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

This case raises the question of whether the then Secretary of State, by her Inspector, was right to dismiss an appeal against the decision of Wiltshire County Council refusing an application made by the Claimant to the Council for it to modify the Definitive Map for its area to include upon it a public bridleway that does not currently appear on that map.

In order to answer that general question it is necessary –

Thus identified the issues seem ideal for a student moot and somewhat remote from the usual day to day work of the Administrative Court. However, the claim (which is brought with the support of the Ramblers Association) is a “test case” and, I am told, between 500-1000 other public rights of way across private land might be capable of being established in other parts of England and Wales if the Claimant’s argument succeeds.

Whilst the issues may seem arcane, they are important. In the first place, those seeking more widespread public access across private land will wish to see the argument succeed. Equally, however, there will be many private landowners whose land is not currently exposed to public access in this way who will be troubled by the thought that it may become thus exposed. The landowner of the farmland in Wiltshire that is the subject of the current case has been made the Second Interested Party to these proceedings and, not unnaturally, has expressed considerable concern that, if it succeeds and a public bridleway has to be created across his land where there has been no such bridleway before, considerable interference with (and loss of profitability of) his arable farming operations would result.

It is not, of course, for the court effectively to choose between these two viewpoints, but merely to decide whether, according to the law, the claimed bridleway should be incorporated on the definitive map.

It will be difficult to understand how this issue comes to arise without some appreciation of the historical context in which the Inclosure Consolidation Act 1801 (‘the 1801 Act’) was passed and the social conditions that gave rise to the general need to create rights of way, both public and private, across what would otherwise be private land. It will be equally difficult to do full justice to the social and economic history of the general process of enclosure in the space of a few short paragraphs, but that general process will be familiar to those who can remember something of their school history lessons. The whole topic has been the subject of many academic and other commentaries.

Whilst enclosure (then spelled ‘inclosure’) is often defined in legal dictionaries in a form such as “the act of freeing land from rights of common, commonable rights, and all rights which obstruct cultivation by vesting it in some person as absolute owner” (A Concise Law Dictionary, Osborn, 5^th ed., 1964), those dispossessed of the right to use common land and the open fields that once characterised the British landscape and rural social system will have seen it in rather less positive terms. In The Making of the English Working Class (1963), E. P. Thompson characterised the process as “a plain enough case of class robbery”.

Enclosure has been said to be “synonymous in common usage with physically shutting off a piece of land with a fence, hedge or wall” (The Enclosure Maps of England and Wales, 1595-1918, Kain, Chapman and Oliver, Cambridge University Press, 2011). The effects on the rural landscape and rural life were, of course, profound and those effects did not escape the attention of some of the poets of the period. One was William Barnes of the Blackmore Vale in Dorset (who was born in 1801). His poem in Dorset dialect entitled ‘Rusticus Dolens or Inclosures of Commons’ was composed in 1834. Another was John Clare (1793-1864) of Helpston in Northamptonshire. This short passage from his poem ‘Remembrances’, thought to have been composed in about 1832, shortly after the Captain Swing riots, evokes in a memorably pungent and powerful poetic style features of the anti-enclosure sentiments of the time:

“…

Enclosure like a Buonaoparte let not a thing remain

It levelled every bush and tree and levelled every hill

And hung the moles for traitors – though the brook is

running still

It runs a naked brook cold and chill.”

Enclosure as a legal and physical concept pre-dates the period of history of which the 1801 Act forms an integral part. However, the broad period from the mid-18^th century to the mid-19^th century saw a great deal of enclosure activity, most of it achieved through local Acts of Parliament called ‘Inclosure Acts’. In Volume I of the report commissioned by David Lloyd George, then Chancellor of the Exchequer, in 1912 and published in 1913 entitled “The Land, The Report of the Land Enquiry Committee”, Dr Gilbert Slater in the ‘Historical Outline’ to the report recorded this:

“Early in the eighteenth century there begins the great series of private acts of enclosure, of which 4000 in all, covering some 7,000,000 acres, were passed before the general Enclosure Act of 1845. During the same period it is probable that about the same area was enclosed without application to Parliament.”

The speech of Viscount Maugham LC in Searle v Wallbank [1947] AC 341, 347-350, contains an illuminating history of the process albeit recounted for a purpose different from the need to understand the history for the purposes of the present case.

I have had the advantage of seeing the fruits of research conducted by the two experts who have submitted reports in this case, Dr Yolande Hodson, BSc, PhD, FSA, FBCartS, and Dr Stephen Hollowell, BEd, MA (Ed), MA (Loc. Reg. History), PhD. Both have considerable experience and expertise in this general area: Dr Hodson is a “map historian” (not, she would emphasise, an “economic historian” or an expert in the history of the enclosure movement); Dr Hollowell would appear to have a slightly wider historical expertise given his MA in “local and regional history” and his PhD in Northamptonshire inclosure, but would not, I think, claim to rival Dr Hodson’s expertise in the interpretation of historical maps. Both are very familiar with the kind of records that exist for consideration in this context.

Acknowledging my indebtedness to their industry, it is possible to encapsulate the rather wider economic setting for the changes that took place and to appreciate the backdrop to the 1801 Act. In his report Dr Hollowell recorded the following:

“In the eighteenth century, the most commonly used method of introducing an inclosure project was by Private Act of Parliament …. The peak years of inclosure activity were in the late 1770s and were associated with food shortages caused by the American War of Independence. From the landowners’ point of view, inclosure can be considered as a form of investment and one which had very high returns. The inclosure projects that gave the highest rates of return tended to be clustered during that early period of peak activity. Other inclosure projects which promised lower financial returns were left aside: such as those involving mountain and moorland; fens and marshes (that also needed draining); small pockets of land; inclosure projects that were likely to attract opposition or land that was already being leased out for an above-average rent.

By the late 1790s, Britain was at war with France and there had been a succession of bad harvests, which led in turn to sharp increases in the price of grain and bread and then the occurrence of food riots. The desire for a General Act to make inclosure easier and cheaper had been suggested for some time by agricultural improvers such as Arthur Young (Footnote: ¹). By the end of the eighteenth century, the inclosure schemes that had earlier been rejected or abandoned now offered comparatively better rates of return.

With a view to encouraging a second wave of parliamentary inclosures, which in turn would lead to an increase in the gross national output of agricultural produce, Parliament looked for ways of streamlining the process and making it cheaper and more attractive to landowners. So, a Select Committee was appointed by the House of Lords to investigate the matter.”

The Select Committee’s report was published on 9 July 1800. Prior to that, on 26 June 1800, Dr Hollowell records that the House of Commons had passed five resolutions to the House of Lords setting out its views on the enclosure and improvement of waste lands such as mountain, moorland and fen. He records the resolutions as follows:

1.

In order to promote the inclosure of underproductive land, it was considered expedient to adopt regulations that would reduce the cost of inclosure while still ensuring that the process carried the authority of Parliament.

2.

One means of reducing such costs could include the use of signed affidavits when giving evidence, rather than the parole system where someone from the parish had to attend Parliament to swear on oath.

3.

As a further means of reducing the costs of an inclosure, a general law should be passed, which would include all the provisions previously found in most private inclosure bills.

4.

Other means of reducing the cost of inclosure included taxing the charges of the inclosure solicitor; regulating the conduct of the commissioners; and preventing any undue delay in seeing such bills through the Parliamentary process.

5.

Finally, in the case of small inclosures of 300 acres or less, there should be substantial reductions in the Parliamentary charges.

Emphasising, as I have already recorded, that Dr Hodson does not regard herself as an economic historian, and was unable, therefore, to confirm or disaffirm the accuracy of Dr Hollowell’s appraisal, she said this in her Supplementary report:

“… an interesting excerpt from the Newcastle Courant, on Saturday 12 July 1800, reporting on proceedings in Parliament, gives the following report which nicely summarises the background to the 1801 Act:

July 3. The Duke of Bedford moved the order of the day for taking into consideration certain resolutions on the table respecting the inclosure and improvement of waste lands, communicated by the commons on the 19^th of May last, which having been read, his Grace entered at considerable length into the subject; he said it had before been incontrovertibly proved that the population had rapidly increased of late years, and that it far exceeded the product of the soil. Every means, therefore, of increasing cultivation, whether the produce of the land was wheat or flesh meat, was highly desirable. He pointed out the advantages that would accrue by diminishing the expence of bills of inclosure, and, if possible, framing a practicable general law on inclosure, like the general highway act, to the provisions of which all private bills might refer. He concluded with moving, ‘That the house agree to the resolutions on the table’. Lord Carrington seconded the motion. He was informed that the quantity of common and wasteland throughout England amounted at present to about 7,800,000 acres’.”

The “resolutions on the table” were those referred to by Dr Hollowell (see paragraph 13 above).

Those matters give a sense of the essential background to the passing of the 1801 Act. It was passed in the midst of an intensive period of enclosure activity and, as will be observed, was designed to accelerate the process and reduce its costs.

It will, of course, be appreciated that the enclosure into private ownership of what otherwise was land over which the public generally had rights of access generated the need to create rights of way for those who needed to pass and re-pass over the land. The provisions enabling the creation of those rights represent the focus of consideration in this case.

Before turning to the 1801 Act and to the issues that arise, it is worth noting that some caution needs to be shown when considering what the words “private” and “public” meant in the times with which this case is concerned.

It is acknowledged by the experts and by Counsel that these words did not necessarily have a consistent meaning in the statutes, whether local or general, of the time and their meaning may not be wholly as understood in modern times. Dr Hodson put it thus in her article published in September 2011 (see paragraph 85 below):

“It has been possible to show that while the word “public” undoubtedly means the general public when applied, for example, to primary carriage roads, its meaning can become diluted at the parish level so that it applies to a geographically restricted group of users. Equally, while the word private undoubtedly means not the general public, its true meaning depends on the noun, and the context of that noun, which it is describing. So that private roads may well be, and frequently are, restricted as to user but, on the other hand, the user may be public and only the repair is private. Hence the private highway.”

I do not understand Dr Hollowell to disagree with this broad analysis. He recorded that “private paths were not intended for the ‘as of right’ use by the public but instead, for either the public to use them under licence or, for certain individuals or classes of individual”, but that “a public path (whether a footpath or a bridleway) [may be used by the public] as of right, to pass and re-pass.” He did assert that “public paths [were] maintainable at the public expense”, but Dr Hodson took slight issue with this by saying that “there are examples of public bridleways and public footpaths which were not maintained by the whole parish.”

As will be apparent from the foregoing, the question of who was responsible for the costs of maintaining either a “public” or a “private” facility was of importance. Dr Hodson says that that “the concept and practice of private maintenance of public roads was well known in the eighteenth and nineteenth centuries” and mentions that in her examination of the 67 awards (see paragraphs 92-97 below) “no provision at all was made for the maintenance of public bridleways and public footpaths in 53 of them, private repair was specified in 12 awards, and public repair was directed in just two.” It follows that “private maintenance of public routes, including bridleways and footpaths, was not uncommon in earlier times.”

I will turn now to the 1801 Act.

The long title of the 1801 Act read as follows:

“An Act for consolidating in one Act certain provisions usually inserted in Acts of Inclosure; and for facilitating the Mode of proving the several Facts usually required on the passing of such Acts.”

