Council issuing modification order in relation to public right of way – Status of way thereby changing from road used as a public path to byway open to all traffic – Objection – Definition of byway open to all traffic – Whether predominant use of way on foot and horseback over vehicular use required – Section 66(1) of Wildlife and Countryside Act 1981 – Application dismissed – Appeal dismissed
In June 1994 the Somerset County Council, as the surveying authority, issued a modification order in relation to public right of way WN 16/11, which ran through a farm owned by the appellants. The order made under section 53(2)(b) of the Wildlife and Countryside Act 1981, had the effect of modifying the status of the way from a road used as a public path to that of a byway open to all traffic. The appellants objected to the modification. A public inquiry was held, following which the inspector recommended that the modification order be confirmed. In August 1997 the Secretary of State issued a decision letter confirming the modification order.
The appellants sought judicial review contending that the statutory definition of a byway open to all traffic contained a user test which had three main elements: (i) it had to be possible to say of a given path at the time of the classification that it was currently used, and evidence of use in the non-recent past was not sufficient; (ii) the current use had to be on foot, on horseback and with vehicles, so that evidence of current use by only one or two of those would not be enough; and (iii) the current pedestrian and equestrian use combined had to be more that the current vehicular use. It was submitted that, on the evidence contained in the inspector’s report and the Secretary of State’s decision letter, the route did not come within the statutory definition of a byway open to all traffic.
The judge dismissed the application, holding that the definition of byway open to all traffic in section 66(1) referred to a type of highway and did not seek to limit byways open to all traffic to those that were currently and actually used in the way described by section 66(1). The appeal centred on the appellant’s third contention.
Held: The appeal was dismissed.
Parliament had defined a byway open to all traffic, in section 66(1) of the Act, by giving a description of ways that were to be shown as such byways in the definitive maps and statements. What was being defined was the concept or character of such a way. Parliament had not intended that highways, over which the public had rights for vehicular and other types of traffic, should be omitted from definitive maps and statements simply because they had fallen into disuse, as a result of their character and suitability making them more likely to be used by walkers and horseriders than by vehicular traffic. Indeed, parliament had made it obligatory, when such ways were reviewed after 28 February 1983, that those previously shown on maps and statement as roads used as public paths should continue so to be shown. Accordingly, the predominance of use on foot and horseback over vehicular use did not have to be established by the evidence before a way could be shown as a byway open to all traffic in the definitive map and statement: R v Wiltshire County Council, ex parte Nettlecombe [1998] JPL 707; Buckland v Secretary of State for the Environment, Transport and the Regions [2000] PLSCS 2; 3 All ER 205 considered.
George Laurence QC and Louise Davies (instructed by Thrings & Long, Bath) appeared for the appellant; John Hobson QC and Philip Coppel (instructed by the Treasury Solicitor) appeared for the respondent.
Thomas Elliott, barrister
