Slough Borough Council v Secretary of State for Environment Food And Rural Affairs

Slough Borough Council is under a duty, by virtue of the Wildlife and Countryside Act 1981, the 1981 Act, to keep its Definitive Map and Statement under review and, where new evidence so requires, to propose amendments to it. It did so in respect of a right of way along Blandford Road North, BRN, in Slough. It proposed that it be added as a bridleway. It made an Order to that effect: The Slough Borough Council Bridleway 93 Modification Order 2015. There were objections, importantly that it should be shown as a Byway Open to All Traffic, BOAT, not as a bridleway, so that mechanically propelled vehicles could pass along it. The objections required resolution by an Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs. He held a public Inquiry. His interim decision was that the right of way should be shown as a BOAT, and of a greater width. This proposed modification to the Order entailed a round of written representations. His final decision was that the Order should be confirmed with the modification showing the right of way as a BOAT, but not of the greater width he had initially proposed.

He did not find that there had been a statutory dedication of the way for vehicular use since this required twenty years use of the way by the public as of right and without interruption before the right was brought into question. Nor did he find that there was a dedication based on the documentary evidence. He found instead that there had been a dedication at common law.

The Council challenges that decision pursuant to paragraph 12 of Schedule 15 to the 1981 Act, on the conventional statutory challenge grounds that the decision was outside the powers of the Act or that procedural requirements had been breached to the prejudice of the Council, in particular the duty to give reasons for the decision dealing with the principal issues.

The Council’s grounds of challenge fall into two groups: first, a series of challenges to the Inspector’s findings on common law dedication, many of which turn upon the significance of the evidence of cycle use, vehicular use before 1961 when its use by vehicles was blocked, and the way in which it was said that he had ignored the significance of that blocking for his assessment of whether there had been an earlier dedication for vehicular use at all. The second challenge was based on the effect of s67 of the Natural Environment and Rural Communities Act 2006 which, subject to a disputed exemption for highways maintainable at public expense shown in a list kept under s36 Highways Act 1980, extinguished the rights of users of bridleways by mechanically propelled vehicles. If so, the Definitive Map and Statement could not be modified to show such rights, even if up to that point BRN had been a BOAT.

I start with the interim Decision Letter:

“2.

It is not disputed that a public right of way subsists. The Council believes that a bridleway has been dedicated under statute or common law over the varying width specified in the Order. In contrast, two of the objectors (Mrs Young and Mr Phillips) rely on dedication at common law. In this respect, reliance is placed on the available historical documentary evidence and the user evidence provided. They submit that a vehicular highway with a width of 30 feet should be recorded in the definitive map and statement.

…

29.

I have concluded that the evidence is not supportive of the existence of the highway over the historical route shown on the pre-inclosure maps. The inclosure award itself only made provision for a private road over part of this route. Having regard to my conclusions regarding the other pieces of documentary evidence, I do not find on balance that an implication of the dedication of a public right of way can be inferred from this evidence. Further, I am not satisfied that the submissions made by Mr Phillips in relation to the Highways Act 1835 have any bearing on my decision in light of the documentary provided. The Order therefore needs to be determined in relation to the user evidence provided.

…

30.

Whilst the Council relies upon dedication under Section 31 of the 1980 Act, it accepts that there is sufficient evidence to infer the dedication of a public bridleway prior to 1959 under common law. This view takes into account the evidence of use by pedestrians, cyclists and horse riders. If it can be established that a public right of way of a particular status was dedicated at common law those rights will exist irrespective of the subsequent use by the public during the potential periods for the purpose of statutory dedication.

…

37.

The parties agree that the dedication of a public right of way occurred prior to 1959. Although the personal evidence is limited after such a lengthy period of time, the evidence points to widespread use by the public. In reaching this conclusion, I give particular weight to the detailed evidence of Mrs Watson. The Council accepts that this use included use by cyclists. It is also apparent that motor vehicles used BRN on occasions prior to the action taken in the early 1960s. The evidence of Mrs Watson indicates that the use by motor vehicles was not confined to residents of BRN.

38 An issue arises out of the acknowledged use by cyclists. Whilst I note that Mrs Young challenges particular aspects of the judgment in the case of Whitworth and ORS and Secretary of State for Environment, Food and Rural Affairs 2010 (“Whitworth”), I am bound by this judgment. However, a right to cycle on a bridleway did not exist prior to the passing of the 1968 Countryside Act. Mr Phillips draws attention to Section 85 of the Local Government Act 1988, which extended the definition of a carriage to include bicycles.