The preamble, expressed in modern language, was as follows:

“Whereas, in order to diminish the expense attending the passing of acts of enclosure, it is expedient that certain clauses usually contained in such acts should be comprised in one law, and certain regulations adopted for facilitating the mode of proving the several facts usually required by Parliament on the passing of such acts …”

The 1801 Act was a general clauses Act and, as its title suggests, an Act consolidating previously enacted provisions elsewhere, the purpose being (as the preamble sets out) to enable local Inclosure Acts to incorporate by reference such provisions of the 1801 Act as were relevant to the local Act. Section 44 of the Act was in the following terms (the expression “such Act” being referable to the local ‘Act of Inclosure’ in question):

“Provided always, and be it enacted, That all and every the Powers, Authorities, Directions, and Provisions in this Act contained, shall be only so far effective and binding in each particular Case, as they or any of them shall not be otherwise provided and enacted in any such Act hereafter to be passed as aforesaid.”

Once a local Act had authorised the enclosure of an area of land, “Inclosure Awards” were drawn up by Inclosure Commissioners, who acted under the authority of the local Act. As Schiemann J recorded in R v Secretary of State for the Environment, ex p Andrews (1993) 71 P&CR 1 (‘Andrews No. 1’), the 1801 Act “provided in section 4 that the commissioners’ first task was to survey, measure, show on a plan and value all the land to be inclosed.” In the style of the time, the section contained its own italicized title or heading as follows:

(A Survey, Admeasurement, Plan, and Valuation of the Lands &c. to be inclosed shall be made, and kept by the Commissioners, which shall be verified by the Persons making them.)

The substance of the section reads as follows:

“And be it further enacted, That a true, exact, and particular Survey, Admeasurement, Plan and Valuation, of all the Lands and Grounds to be divided, allotted, and inclosed by any such Act, and also of all the Messuages, Cottages, Orchards, Gardens, Homesteads, ancient inclosed Lands and Grounds, within any such Parish or Manor, shall be made and reduced into Writing, by such Commissioner or Commissioners, or by such other Person or Persons as he or they shall nominate and appoint, as soon as conveniently may be, for the purposes of such Act; and the Number of Acres and decimal Parts of an Acre, in Statute Measure, contained in all the Lands and Grounds directed or authorized to be divided, allotted, and inclosed, and also in all the ancient inclosed Lands, Grounds and Homesteads aforesaid, and of each and every Proprietor’s distinct Property in the same respectively, at the Time of making such Survey and Admeasurement, shall be therein set forth and specified; and that the said Survey, Admeasurement, Plan, and Valuation, shall be kept by such Commissioner or Commissioners; and the Person or Persons who shall make such Survey, Admeasurement, Plan, and Valuation, shall verify the same upon Oath or Affirmation, at any meeting to be held after the making thereof (which Oath or Affirmation the Commissioners, or any one of them, are and is hereby empowered and required to administer); and the Proprietors and their respective Agents, and all Persons interested therein, shall at all reasonable Times have Liberty to peruse and inspect such Admeasurement and Plan only, and to take Copies thereof and Extracts therefrom respectively.”

The next section of relevance (and which formed the direct focus of Andrews No. 1) is section 8. Its individual title or heading was as follows:

(Commissioners before making Allotments shall appoint publick Carriage Roads, and prepare a Map thereof to be deposited with their Clerk, and give Notice thereof, and appoint a Meeting, at which, if any Person shall object, the Commissioners, with a Justice of the Division, shall determine the matter. Where Commissioners may be empowered to stop up any old Road, it shall not be done without the Order of two Justices, subject to Appeal, to Quarter Sessions.)

The substance of the section was as follows:

“Be it further enacted, That such Commissioner or Commissioners shall, and he or they is and are hereby authorized and required, in the first Place, before he or they proceed to make any of the Divisions and Allotments directed in and by such Act, to set out and appoint the publick Carriage Roads and Highways, through and over the Lands and Grounds intended to be divided, allotted, and inclosed, and to divert, turn, and stop up, any of the Roads and Tracts, upon or over, all, or any Part of the said Lands and Grounds, as he or they shall judge necessary, so as such Roads and Highways shall be, and remain thirty Feet wide at the least, and so as the same shall be set out in such Directions as shall, upon the Whole, appear to him or them most commodious to the Publick, and he or they are hereby further required to ascertain the same by Marks and Bounds (Footnote: ²), and to prepare a Map in which such intended roads shall be accurately laid down and described, and to cause the same, being signed by such Commissioner, if only one, or the major Part of such Commissioners, to be deposited with the Clerk of the said Commissioner or Commissioners, for the Inspection of all Persons concerned; and as soon as may be after such Carriage Roads shall have been so set out, and such Map so deposited, to give Notice in some Newspaper to be named in such Bill, and also by affixing the same upon the Church Door of the Parish, in which any of the Lands so to be inclosed shall lie, of his or their having set out such Roads and deposited such Map, and also of the general Lines of such intended Carriage Roads, and to appoint in and by the same Notice, a Meeting to be held by the said Commissioner or Commissioners, at some convenient Place, in or near to the Parish or Township within which the said Inclosure is to be made, and not sooner than three Weeks from the Date and Publication of such Notice, at which Meeting it shall and may be lawful for any Person who may be injured or aggrieved by the setting out of such roads to attend; and if any such Person shall object to the setting out of the same, then such Commissioner or Commissioners, together with any Justice or Justices of the Peace, acting in and for the Division of the County in which such Inclosure shall be made, and not being interested in the same, who may attend such Meeting, shall hear and determine such Objection, and the Objections of any other such Person, to any Alteration that the said Commissioner or Commissioners, together with such Justice or Justices, may in Consequence propose to make, and shall, and he or they are hereby required, according to the best of their Judgement upon the Whole, to order and finally direct how such Carriage Roads shall be set out, and either to confirm the said Map, or make such Alterations therein as the Case make require: Provided always, That in Case such Commissioner or Commissioners shall by such Bill be empowered to stop up any old or accustomed Road, passing or leading through any Part of the old Inclosures in such Parish, Township, or Place, the same shall in no Case be done without the Concurrence and order of two Justices of the Peace, acting in and for such Division, and not interested in the Repair of such Roads, and which Order shall be subject to Appeal to the Quarter Sessions, in like Manner and under the same Forms and Restrictions as if the same had been originally made by such Justice as aforesaid.”

In Andrews No. 1 Mr George Laurence QC, who appears again (on this occasion with Mr Edwin Simpson) for the Claimant, had helpfully provided the court with a somewhat more reader-friendly version of that section: see pp. 4-6 of the report.

Section 9 was ancillary to section 8 and related to the fencing of such public roads and other matters connected with such roads.

Section 10 (which is the section of primary importance in the present case) had a short internal title or heading in the following terms:

(Commissioners shall appoint private Roads, &c.)

The substance of the section was as follows:

“And be it further enacted, That such Commissioner or Commissioners shall, and he or they is and are hereby empowered and required to set out and appoint such private Roads, Bridleways, Footways, Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds and Land Marks, in, over, upon, and through or by the Sides of the Allotments to be made and set out in pursuance of such Act, as he or they shall think requisite, giving such Notice and subject to such Examination, as to any private Roads or Paths, as are above required in the Case of publick Roads, and the same shall be made, and at all Times for ever thereafter be supported and kept in Repair, by and at the Expence of the Owners and Proprietors for the Time being of the Lands and Grounds directed to be divided and inclosed, in such Shares and Proportions as the Commissioner or Commissioners shall in and by his or their Award order and direct.”

Section 11 is arguably relevant to the issue that falls for determination. Its internal title or heading was as follows:

(Grass and herbage on Roads shall belong to the Proprietors of the Lands adjoining; and all Roads which shall not be set out shall be allocated and inclosed. No Turnpike Road shall be altered without the Consent of the Trustees.)

The substance of the section was as follows:

“And be it further enacted, That after such publick and private Roads and Ways shall have been set out and made, the Grass and Herbage arising thereon shall for ever belong to and be the sole Right of the Proprietors of the Lands and Grounds which shall next adjoin the said Roads and Ways on either Side thereof, as far as the Crown of the Road; and all Roads, Ways, and Paths, over, through, and upon such Lands and Grounds which shall not be set out as aforesaid, shall for ever be stopped up and extinguished, and shall be deemed and taken as Part of the Lands and Grounds to be divided, allotted, and inclosed, and shall be divided, allotted, and inclosed accordingly; Provided, That nothing herein contained shall extend, or be construed to extend, to give such Commissioner or Commissioners any Power or Authority to divert, change, or alter any Turnpike Road that shall or may lead over any such Lands and Grounds, unless the Consent of the Majority of the Trustees of such Turnpike Road, assembled at some publick Meeting called for that purpose on ten Days Notice, be first had and obtained.” (Emphasis added.)

The final section of relevance (because it forms the basis for the issue identified in paragraph 2(c) above) is section 35. Its internal title or heading was as follows:

(After Allotment Commissioners shall draw up their Award, which shall be read and executed at a Meeting of the Proprietors, and proclaimed the next Sunday in the Church, and then considered as complete. Award shall be inrolled in one of the Courts at Westminster, or with the Clerk of the Peace, and may be inspected, and Copies obtained. Award and Copies shall be legal Evidence, and Award shall be binding on all Parties interested. Commissioners may annex Maps to the Award, which shall be deemed Part thereof)

Its substance was as follows:

“And be it further enacted, That as soon as conveniently may be after the Division and Allotment of the said Lands and Grounds shall be finished, pursuant to the Purport and Directions of this or any such Act, the said Commissioner or Commissioners shall form and draw up, or cause to be formed and drawn up, an Award in Writing, which shall express the Quantity of Acres, Roods, and Perches, in Statute Measure, contained in the said Lands and Grounds, and the Quantity of each and every Part and Parcel thereof which shall be so allotted, assigned, or exchanged, and the Situations and Descriptions of the same respectively, and shall also contain a Descriptions of the Roads, Ways, Footpaths, Watercourses, Watering Places, Quarries, Bridges, Fences, and Land Marks, set out and appointed by the said Commissioner or Commissioners respectively as aforesaid, and all such other Rules, Orders, Agreements, Regulations, Directions, and Determinations, as the said Commissioner or Commissioners shall think necessary, proper, or beneficial to the Parties; which said Award shall be fairly ingrossed or written on Parchment, and shall be read and executed by the Commissioner or Commissioners, in the Presence of the Proprietors who may attend at a special General Meeting called for that Purpose, of which ten Days Notice at least shall be given in some Paper to be named in such Act and circulating in the County …

… and the said Award, and each Copy of the same, or of any Part thereof, signed as aforesaid, shall at all Times be admitted and allowed in all Courts whatever as legal Evidence; and the said Award or Instrument, and the several Allotments, Partitions, Regulations, Agreements, Exchanges, Orders, Directions, Determinations, and all other Matters and Things therein mentioned and contained, shall, to all Intents and Purposes, be binding and conclusive, except where some Provision to the contrary is herein or shall be by any such Act contained, unto and upon the said Proprietors, and all Parties and Persons concerned or interested in the same, or in any of the Lands, Grounds, or Premises aforesaid ….” (Emphasis added)

The primary argument advanced on behalf of the Claimant concerning section 10 is that when it was incorporated into a local Inclosure Act, it enabled Inclosure Commissioners to set out and appoint public bridleways, as well as private bridleways. The argument of the Secretary of State is that section 10 authorises the setting out and appointment of private bridleways only.

