‘Road used as public path’ may be reclassified as a mere footpath on special review of definitive map despite the presumption as to use as a bridleway enshrined in section 32 (4) (b) of the National Parks and Access to the Countryside Act 1949–Dissenting judgment of Ackner J in case of importance to horsemen
This was a
motion by Mrs Margaret Cynthia Hood, of McNab Piggeries, Shuart Lane, St Nicholas,
Birchington, Kent, for an order of certiorari to quash a decision of the first
respondent, the Secretary of State for the Environment, contained in a decision
letter dated August 22 1973. The decision confirmed a proposal of the second
respondents,
Part IV of the National Parks and Access to the Countryside Act 1949 as a ‘road
used as a public path’ should be reclassified as a ‘footpath.’
Mr L Hoffmann
(instructed by Cripps, Harries, Hall & Co, of Tunbridge Wells) appeared for
the applicant, and Mr H K Woolf (instructed by the Treasury Solicitor)
represented the first respondent. The second respondents did not appear and
were not represented.
Giving
judgment, LORD WIDGERY said that the highway in question was a short and
unimportant length of path but the application raised an important principle.
By section 27 of the National Parks and Access to the Countryside Act 1949,
county councils were required to produce draft maps of their area, showing on
the map a footpath or a bridleway as might appear to the council to be
appropriate wherever, in their opinion, such a right-of-way subsisted, or was
reasonably alleged to have subsisted, at the relevant date. By section 27 (2) a
map prepared in accordance with the Act was also to show any way which, in the
opinion of the authority carrying out the survey, was, or was reasonably
alleged to be, a road used as a public path at the relevant time. Section 27
(6) defined the various ways to which earlier subsections had made reference.
Thus ‘footpath’ meant a highway over which the public had a right-of-way on
foot only other than such a highway at the side of a public road; ‘bridleway’
meant a highway over which the public had the following (but no other)
rights-of-way: viz, a right-of-way on foot and a right-of-way on horseback or
leading a horse, with or without a right to drive animals of any description
along the highway; ‘public path’ meant a highway being either a footpath or a
bridleway; and, finally, ‘road used as a public path’ meant a highway other
than a public path used by the public mainly for the purposes for which
footpaths or bridleways were so used. The conception of a ‘road used as a
public path’ was a slightly unusual one. To comply with the definition, the
road in question had to be a highway where the rights of the public were not
precisely defined. If it was clear that the rights of the public were confined
to those embraced by a footpath or bridleway, and thus the path was a public
path within the several definitions, the classification had to be footpath or
bridleway, as appropriate. It was only where the public rights were not clearly
confined to footpath or bridleway that resort was had to the imprecise
definition of the phrase ‘used as a public path.’
The 1949 Act
contained complicated provisions whereby the draft map produced by the county
council was made open to inspection, and landowners and other interested
parties were able to make representations as to its accuracy. Eventually a
definitive, or final, map was produced. By section 32 (4) a definitive map and
statement prepared under section 32 (1) were conclusive as to the particulars
contained to the following extent: (a) where the map showed a footpath, the map
was conclusive evidence that there was at the relevant date specified in the
statement a footpath as shown on the map; and (b) where the map showed a
bridleway or a road used as a public path, the map was conclusive evidence that
there was at the said date a highway as shown on the map, and that the public
had thereover at that date a right-of-way on foot and a right-of-way on
horseback, or leading a horse. The presumption created by section 32 (4)(b) was
unexpected. In order that a road could be classified as a road used as a public
path it sufficed that the rights of the public should be more extensive than a
footpath or bridleway. It was not necessary, to come within the definition,
that the road should be shown as a bridleway. It was sufficient if the public
rights were more extensive than a footway without being more precisely defined.
By virtue of the presumption, however, if a road was shown on the map as a road
used as a public path the effect was to establish conclusively that, at the
relevant date, a right-of-way on foot and a right-of-way on horseback
existed over the path. Accordingly, any road classified as a road used as a
public path produced in practice a consequence that the public could claim a
right of bridleway over that road.