39.

The council accepts that the dedication of a bridleway can be inferred at common law following public use that included cyclists. Nonetheless, this cycling would have been viewed at the time as being of a vehicular nature. This is distinct from the issue decided in Whitworth. In these circumstances, it is not in my view appropriate to adopt the principal highlighted by the Council from Whitworth, namely that I should infer the form of dedication least burdensome to the landowner. There is also some evidence of use of a through route by motor vehicles. The erection of the structures in the early 1960s to deter use by four wheeled vehicles occurred too late in respect of the accepted earlier dedication of a highway. Having regard to the above, I conclude on the balance of probabilities that a vehicular highway subsists.”

The final Decision Letter needs to be read with the interim DL, as the Inspector stated in [1]:

“8.

The Council accepts that the evidence of use by pedestrians, horse riders and cyclists is sufficient to infer the common law dedication of a bridleway prior to 1959 [30]. It is apparent to me that the significant public use followed on from the housing development that occurred in the area after 1952. Therefore, the dedication could have been contemporaneous to this use rather than in relation to the earlier evidence of use, which is limited to Mr Harvey and Mr Jago. Nonetheless, if the dedication is taken to be coeval to the earliest evidence of use, Mrs Jago states that her late husband cycled along BRN in the 1930s. Mr Harvey’s use of the route on foot commenced in 1940.

9.

The legal position at the time was that a cycle constituted a vehicle and there was no right for cyclists to ride on a bridleway [38]. Therefore, the cycling use would count towards the dedication of a vehicular highway. This means that the landowner should not have interpreted the use by cyclists to be supportive of the acceptance of the dedication of lesser public rights. Further, the evidence of Mrs Watson was clear that when she moved house in 1956/57 she observed the use of BRN by motor vehicles until a chain link fence was erected in the early 1960s [32 & 34]. It cannot be determined when the use by motor vehicles commenced but clearly there is the potential for such use to have coincided with the completion of the properties in the area.

10.

It remains my view on balance that the evidence is supportive of the dedication of a vehicular highway rather than a public bridleway. As it is accepted that this highway was dedicated prior 1959, it is not necessary for me to comment on the more recent evidence of use. I address later the issue of whether the route should be recorded as a restricted byway or BOAT.”

Section 31 of the Highways Act 1980, the 1980 Act, provides:

“(1)

Where a way over any land, other than a way of such character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it”

The Wildlife and Countryside Act 1981 provides in section 53:

“(2)

As regards every definitive map and statement, the surveying authority shall –

(b)

as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event.

(3)

The events referred to in subsection (2) are as follows –

…

(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 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, being [a right of way such that the land over which the right subsists is a public path [a restricted byway]

or, subject to section 54A, a byway open to all traffic.”

S30 Countryside Act 1968 conferred on pedal cyclists the right to ride a bicycle on any bridleway, giving way however to pedestrians and horse-riders.

The law in relation to common law dedication was not in dispute, but I set out the principles. The dedication is found at or before the start of the period of use, as the more probable justification for the subsequent use, rather than trespass or tolerance. In effect, the decision-maker works back through the evidence of use to determine whether the proper inference from it is that the use began with a dedication. But drawing that inference requires no set period of use to be examined, but rather the whole period of use has to be considered, to see if dedication is the more probable explanation for the use, than trespass or toleration.

The modern statement of the ancient principles, or rules, is found in R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28, [2007] 3WLR 85, per Lord Hoffmann, at [5-7]:

“5 In the case of a public right of way, a lawful origin had to be found in dedication by the landowner at some unknown date in the past. Such dedication was analogous to the lost modern grant of a private easement. Juries were told that they could find such a dedication on evidence of user openly and as of right by members of the public and were often encouraged to do so. The reason for juries and judges being willing to make and accept findings that there had been a dedicated or lost modern grant was of course the unfairness of disturbing rights which had been exercised without objections for a long time. In Scottish law, this policy was given effect by the more logical method of allowing such user to create the right. But in England the policy of the law was not openly acknowledged. Instead juries were told that in order to uphold the public right, they had to find as a fact that there had been an act of dedication accompanied by the necessary animus dedicandi on the part of the landowner: see Poole v Huskinson (1843) 11 M & W 827.

