Right of way – Definitive map and statement – Modification order – Order adding riverside byway through claimants’ garden – Modification based upon examination of historical legislation and maps rather than public user – Whether inspector erring in approach to historical legislation – Whether order defective owing to inadequate description of width of way – Claim dismissed
The claimants’ property abutted the River Trent, giving them direct access to the river through their garden. In 2006, the first defendant council made a modification order, pursuant to section 53 of the Wildlife and Countryside Act 1981, whereby they added to the definitive map a restricted byway allowing the public to pass across the claimants’ garden and along the river bank as part of a riverside walk. There had been no public right of way across the claimants’ land for a substantial period of time; the first defendants’ order was based upon an inspection of historical maps and documents. The order was subsequently confirmed by the second defendant secretary of state following an inquiry before an inspector. The inspector found on the evidence that the route had existed prior to a local Inclosure Act 1771 and inclosure award made in 1773, which had required the provision of a public highway. The modification order described the width of the byway by reference to the inclosure award.
The claimants brought proceedings to quash the order pursuant to para 12 of Schedule 15 to the 1981 Act. They contended that the inspector had erred by failing to have regard, or proper regard, to the Trent Inclosure Act 1783. They submitted that the 1783 Act, which was passed to ensure that the river could be haled and navigated without obstruction, had conferred private rights on users of the river to the exclusion of the public. Accordingly, they argued that there had never been a public right of way along that stretch of the river and that the public right of way required by the 1771 Act had not come into being. The claimants further contended that the modification order was defective because it did not adequately describe the width of the restricted byway, as required by section 53(4)(a) of the 1981 Act.
Held: The claim was dismissed.
(1) Where a highway was created by statutory powers, no user by the public or any act of any party was necessary to complete its creation. Where, on the other land, the statute merely authorised the setting out or making of a road, a highway would not come into existence, in the absence of public user, until the road had been set out substantially in accordance with the statutory requirements: R v Lyon (1825) 5 Dow&Ry KB 497 applied. The inspector had been correct in approaching the historical legislation on the basis that, since the parliamentary enclosure process was a legally binding procedure, she should start from the premise that it had been carried out properly. She had been entitled to regard the wording of the inclosure award specifying the creation of a highway as compelling evidence of the existence of that highway: Cubitt v Maxse (1873) LR 8 CP 704 distinguished. Since there had been a pre-existing road, it had been unnecessary, in order to implement the 1771 Act and 1773 award, to carry out further work in order to “make” the highway. The inspector had further been entitled to find that the 1783 Act did not cast doubt on the existence of a public highway. That Act provided for the making of private ways under the control of the navigation company, subject to any public rights of way. Neither the 1783 Act nor any other of the Navigation Acts contained provisions for extinguishing public highway routes.
(2) The requirement in section 53(4)(a) to provide a statement or description of the width of the right of way could be met in a number of ways: by the giving of a numerical description or by reference to physical features or to a plan marking the width The inspector had been entitled to describe the width of the right of way by reference to the depiction of the route on the award plan. Such an approach accorded with non-statutory guidance provided by the Department for Environment, Food and Rural Affairs, indicating that, in some cases, the width of a route might be based on the depiction of that route on a historic plan or map, and was sufficient to comply with the statutory requirements.
John Hobson QC and Alex Goodman (instructed by Langleys, of Lincoln) appeared for the claimants; Jonathan Mitchell (instructed by the legal department of Nottinghamshire County Council) appeared for the first defendants; Robert Palmer (instructed by the legal department of Defra) appeared for the second defendant.
Sally Dobson, barrister
