Public rights of way – Definitive map – Modification order – Claimant applying for modification of definitive map to include public bridleway appointed by inclosure commissioner in 1841 – Local authority rejecting application relying on claimant’s concession in earlier case that commissioner only authorised to make private bridleway – Defendant secretary of state dismissing claimant’s appeal – Claimant applying for judicial review – Whether commissioner having authority to create “public” bridleways and footpaths – Whether judge in earlier case being plainly wrong in accepting concession – Whether evidence of contemporaneous practice displacing natural and ordinary meaning of legislation – Application dismissed
Section 10 of the Inclosure (Consolidation) Act 1801 empowered inclosure commissioners, acting under the authority of the local Act, to appoint private roads, bridleways etc. In 1816, a local Inclosure Act for the parish of Crudwell in Wiltshire was passed and a sole commissioners appointed for dividing, allotting and enclosing the open fields and commonable lands of the parish. Subject to any provisions of the Crudwell Act that varied or altered the 1801 Act, its terms were incorporated into the local Act. In 1841, the inclosure commissioner made an inclosure award in respect of the parish, purporting to create one section of public bridle road and one section of public bridle path. Those bridleways were not recorded on the definitive map and there was no evidence of their existence on the ground.
In January 2012, the claimant (supported by the Ramblers Association) applied to the local authority (the first interested party) for the modification of the definitive map to include the public bridleway that did not appear thereon. That application was rejected on the basis that there were no powers in the 1816 Act permitting the commissioner to set out the claimed bridleway. The first interested party relied on a earlier decision of the court in which the claimant had conceded that the power under section 10 of the 1801 Act was to appoint “private” roads, bridleways and footways only: R v Secretary of State for the Environment, ex parte Andrews (1993) 71 P & CR 1 (Andrews No 1). An inspector appointed by the defendant secretary of state dismissed the claimant’s appeal on the ground that she was bound Andrews No 1. The claimant sought judicial review of the defendant’s decision as a test case where between 500 and 1,000 other public rights of way across private land might be capable of being established. The claimant contended that, when section 10 of the 1801 Act was incorporated into the 1816 Act, it enabled commissioners to set out and appoint public, as well as private, bridleways. The issues raised were important because private landowners whose land was not currently exposed to public access would be troubled by the thought that it might become thus exposed. The landowner of the farmland in this case was made the second interested party and expressed concern that, if a public bridleway was created across his land where there had been no such bridleway before, considerable interference with, and loss of profitability of, his arable farming operations would result.
Held: The application was dismissed.
(1) The judge in Andrews No 1 would have been unlikely to accept a concession that section 10 of the 1801 Act only permitted the creation of private rights of way unless he had thought about it and considered it to have been correctly made. From the point of view of the pure construction of the Act, the normal grammatical construction of the expression in section 10 supported the correctness of the concession and its acceptance. The concession had been correctly made and the judge had been correct to accept it. At the very least, he had not been plainly wrong to have done so.
(2) On its proper construction, the natural and grammatical construction of the meaning of the word “private” in the list in section 10 was that it applied to all constituent elements of that list. That section 10 was designed to deal with “private” rights of way and section 8 was designed to deal with “public” rights of way was confirmed by the headings to each of those sections and by the provisions concerning how the maintenance expenses of each were to be met. The terms of section 11 did not show that the word “private”, at the beginning of the list in section 10, was confined to roads. Parliament could have inserted the words “public or private” before the balance of the list in section 10, had it wished to do so, as in section 11. Any suggested absurdity of the consequences of such interpretation were not sufficient to overcome the natural meaning of the words used because it was very difficult at this remove in time to evaluate what would or would not have been regarded as an intended or unintended consequence of the drafting, and the ultimate authority for any enclosure process had been the 1816 Act itself and any unintended consequences of the drafting of the 1801 Act could have been rectified at that point. Accordingly, the natural and ordinary meaning of the relevant expression in section 10 was not forced to yield to any other interpretation.
(3) The 1801 Act had not set out to be comprehensive in its treatment of provisions usually inserted in Inclosure Acts. Unless the doctrine of contemporanea exposito (contemporaneous practice) could come to the claimant’s rescue, the natural meaning of section 10 had to stand. There was no evidence of sufficiently consistent practice of interpreting the 1801 Act as conferring the power to create public features of the section 10 list such as to enable the doctrine of contemporaneous practice to be invoked. It was not possible to rewrite the express terms of section 10 in the way contended for and the evidence had not established the prima facie presumption required for the doctrine of contemporaneous practice to come into play in any determinative sense. In all the circumstances, the first interested party had been right to reject the claimant’s claim and the defendant had been right to dismiss the appeal: Logan v Burton (1826) 5 B & C 513, Clyde Navigation Trustees v Laird & Sons (1883) 8 App Cas 658, R v Casement [1917] 1 KB 98 and Isle of Anglesey County Council v Welsh Ministers [2010] QB 163; [2009] PLSCS 70 considered.
George Lawrence QC and Edwin Simpson (instructed by Winston Solicitors LLP) appeared for the claimant; Jonathan Moffett (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