6 As a matter of experience and common sense, however, dedication is not usually the most likely explanation for long user by the public, any more than a lost modern grant is the most likely explanation for long user of a private right of way. People do dedicate land as pubic highways, particularly in laying out building schemes. It is however hard to believe that many cartways, bridle paths and footpaths in rural areas owe their origin to a conscious act of dedication. Tolerance, good nature, ignorance or inertia on the part of landowners over many years are more likely explanations. In Jones v Bates [1938] 2 All ER 237, 244 Scott LJ said that actual dedication was “often a pure legal fiction [which] put on the affirmant of the public right an artificial onus which was often fatal to his success”. In Jaques v Secretary of State for the Environment [1995] JPL 1031, 1037 Laws J called it an “Alice in Wonderland requirement”.

7 Nevertheless, juries and other tribunals of fact did frequently find that such acts of dedication had taken place, no doubt for the reasons I have suggested. So much so that in Folkestone Corpn v Brockman [1914] AC 338 it was argued that, in the absence of evidence of facts inconsistent with such a dedication, they were obliged to make such a finding. But this submission was rejected by the House of Lords and it became settled that user was no more than evidence from which dedication could be inferred. It was open to the jury to ascribe the user to toleration or some other cause. Since as I have said, some other cause was in real life more likely, it became difficult to predict when or for what reason a jury would have sufficient sympathy with the users of the highway to find that there had been a dedication.”

I also note his citation:

“13 In Trustees of the British Museum v Finnis (1833) 5 C & P, Patterson J told a jury:

“If a man opens his land so that the public pass over it continually, the public, after a user of very few years, would be entitled to pass over it, and use it as a way; and if the party does not mean to dedicate it as a way, but only to give licence, he should do some act to show that he gives a licence only. The common course is, to shut it up one in every year, which I believe is the case at Lincoln’s Inn.”

Lord Hope observed:

“52 Deemed dedication may be relied upon at common law where there has been evidence of a user by the public for so long and in such a manner that the owner of the fee, whoever he is, must have been aware that the public were acting under the belief that the way had been dedicated, and the owner has taken no steps to disabuse them of that belief. The 1932 Act, which the Highways Act 1980 replaced, was enacted to clarify the law. No definite time was required at common law for a dedication to be inferred. In Mann v Brodie, at p 386, Lord Blackburn observed that a very short period of public user would often satisfy a jury. For the statutory presumption to apply, however, a full period of 20 years is required: section 31(1). Unlike the period which is needed for prescription, which can be measured between any dates however long ago for which evidence is available, this period must be calculated retrospectively from the date when the right of the public is brought into question: section 31(2).”

In Mann v Brodie (1885) 10 App. Cas. 378, Lord Blackburn cited Poole v Huskisson 11 M&W 830, saying at p5:

“In Poole v Huskisson Baron Parke says:

“In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate – there must be an animus dedicandi, of which the user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight upon a question of intention, than many acts of enjoyment.”

But is has also been held that where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was. It is therefore, I may say, in England never practically necessary to rely on prescription to establish a public way.”

Mr Buley put considerable weight on what was said about interruptions, in view of the role which the 1961 barrier to mechanically propelled vehicles was to play in his submissions.

Mr Buley submitted, and I accept, that the proper approach to judging the evidence relied on for a dedication at common law is to look at the whole of the evidence of user available to see whether it was probably attributable to dedication. For this he relied on Turner v Walsh (1881) 6 App. Cas. 636, a Privy Council decision on appeal from the Supreme Court of New South Wales:

“The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and the presumption, if it can be made, then is of a complete dedication, coeval with the early user. You refer the whole of the user to a lawful origin rather than to a series of trespasses. It may be that in this case the evidence of user prior to 1861 was alone sufficient to establish the presumption of dedication; but the strength of that presumption is increased by the subsequent user, and would certainly have been much diminished if the user had been discontinued after 1861.”

Mr Buley also cited what Carnwath LJ had said in Whitworth & Others v SSEFRA [2010] EWCA Civ 1468. This concerned statutory dedication. The principal issue concerned how the use of a bridleway by bicycles should be approached in the light of s30 Countryside Act 1968, referred to above. By 1968, the way had the status of a bridleway. After the 1968 Act came into force, the landowner lost the right he previously had to prevent use by cyclists. Cyclist use after 1968, and the relevant period began after 1968, could not therefore be used to infer his acquiescence in such use.

That gives context for the way in which the cyclist use here needs to be approached. It was accepted that cyclist use was vehicular use and, were a way dedicated to vehicular use, it would normally be a BOAT, usable also by mechanically propelled vehicles.

