Rights of way – Definitive map and statement – Modification order – Appellant applying for modification of definitive map and statement to include public bridleway appointed by inclosure commissioner in 1841 – Inclosure (Consolidation) Act 1801 – Whether commissioner having power to appoint public as opposed to private bridleways and footpaths – Appeal allowed
In January 2012, the appellant applied, under section 53(5) of and Schedule 14 to the Wildlife and Countryside Act 1981, for the modification of the definitive map and statement for Wiltshire to include two sections of public bridleway across an arable field which were not shown on that map. The existence of the bridleway was said to date from an inclosure award made by the inclosure commissioner for the parish of Crudwell in 1841, pursuant to powers conferred by a local Inclosure Act of 1816. The local Act incorporated the terms of the Inclosure (Consolidation) Act 1801, which set out model provisions that could be incorporated into local Acts and, as stated in its preamble, reflected the terms “usually contained” in such local Acts.
The county council rejected the appellant’s application and their decision was upheld by the respondent’s inspector on appeal. The inspector considered that section 10 of the 1801 Act, conferring a power to appoint “private Roads, Bridleways, Footways” and other listed features, empowered the commissioner only to appoint private bridleways and that there was no power to appoint the claimed public bridleway.
The appellant’s application for judicial review of the inspector’s decision was dismissed in the court below. The judge held, consistently with an earlier decision in R v Secretary of State for the Environment, ex parte Andrews (1996) 71 P & CR 1 (Andrews No 1), that section 10 of the 1801 Act empowered commissioners to create only private ways: see [2014] EWHC 1435 (Admin); [2014] PLSCS 145. The appellant appealed.
Held: The appeal was allowed.
The 1801 Act was not drafted with the degree of accuracy and consistency of language found in modern statutes and, even in relation to modern statutes, the courts adopted a purposive interpretation so as to produce a result which reflected the intention of parliament. The court would presume that parliament did not intend to legislate to produce a result which was inconsistent with the statutory purpose, made no sense or was anomalous or illogical. A purposive interpretation was all the more appropriate in a statute which was couched in less consistent and more imprecise language than was generally found in modern statutes. A purposive interpretation pointed to the conclusion that section 10 of the 1801 Act gave commissioners the power to set out and appoint new public bridleways and footpaths as well as private bridleways and footpaths.
The principal purpose of the 1801 Act was to consolidate in one statute the clauses “usually contained” in the earlier private inclosure Acts in order to enable subsequent local Acts to incorporate the provisions of the 1801 Act by reference. There was no suggestion in the 1801 Act that it was seeking to change the law, practice or procedures of the operative provisions which had usually been contained in the pre-1801 Acts. Most of those Acts contained provisions that authorised commissioners to appoint public, as well as private, bridleways and footpaths. In view of the stated purpose of the 1801 Act, it was unlikely that parliament would not have intended to give commissioners the power, which they had previously exercised repeatedly pursuant to local Acts, to set out and appoint public bridleways and footpaths, which were crucially important in the late 18th and early 19th centuries for the majority of the population who wished to travel on foot or on horseback.
Moreover, under the scheme of the 1801 Act, the whole commissioner process was intended to lead to the creation of an award, incorporating a map, which was binding on all parties and was to be treated as definitive. The 1801 Act required commissioners to set out public carriageways and private bridleways and footpaths in the award and map and it was common ground that commissioners could also set out existing public bridleways and footpaths. There was nothing to indicate that they could not also properly set out new bridleways and footpaths and there was no reason for making a distinction along those lines.
The statutory language did not compel a different conclusion from that produced by a purposive interpretation. When section 10 was read together with the rest of the statute and with regard to its underlying purpose, it became apparent that the word “private” qualified only the first item there listed, namely “Roads” and not those following it. Public roads were dealt with in another section, namely section 8, which naturally left private roads as a separate item requiring provision in the context of the standard powers to be created by the 1801 Act; however, the other items listed in section 10 could be public or private. Other provisions of the 1801 Act, including section 11, likewise indicated that the comprehensive scheme created by the Act was intended to cover public bridleways and footpaths. It was improbable that section 10 was intended to make provision for commissioners to set out and appoint the listed features only if they were private, and to rely on local Acts for that purpose if the features were public.
It followed that section 10 authorised a commissioner to set out and appoint public bridleways and footpaths in an award: Andrew No 1 wrongly decided. The Crudwell commissioner had power to appoint the public bridleway to which the appellant’s application related and the respondent’s inspector had erred in dismissing the appellant’s appeal.
George Lawrence QC and Edwin Simpson (instructed by Winstons Solicitors LLP) appeared for the appellant; Jonathan Moffett (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