How does the issue identified arise in this case? In 1816 a local Inclosure Act for the Parish of Crudwell in Wiltshire (‘the Crudwell Act’) was passed. Under the Act Daniel Trinder was appointed as “the sole commissioner for dividing allotting and enclosing the … open fields and commonable lands” of the Parish of Crudwell. Section 1 of the Crudwell Act authorised the Commissioner “to put this Act in execution; subject to the rules, orders, directions and regulations of the [1801 Act] (which shall be applied deemed and taken as part of this Act) except in such cases only as the same are hereby varied or altered.” Subject, therefore, to any provisions of the Crudwell Act that varied or altered the terms of the 1801 Act, those terms were incorporated into the local Act.

In 1841 the Commissioner made the Inclosure Award in respect of the Parish of Crudwell with a provision in the following terms:

“… hereby award and appoint the following Public Carriage Roads and Highways and Private Carriage Roads Public Bridle Roads and Footways …

One other Private Carriage Road and Driftway and Public Bridle Road of the breadth of fifteen feet numbered X on the said map or plan branching out of the Public Carriage Road numbered II at or near the south-east corner of an allotment to Toby Walker Sturge and extending in a north westwards direction in its usual track over such Allotment and an allotment to the Earl de Grey until it communicates with the Bridle Road at or near the South West Corner of an Allotment to the said Earl de Grey and his Lessee Joseph Mill.

One Public Bridle Path of the breadth of ten feet numbered XVII on the said map or plan branching out of the Malmesbury and Cirencester Road opposite the north-east corner of an Allotment to the Devisees under the will of John Buckland deceased and extending in a south eastwards direction in a strait line over Near Chelworth Field till it communicates with the Private Carriage Road and Public Bridle Road numbered X at or near the south-west corner of an allotment to the Earl de Grey and Joseph Mill his Lessee.”

Translated into more readily understood language, this purported to create one section of public bridle road which was 15 feet wide and one section of public bridle path which was 10 feet wide. This is conveniently shown on the modern plan reproduced in Appendix 1 to this judgment. These bridleways are not currently recorded on the Definitive Map for the area and there is no evidence of their existence “on the ground”. However, it is this combined length of bridleway that the Claimant invited the First Interested Party to add to the Definitive Map. The land over which it would be formed is currently used for arable farming.

The application was made on 10 January 2012 under section 53(5) of and Schedule 14 to the Wildlife and Countryside Act 1981. Section 53(5) provides that “[any] person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3)” of the section. Subsection (3)(c) specifies the following event:

“(c)

the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows –

(i)

that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates ....”

The Claimant asserted by reference to the Inclosure Award that the bridleways were “reasonably alleged to subsist”.

The Council rejected the Claimant’s application. The Senior Rights of Way Officer of the Interested Party, Ms Barbara Burke, considered the application. She noted the basis for the application (which was the Inclosure Award itself) and that no additional evidence in support of the existence of the bridleway had been discovered: there was no evidence discovered that it existed prior to the Award. Relying on the approach in Andrews No. 1 (to which I will refer in more detail below: see paragraphs 41-51), she concluded that there were “no powers in the local Act to permit [the Commissioner] to set out the claimed bridleway.”

The Claimant appealed to the Secretary of State pursuant to paragraph 4(1) of Schedule 14 to the Wildlife and Countryside Act 1981 and, as I have indicated, her Inspector, Mr Michael R. Lowe, BSc, dismissed the appeal on the grounds that the Secretary of State was bound by the decision in Andrews No. 1.

The first question to address is precisely what Andrews No. 1 decided. In that case an Inclosure Award was made in 1805 pursuant to a local Inclosure Act made in 1802. That Act had incorporated much of the 1801 Act and the award purported to set out and appoint a public footpath in a particular locality in Suffolk. As is the situation in the present case, there were two sections of the claimed footpath (also identified as A–B and B–C), but nothing turned on that issue. The footpath that was referred to in the Award was four feet wide. The Secretary of State in that case took the view that the claimed footpath had never been set out and that was sufficient initially to justify dismissing the appeal against the local authority’s refusal to modify the Definitive Map. That was categorised by Schiemann J in his judgment as the “setting out argument”. However, in the proceedings before Schiemann J the Secretary of State took what was described as “the vires point” which was to the effect that no power to create public footpaths was given by the 1801 Act and, since no express power to do so was conferred by the Local Act, there had been no power on the part of the Commissioners to set out and appoint the claimed footpath. It was that argument that Schiemann J accepted and, accordingly, he declined to express any view on the setting out argument. (Mr Laurence has reserved his position formally on whether this decision was correct should the present case go further.)

The question in that case was whether section 8 of the 1801 Act (see paragraph 27 above) could be said to confer the power to create a public footpath. In the circumstances I will mention shortly, it was not an issue in that case that section 10 only authorised the creation of private rights of way and, accordingly, the main focus of the case was upon section 8.

When expressing his views on the arguments advanced, Schiemann J referred to the numbering that appeared in Mr Laurence’s reader-friendly version of section 8 (see paragraph 28 above). The parts to which he referred were as follows:

“And it be further enacted That

[A] such Commissioner or Commissioners shall, and he or they is and are hereby authorised and required, in the first Place, before he or they proceed to make any of the Divisions and Allotments directed in and by any such Act,

[i] to set out and appoint the publick Carriage Roads and Highways, through and over the Lands and Grounds intended to be divided, allotted, and inclosed, and

[ii] to divert, turn, and stop-up any of the Roads and Tracts, upon and over, all, or any Part of the said Lands and Grounds, as he or they shall judge necessary.

so as such Roads and Highways shall be, and remain thirty Feet wide at the least, and so as the same shall be set out in such Directions as shall, upon the Whole, appear to him or them most commodious to the Publick, and he or they are hereby further required

[iii] to ascertain the same by Marks and Bounds, and ….”

In relation to the question whether the 1801 Act contained an express power to create public footpaths, Schiemann J expressed his conclusions as follows at pp. 7-8:

“1.

the reference to “such roads and highways” in the passage between (ii) and (iii) is a reference only to the “public carriage roads and highways” referred to in (i) and not to the “roads and tracts” referred to in (ii): Logan v. Burton.

2.

Therefore, the “roads and tracts” referred to in (ii) do not need to be 30 feet wide.

3.

The only express power given to create new highways in section 8 is that in (i) and such highways need to be at least 30 feet wide. It is implicit in the minimum width provision that it is not intended to give an express power to create public rights of way on foot alone, although there is nothing to prevent the creation of such rights as part of a general right of passage.

4.

The draftsman of the 1801 Act did address the question of the creation of footpaths in section 10 but limited it to private footpaths. (It is common ground that the adjective “private” in section 10 governs not merely roads but also bridleways and footways.)

5.

It would be perfectly reasonable for the question of footpaths not to be dealt with by the Commissioners at the early stage in the inclosure process with which section 8 is concerned, but to be left to be dealt with by way of negotiation with whoever became the owner of the lands over which they might run.

6.

Highways could not in the nineteenth century in general be extinguished save with the concurrence of the sheriff or the justices. The general power was contained in the procedure under the old writ ad quod damnum or under Local Acts. The procedure was in general complicated and designed to provide plenty of safeguards before the rights of the public were thus extinguished.

7.

The power in section 8(ii) (Footnote: ³) is an ancillary power which is to be exercised when it is necessary to extinguish or divert roads or tracks which would interfere with the proper functioning of the new highways created pursuant to the power in (i). My reasons for reading that power in that narrow fashion are as follows:

(a)

It is only in such cases that the right to object to justices under (viii) arises. Apart from the cases to which the proviso to section 8 applies (to which I will return shortly) the only person with a right to object under B are those who object to the setting out of a public carriage roads and highways under (1). The scheme of the Act is that the lines of these 30-foot roads are to be determined at the beginning of the process of inclosure, that the implication of the proposed roads on the existing highway structure is to be examined by the commissioners initially and, in the event of objection, by the justices without right of appeal to quarter sessions. I accept that in those cases where the highway to be stopped up or diverted is an old or accustomed road—which includes a footpath: Logan v. Burton pages 524 and 525—which leads through any part of the old inclosures, there is a right of objection to justices by virtue of the proviso to section 8. There will, however, often be public footpaths which do not lead through old inclosures. In such cases there is, as I have said, no general right to object to the stopping up of such footpaths, the right to object being limited to those who object to the setting out of public carriage roads and highways under (i). It is unlikely that a power to stop up would have been given in circumstances where there was no right to object. It is even more unlikely that such a power would have been given by way of implication. A power to diver is in truth a power to stop up part of the highway and create a new highway.

(b)

If it had been desired to give in section 8 an express power to create new footpaths which was not ancillary to the power to create public carriageways and highways under (i) then the draftsman would have said so instead of using the restrictive phraseology of “divert” and “turn”.

8.

In the present case, there is some material which arguably might lead one to suppose that the subject path was put there as a diversion of an existing public path. It is not necessary for me to say more than that argument faces a number of hurdles. However, it is accepted that, if there was any such diversion, it was not a diversion necessitated by the setting out of a carriage road under (i) for there is no such conceivably relevant road set out in the award.

9.

In consequence, the subject path cannot have been created as a result of any express power in the commissioners to create footpaths.”

I will return to the significance of the case of Logan v. Burton (1826) 5 B. & C. 513 later (see paragraphs 113-115), but the passage in section 10 of the 1801 Act to which Schiemann J was referring in his paragraph 4 is as follows:

“That such Commissioner or Commissioners shall, and he or they is and are hereby empowered and required to set out and appoint such private Roads, Bridleways, Footways, Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds and Land Marks, in, over, upon, and through or by the Sides of the Allotments to be made and set out in pursuance of such Act, as he or they shall think requisite ….” (Emphasis added.)

Not unnaturally, Mr Jonathan Moffett, for the Secretary of State, points to paragraph 4 in the sequence of Schiemann J’s reasoning and submits that the agreed position of the parties (as reflected in that paragraph) was that section 10 conferred only a power to set out and appoint private (not public) bridleways and footpaths. Moreover, he submits that this represented an integral part of Schiemann J’s reasoning such that it constitutes part of the ratio in the sense that arriving at his final conclusion in relation to section 8 it was necessary to form a concluded view about the meaning of section 10. In that connection he submits that, when dealing with Mr Laurence’s argument in that case that section 8 created an express power to create public footpaths or, alternatively, that it created an implied power to do so, Schiemann J rejected the argument in favour of an express power for the reasons set out in paragraph 44 above and then went on to consider the argument in favour of the existence of an implied power. One of the reasons he gave for rejecting the implication of such a power was expressed as follows:

“Where an act, as here in section 10 of the 1801 Act, gives express powers to create private footpaths, it would be odd to insert an implied power to create public footpaths.” (Emphasis as in original.)

Mr Moffett argues, therefore, that it was an essential part of the reasoning on this issue at least that section 10 only permitted the creation of private rights of way.

If it is part of the ratio then, in the ordinary way, although not bound, strictly speaking, by the decision, I would follow it unless “convinced” it was wrong: see R v Greater Manchester Coroner, ex p Tal [1985] QB 67, 81, per Goff LJ, as he then was.

Mr Laurence accepts that in Andrews No. 1 he was endeavouring to advance, as an alternative to his principal argument, an argument that it was possible to imply a power to create a private footpath from the terms of section 8, but says that all that Schiemann J did, in dealing with that argument, was to accept his wrongly made concession about the meaning of section 10. In effect he submits that I should conclude that Schiemann J was “plainly wrong” to accept a concession that was itself “plainly wrong”. As a variant on this theme, he submits that where a court has proceeded on the basis of a concession without giving reasons for accepting that it was rightly made, or considering it in any detail, then it should not to be seen as any decision on the point at all.