Carnwath LJ said at [42], and Mr Buley emphasised the last sentence:

“In my view, the same conclusion would follow even if … the claim had rested solely on the use after 1973. One would then be considering the inference to be drawn from the actual use between 1973 and 1993. It is true that regular use by both horse-riders and cyclists of that period would be consistent with an assumed dedication as a restricted byway at the beginning of the period (had that concept then existed). But it is no less consistent with an assumed dedication as a bridleway, of which cyclists have been able to take advantage under the 1968 Act. Since section 30 involves a statutory interference with private property rights, it is appropriate in my view, other things being equal, to infer the form of dedication by the owner which is least burdensome to him.”

Mr Westaway for the Secretary of State pointed out correctly that long user was not a requirement of common law dedication: he particularly instanced North London Railway Co. v The Vestry of St Mary’s Islington 20 November 1872, Law Times 672 vol XXVII NS. in which, one and a half years’ user by pedestrians and carriages over a new railway bridge sufficed. A footbridge had been built to carry an existing right of way on foot over a new railway. Houses were developed along a road leading up to but terminating on each side of the railway. There was no bridge across the railway for carriages, until, with further railway infrastructure being built, a further bridge was built on the alignment of the footbridge, connecting the two roads. This was used by the public in carriages for one and a half years before the railway company blocked the carriage way, leaving it usable by pedestrians only. The Court inferred that there had been a dedication. The role of the housing development there was relevant to Mr Westaway’s arguments here.

Young v Cuthbertson (1854) 1 Macq 355 HL, per Lord Cranworth LC, illustrates that “the fact that a person has for twenty-two years prevented people from doing what they had done before for forty years, does not of itself destroy the right….The fact of exclusion for twenty-two years is evidence that no right ever existed - but such evidence may be met by counter evidence.” Rowley v Tottenham UDC [1914] AC 95 emphasises, as do all the cases, that these are all questions of fact.

At its northern end, BRN joined a public highway. BRN is about 100 yards long. At its southern end, a post had been emplaced in about 1961, followed by staggered railings, which prevented the passage of mechanically propelled vehicles. No action, physical or legal, had been taken to have that obstruction removed. The southern end leads on to a grassed area through which runs a road, Blandford Road South. During the 1950s, residential development took place on, but not directly fronting on to, the eastern side of this road. The Council became the successor in title to the former GLC and LCC.

As I have said, the Inspector found that the way had been awarded as a private road, and that there was no adequate documentary evidence of dedication as a highway. The Council accepted that the evidence supported the inference that, at some stage, it had been dedicated at common law as a bridleway. It appears that the Council accepted that the way was a bridleway, rather than footpath, in part because of the use by bicycles. This had been based upon error as to the significance of bicycle use over bridleways, as Mr Buley had stated in his written closing submissions to the Inspector after the Inquiry, which led to the interim DL. However, it did not seek to withdraw its acceptance that BRN was a bridleway, but submitted that the evidence of use by bicycles was inadequate to support the inference of dedication as a BOAT.

Mr Buley took me through the evidence related to the various forms of user before 1959, on foot, horseback, by bicycle and motor vehicle, to show the limited extent of the user evidence which the Inspector had accepted. 1959 mattered because the Inspector found that it was at some stage before 1959 that the dedication had occurred, and therefore that the blockage of BRN in 1961, for mechanically propelled vehicles, could not defeat what he had found to be the pre-existing dedication.

The only evidence of motor vehicle use before 1959 was given by Mrs Watson, and accepted by the Inspector in his interim DL at [32, 34 and 37], and again in his final DL at [9]. Her evidence did not go back further than 1956; and there is no basis for supposing that the Inspector thought that it had, especially in view of the significance he attached to the coming of the housing development, which was at some stage after 1952. Accordingly, submitted Mr Buley, the evidence relied on for dedication as a carriageway before 1959 was of very short duration, to the extent that it relied on mechanically propelled vehicles.

However, Mr Buley accepted that the use of BRN by bicycles, before 1959, could also be relevant to the inference of a dedication for vehicles before 1959. Mrs Jago, whose evidence, I infer, was accepted by the Inspector, interim DL [33] and final DL [8], referred to her and her husband, but not to any others, cycling along BRN in the 1930s and onwards. No one else gave evidence of cycle use before 1952. The other evidence of cycle use dated from 1956: Mr Buley said that this other evidence came only from two witnesses, Mrs Gosnell and Mrs Watson. But the Inspector was entitled to accept the evidence of Mrs Watson that it had been used for cyclists from 1956 onwards because of the opening of the new school associated with the new housing development, and the use by residents to go to church. The Inspector also referred to cycle use continuing after the blocking of BRN at the southern end for vehicles, since its configuration permitted cyclists to pass through it.

