Buckland and others v Secretary of State for the Environment, Transport and the Regions
Inspector confirming modification order reclassifying footpath as a byway open to all traffic – Applicant challenging inspector’s decision – Whether inspector’s decision flawed – Wildlife and Countryside Act 1981 section 66 – Application allowed
Barton Drove formed part of a route that ran between the villages of Winscombe and Barton, and had always been shown on the definitive map as a footpath. The county council made a modification order under the Wildlife and Countryside Act 1981, to show the footpath as a bridleway. Objections to the order were made and an inquiry followed. The council submitted that, based upon the 1797 Winscombe and Sanford Inclosure Award and ancient maps, the footpath should in fact be reclassified as a byway open to all traffic (BOAT). The inspector confirmed the order, subject to a modification that the footpath be shown as a BOAT. As a result of the inspector’s proposed modification, a further inquiry was held.
In January 1998 the inspector confirmed the order to show the footpath as a BOAT. In his decision letter the inspector concluded that the Inclosure Award Commissioners “intended with lawful authority, that the entire order route should be a public vehicular highway, and that it so became”. The applicant challenged the inspector’s decision, pursuant to para 12 of Schedule 15 to the 1981 Act. The applicant contended that the definition of BOAT, in section 66 of the Act, had not been satisfied, as there had to be evidence of current pedestrian, equestrian and vehicular use. It was also contended that the inspector was wrong to conclude that the route was a highway. It was submitted that the inspector erred in finding that the language of the Inclosure Award, on a proper construction, conferred public status on the private roads. Further, that the Commissioners had no jurisdiction to set out Barton Drove as a public carriageway under the Shipham and Winscombe Inclosure Act 1797.
Inspector confirming modification order reclassifying footpath as a byway open to all traffic – Applicant challenging inspector’s decision – Whether inspector’s decision flawed – Wildlife and Countryside Act 1981 section 66 – Application allowed Barton Drove formed part of a route that ran between the villages of Winscombe and Barton, and had always been shown on the definitive map as a footpath. The county council made a modification order under the Wildlife and Countryside Act 1981, to show the footpath as a bridleway. Objections to the order were made and an inquiry followed. The council submitted that, based upon the 1797 Winscombe and Sanford Inclosure Award and ancient maps, the footpath should in fact be reclassified as a byway open to all traffic (BOAT). The inspector confirmed the order, subject to a modification that the footpath be shown as a BOAT. As a result of the inspector’s proposed modification, a further inquiry was held.
In January 1998 the inspector confirmed the order to show the footpath as a BOAT. In his decision letter the inspector concluded that the Inclosure Award Commissioners “intended with lawful authority, that the entire order route should be a public vehicular highway, and that it so became”. The applicant challenged the inspector’s decision, pursuant to para 12 of Schedule 15 to the 1981 Act. The applicant contended that the definition of BOAT, in section 66 of the Act, had not been satisfied, as there had to be evidence of current pedestrian, equestrian and vehicular use. It was also contended that the inspector was wrong to conclude that the route was a highway. It was submitted that the inspector erred in finding that the language of the Inclosure Award, on a proper construction, conferred public status on the private roads. Further, that the Commissioners had no jurisdiction to set out Barton Drove as a public carriageway under the Shipham and Winscombe Inclosure Act 1797.
Held: The application was allowed.
1. Applying R v Wiltshire County Council, ex parte Nettlecombe Ltd [1998] JPL 707, the language of section 66 was clear and unambiguous. The applicant’s submissions as to a wider definition of the section, namely that there had to be evidence of current pedestrian, equestrian and vehicular use were rejected. The issue was whether the evidence of current pedestrian and/or equestrian use outweighed that of vehicular use. In the present case, there was some current pedestrian use but no evidence of vehicular use. The conflicting view in Masters v Secretary of State for the Environment, unreported 1 October 1999, was not followed.
2. The Commissioners did not have power under the 1797 Act to set Barton Drove as a public carriageway. Therefore, the Award cannot have created a public highway. The respondent correctly contended that such a lack of power did not prevent a way, which was created pursuant to an award, becoming a highway as a result of the user. However, it was necessary to acknowledge that the Commissioner’s Award did not in itself create a public highway. Only then was it permissible to see whether the evidence of user was sufficient to give rise to the presumption. The inspector did not follow such a line of reasoning.
George Laurence QC (instructed by Thrings & Long, of Bath) appeared for the applicant; John Hobson (instructed by the Treasury Solicitor) appeared for the respondent.
Sarah Addenbrooke, barrister
