Inspector confirming council’s proposal to reclassify public path as a footpath – Secretary of State confirming modification order – Applicant contending inspector erred in disregarding evidence of vehicular use – Applicant seeking judicial review of inspector’s decision – Whether court having jurisdiction – Schedule 15 para 12 to Wildlife and Countryside Act 1981 – Application dismissed
The former Dyfed County Council proposed to reclassify a public way, formerly classified as a public path, as a footpath pursuant to the Wildlife and Countryside Act 1981. An inquiry was held at which the inspector heard evidence of vehicular use of the way. However, he directed himself that the majority of that evidence referred to activity after December 1930 and that such activity contravened section 14 of the Road Traffic Act 1930, which made it an offence to drive a motor vehicle without lawful authority on “land not being land forming part of a road, or on any land being a footpath or bridleway”. Following Robinson v Adair The Times 2 March 1995, he concluded that such activity could not count towards the 20 years’ public use required by the Highways Act 1980 for establishing implied dedication, as no public right of way could be established by actions that were prohibited or made criminal by a statutory provision. The inspector confirmed the council’s proposal in his decision letter of June 1999. In December 1999 the order was confirmed by the Secretary of State.
The applicant sought to quash the inspector’s decision on the ground that he had erred in law in disregarding the evidence of vehicular use. It was submitted that the inspector had overlooked the provisions of section 27 of the National Parks and Access to Countryside Act 1949, and that the definitions in section 27(6) showed that roads used as public paths were different from footpaths and bridleways. The applicant submitted that driving a vehicle on a road used as a public path was not, therefore, an offence under the Road Traffic Act 1930 and that evidence of such use should have been taken into account. The applicant’s contention was that the whole of the way in question had vehicular rights and should be reclassified as a bye-way open to all traffic.
The respondent contended, inter alia, that the application for judicial review was procedurally incorrect. It was submitted that Schedule 15 para 12 to the Wildlife and Countryside Act 1981 provided a procedure for challenges to a modification order, namely, that an aggrieved person might apply to the High Court within 42 days of the publication of the notice of confirmation of the order. That period had elapsed. The applicant submitted that the application was an attack on the validity, not of the order, but of the inspector’s decision, and that it did not, therefore, fall within Schedule 15 para 12.
Held: The application was dismissed.
Applying R v Cornwall County Council, ex parte Huntington and another [1992] 3 All ER 566, the court’s jurisdiction to grant judicial review of the order had been ousted by the statute. The ordinary meaning of the provisions in Schedule 15 para 12 of the Act was that questions as to invalidity might be raised on the specified grounds, in the prescribed time and in the prescribed manner, but that otherwise the jurisdiction of the court was excluded in the interests of certainty. Had the court had jurisdiction in the instant case, however, it would have found that the inspector had misdirected himself on the appropriate way to treat the evidence of vehicular use of the part of the way in question after December 1930.
Geraint Jones (instructed by Lewis Lewis, of Camarthen) appeared for the applicant; Philip Marshall (instructed by the Treasury Solicitor) appeared for the respondent.
Sarah Addenbrooke, barrister