I could spend some time analysing these arguments and the language used by Schiemann J, but I do not think it would be a profitable exercise. I think it highly unlikely that he would have accepted a concession, even from someone with Mr Laurence’s experience and expertise in this field, if he had not thought about it and considered it correctly made and, as Mr Laurence fairly concedes, the normal grammatical construction of the expression in section 10 highlighted in paragraph 45 above supports the correctness of the concession and thus of its acceptance. If I have to choose, I would say that the interpretation of section 10 contained in Schiemann J’s judgment was part of the ratio for the reasons given by Mr Moffett. However, if I were wrong about that, it would be a highly persuasive dictum from which I would require solid grounds to depart. The reality of the situation for present purposes is that if I am persuaded that the grammatical reading ought to yield to the more purposive construction for which Mr Laurence now contends, it would be open to me to say that the early concession and consequent decision on the construction of section 10 was “plainly wrong”.

It is to the new argument on the construction of section 10 that I now turn.

The essential argument now is that on its proper construction, read in the context the 1801 Act as a whole, its pre-enactment history and the evidence now available (which was not available to Schiemann J) as to the manner in which the Act was interpreted and acted upon more generally, section 10 authorises the setting out inter alia of bridleways and footpaths whether private or public. Although there is, as it were, a “strict” construction argument confined to the wording of the 1801 Act itself, it is clear that there is an overlap between the arguments advanced in that context and those advanced in relation to the pre-enactment history and the way the Act was acted upon post-enactment. This makes compartmentalising the response to the arguments somewhat difficult, but I will endeavour to do so as far as possible.

I will start with the concession made in Andrews No. 1. The foundation for that concession was that the word “private” in section 10 applied to each item in the list comprised of “Roads, Bridleways, Footways, Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds and Land Marks” rather than simply to the first item in the list, namely, “Roads”. As I have indicated (see paragraph 50), Mr Laurence accepts that this would be the normal grammatical construction. That, it seems to me, must be right. To the extent that the internal title or heading to the section is an appropriate aid to its construction (which it can be: see Bennion, Statutory Interpretation, 6^th Ed, 2013, at section 255), that construction is also consistent with that title or heading. However, it is now said that this must yield to a different construction.

The first attack on the previously accepted position that is made in the present case (as set out in Mr Laurence’s Skeleton Argument) is the contention that it cannot have been Parliament’s intention to have conferred the power only to set out private “… Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds and Land Marks” and that read in its context a much more sensible reading of the section is that “private” qualifies only “Roads”. At one stage (in the Statement of Facts and Grounds) it was contended that it was “hard to see” what a private “Gate”, “Stile”, “Bound” or “Land Mark” would in reality be and why any statutory authority to create such features lawfully would be required. However, this argument was not pursued, presumably because it was recognised that most or all of the features listed could be private in nature as well as public in nature. At all events, in the argument now advanced Mr Laurence focuses, in the first instance, on section 8 (see paragraph 27 above) which, he says, has in the scheme of the Act already made provision for the setting out and appointment of “public carriage roads and highways” (in other words, public roads). It makes no provision for the setting out and appointment of private roads or for (public or private) “… Bridleways, Footways, Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds and Land Marks” (which is the balance of the section 10 list of features after the word “Roads”). He maintains that it would be perverse if the Act were to be interpreted so as to make provision only for the setting out of “private” instances of features such as these and adds that there is no obvious explanation as to why the Act would not make provision for the setting out of public bridleways and footways and every reason to suppose that it would do so given that not all public highways set out under pre-1801 private Acts were carriageways. Accordingly, he submits, a failure to make provision in the Act for public bridleways and footpaths would have been an extraordinary omission bearing in mind that section 8 had made express provision for public roads. He suggests that it would, therefore, have made sense to provide in section 10 for the five remaining categories of “way”, namely, (1) public bridleways (2) public footpaths (3) private roads (4) private bridleways and (5) private footpaths.

He supplements this argument by reference to the effect of section 11 (see paragraph 31 above) upon which, as I have indicated, he places particular emphasis. This section provides for the stopping up and extinction of certain “roads, ways and paths” once the Inclosure Award has been made. The relevant part of the section is as follows with the expressions said to be relevant to the issue of interpretation highlighted:

“… after such publick and private Roads and Ways shall have been set out and made, the Grass and Herbage arising thereon shall for ever belong to and be the sole Right of the Proprietors of the Lands and Grounds which shall next adjoin the said Roads and Ways on either Side thereof, as far as the Crown of the Road; and all Roads, Ways, and Paths, over, through, and upon such Lands and Grounds which shall not be set out as aforesaid, shall for ever be stopped up and extinguished,..

Mr Laurence submits (and Mr Moffett does not disagree with this aspect of the argument) that the expression “publick and private Roads and Ways” embraces “publick roads”, “private roads”, “publick ways” and “private ways”. It is, he submits, impossible to read the use in section 11 of the expression “publick and private Roads and Ways” only as “public roads and private roads and private ways”. The words “publick and private” cannot be used to describe the “Roads” without also being used to describe the “Ways”. As I say, Mr Moffett agrees and I too accept that this must be so. Mr Moffett’s argument, however, is that had Parliament intended that the bridleways and footways referred to in section 10 could be either public or private, the same form of words as used in section 11 would have been used and he draws attention to the omission of this phraseology in section 10 as being, according to Dr Hodson’s article (see paragraph 85 below) as a “critical omission”. I will return to this contention later (see paragraphs 75-77). Mr Laurence’s argument takes a different form and he suggests that the important question is “what are the ‘Ways’ that are referred to in section 11?”

He submits that section 11 proceeds on the basis that the “Bridleways” and “Footways” referred to in section 10 are the public and private “Ways” referred to in section 11. If that is right, it supports the contention that section 10 does permit the creation of public ways of the type identified in addition to similar ways of a private nature. He says that there is nothing that drives the court to interpret “private” in section 10 as applying to all the features in the list whereas it is driven to interpret both “Roads” and “Ways” in section 11 as being both “publick and private”. If the word “private” in section 10 is held to apply only to roads, then the remaining features of the list can be either public or private since they are not qualified by any preceding word or expression. He submits that there is also a further clue to the Parliamentary intention in that the “Roads, Ways, and Paths, over, through, and upon such Lands and Grounds which shall not be set out as aforesaid”, referred to about half-way down section 11 and which are to be extinguished if not set out “as aforesaid”, are plainly the “publick and private Roads and Ways” referred to at the beginning of the section and thus are to be regarded as embracing both public and private examples of the features identified.

Mr Laurence recognises that the words “and Paths” are added to the expression in the middle of section 11. He suggests that this is because in section 10 the word “Paths” halfway down the section is used “as a compendious expression for the Bridleways and Footways” (his emphasis) referred to in the expression “Bridleways [and] Footways” in the fourth line of section 10 as quoted in paragraph 30 above. He contrasts this with the first line of section 11 in which Parliament uses, he suggests, “the (more accurate) compendious expression ‘Ways’ to refer to” the same part of section 10. He suggests that to ensure that there is no doubt about the matter, the draftsman used the expression “Ways and Paths” (emphasis added) half way down section 11 to ensure that all routes that had not been set out were extinguished after the Inclosure Award was made. He also suggests that this is consistent with the expressions used in section 10 itself: towards the beginning the expression “private Roads, Bridleways, Footways” is used and lower down the expression “private Roads or Paths” is used. He contends that section 11 recognises that section 10 should be read as including public footpaths and bridleways and that it has precisely the same effect in relation to the words “private Roads or Paths” in the middle of section 10.

The effect of this interpretation, it is suggested, is that all private roads and all paths, public or private, must be set out – even if already in existence – because not doing so engages the risk of their being extinguished under section 11, the purpose self-evidently being that all unwanted ways will be extinguished automatically. Mr Laurence argues that it is absurd that section 11 should operate to extinguish only private roads and private paths set out pursuant to section 10 when section 11 evidences the Parliamentary intention that all unwanted existing ways (namely, public roads, public bridleways, public footpaths, private roads, private bridleways and private footpaths) not expressly set out under sections 8 or 10, should be extinguished automatically.

In relation to this argument Mr Moffett contends that the expression “Ways” in section 11 refers to “highways” and not to the bridleways and footways referred to in section 10. He submits that the expression “Roads and Ways” in section 11 refers back to both section 8 and section 10 and refers to “publick Carriage Roads and Highways” (section 8) and “private Roads” (section 10). He says that this must be so because that part of section 11 that deals with “Roads and Ways” in isolation from “Paths” is concerned with herbage from the roads “as far as the Crown of the Road” and the part of section 11 that deals with “all Roads, Ways and Paths” (emphasis added) is wider in scope and provides for the extinction of all such roads, ways and paths if not “set out as aforesaid”. He recognises that the Act elsewhere uses the expression “paths” to refer to bridleways and footpaths (as indeed it does in section 10), but says that if the word “paths” refers to bridleways and footpaths in the expression “Roads, Ways and Paths”, “Roads [and] Ways” must logically refer to something different. As I have said for the reasons I have summarised, he submits that that expression must refer to public and private roads.

Before turning to my conclusions on this part of the argument, I need to record another feature of the argument concerning section 11. Although it does not appear in his Skeleton Argument, Mr Laurence advances the argument that the case of Harber v. Rand (1821) 9 Price 57 supports the proposition that section 11 can operate to extinguish existing public footpaths that have not been “set out” in an Inclosure Award and that it is, therefore, implicit in the decision that there is power under the 1801 Act to set out such footpaths. The argument might be seen as support also for the argument based upon contemporanea exposito (see paragraphs 104-125 below), but for convenience I will refer to it at this point in the analysis.

The argument is somewhat complex, but I will try to reduce it to its essentials. As I have already intimated (see paragraph 61), the foundation for the argument is that all the judges who considered the case and the terms of the 1801 Act proceeded on the basis that section 11 could have operated to extinguish a public footpath that had not previously been set out pursuant to the Inclosure Award in that case (although the reason in fact for regarding it as extinguished was different) with the result that it ought to be taken as established that a public footpath could have been set out under the Act. It is argued, in effect, that the “received wisdom” at the time (within 20 years of the passing of the Act) that was evident from this case was that section 10 permitted this.

However, it is to be observed that it also requires the view to be taken that Schiemann J was also wrong in Andrews No. 1 about the effect of this decision. In order to put the argument in the present case into context it is necessary to see the way the issue arose in Andrews No. 1. That case was, of course, about whether a public footpath could be created under section 8. Schiemann J summarised the argument advanced by Mr Laurence in support of the proposition that the power to create a public footpath could be implied in the following way at p. 10:

“(a)

the effect of section 11 is to extinguish all “roads, ways and paths” [over the enclosed lands] “which shall not be set out as aforesaid”, and

(b)

there is an express or implied procedure in the earlier sections of the Act for “setting out roads, ways and paths”, and

(c)

that procedure extends to public footpaths.”

He gave his reasons for rejecting this argument in this way:

“For reasons which I have sought to explain … there is no express provision in the 1801 Act with authorises the setting out of new footpaths. The words “as aforesaid” in section 11 in my judgment refers to an express provision. Even if they could refer to an implied provision it would need to be a provision to be implied quite apart from the operation of section 11 …. If there is no provision to be found in the earlier sections which envisages the setting out of public footpaths (save in the narrow circumstances envisaged by section 8(ii)) then the basis of the argument that section 11 would extinguish such public footpaths disappears since the extinguishing effect of section 11 only applies to “roads, ways and paths” which could be “set out as aforesaid”. To exclude public footpaths from the operation of section 11 is by no means to deprive it of all effect—it will still affect the “public carriage roads and highways” which are set out under section 8 and the private roads, bridleways and footways which could have been set out under section 10.

