On a special review of a definitive map carried out in pursuance of the Countryside Act 1968, a council may not, without new evidence, downgrade a ‘road used as a public path’ to the status of a mere footpath–Unfair to allow rights of people with horses to be abrogated by such procedure–Dissenting judgment of Ackner J in Divisional Court held to be right
This was an
appeal by Mrs Margaret Cynthia Hood, of Birchington, Kent, a member of the
British Horse Society, from the refusal of the Queen’s Bench Divisional Court
(Lord Widgery CJ and Milmo J, Ackner J dissenting) on October 22 1974 to quash
an order made by the respondent, the Secretary of State for the Environment,
confirming a proposal by Kent County Council on a special review that a highway
shown on a definitive map as a ‘road used as a public path’ at Herne Common,
Herne Bay, should be reclassified as a ‘footpath.’
Mr L Hoffmann
(instructed by Cripps, Harries, Hall & Co, of Tunbridge Wells) appeared for
the appellant, and Mr H K Woolf (instructed by the Treasury Solicitor)
represented the respondent.
Giving
judgment, LORD DENNING said that the appeal concerned a way about 400 yds long
at Herne Bay, going past a hospital. The question was the status of the way.
Was it only a footpath for foot passengers, or was it a bridleway for
horses? At the present time, for about
200 yds the way was a tarred drive leading to the hospital. Then for the
remaining 200 yds there was a grass strip about 20 ft wide bounded on one side
by a ditch and on the other by a hedge and belt of trees. A six-inch ordnance
map of 1872 showed the way by double solid lines, suggesting a bridleway, if
not a cartway, but did not of course indicate whether it was a public or
private way. Nowadays the legislature’s policy was to have all our ancient
highways mapped out and put on conclusive maps so that people should know what
their rights
horseback or by cart to work in the fields or go to church. The law of England
was, once a highway, always a highway. With the coming of the motor car, the
bus and the bicycle, many rights of way had fallen into disuse, but it was
important that they should be preserved and be known for creation and for the
enjoyment of the amenities of our land. That was the purpose of the National
Parks and Access to the Countryside Act 1949, with the amendments in the
Countryside Act 1968. But to understand the statutes, it was necessary to bear
in mind the threefold classification of highways at common law as (1) footways;
(2) bridleways, which were ways both for horses and for foot passengers; and
(3) cartways, which were ways for horses, foot passengers and carts or
carriages. That classification was the basis of the statutory classification in
section 27 (6) of the Act of 1949, which said:
‘Footpath’
means a highway over which the public have a right of way on foot only, other
than such a highway at the side of a public road; ‘bridleway’ means a highway
over which the public have the following, but no other, rights of way, that is
to say, a right of way on foot and a right of way on horseback or leading a
horse, with or without a right to drive animals of any description along the
highway; . . . ‘public path’ means a highway, being either a footpath or a
bridleway; . . . ‘road used as a public path’ means a highway, other than a
public path, used by the public mainly for the purpose for which footpaths or
bridleways are so used.
Much
difficulty had been caused by that last definition of ‘road used as a public
path.’ Seeing that it was a highway,
such a road must come within the common law category of a cartway. It was the
word ‘mainly’ which caused the trouble. The draftsman’s object was to include
cartways used nowadays mainly by people walking or riding horses, like the
Berkshire Ridgeway, but to exclude metalled roads used by motor-cars. When
local authorities came in 1949 to prepare their maps under the Act, they
divided the category ‘road used as a public path’ into two subcategories which
had no statutory authority. They divided them into CRF and CRB, meaning
‘cartroad footpath’ and ‘cartroad bridleway,’ meaning respectively that there
was a public footpath along a cartway or a public bridleway along a cartway. In
doing this, councils did not mean to say whether the cartway was public or
private for carts, because they did not know, but each of the divisions, CRF
and CRB, was shown in the map as a ‘road used as a public path,’ and this meant
that it was shown as a ‘highway, other than a ‘public path’,’ which in
turn meant that it was a public cartway. Thus CRF and CRB designated a
public cartway used mainly for the purposes for which footpaths and bridleways
are used.