I am not concerned with the evidence of use on horseback, since, although the Council trailed its coat before the Inspector that it had gone too far in conceding a bridleway, and suggested that he might like to conclude that BRN was a footpath only, it nonetheless maintained its bridleway concession. The Inspector was not tempted, and that can give rise to no error of law.

Mr Buley’s principal argument in this ground was that the Inspector had erred in the penultimate sentence of the interim DL [39]. I repeat it for convenience. “The erection of the structures in the early 1960s to deter use by four wheeled vehicles occurred too late in respect of the accepted earlier dedication of a highway.” It was not altered by anything in the later letter.

I observe first of all that the only dedication which was ever accepted by the Council by the time of the interim DL was as a bridleway. The Inspector does not suggest that the Council was stuck with its previous position over the effect of such use. The first sentence of interim DL[39] relates to the more general proposition, which the Council accepted and maintained, that vehicular use could be inferred from bicycle use. There was no need for any use at all by mechanically propelled vehicles to have taken place, for vehicular use to be inferred from bicycle use, which would then include use by mechanically propelled vehicles. The effect of final DL[8] is to recognise that the issue was indeed whether the accepted bridleway dedication extended to vehicular use, based upon not just the evidence of use by mechanically propelled vehicles, but also upon the evidence of bicycle use. So the focus of Mr Buley’s principal argument was on the role of the 1961 blockage of mechanically propelled vehicles in the inference of dedication for vehicular use.

The evidence, which I have summarised, about usage was important to Mr Buley’s submission in this respect. The Inspector is right in his approach that, after the way is dedicated, the level of subsequent use does not matter; interim DL[30]. But, submitted Mr Buley, the Inspector could not reach the conclusion that the blockage came too late for dedication without considering the converse position: whether the blockage showed that there had been no dedication in respect of vehicles in the first place, and that such use as there was by bicycles was mere limited tolerance. The Inspector had to look backwards through all the evidence of use, including the blockage and the absence of response, before inferring a starting point for the lawful use of BRN by vehicles in dedication. It would only be after drawing the inference that dedication took place at a certain stage, having already taken account of the blockage, that the blockage would become irrelevant to the existence of the right of way. Consideration of the significance of the blockage had to include the absence of evidence of any objection to the blockage such as might suggest that a right had been interfered with. Just as Mr Westaway stressed the fact that it took but a few years for the evidence to suffice for the inference, inaction after an interruption to the exercise of the claimed right, for a few years, and the more so for many, could counter the inference. This is the exercise which the Inspector had failed to undertake. In this exercise, the level of use would be relevant to whether the inference can be drawn that the proper explanation for it is that there was a dedication preceding the use relied on. There had been but a few years and limited mechanically propelled vehicular use. Approached properly, it was no more reasonable to infer dedication for vehicular use from the level of cycle use, very sparse until 1956 or thereabouts, than it would have been to infer no dedication for vehicular use from the blockage of motor vehicles in 1961 and a continued tolerated use by bicycles, up to 1968, whereafter the use was by statutory right. The Inspector would have had to set this limited use against the evidence of blockage. Mr Buley sought support in this context from what Carnwath LJ had said in Whitworth [42], above, about inferring the least burdensome form of right.

Mr Westaway submitted that this was very much in the sphere of the Inspector’s fact finding. He was entitled to find as he had done.

In my judgment, Mr Buley’s submissions are essentially right. It is not sufficient to say that dedication has already occurred and so the blockage is irrelevant. The converse position has to be considered. The existence of the blockage is itself relevant to whether the dedication for vehicular use should be inferred, with the explanation for the continued cycling use before 1959, and indeed up to 1968, being toleration of such a use. Either view may be reasonable, but the role of the blockage cannot simply be put into the category of an irrelevant post-dedication event, unless it has been examined for its significance in the context of drawing the inference as to dedication. And in considering the significance of the blockage for whether a right had in fact been created and was being interfered with, the absence of any endeavours to remove the blockage is very relevant. In order to reach a view about the significance of the blockage, the Inspector would also have had to feed it into the stage in the evidence of use at which dedication took place.