In substance the submission is that the scheme of the Act is that all rights of way, public and private, should appear in the award and be shown on the map and that anything not thus shown is extinguished. It is an attractive submission in the sense that, if correct, it would mean that there would be a clean start for the area and everyone would know where they stood. But the mere fact that this would have been an attractive clause to find in a general clauses’ act is not enough to cause the Court to imply powers in circumstances where express powers are set out in, at times tedious, detail and length. In any event, the submission … is inconsistent with Harber v. Rand, in which the court rejected a submission that since a footpath was not shown on the award map, therefore it must have been stopped up. In substance that rejected submission was identical to that advanced in the present case, namely that Parliament intended the award to deal definitively with all rights of way in the area covered by the award.”

Schiemann J’s interpretation of Harber v. Rand was that it was authority for the proposition that Parliament had not intended by section 11 “to deal definitively with all rights of way in the area covered by the award”. As I have already foreshadowed, Mr Laurence submits that Harber v. Rand is to the contrary effect and suggests that, properly understood, it supports the proposition that Parliament intended all public rights of way to be dealt with definitively by being extinguished automatically by section 11 unless set out. He suggests that all judges and Counsel involved in the case implicitly accepted that proposition.

The relevant parts of the headnote to the report indicate that the local enclosure Act empowered the commissioners, with the concurrence and order of two justices of the peace, to stop up, and discontinue any of the roads or ways, in, through, over, or on the sides of the enclosed lands. The local Act incorporated sections 8-11 (and 35) of the 1801 Act. The commissioners published in the newspaper (i) the roads set out and (ii) the details of the required meeting announcing that any person injured or aggrieved by the setting out of such roads or the omission to do so could attend to be heard. After that meeting, the commissioners and two magistrates made and signed an order confirming the map and the roads and footways described in the order with the exception of three specified ways. Those excepted were referred to in the report as “the footway, No. 8, which we have directed to be varied …; the footway, No. 9, which we direct to be discontinued; and the footway, No. 14, which we direct to be suspended until the other roads to be set out on the said inclosure are advertised.” The footpath in question was not expressly excepted in this fashion.

A proprietor of one of the new enclosures brought an action for trespass in relation to the use of the footpath against the defendant who sought to justify the use by virtue of the continued existence of an alleged right of way in the nature of an ancient footpath. It would seem from the report (as Mr Laurence maintains) that the footpath was a public footpath and his submission is that for the owner of the land to succeed in his action for trespass he had to adopt the argument upon which the Claimant relies in this case, namely, that the mere omission to set out the footpath in question on the map (the power to set out which under the 1801 Act was impliedly accepted) was sufficient to result in its extinction. In fact the court took the view that the footpath had not been extinguished, not because of the effect of section 11, but because the local Act had not been complied with. The headnote put it thus:

“… that the old way was not stopped up and extinguished, according to a true construction of the Acts of Parliament, by what had been done by the commissioners and magistrates, for that purpose, and with that intention: the positive concurrence and order of two magistrates being indispensibly necessary to the stopping up of roads, whether they be public carriage roads or private or bridle and foot roads. Nothing short of an order of the magistrates expressly stopping up the road will satisfy the statute; merely not setting it out, is not sufficient to extinguish it, even in the case of a private road, bridle, or foot way.”

Mr Moffett submits that little, if anything, authoritative can be deduced from this case because it did not deal expressly with the question of what section 10 permits and the court was not asked to, and did not, consider whether section 11 conferred the power to stop up existing public footpaths or whether section 10 conferred the power to create new public footpaths. He contends that what Mr Laurence is effectively arguing is that it would have been open to the defendant in that case to have argued for the proposition relied upon by the Secretary of State in this case, but did not do so because it was obviously a bad point.

Whilst I can see that the way in which a case concerning the provisions of the 1801 Act was argued some 20 years after it was passed might offer some assistance to its interpretation, I do think that Mr Laurence’s argument on this aspect has a very insubstantial foundation. The reality is that Harber v Rand was decided by reference to the terms of the local Inclosure Act and that that is as far as one can take the case. It does not deal directly with the meaning of the relevant provision in the 1801 Act and it is not truly possible to take it as deciding anything more than that. I will return to it in the context of contemporanea exposito (see paragraphs 104-125 below), as I will the case of Logan v. Burton (1826) 5 B. & C. 513, but I do not think it assists directly (or indeed indirectly) on the meaning of section 10.

So how is the Act to be construed? I do not think anyone would pretend that construing these provisions as they stand is an easy task. It is, of course, made particularly difficult by the need to understand the language and usage of a period over two hundred years ago in the context of a style of statutory drafting far removed from present day standards. It is quite possible to read these provisions several times and to see apparently different meanings on each reading. Dr Hodson puts it attractively in her report when she says that “clarity of meaning still eludes the twenty-first-century reader of eighteenth-century statutes.”

It is also possible to conceive of arguments that certain practical consequences of the Act being interpreted in one way or another could not have been intended and that, accordingly, the interpretation contended for is “absurd” or “perverse”. Even with the assistance of the researches of Drs Hodson and Hollowell it is very difficult, at this remove in time, to evaluate satisfactorily arguments of that nature. What may in contemporary eyes appear to be “absurd” may not necessarily have appeared so in the way in which these matters were considered in England and Wales during Napoleonic times. The other general consideration (which is one to which Schiemann J adverted at p.8) is that the 1801 Act was a “general clauses” Act which enabled those promoting a local Act to adopt the Act, wholly or partly, as part of that local Act. Any actual or perceived deficiencies in the 1801 Act could be remedied by the express provisions of the local Act. Finally, it is also right to remember, as Mr Moffett contended and as Mr Laurence accepts, that the 1801 Act contained “certain provisions usually inserted Acts of Inclosure”: in other words, it did not seek to be exhaustive. That is consistent with the view of the experts who are agreed that many provisions that appeared regularly in local Acts were not set out in the 1801 Act, including many important powers usually needed by the Commissioners. This, Mr Moffett submits, means that saying that omitting certain powers from the Act was absurd really takes the argument about its interpretation no further: it may, in hindsight, have been desirable or sensible to include them within the Act, but that does not make their omission absurd such that a strained meaning to the otherwise normal meaning of the terms of the Act should be given. In relation to the specific argument that it was absurd not to include provision for making public bridleways and footpaths, he submits that there would be no general need to allow for public access over private land given that there was a power to create new public roads and that existing public bridleways and footpaths would have remained in existence (if Andrews No. 1 is right on this point), but if there was a need to stop up existing public bridleways and footpaths in any case then alternative provision could be made in the local Act.

Whilst the usual canon of statutory construction (namely, that the Act must be construed as a whole) must be applied to the 1801 Act, it has to be remembered (a) that it was a general clauses Act and contained only some of the provisions usually seen in local Acts hitherto and (b) that the statutory provision authorising any particular enclosure thereafter was the local Act itself.

At the risk of appearing to prejudge the issue of contemporanea exposito (see paragraphs 104-125 below), the evidence does not point to a wholly consistent pattern of the application of the 1801 Act. Furthermore, it is common ground, as I have already indicated, that the terminology used in the Act is not always obviously consistent as indeed Dr Hodson’s research shows was the case with the terminology of local inclosure Acts prior to the passing of the 1801 Act. It does inevitably follow that “the true meaning” of the Act can be somewhat elusive.

In that latter regard, my attention was drawn to an Inclosure Bill promulgated on 3 March 1813 for the purpose of repealing the 1801 Act. Part of the preamble to the Bill read as follows:

“And whereas great doubts have arisen respecting the said Act, and the Powers and Provisions therein contained are not sufficiently extensive, it is therefore expedient that such Act should be repealed, and that greater facility should be given to the Inclosure of all Open Lands, Commons, Commonable Grounds Waste Lands;”

The proposal was that section 10 would be replaced with a section that read as follows, the differences between the existing section 10 and the new provision being underlined:

“And be it further enacted, that such commissioner or commissioners shall, and he or they is and are hereby empowered and required to set out and appoint such private roads, public and private bridleways, and public and private footways; also ditches, drains, watercourses, watering places, quarries, bridges, gates, stiles, mounds, fences, banks, bounds, and landmarks, in, over, upon, and through or by the sides of the allotments …”

I am not sure that I can attach much, if any, significance to the proposed amendments for the purposes of the present construction exercise, but it is interesting to see the proposed insertion of the words “public and private” before the words “bridleways” and “footways” respectively. Nonetheless, the promulgation of the Bill does serve to illustrate the uncertainties to which aspects of the drafting of the 1801 Act gave rise even to those with contemporaneous knowledge of the process of enclosure which can never be possessed by someone called upon in the 21^st century to try to give it meaning.

Notwithstanding that strong “health warning” about any conclusions that can be drawn in the present-day process of construction, I can express my conclusions on the “narrow” construction point concerning section 10 as follows:

For my part, therefore, looking at the matter afresh and in the light of the arguments advanced in these proceedings, from the point of view of the pure construction of the Act, it seems to me that the natural and ordinary meaning of the relevant expression in section 10 is not forced to yield to any other interpretation by reason of an analysis of the wording of sections 8-11. In my judgment, the concession made in Andrews No. 1 was correctly made and, with respect, Schiemann J was correct to accept it. At the very least, I do not consider that he was “plainly wrong” to do so.

As I have said, in my judgment, that interpretation does not yield to any other interpretation by reason of the wording of sections 8-11. That might be thought to be an end of the matter. However, the question now arises as to whether evidence of the practice adopted before and then pursuant to the Act and/or the operation of the doctrine of contemporanea exposito displaces that conclusion.

These two issues can conveniently be dealt with together.

The first point advanced on the Claimant’s behalf is that the recent research conducted by Dr Hodson (and which formed the basis of her initial report of 4 July 2011) demonstrates that it was common practice before the 1801 Act for provisions made in local Acts of Inclosure to include the power to set out public bridleways and footpaths. It follows, therefore, it is suggested that such a provision was one “usually inserted in Acts of Inclosure” prior to the 1801 and the natural inference is that Parliament must have intended to provide for it in the 1801 Act and that section 10 should be construed accordingly.

The second point, also relying upon Dr Hodson’s research concerning the way the 1801 Act was interpreted by those implementing its provisions after it was enacted, is that the practice of experienced Inclosure Commissioners post-enactment supports the proposition that section 10 must be seen as permitting the setting out of public bridleways and footpaths. This is a reflection of the doctrine of contemporanea exposito.

The two arguments can be seen as separate or as supporting each other. It is contended on the Claimant’s behalf that had this material been available for consideration in or at the time of Andrews No. 1 the decision would have been different.

For this purpose Dr Hodson considered a total of 68 pre-1801 local enclosure Acts from Buckinghamshire and 11 other Acts from 10 other counties from Wiltshire to Cambridgeshire and Herefordshire to Suffolk. The period was from about 1740 until 1801.

She analyses these Acts in some detail in her report (and in an article based upon her research (Footnote: ⁴)). She acknowledges the difficulty of arriving at a definitive interpretation of the wording of the local Acts that preceded the 1801 Act. She accepts what Dr Hollowell says, namely, that there were no statutory templates in existence to help the local country solicitors who drafted the local bills. That, I have to say, appealed to me as at least one explanation for the variability of phraseology. Dr Hodson does suggest (drawing on the work of Lambert, ‘Bills & Acts: legislative procedure in eighteenth-century England’ (1971)) that Parliament rectified certain omissions of various times, though the extent to which this would have been a truly comprehensive exercise is difficult to say. However, whatever the explanation, it is accepted that there is no clear consistency of terminology.