The way at
Herne Bay was shown in the definitive map as a highway CRF 30, so that in point
of law it was classified as a ‘road used as a public path,’ a public cartway,
but one used mainly for the purpose for which a footpath is used. Kent County
Council had been through all the appropriate procedure, and the effect of their
definitive map was that it became conclusive as to the matters contained in it.
That was clear from section 32 (4) (b) of the Act of 1949:
Where the map
shows a bridleway, or a road used as a public path, the map shall be conclusive
evidence that there was at the said date a highway as shown on the map, and
that the public had thereover at that date a right of way on foot and a right
of way on horseback or leading a horse, so however that this paragraph shall be
without prejudice to any question whether the public had at that date any right
of way other than the rights aforesaid. . . .
Under the Act
of 1949 there was no machinery for down-grading any way, but the Countryside
Act 1968 contained such provision in Schedule 3. In addition, that Act provided
for reclassification of all ways shown in the category ‘road used as a public
path.’ Paragraph 9 (1) of Schedule 3
provided:
In the
special review the draft revision, and the definitive map and statement, shall
show every road used as a public path by one of the three following
descriptions–(a) a ‘by-way open to all traffic,’ (b) a ‘bridleway,’ (c) a
‘footpath,’ and shall not employ the expression ‘road used as a public path’ to
describe any way.
Much light was
thrown on the question how the reclassification ought to be made by the terms
of paragraph 10, which provided:
The
considerations to be taken into account in deciding in which class a road used
as a public path is to be put shall be (a) whether any vehicular right of way
has been shown to exist; (b) whether the way is suitable for vehicular traffic
having regard to the position and the width of the existing right of way, the
condition and state of repair of the way, and the nature of the soil; (c) where
the way has been used by vehicular traffic, whether the extinguishment of
vehicular rights of way would cause any undue hardship.
He (his
Lordship) thought that that paragraph showed that on reclassification a ‘road
used as a public path’ could be down-graded so as to take away the vehicular
rights, but not so as to take away any other rights, those of bridleway or
footway. On the reclassification of the way at Herne Bay, therefore, the
council could take away the vehicular rights, which was what the inspector recommended
and what had been done, but they could not take away the right to go on
horseback or lead horses along the way. The only grounds of review on a
reclassification were those under paragraph 10, just described, and those under
section 33 of the Act of 1949 as amended. Those under section 33 arose only in
a case where there was new evidence, or evidence not previously considered by
the authority. In the present case it was admitted that there was no such
evidence, and it would be very unfair to reopen everything in 1975, when the
evidence of 1952 might well have been lost or forgotten. To his (Lord
Denning’s) mind, the conclusive presumption in section 32 (4) (b) remained
unimpaired, and there was nothing in the Act of 1968 which enabled it to be displaced.
On the new classification the way must be described as a ‘bridleway,’ a way for
a man on foot or riding a horse. He (his Lordship) agreed with Ackner J’s
dissenting judgment below, and would allow the appeal.
Agreeing,
BROWNE LJ said that he could not accept that the special review, which was
defined in paragraph 7 of Part III of the third schedule to the 1968 Act, was
something quite different from an ordinary review under section 33. The
suggestion had been that on a special review the council and the Secretary of
State were entitled to reopen and reinvestigate the whole question of the
nature and extent of any right of way. He (his Lordship) thought that the
special review was only special because it was the first review held after the
passing of the Act of 1968, and that it was in principle subject, like any
review, to the limitations in section 33 of the Act of 1949. The intention was
that the definitive maps drawn up in pursuance of that Act should in general be
final. Parliament did not intend that classifications under them should be
reopened many years later. As Ackner J had said, ‘Roads used as public paths
are not to be down-graded beyond that of a bridleway unless there is evidence
that can be properly considered under section 33.’
SIR JOHN PENNYCUICK
also agreed, and the appeal was allowed with costs in both courts. Leave to
appeal to the House of Lords was granted on condition that the order for costs
in favour of the applicant in those courts should not be disturbed and that the
Secretary of State should pay her costs in the House in any event.