I appreciate that a fact-finder may not be required to find the stage at which the fictional dedication took place. But this rather depends on the circumstances. I read final DL [8] as finding that dedication took place no later than the housing development and its associated use, which puts it after 1952, and closer to 1956, which is the time at which the substantial evidence of public user begins. The Inspector gives 1952 as the date after which the development began. He does not find that the dedication was as early as the 1930s. Mr Westaway read the DL in the same way: the Inspector’s findings on use were not based primarily on the 1930s and 1940s. There was limited evidence of bicycle use in the 1930s and 1940s, and there is a clear change in the use and level of use of BRN in the mid-1950s, followed by a blockage a few years later of BRN to mechanically propelled vehicles. These particular circumstances required consideration of the stage at which it was being found that dedication for vehicular use took place, as there is a considerable difference in how the vehicular blockage may be seen in those sets of circumstances.

If the Inspector was considering dedication in or around 1952-1956, he would have to start from the fact that dedication had not occurred earlier on the limited evidence of very low pre-1956 use. There was no greater evidence of bicycle use between 1952-1956 than before 1952, and no evidence of motor vehicle use before 1956, and the Inspector found none. The role then of the 1961 blockage, and the absence of response, is obviously important in determining whether there was a vehicular dedication: the blockage came after only 5-6 years’ vehicular usage from 1956. The Inspector did ignore the blockage in this analysis since had he included it, he would have had to explain why the end of 1958 was the latest point of dedication, final DL[8], and yet the blockage had occurred only 2-3 years later without having any relevance at all to that judgment. The evidential basis for the inference of dedication becomes quite different from what it would have been if the starting point had been the 1930s or 1940s. Of course, the Inspector would have had to consider the implications for the nature of the rights dedicated that the landowner had not sought to prevent vehicular use by bicycles. But an explanation which he might have accepted, had he approached the matter in the way I judge was required, was that the bicycle use was tolerated over a footpath and bridleway, rather than being a dedication for vehicular use, including motor vehicles.

The Inspector might have been able rationally to find and reason that there was a dedication in the 1930s or 1940s, granting rights which had been subsequently and for so long exercised, with sufficient vehicular use, even if only by bicycle, before the 1961 blockage, that he could infer that it interrupted vehicular rights, in part, rather disproved dedication for them. But the thinness of the evidence from the 1930s and 1940s would have had to be addressed. And that was not the basis for his decision.

I accept Mr Westaway’s submission that there is no requirement for long use in order to infer dedication, and that there are cases in which periods shorter even than that at issue here have been found sufficient. But that all depends on the circumstances, and the evidence. In St Mary’s Vestry, it did not take long for those adversely affected in the new housing to take issue with the blockage, and to assert their rights.

The Inspector in my judgment has either failed to consider the role of the blockage, and response, in drawing the inference of dedication on the basis of his primary approach to when dedication occurred, thus ignoring a material consideration, or he has given no legally adequate reasons for his conclusion on what is one of the most important issues in this case. I do not consider that this approach can be saved by reference to an alternative finding of dedication in the 1930s, since that is not a finding he has made, and to make it soundly, he would have had to set out his reasons as to why that use was adequate. The absence of reasons suggests that that was not a finding he was intending to make.

What Carnwath LJ said at [42] in Whitworth, was directed at statutory dedication, but I see no reason in principle, in the imaginary world of common law dedication why such a principle should not apply equally when deciding what inferences the evidence bears as to what a landowner intended. There is no reason to impute any generosity in this form of dedication when drawing inferences of that sort; the evidence warrants no greater dedication than it bears, and there is no reason to suppose that dedication for some rights of way could not be accompanied by toleration of part of some wider class rather than dedication for the whole gamut of vehicles which might come within it. I do not accept the Inspector’s reasoning on this in the third sentence of [39] of the interim DL. It simply does not follow from the fact that the principal issue in Whitworth does not arise in this case. I do not see this however as a truly separate point but one relevant to the way in which the inference is to be drawn from the evidence.

Mr Buley submitted, alternatively, that if the Inspector were right that BRN were a BOAT, he was wrong to conclude that the right of way for mechanically propelled vehicles had not been extinguished by operation of s67 of the Natural Environment and Rural Communities Act 2006, the 2006 Act on the provisions of the Highways Act relating to the recording of public rights of way.

Section 36 of the 1980 Act provides:

“(2)

Without prejudice to any other enactment (whether contained in this Act or not) whereby a highway may become for the purposes of this Act a highway maintainable at the public expense, and subject to this section and section 232(7) below, and to any order of a magistrates’ court under section 47 below, the following highways (not falling within subsection (1) above) shall for the purposes of this Act be highways maintainable at the public expense –

…

(d)

a highway, being a footpath [bridleway or restricted byway]

…

(6)

The council of every county, [metropolitan district]

And London borough and the Common council shall cause to be made, and shall keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense.”