Dr Hodson does, however, say this:

“My study shows that a clear distinction was made in eighteenth-century private inclosure legislation, right up to the very eve of the General Inclosure Act 1801, between the treatment of public carriage roads on the one hand, and public bridleways, public footpaths, private roads and other private ways, and ancillary features such as drains, ditches and bridges, on the other.”

She added that whilst the widths of the public carriage roads were specified by statute, “bridleways and footpaths were specifically excluded from the minimum width laid down for carriage roads.”

She had put this in greater detail in the article in the following way:

“Although the wording of the eighteenth-century Acts can be described as inconsistent and ambiguous, there was, nevertheless, throughout the second half of the eighteenth century, and right up to the very eve of the passing of the General Act on 2 July 1801, a consistent distinction between the treatment of public carriage roads on the one hand, and public bridleways and public footpaths on the other. This is demonstrated by the reiteration, in the inclosure acts for Buckinghamshire and elsewhere, that the minimum width of forty feet (or other width) applied only to public carriage roads, and also the consistent implication – sometimes specifically stated – that the width of public bridleways and public footpaths was to be determined by the commissioners. In addition, the provision for repair for these lower order routes was commonly left to the discretion of the commissioners, and/or stated to be the responsibility of private individuals rather than – as in the case of public carriage roads - of the whole parish.

As the eighteenth century wore on, the very long instructions for the setting out, appointing, making, certifying, advertising, mapping and dealing with objections relating to the public carriage roads preceded any provisions which might be made for public bridleways and public footpaths, and for private roads, private bridleways and private footpaths. When the list of drains, ditches, stiles, gates, watercourses and so forth was added to the highways section, the whole thing became unwieldy. It is unsurprising that some attempt should have been made to simplify the legislative process.”

Dr Hodson also says that she had “not discovered any evidence to suggest that it was intended that these standard eighteenth-century provisions were to be excluded from the general consolidation act in 1801.”

In her Supplementary Report, seeking to respond to some arguments to the contrary advanced by Dr Hollowell, she emphasised that the important point she was making was that all the evidence, when taken together, suggested that public bridleways and public footpaths belonged to the same class of works as those set out in section 10 because “they demonstrably do not belong to the same class of works as those recited in [section 8].” The words in section 10 were understood at the time, she argues, to provide for public bridleways and public footpaths, and the other public features listed in that section “as potentially just private”, and that the word “private” was taken, in practice, to refer exclusively only to “roads” whilst items in the remainder of the list thereafter “were treated as public or private according to local requirements.”

Mr Laurence contends that this lends weight to the proposition that the expression “Public Carriage Roads and Highways” in section 8 (see paragraph 27 above) would have been understood at the time to extend only to vehicular ways (leading to the requirement that they should be at least 30 feet wide) and not to public bridleways or footpaths (which plainly do not have to have such a width). If that is correct, he submits that it adds force to the Claimant’s contention that section 10, if restricted to a power to set out private “Bridleways” and “Footways”, leaves the 1801 Act without any power to set out public bridleways or footways at all. That “absurd conclusion”, as he characterises it, can avoided by interpreting section 10 by attributing the word “private” only to the word “roads” and not to all the elements of the list that follows.

In this part of her research Dr Hodson considered 67 Inclosure Awards and the local Inclosure Acts under which they were made from the period 1801-1845. These awards were made by 89 commissioners from 28 counties.

She found that none of the 67 local Inclosure Acts made specific provision for the appointing of public bridleways and public footpaths over new inclosures (although in three cases the local Act did provide for the setting out and appointing of “any public or private Roads, Tracks, Ways, Paths over new Inclosures”), but many did make provision for the creation of public bridleways and public footpaths over old inclosures or other parts of the parish not subject to the new inclosure. Equally, none of the local Acts made specific provision for the widths of bridleways, footpaths or private roads. However, her conclusion was as follows:

“… commissioners from all over England and Wales consistently followed pre-1801 practice in appointing public bridleways and public footpaths at different widths. The majority of these were considerably narrower than the 30ft minimum width for public carriage roads, although public bridleways were sometimes appointed over private roads the width of which was sometimes thirty feet or more.”

She gave a number of examples in her article, but I will confine my reference to two:

1.

“… the inclosure award for Alsager, in Cheshire (1834) sets out five public footpaths at a width of four feet and contains the statement: ‘… All which public Footways we have set out according to the said recited Act of the forty first year of his Majesty …’. The local act for Alsager did not empower the commissioners to set out public bridleways or public footpaths of any width. Nevertheless, it seems that the two commissioners, one of whom was from outside the county, from Staffordshire, were clear in their own minds that the General Act gave them the authority to do so.”

2.

“In Herefordshire, the commissioners for the inclosure of Stretton Grandison (1815) made clear that they took their authority for appointing public footpaths from the General Act and from the 1812/13 local act, neither of which gave express provision for public footpaths. Yet the wording of the award reads as follows: ‘And it is thereby further enacted by the said two recited Acts that the said Commissioner … is thereby required to set out and appoint such public and private Roads Ways and ffoot paths …’. It is assumed here, that the words ‘public and private’ refer to all the following nouns for the commissioner goes on to ‘set out appoint award and confirm the following public Bridle Ways being not a Carriage Road or Driftway as the same is now staked out …’ and also to ‘to ascertain set out appoint award and confirm the ffoot ways … One public ffoot way …’ .”

Her overall conclusion, reflecting on the thought that the commissioners were doing something that was illegal or ultra vires, is as follows:

“The single consistency which stands out in this study is that, regardless of the lack of express authority in either the General or the local act to create public footpaths and public bridleways, public footpaths and bridleways of widths less than 30 feet were awarded as a matter of course in all seven counties by commissioners whose practice extended to other parts of the country. The rising professional nature of commissioners from the end of the eighteenth century meant that these men increasingly undertook commissions further afield from their home counties. This meant that the procedures put into practice in one county, would be replicated in others.

It is difficult to imagine that such a large body of professionals, from all corners of the kingdom, should have been wrong in supposing that there was statutory authority for them to set out public footpaths or public bridleways. It is also difficult to conceive, had it been so obvious that they were acting illegally, that nothing should have been done to redress the situation. Perhaps the most cogent argument in support of this view is the fact that, when the opportunity arose to amend the General Act in 1821, and then again in 1836, while it was considered essential to restate the provisions for the right of herbage on private roads (1836, s.29), and revise the provisions for ‘Ditches, Drains, Watercourses, Tunnels, Gates, and Bridges (1836, ss.38, 39 - even now not specifying whether they should be public or private), it was not thought necessary to include any provision as to the creation or continuation of new or existing public footpaths or public bridleways, let alone their setting out at widths less than thirty feet.”

She adds this observation:

“If, during the forty-four years between 1801 and 1845 it had been considered that the practice of appointing public bridleways and public footpaths at widths of less than thirty feet was unlawful, there would surely have been many recorded instances of legal action being taken. Instead, the record appears to be silent.”

She expresses the view that resolving “the conundrum” that faces those trying now to interpret section 10 is to read “private” as “qualifying exclusively only the word ‘roads’ and not the list … which follows it as, indeed, according to the evidence, the inclosure commissioners did at the time.” Mr Laurence adopts that argument.

Dr Hollowell raises an issue about the way other features of the section 10 list were dealt with in the post-1801 Act era to which I will refer later (see paragraphs 17-122 below), but his suggested explanation for the suggested illegality of what the Commissioners were doing is reflected in the following two paragraphs from his report:

“9.3

If it is correct that the 1801 Act did not authorise commissioners to set out and appoint public bridleways or footpaths, but they did so despite an absence of such a power in the local Act, the question arises as to why they might have done so. I am of the opinion that we cannot be certain of why they did this but there are two possible scenarios that could have given rise to this. First, that it was known to the commissioners that the non-inclusion of the provision in the local act was due to an oversight of the draftsman – perhaps due to a lack of experience. Second, that the powers were left out because the draftsman did not believe that they were needed, that is to say, in this case, that there was no need for a public quarry. If this were so, the mistake would be discovered by the commissioners or the surveyor but at a stage when it was too late to influence the content of the local Act.

9.4

Faced with roads that needed making (or cattle that needed water etc) what could the commissioners do but award the landscape features or works anyway. Although such action might have been ultra vires, in practice, what harm was being done if the need was an obvious one? Public watering places took up little space and were in everyone’s interest. Quarries were potentially larger, usually at least an acre, but, within the context of a complete parish, this was probably less that 0.2% of the total area available. Under such conditions, it would be difficult for anyone to make an objective complaint to the award of a public quarry. So the way in which commissioners adopted a pragmatic approach to make sense of the process here, was similar to the way in which they responded to the obvious need for a public footpath or a public bridleway but for which no powers had been provided.”

Mr Moffett did not, I think, place much, if any, reliance on this assessment of the reasons why Inclosure Commissioners should have acted as they did.

It involves considerable speculation about what gave rise to the practice that, for present purposes, can be taken to suggest that the Commissioners either deliberately ignored a lacuna in the Act or acted on a generally (or, perhaps more accurately, universally) accepted basis that the Act gave them power to act as they did. The truth is that there is no convincing evidence, in the material before me, of why they acted as they did in the situations reflected upon in Dr Hodson’s research. It seems that there is no evidence anywhere of why an individual Commissioner (or combination of Commissioners) acted as he (or they) did.

In relation to the pre-enactment history and the terms of the various local Inclosure Acts, Mr Moffett reiterates that Drs Hodson and Hollowell are agreed that many provisions that appeared regularly in those Acts were not replicated in the 1801 Act, including many important powers usually needed by the Commissioners when setting out a new enclosure. That being so, no more significance can be attributed to the omission of an express power to set out public footpaths and bridleways than to any of the other omissions. Furthermore, given that the 1801 Act only set out to include “certain” provisions previously found in local Acts he argues that it was “self-evidently not intended to incorporate, and did not incorporate, all of [such] provisions.”

Dr Hollowell also challenges the proposition that an analysis of some of the pre-1801 local Inclosure Acts does demonstrate that bridleways and footpaths were necessarily excluded from the definition of “highways”. All that the analysis demonstrates, he suggests, is that they are not highways that must be a minimum of 30 or 40 feet wide. He argues that it is not legitimate to conclude that bridle paths and footways belong to the same class of works as private roads and that this characterisation would not have been in the mind of those drafting section 10.

Without, I trust, adopting merely a defeatist response to the competing contentions, I do think it is impossible to draw anything like a sufficiently clear conclusion about the meaning to be attributed to the expression “public carriage roads” in the pre-1801 Act era to say that “public bridleways and public footpaths” were not included within it so as to drive the interpretation of the 1801 Act. I do not suggest that Dr Hodson’s analysis may not be correct, but even if it is correct, the one clear conclusion that can be drawn about the 1801 Act is that it did not set out to be comprehensive in its treatment of provisions “usually inserted in Acts of Inclosure”: the word “certain” confirms that clearly. Searching for a reason why express provision for public bridleways and public footpaths was not made in the 1801 Act is now undoubtedly speculative and, whilst Mr Moffett in argument has suggested some reasons drawn from Dr Hollowell’s views, I do not consider the exercise a profitable one. Unless the doctrine of contemporanea exposito can come to the Claimant’s rescue, I think that what I have already found to be the natural meaning of section 10 must stand.

