Right of way – Definitive map and statement – Public nuisance – Local authority making definitive map modification order describing track as bridleway – Inspector appointed by respondent secretary of state confirming order – Appellants appealing – Whether inspector erred in finding that redesignation of route as bridleway not public nuisance – Appeal dismissed
A track running between Sanway Road in Byfleet and Wisley Lane in Wisley, both in Surrey, was shown on the definitive map and statement (DMS) as a footpath which could be used only by pedestrians. For many years, cyclists and, less frequently, horses had also used the track.
In view of that use, two cycling groups applied to the interested party local authority for an order modifying the DMS to describe the track as a bridleway, which would entitle both bicycles and horses lawfully to use the track.
The interested party, as the relevant surveying authority for the area, had a duty to keep the map under continuous review, which included altering the designation of a highway if a different designation was appropriate: see section 53(2)(b), read with section 53(3)(a)(ii), of the Wildlife and Countryside Act 1981.
The appellants were the joint owners and occupiers of a dwelling which fronted a section of the order route. Following consideration of various objections made by the appellants, amongst others, and a detailed report from its countryside access officer, who supported the modification, the interested party made a definitive map modification order.
In the light of the objections, the order was sent to the respondent secretary of state for confirmation. Following a public inquiry, an inspector appointed by the respondent confirmed the order. The appellants applied to quash the order pursuant to para 12 of schedule 15 to the 1981 Act but the High Court upheld it: [2020] EWHC 1814 (Admin).
The appellants appealed, contending that the inspector erred in finding that the route’s redesignation as a bridleway would not constitute a public nuisance.
Held: The appeal was dismissed.
(1) There were three conditions necessary to establish common law dedication: the owner of the land over which the alleged right of way ran must have had capacity to dedicate it; the owner did in fact expressly or impliedly dedicate it; and there had been acceptance of the dedication by the public. In practice, dedication usually had to be implied because the landowner rarely dedicated expressly. Acquiescence would often suffice: Mann v Brodie (1885) 10 App Cas 378.
Evidence of user by the public would be relevant both to the question of implied dedication and whether there had been acceptance by the public. However, there was a limitation on the power of a landowner to dedicate his land. While a landowner might authorise a use prohibited by statute, he could not authorise something which would amount to a public nuisance: Sheringham Urban District Council v Holsey (1904) LGR 744, Hereford and Worcester County Council v Pick [1996] 71 P & CR 231, 239 and Bakewell Management Ltd v Brandwood [2004] 2 AC 519; [2004] 2 EGLR 15 considered.
(2) Following the decision in R v Rimmington [2006] 1 AC 459, it was now firmly established that the crime of public nuisance involved an injury suffered by the community or a significant section of it. In the context of highways, a public nuisance would typically be the result of an unlawful obstruction interfering with the right of passage, but it might also be conduct which endangered other users of the highway. However, the fact that cyclists or riders might, without the exercise of due care, be a danger to themselves was not a ground for finding a public nuisance. Public nuisance was a question of fact to be determined by the inspector.
(3) The appellants complained that the inspector asked himself whether the dedication of the track as a bridleway gave rise to a public nuisance, whereas he ought to have gone on to ask whether it was likely to give rise to a public nuisance. In asking that question, the inspector ought to have had regard to the likely increase in the use by horses once the track had the status of a bridleway.
However, the inspector was not entitled, far less obliged, to speculate about future use and to consider whether that might give rise to a public nuisance. Once the right of way was established by dedication, it could not retrospectively be held that the landowner had no authority to grant the rights being exercised because of an alteration in the nature or degree of use. Nor would the increased use by horses in itself alter the character of the highway and create a public nuisance where none existed before. The increased risk of an incident between a rider and a bicycle or pedestrian would not amount to a public nuisance.
(4) The inspector recognised that there might be a change in the balance of use, in which case there was scope for the council to maintain the route in a manner that would accommodate the different types of lawful user. However, the dedication of the track as a bridleway would not cease.
Weight was classically a matter for the decision-maker. One of the fundamental principles of planning law was that, whereas it was a question of law whether something was a material consideration, the weight to be given to it was entirely a matter of fact for the relevant planning authority. It was in any event not perverse in this case to give weight to the views of an experienced officer who was also a member of the Institute of Public Rights of Way. The fact that he was not an expert on horses did not discredit his evidence, as the appellants sought to suggest.
(5) The inspector might have said a little more about the evidence than he did. However, the court was satisfied that he was not obliged to do so. Most of the concerns raised by objectors on the question of nuisance were directed to the use by motorcycles. The specific issue here was whether the existence of horse traffic in a subway under a motorway was inherently dangerous to pedestrians. There was very little evidence going to that particular issue and the inspector indicated in terms that there was a lack of evidence supporting the appellants’ position. The appellants could not claim to be substantially prejudiced by the failure to provide an adequately reasoned decision. The reasoning was perfectly adequate.
The appellants appeared in person; Ned Westaway (instructed by the Government Legal Department) appeared for the respondent.
Eileen O’Grady, barrister
