The Court of Appeal in London has ruled that a network of paths in woods near Carlisle should be registered as public rights of way, despite years of forceful objection from the landowners.
In a ruling handed down this week, a three-judge panel at the court upheld earlier rulings and decisions, adding 34 footpaths to the “definitive map” in land known as Hatton Woods in Cumbria.
This hard-fought litigation has been closely watched by the advisers of landowners seeking to protect their estates from new rights of way.
The land is owned by alternative energy and land management company Roxlena Ltd. The ruling backs a decision made by Cumbria County Council in 2017, upheld in the High Court later that year.
While Roxlena challenged both the county council’s and the High Court’s decisions on multiple grounds, a notable aspect of the case was the effect of the foot and mouth crisis, which hit Cumbria particularly hard, in 2001 and 2002.
The standard test for a right of way is a demonstration of 20 years of continuous public use. While claimants produced documentary evidence demonstrating use going back to the early 19th century, the foot and mouth crisis took place during the period the claimants were trying to prove.
While the council’s decision at the time to close public paths didn’t close Hatton Woods because they weren’t public paths at the time, Roxlena argued that the council didn’t properly investigate the use of the paths over the period.
The council based its evidence of 20 years of use on user evidence forms and letters sent to 40 users, who said that they did use the paths during the foot and mouth outbreak.
According to the ruling, those 40 users also gave “some evidence” of uninterrupted use over the 20-year period.
In his ruling, Court of Appeal judge Lindblom J said that the evidence “could reasonably be taken at face value”.
“The county council did not have to assume it was unreliable because the 2001 order had been in force at a relevant time,” he said.
“For the reasons I have given I would dismiss the appeal,” he said.
R (on the application of Roxlena Ltd) and Cumbria County Council; Peter Lamb.
Court of Appeal (Simon LJ, Lindblom LJ, Irwin LJ) 9 October 2019.
Mr George Laurence QC and Ms Claire Staddon (instructed by Underwood Vinecombe LLP) for the appellant.
Mr Alan Evans (instructed by Cumbria County Council) for the respondent.
The interested party did not appear and was not represented.