The doctrine of contemporanea exposito (‘contemporanea expositio est optima et fortissima in lege’ (Footnote: ⁵)) is a concept discussed in a number of authorities, most recently by the Court of Appeal in Isle of Anglesey County Council v Welsh Ministers [2010] QB 163 although the Latin expression was not referred to expressly. The question arose in that case of whether section 40 of the Sea Fisheries Act 1868 was to be construed as providing that rights of several fishery (in this case, rights of several oyster and mussel fishery) granted by order thereunder were exclusive but not purely personal and could extend to the heirs and assigns of the original grantee, or whether they were exercisable only by the original grantee. Carnwath LJ, as he then was, summed up the dilemma in this way at [38]:

“One is therefore left with an apparent conflict between, on the one hand, the strict literal reading of 1868 Act in the light of the definition of “grantees” as the persons who obtained the order; and, on the other the expectation derived from the ordinary incidents of a “several fishery”, as understood in the common law, and the improbability of Parliament creating a purely personal right intended to last for 60 years.”

In the next paragraph he summarised the effect of the evidence received in the case in this way:

“If we had been seeking to interpret the 1868 Act in the early years shortly after its enactment, the resolution of this conflict might have presented difficulties. However, that is not the position. We are not required to ignore more than a hundred years experience of its operation, with the direct involvement of Parliament. As has been seen, it seems to have been assumed from the start that the rights granted by an order under the Act were not purely personal, but could extend to “the heirs and assigns” of the original grantee. The next question was whether the rights could be granted to a body which was not itself intending to fish, but would grant leases to enable others to do so. This issue was raised directly by the Boston Order in 1902. Parliament’s confirmation of that order can be taken in my view as providing a clear affirmative answer to the question. As far as we are aware, that interpretation has neither been questioned, nor caused any problems in practice, until the present proceedings.”

This history lent support to the interpretation that the grant could extend to the heirs and assigns of the original grantee. The question arose as to the extent to which this interpretative history after the passage of the 1868 Act could influence the court’s decision on the issue it faced.

In his analysis of the authorities on the issue, Carnwath LJ referred to Trustees of the Clyde Navigation v Laird (1883) 8 App Cas 658. Of that case he said that -

“ … Lord Blackburn (p 670) thought long usage (in that case a quarter of a century) of levying tolls on a certain basis under a 1858 statute raised “a strong prima facie ground” that there was a legal basis for the practice. By contrast, Lord Watson (p 673) thought the usage of no value in relation to a recent statute, but he acknowledged that;

“When there are ambiguous expressions in an Act passed one or two centuries ago, it may be legitimate to refer to the construction put upon these expressions through a long course of years, by the unanimous consent of all parties interested, as evidencing what must have been the intention of the legislature at that remote period.”“

He referred also to Campbell College, Belfast (Governors) v Valuation Commissioner for Northern Ireland [1964] 2 All E.R. 705, Regina (Jackson and others) v Attorney General [2006] 1 AC 262 (the hunting case) and Birmingham Corporation v West Midland Baptist (Trust) Association [1970] AC 874, where differing expressions had been used and then said this:

“43.

It is unnecessary in my view to attempt a general reconciliation of these various conflicting strands of authority or to explore the full breadth of the principle which they illustrate. My own respectful view is that Lord Blackburn’s more liberal view is supported by considerations of common sense and the principle of legal certainty. Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without risk of it being upset by a novel approach. That applies particularly in a relatively esoteric area of the law such as the present, in relation to which cases may rarely come before the courts, and the established practice is the only guide for operators and their advisers.

44.

The present statutory context provides an unusually strong, and in my view fully sufficient, basis for having regard to the later history. The Act itself contained a procedure for enabling any principled objections to the form of an order to be settled by Parliament itself. In that respect, to borrow Lord Nicholls’ phrase in the Hunting Case, the involvement of the legislature has gone “much deeper” than in most of the cases in the books. In my view that history points a clear way to the resolution of the ambiguity in the 1868 statute, in so far as that is left in doubt by the context and purpose of the statute itself.”

R v Casement [1917] 1 KB 98, relied upon by Mr Laurence, does not appear to have been cited, but I am doubtful whether it would have made any difference to the analysis to which I have referred (with which Pill and Lawrence Collins LJJ agreed).

Mr Moffett submits that the words “without dissent” echo the expression “the unanimous consent” in Lord Watson’s formulation in Trustees of the Clyde Navigation v Laird. I would simply observe that the Court of Appeal’s preference in the Isle of Anglesey case was for Lord Blackburn’s “more liberal view” which was expressed in full as follows:

“ … The trustees have ever since the passing of the Act of 1858 down to the commencement of this suit, a period of eighteen years, been in the habit of levying rates and dues on timber floated to yards on the upper part of the Clyde, and the timber merchants, an acute and wealthy body, by no means inclined to pay money gratuitously, or to shrink from litigation, have submitted and paid them. I think that raises a strong primâ facie ground for thinking that there must exist some legal ground on which they could not resist. And I think a Court should be cautious, and not decide unnecessarily that there is no such ground.”

I do not think it is open to me to add any gloss to what was said in the Isle of Anglesey case except, perhaps, to observe that one imagines that the words “without dissent” ought generally to be taken to mean “without significant dissent from informed parties”. In other words, a few isolated expressions of disagreement from uninformed observers or parties would not be sufficient to displace the prima facie presumption that the informed parties were acting lawfully. In the Isle of Anglesey case that issue did not arise.

Mr Moffett contends that, even taking Dr Hodson’s evidence at its highest, neither it nor other features of the relevant history evidences a unanimous (or, if my marginal gloss on the test is appropriate, a near universal and informed) approach to the application of the 1801 Act in practice.

He draws attention, in the first place, to Logan v Burton (1826) B. & C. 512, a decision of the Court of King’s Bench to which Schiemann J alluded (see paragraph 44 above). It is, I am bound to say, a difficult case to follow and the report is hardly a model of lucidity (Schiemann J described the case as “complicated”). However, there are two passages in the judgment of Bayley J that appear to demonstrate the perception of the court of the effect of the 1801 Act that undermines the suggestion that there was a “received wisdom” about the Act that supports the Claimant’s contention in the present case. The two brief passages from a lengthy judgment are as follows:

“There is no express provision with respect to public bridle ways or public foot ways …”

“The tenth section of the Act seems to apply to bridle ways and private footways.”

Given the terms of the first passage, it must be assumed that the “bridle ways” referred to in the second passage were private bridle ways. Mr Laurence accepts that.

Plainly, the view of a court of the status of the King’s Bench on the meaning of an Act that had then been in existence for about 25 years cannot be ignored and it does appear to be at variance with what Dr Hodson would suggest was the almost universal practice of the Inclosure Commissioners during the same period. Mr Moffett does not suggest that the case is a binding authority on the point or indeed that the two passages are part of ratio, but points to it for the purpose I have indicated. I should, perhaps, add at this point that, because I do not think that Harber v Rand (see paragraphs 65-69 above) can be taken as establishing any clear contemporary understanding of the meaning of section 10, I cannot see that it adds to the argument that the doctrine of contemporanea exposito yields the answer to its meaning.

Mr Moffett also suggests that the part of Dr Hodson’s research that demonstrated that in 3 of the 67 local Acts studied there was express provision for the setting out and appointing of public paths and bridleways over newly enclosed land (see paragraph 93 above) evidences a perception by some that there was a need so to provide, the basis for that perception being that the 1801 Act did not authorise it. Whilst, of course, this is a small minority in the context of the whole series examined, (a) Mr Moffett argues that it demonstrates that there was not a unanimity of view and (b) if my gloss on the appropriate test is added, it could hardly be said that the draftsmen of the local Acts (which in due course had the force of Parliamentary endorsement) were uninformed. (Mr Laurence suggested that the inclusion of such powers in these three cases could be explained by an abundance of caution being displayed by the draftsmen. That is, of course, a legitimate argument but, as with so much in this field, it is, with respect, very speculative.)

Bearing in mind that the central issue is whether the word “private” is to be confined to the word “roads” in section 10, with the implication that the words “public or private” ought to be read into the section in relation to the balance of the section 10 list, the question of what happened in practice to the remaining items in the list is of importance in the context of the doctrine of contemporanea exposito.

Dr Hodson addressed that issue in her report by reference to her research into how local Commissioners dealt with these items after the 1801 Act was in force. She noted that, like the 18th-century predecessors, the local Acts were often worded differently with, as she put it, “different degrees of ambiguity” such that some Acts did contain power for the appointing of public gravel pits, watering places and so on, whilst others did not specify whether what was being referred to was a public or a private feature. She has recorded that 30 of the 67 local Acts made provision for public quarries or pits, a further 25 did not distinguish between public and private and the balance made no reference at all to quarries or pits. She notes that the Commissioners appointed public quarries in 14 parishes across 7 counties for which there was no express authority in either the local Act or, on this interpretation of the 1801 Act, in the 1801 Act.

Her conclusion, as expressed in her report, was that the practice of including in local Acts the power for Commissioners to appoint public quarries, watering places, ditches and so on was “very widespread”.

Stopping at that point, Mr Moffett submits that this demonstrates that there was no sufficiently consistent practice of interpreting the 1801 Act as conferring the power to create public features of the section 10 list such as to enable the doctrine of contemporanea exposito to be invoked. He adds, of course, that the local Acts, whilst drafted locally by clerks and solicitors, in due course received the authority of Parliament. In other words, there was a degree of involvement by Parliament over the relevant period (cf. the passage from the Isle of Anglesey case quoted in paragraph 105 above).

Whilst recognising, as I do, that resolution of this issue is clouded by the lack of consistency in the language used in local Acts that post-dated the 1801 Act, this does seem to me to be a convincing refutation of the argument that the doctrine of contemporanea exposito yields the answer to the interpretation of section 10.

In one sense, it is not necessary to go further and to consider Dr Hollowell’s research on this issue, but I will refer to it briefly. He analysed 435 Inclosure Acts from the Local and Personal series 1802–15 (the official record of local Acts) that cited the 1801 Act. He says that the sample he reviewed showed that “36.3% included provision for public watering places and from a sample taken from the Private series, 50% made the same provision.” He added that “[in] the case of samples taken from both series, provision for public quarries appeared in 81% of cases [and finally] in the case of drainage, although there are problems of interpretation, 62% of acts taken from the Public series included a drainage section.” Dr Hodson criticises this approach by suggesting that it told only half the story in that it did not go on to consider the awards made thereafter, but it does seem to me that Mr Moffett is entitled to argue that it further demonstrates that those responsible for drafting local bills considered that the 1801 Act did not confer a power to set out and appoint public features.

A further issue arises in this context. I have alluded already (see paragraphs 55-69 above) to the argument advanced by Mr Laurence that section 11 conferred a general power to stop up unwanted public ways not expressly set out under sections 8 or 10 contrary to the view taken by Schiemann J. Dr Hodson has said in her Supplementary report that the effect of Schiemann J’s view “leads to the bizarre result that any public carriageway, or private road, or private bridleway, or private footpath could be automatically extinguished by not being set out, but the same facility did not extend to public bridleways or public footpaths ….” She expresses the view that this could not have been what the draftsman of the Act intended, but does add to this that in 29 of the 67 post-1801 local Acts she studied she found express provision made for the stopping up of public bridleways and public footpaths over the lands to be inclosed. Mr Moffett submits that the practice of including in local Acts a power to stop up public bridleways and footpaths (which on the Claimant’s approach to sections 10 and 11 would be otiose) also demonstrates that there was not a unanimity of view about whether the Act conferred the power to create (and thus by the operation of section 11 to stop up) public bridleways and footpaths. Mr Laurence endeavours to counter this argument by suggesting that that the conferment of this power in the local Act “could be explained by an anxiety about using the naked extinctive power of section 11” and/or that it was to be seen as just an additional power (not a substitute) for the section 11 power and that there may have been a desire locally to ensure that two justices needed to concur in the stopping up before it took place (cf. Harber v Rand, considered in paragraphs 61-69 above).