S67 of the 2006 Act provides:

“(1)

An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement -

(a)

was not shown in a definitive map and statement, or

(b)

was shown in a definitive map and statement only as a footpath, bridleway or restricted by way.

(2)

Subsection (1) does not apply to an existing public right of way if –

(a)

it is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use mechanically propelled vehicles,

(b)

immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (c.66) (list of highways maintainable at public expense).”

The question therefore was what, if anything, was shown about BRN in the s36(6) list. The Inspector dealt with this in each Decision Letter. In his interim DL, he said:

“44.

The second claimed exemption found in Section 67(2)(b), namely if “immediately before the commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980”. The Council has provided an extract from its current list of streets and has no reason to believe that the relevant entry differs from the position immediately prior to the commencement of the 2006 Act. BRN is included in the list and recorded as a “private street”.

45.

The above entry in the list of streets does cause a little concern bearing in mind the purpose of this document. However, the intention of the exemption is to preserve unrecorded public rights of way which are shown in the list of streets. It may be the case that the BRN should not have been included in this document. However, a literal interpretation indicates that the public rights for mechanically propelled vehicles are not extinguished where the route in question was recorded in the list of streets immediately prior to the commencement of the 2006 Act. It follows in my view that the route should be recorded in the definitive map and statement as a byway open to all traffic.”

In the final DL, he elaborated:

“17.

The wording of Section 67(2)(b) is clear and unambiguous and protects the public rights of way for mechanically propelled vehicles which are not shown in the definitive map and statement but are included in the list of streets. It is apparent that BRN was included in the list of streets prior to the date of commencement and the route continued to be recorded in this document. The issue in this case arises out of BRN being described in the list of streets as a “private street”.

18.

The list of streets only serves as a record of the highways maintained by the Council at public expense. It does not provide conclusive evidence of the public rights that exist over a particular way. Clearly the Council took the decision to include BRN in its list of maintained highways. If it is maintained for other purposes, such as in relation to a private right of way, it should not have been included in the list of streets. Nonetheless, it cannot be determined whether the recent resurfacing works highlighted by Mrs Young were undertaken by the Council in its capacity as highway authority.

19.

I have concluded from the evidence that BRN is an unrecorded public right of way for mechanically propelled vehicles. This public right of way was included in the list of streets at the commencement of the 2006 Act albeit described as a private street. It is not argued that the route was included in the list in error. Having regard to the purpose of the list of streets outlined above, I conclude that the exemption in Section 67(2)(b) of the Act is applicable in this case. Therefore, it remains my view that BRN should be recorded in the definitive map and statement as a BOAT.”

The factual position is this: the Council has a list; it shows roads which are adopted and unadopted; this list shows BRN as “private street”. Mr Buley showed me a copy of the relevant part of the list, which parts he confirmed had been shown to the Inspector; his submissions had also referred to the fact that the documents included highways not maintainable at public expense, which were specifically referred to as “unadopted” or, as in BRN’S case, as “private street”. He showed me the title of the lists “private and adopted Roads Register”. He could not be sure that the Inspector had seen that, but the title is not factually controvertible and is consistent with the text of the documents. It is the latter which matters. Mr Buley submitted that it was clear that a “private street” was not a highway maintainable at public expense. That much was not at issue. This is reflected in s203 of the 1980 Act, as it had been in earlier Highways Acts. BRN is a highway but not one maintainable at public expense. For the purposes of this ground, there were rights over it for motor vehicles.

The Inspector concluded in the interim DL at [45] that, although the BRN may have been included in error in the s36 list because it was or may have been a private street, that did not matter on the true construction of s67 of the 2006 Act: it was on the list kept by the Council for s36 purposes, and that was all that was required. The conclusion appears to be elaborated in the final DL. The Inspector had concluded that there were unrecorded vehicular rights of way over BRN, which included public rights of way for mechanically propelled vehicles; on the Council’s contentions that it was a private street, it should not have been included in the list under s 36. But it was included, without it being said that it was included in error. The exemption was applicable “having regard to the purpose of the list of streets in s36, which was to serve as a record of the highways maintained by the Council at public expense.”

