Defendants that there was any inconsistency between the public and private rights if one assumed that the Navigation Company used the public rights of way where they existed and made their own path for haling where necessary. There is no doubt that there were places, as I have mentioned earlier in this judgment, where the public had rights of access to cross the river by ferry and ford and the fact that there were also lengths of public highway over part of the length of the navigation did not detract from the provisions of the Navigation Act.

Finally the Defendants contended that the Inspector did not err in her approach to the evidence but clearly understood the thrust of the case. The Inspector did not close her mind to the evidence relating to the Trent Navigation Act in fact quite the opposite she carefully considered it. The fact was that the Navigation Act did not assist the Claimants to get over the difficulties of their case.

It is right that I should start by paying tribute to the Inspector for her very careful and well expressed Interim Decision. In my view she went to immense trouble to set out all the evidence that was available to her and reached clearly expressed conclusions.

The Inclosure Act, and the Award made thereafter, made provision for the Order route to be a highway. The evidence points to a pre-existing road which in my view would have made it unnecessary for there to have been further work to “make” the road. The commissioners were only charged to make such roads as were “necessary and convenient” and if there existed a satisfactory road then further work would not meet that test.

The Trent Navigation Act of 1783 was largely silent about public rights of way. Since setting out and making a haling path would clearly have been an expensive undertaking it would have been entirely understandable for the Navigation Company to use public rights of way whenever available. I do not consider that there was a conflict between the public rights of way and the private rights of way since the provision of a private right would have been unnecessary where the public right of way existed.

The Trent Navigation Act concerned a very much longer stretch of river than this case concerns and there were, no doubt, on different stretches a number of parts of the path used for haling where the public had rights of way. I am of the opinion that the Order route was such a stretch. I do not consider that the 1794 Navigation Act showing a haling path in the immediate vicinity of the right of way provides any evidence that no public right of way existed since the path was still used, and entitled to be used, as a haling path.

The approach of the Inspector was to start by considering the Inclosure Act and Award and then to consider the Trent Navigation Act. Having regard to the primary importance of the Inclosure Act and Award that was an entirely understandable course to take. Had the Inspector been of the view that her consideration of the Trent Navigation Act cast doubt on her preliminary views I am quite satisfied that she would have gone back to consider the Inclosure documents once more. However she was, in my view, quite correct to reach the view that there was nothing in the Navigation Act which should have led her to any different conclusion. I am satisfied that the Inspector’s approach was perfectly proper and sensible and the Claimants have failed to persuade me that her decision is challengeable on this first ground.

I can deal with this matter quite shortly. The Claimants allege that the Order, as modified, fails to state, or adequately state, the width of the Order route. As I have said above this is a matter of considerable concern to the Claimants.

I have set out above the relevant statutory provisions. It was submitted by the Claimants that it was not the intention of Parliament that there would be any ambiguity as to where the boundary of land over which private rights and land over which there are public rights lies. It was submitted that the Modification Order does not comply with section 53(4)(a) of the WCA in that the particulars of the width are not stated and thus it is impossible for the Claimants to know which part of their land is affected by the public rights.

The Claimants submitted that in so far as the width is as stated by reference to the 1773 Award it fails to fulfil the requirement that not only the position but the width of any public path be stated and be so conclusively.

As the Inspector said in her Interim Decision the River Trent was tidal at North Muskham at the time of the 1773 Inclosure Award and therefore the line of the edge of the water would fluctuate. The Inclosure Award set out the route of Ferry Road by reference to ancient enclosures and the River. The Order plan, marked shaded in red, reflects the width between the old inclosures and a line on the map which represents what is now considered (by OS surveyors) to be the edge of the River Trent. The Inspector expressed the view that she did not consider it possible to be any more specific about the width than as stated in the Inclosure Award (Paragraph 17 of the Order Decision).

The Claimants submitted that the original Award was ultra vires for failure to state a precise width in the initial Inclosure exercise and further that the imprecision then has now compounded the difficulties of precision today where the width is described by reference to an imprecise original Award.

What is needed is a statement or description of the width of the right of way. In my view that can be provided in a number of different ways including giving a numerical description, providing a width by reference to physical features or, as was done here, by reference to a plan with the width marked upon it. DEFRA have provided some non-statutory guidance in relation to Definitive Map Modification Orders dated 12th February 2007. The guidance says:

While the task has not been made easy by the circumstances giving rise to the re-discovery of this right of way I am satisfied that the description of the width shown in the order is sufficient to comply with the statutory requirements. Perhaps as important is that I am satisfied that it is quite practical to agree on the ground the extent of the land the subject of the right of way. I have no doubt that the Council will provide such helpful assistance as required to Mrs. Parker so that she understands the extent of her land affected. I understand that there has already been some pegging out on her land.

In conclusion I am satisfied that the Inspector’s Order Decision made on the 15 October 2007 was properly made, and was within the powers given to the surveying authority under the WCA and the Claimants’ challenge fails on this ground also. It follows that the Claimants’ application must be dismissed.