With respect, this argument again seems to me to engage too much speculation to be capable of acceptance. On the basis of Dr Hodson’s research (upon the reliability and validity of which the Claimant relies), the objective evidence suggests that in over 40% of the local Acts she examined, express provision for the stopping up of public bridleways and footpaths was made. It seems to me that Mr Moffett’s argument about the implications of that are well-founded and I accept them.

I might repeat that the Inclosure Bill promulgated on 3 March 1813 (see paragraphs 74-75 above) does suggest that section 10 was a provision about which doubts had arisen. It may not be surprising at all (indeed it ought truly to have been expected) that the practice concerning these matters in the post-1801 Act era would vary.

Schiemann J said that it was with “some hesitation that [he] arrived at the view that what inclosure commissioners of that era did they had no power to do”, but felt he had so to conclude. I too reach a similar conclusion with hesitation, hesitation that is, perhaps, enhanced by the fruits of Dr Hodson’s research, but mindful that Dr Hollowell’s analysis of the reasons why this might have been so are very speculative. However, I do not consider that, despite this, it is possible to re-write the express terms of section 10 in the way contended for and I do not think that the evidence establishes the prima facie presumption required for the doctrine of contemporanea exposito to come in to play in any determinative sense.

It follows that the only avenue for upholding the existence of the bridleways “created” by the Inclosure Award is if a challenge to its existence is precluded by the operation of section 35 of the 1801 Act (together, so far as relevant, with the provisions of section 25 of the Crudwell Act 1816).

Section 35 of the 1801 Act is set out in paragraph 32 above and the relevant words for present purposes are highlighted.

Section 25 of the Crudwell Act 1816 reads as follows:

... if any Person ... shall think himself ... aggrieved by any thing done or omitted to be done in pursuance of the said Act hereinbefore referred to [i.e. the 1801 Act] or this Act (other than and except as to such Claims Matters and Things as shall be ascertained, settled, tried or determined by the Verdict of a Jury, under the power and authority hereinbefore contained; or where by any of the Provisions or Clauses of the said Act hereinbefore referred to or this Act, the Determinations, Orders, Acts or Proceedings of the said Commissioner are declared or directed to be final or conclusive) then and in every such case, he ... may appeal to the Justices at the General Quarter Sessions of the Peace which shall be held for the said County of Wilts, within Four calendar Months next after the cause of Complaint shall have arisen, on giving ... Ten days Notice in writing of such Appeal ...; and the Justices (not interested in the Premises) at the said General Quarter Sessions are hereby required to hear and determine the Matter ... and to make such Order ... as to them in their discretion shall seem reasonable ...; and the Determination of such Justices shall be final and conclusive to all Parties concerned, and shall not be removable by Certiorari or any other Writ or Process whatsoever, into His Majesty’s Courts of Record at Westminster or elsewhere; ...

Mr Edwin Simpson, on the Claimant’s behalf, advanced the argument that it is now too late to suggest that the 1841 Award could not legally create the public bridleways that it purported to set out. The opportunity to challenge the Award was provided for within the 1801 Act and the Crudwell Act which, if not taken, precludes any issue being raised subsequently. The argument is that the present landowner could be in no better position than his predecessor in title prior to 1841 to challenge the Award and that neither the Secretary of State nor the County Council should be entitled to do so either.

Mr Moffett made an early pitch for the merits of this argument, suggesting that its effect would be that, even if the Commissioner plainly acted ultra vires when purporting to set out and appoint the two bridleways, the relevant part of the Inclosure Award must nonetheless be recognised as lawful and binding despite the fact that no bridleways have been shown on the definitive map for Wiltshire in the 60 years since such maps were first introduced and that there is no evidence of any public use of the bridleways. He suggests that an argument that has an effect such as this must be treated with considerable caution. I agree that it is not an immediately attractive argument, but plainly if the law permits it, it must be given effect.

Of course, on the assumption that I am correct in my view that the Commissioner did not have the statutory power to create the bridleways, the effect of accepting the Claimant’s argument is that something that the Commissioner had no right to do has, because no-one objected at the time, been validated for all time. Expressed in that way, the argument acquires another unattractive dimension. It is, of course, well known that a private individual may acquire by prescription an interest in land through uninterrupted unlawful user, but that is a rather different situation from the general (for this purpose, horse-riding) public acquiring the right to cross private land. The countervailing argument of Mr Simpson is that the general nature of the enclosure process was such that it would now be wrong for decisions made 200 years ago to be the subject of challenge. Leaving aside the circumstances of the present case, he asks rhetorically what would be the situation in respect of a public footpath set out in an award in, say, 1841, that has been much used by the public ever since and is displayed on the definitive map, but yet was in fact made ultra vires the statutory provisions at the time? Would such a footpath be open to challenge now?

I must confine myself to the circumstances of the present case, but it is possible to see the implications of permitting challenges now against ultra vires awards made many years ago. This may be an area in which the court might use its discretion to refuse relief (see, e.g., the observation of Carnwath LJ at [33] of the Isle of Anglesey case). However, I leave that to one side for present purposes and to a case where the issue arises.

Mr Moffett accepts that, notwithstanding the repeal of section 35 of the 1801 Act by section 23 of and Schedule 2 to the Commons Act 1899, that repeal did not affect the application of section 35 to the Crudwell Inclosure Award. (This is because section 23 of the 1899 Act also provided that the repeal of section 35 “shall not affect the construction or effect of any local and personal Act of Parliament passed before the commencement of [the 1899 Act], whereby any provisions of the said enactments are intended to be incorporated”. Because the Crudwell Act incorporated section 35 of the 1801 Act - by virtue of the saving in section 25 of the Crudwell Act, “Appeal to the Sessions” - section 35 was intended to be incorporated.)

The next stage of his argument is that the terms of section 25 of the Crudwell Act preclude any appeal to Quarter Sessions because the Award was “to all intents and purposes … binding and conclusive … upon the said Proprietors, and all Parties and Persons concerned or interested in the same”. An appeal to Quarter Sessions was precluded by section 25 “where by any of the Provisions or Clauses of the said Act hereinbefore referred to or this Act, the Determinations, Orders, Acts or Proceedings of the said Commissioner are declared or directed to be final or conclusive”. This, therefore, he argues is a complete ouster clause to which the well-established attitude of the courts will be applied: see, e.g., R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445, at [12-13].

Mr Simpson contends that the ouster clause here was a partial ouster clause and that the more liberal attitude of the courts to such clauses ought to apply. His argument is that, as a matter of construction, both Acts have to be read together for the purpose of seeing whether section 35 is a complete ouster and that because section 25 in the Crudwell Act plainly provides a right of appeal on section 8 and section 10 “determinations” of the Commissioners, section 35 cannot be regarded as a complete ouster.

That argument seems to me to beg the question of whether setting out a public bridleway that is ultra vires both Acts is something done “pursuant to the purport and directions” of either or both Acts. In my view, doing something that is wholly outside both (and in the context of the 1801 Act, that means sections 8 and 10) is not something that section 35 precludes from challenge in the courts. It is, perhaps, a moot point as to whether an ultra vires challenge could have been advanced before Quarter Sessions, but I do not have to answer that for present purposes. However, subject to the arguable issue of whether the court’s discretion might be utilised in rejecting a challenge many years after the event when there has been general acceptance of the existence of a right in fact created ultra vires, for my part I cannot see any objection in principle to such a challenge being maintained - indeed, quite the converse - in order to avoid the consequence of the immunity from challenge of an award that was plainly invalidly made.

To my mind, that is dispositive of this issue and I do not have to consider the interesting arguments I received on the implications of cases such as Wandsworth London Borough Council v Winder [1985] 1 AC 461 and Boddington v British Transport Police [1999] 2 AC 143.

If I was wrong about that, I would have been inclined to agree with Mr Moffett’s submission that section 35 results in an award being “binding and conclusive” only on the proprietors of the relevant allotments and other parties concerned or interested in those allotments and that it does not bind a surveying authority such as the County Council or the Secretary of State. The analogy he seeks to draw with the case of R (Revenue and Customs Commissioners) v Machell [2006] 1 WLR 609 seems to me to be apt: see per Stanley Burnton J, as he then was, at [24]. Indeed, as Mr Moffett says, in any event the County Council and the Secretary of State on appeal have duties under the Wildlife and Countryside Act 1981 to review the evidence if called upon to consider the position of an omission from the definitive map and if the evidence demonstrates that the right which it is said ought to be included on the map was granted ultra vires then each must be expected to act upon that evidence.

In my judgment, the County Council was right to reject the Claimant’s claim and the Secretary of State was right to dismiss the appeal for the reasons I have given. No other argument advanced has persuaded me otherwise.

The journey through the various provisions and considerations that govern the decision in this case has not been easy. From my point of view, it has involved passing through some unfamiliar territory. Whether I have arrived at the right ultimate destination will, I suspect, be for others to judge. However, the journey has been an interesting one and one made the more agreeable by the first-rate submissions I have received from all Counsel, both in writing and orally, and from the informative research of Drs Hodson and Hollowell. I am indebted to them all.

The Oxford English Dictionary defines the relevant meaning of ‘bound’ as follows:

“noun (often bounds); A territorial limit; a boundary: [e.g.] the ancient bounds of the forest”. It describes its origin as:

“Middle English (in the senses ‘landmark’ and ‘borderland’): from Old French bodne, from medieval Latin bodina, earlier butina, of unknown ultimate origin.

The term ‘bounds’ was commonly used in a stylised manner in parliamentary inclosure documents to mean boundaries. It was used in other landscape contexts in phrases such as, ‘metes and bounds’ and ‘beating the bounds’.

In an inclosure context, bounds were often (but not always) associated with mounds. In the further context of newly awarded and constructed roads the nature and method of making the bounds and mounds was the same as with other field boundaries ….

That is to say, a road, or bridleway, whether public or private would be marked out on the ground using two rows of wooden stakes.  In the case of a public carriage road authorised under sec. 8 of the 1801 Act, these rows of stakes would be 30 feet apart.  Drainage ditches would be dug on the outsides of these rows of stakes such that the edge of the ditch on the carriageway side was (and is) the extent of the highway or its boundary or bound.

The spoil from the ditch would be thrown up on the side farthest from the road and this would form the mound upon which, in some parts of the country, a quickset hedge would be planted. (It is because of this way of working, that the maintenance of the roadside hedge and ditch of a highway lies with the frontager, not the highway authority unless there is evidence to the contrary.)

The stakes used to set out roads and bridleways (and other landscape features) were sometimes referred to in inclosure documentation as ‘marks’.

The ‘bounds’ or boundaries of the parish, which were usually ascertained, or confirmed, at the time of inclosure, were often marked by boundary stones. Some inclosure acts refer to such boundaries as meares (or meres) and the marks as meare stones. These stones were surveyed in place during the nineteenth-century large-scale surveys by the Ordnance Survey and can be seen on many of the early OS plans. Parish boundaries marked public administrative divisions.