I think it clear that when the Inspector says, final DL [19], that BRN was included in the list without the Council saying that it was included in error, he does not mean that the Council did not think that BRN was a private street, despite the description attached to it, or had at one time thought that it was not. The material before him from the Council over some 30 years showed that that was exactly the Council’s view: that it was a private street, not maintainable at public expense. The mistake he refers to therefore must be that the Council, as was its position before me, did not think it wrong to include in the s36 list, for administrative reasons, as it was put to the Inspector, streets which were highways not maintainable at public expense. This may be quite a common practice.

Mr Buley submits that, reading s67(1) with (2), existing public rights of way for mechanically propelled vehicles were extinguished, unless two aspects were shown: first the way had to be shown, and second, it had to be shown as providing a public right of way for such vehicles. If no way were shown or the way was shown only as a footpath or bridleway or restricted byway, the public rights of way would be extinguished. Accordingly, the exemption in s67(2)(b) should be seen as covering both those aspects: the way and the public right of way for mechanically propelled vehicles. The list had therefore to cover both those points. “It” in s67(2), both in (a) and (b), referred to “an existing public right of way,” that is the way and the rights over it; both had to appear in the alternative public record for such rights to the Definitive Map and Statement. Accordingly, the literal interpretation of s36, which treated any way listed in a list kept for the purposes of s36, as a highway maintainable at public expense, even where the list expressly said that it was not, was wrong.

Mr Westaway’s argument was straightforward: BRN was in the s36 list. That sufficed to bring in the exemption. I see this more literal approach in interim DL [45] and final DL [19].

I was referred to Fortune v Wiltshire Council [2012] EWCA Civ 334, [2013] 1 WLR 808. The Court was faced with the argument that the s36 list was not in truth such a list because there were categories of way which the Council had omitted from it, so extensive that their omission invalidated its s67 role in relation to those which were correctly on it. It was not suggested that any error invalidated the list. The Court concluded that a defective list could still be the statutory list; the purpose of s67 was not to protect vehicular rights but to give effect to concerns about the misuse of green lanes; [160]. I do not consider that this goes very far in relation to this case, but if errors of omission do not invalidate the list, it is easier to see why a degree of leeway is permitted to a Council as to the form in which it maintains the list.

Mr Buley submitted in writing to the Inspector that the words “private street” prevented any concern that the appearance of BRN in the s36 list would create an expectation of a public right of way for mechanically propelled vehicles, not on the Definitive Map, which the guillotine in s67 would defeat. I agree. No public record showed it as a highway maintainable at public expense.

If the document is clear that it includes the s36 list but other matters as well, and the distinction between the s36 highways and the others is clear from the form of that document, I see no reason why the inclusion in the one document of the s36 list, and another form of record, should mean that the attributes of the s36 list should be accorded to all the ways in the one document, including those that expressly disavow their role as highways maintainable at public expense. I do not think that it matters for these purposes that the roads were listed alphabetically, with the notation as to their status beside them, rather than in sections according to their different status, separating out in the document, by head note rather than side note, those which were s36 highways and those which were not. Part of the document is a list under s36 and part is not. The 1980 Act sets out no particular format in which the list is to be kept; it does not forbid the inclusion of other information; the important point is that when the public go to it, they can identify, from the document, which ways are s36 highways maintainable at public expense. There is no obligation to show ways which are not maintainable at public expense.

However, the ability to see which council owned ways are not highways maintainable at public expense can be useful. What may be impurity to a lawyer may make good sense to a council trying to keep track of its ways, adopted and private. The omission of BRN might be of less help to the public than its inclusion with the qualifying notation beside it; at least the public would know its status rather than wondering whether that was the inference to draw rather than that its omission was mere oversight.

Mr Westaway’s and the Inspector’s more literal approach is not, to my mind, the correct appreciation of the status of the document at issue, nor the correct construction of s67. I see no public policy reason to give effect to the provisions in the way they support, achieving a result which Parliament did not intend nor use words apt to achieve. The removal of the rights over BRN for mechanically propelled vehicles would accord with the purpose of the 2006 Act, and the long prevented use would not arise again on the basis of an error, if such it be, by the Council, as to the precise constraints on what could be included in the same document as contained the s36 list.

Accordingly, I conclude that the Inspector was wrong to interpret the Council’s list as showing that BRN was a highway maintainable at public expense when the very entry for BRN said that it was not. If he had not made that error, I see no other basis upon which he could have concluded that the exemption did not apply to what he found the position to be. The rights of way for mechanically propelled vehicles along BRN ended in 2006, and he was bound so to conclude.

For the reasons I have given, each ground succeeds and the decision is quashed.