In section 33,
as amended by the Countryside Act 1968, a comprehensive procedure was laid down
for the revision of the maps. Thus, on the occasion of any review, amendments
could be made to the maps. In the present case the sole reason for altering the
classification was because the category ‘road used as a public path’ had been
abolished by provisions contained in the Act of 1968, Part III of the third
schedule. The appellant’s interest was in preserving the path as a path which
could be used by the public with horses, and it was her contention that with
the removal of the classification ‘road used as a public path’ there should be
substituted either ‘a byway open to all traffic’ or ‘a bridleway.’ The county council, supported by the
Secretary of State, took the view that the proper new classification was as a
‘footpath.’ The third schedule to the
1968 Act provided by paragraph 9 (1):
In the
special review the draft revision, and the definitive map and statement, shall
show every road used as a public path by one of the three following
descriptions: (a) a ‘byway open to all traffic,’ (b) a ‘bridleway,’ (c) a
‘footpath.’
Paragraph 10
provided:
The
considerations to be taken into account in deciding in which class a road used
as a public path is to be put shall be (a) whether any vehicular right-of-way
has been shown to exist; (b) whether the way is suitable for vehicular traffic
having regard to the position and width of the existing right-of-way, the
condition and state of repair of the way, and the nature of the soil; (c) where
the way has been used by vehicular traffic, whether the extinguishment of
vehicular right-of-way would cause any undue hardship.
No doubt the
first question which arose when the special review was carried out, and
consideration turned upon a road previously classified as a ‘road used as a
public path,’ was whether the correct new classification should not be ‘by-way
open to all traffic,’ and for this purpose he (his Lordship) thought the
paragraph 10 tests sufficient and comprehensible. There was however nothing in
the paragraph to assist in deciding whether the classification should be
‘bridleway’ or ‘footpath’ if it was not to be ‘by-way open to all
traffic.’ Accordingly it seemed that in
such circumstances considerations besides those set out in the paragraph must
come into play. The applicant said that since, under section 32 (4)(b) of the
1949 Act, the road when classified as a road used as a public path was
conclusively presumed to be a road over which the public had rights of footway
and bridleway, the new classification should reflect that position and be a
bridleway. The respondent argued that section 32 (4)(b) merely raised an
evidentiary presumption arising out of the fact that the map for the time being
classified the way in question as a road used as a public path. Once that
classification was removed, it was contended, there was nothing left in section
32 (4)(b) upon which the evidentiary presumption could bite. Accordingly, the
question of ‘footpath or bridleway’ had to be decided in the same manner as
such questions were decided by the county council when preparing the original
draft maps under the 1949 Act. In other words, in deciding whether the new
classification should be ‘footpath’ or ‘bridleway,’ the county council were to
make such determination as might appear appropriate. It was further said that
no prejudice to the public would result, because substantially similar
provisions for reconsideration of the county council’s reclassification would
exist under the Countryside Act 1968 as under the Act of 1949. In his (Lord
Widgery’s) judgment, the argument for the Secretary of State and the county
council was correct. For reasons already stated, he could not accept that the
only matters to be taken into account were those set out in paragraph 10 of the
third
flowed from the fact that that way was properly described as a ‘road used as a
public path’ could be in any sense conclusive of the proper classification of
the way under the 1968 Act between ‘bridleway’ and ‘footpath.’ For those reasons the application should be
dismissed.
MILMO J agreed
with the judgment of Lord Widgery.
Dissenting,
ACKNER J said that the third schedule to the Act of 1968 dealt with the inadequacy
of the review provisions in the Act of 1949 by important amendments to section
33. The section was so amended that in carrying out a review the appropriate
authority were required to have regard to the discovery by the authority of any
new evidence, or of evidence not previously considered by the authority,
showing that there was no public right-of-way over land shown on the map as a
public path or as a road used as a public path. Further, special provision was
made to remedy the imprecision of the definition of ‘road used as a public
path.’ The first review carried out by
any authority after the coming into force of the Act of 1968 was to be a
special review involving reclassification of roads used as public paths. It was
clear from paragraph 10 that the test for reclassification was of an extremely
limited nature, since it related only to whether the first of the three
descriptions, namely ‘by-way open to all traffic,’ was or was not the
appropriate description, and provided no test whatsoever for differentiating
between a ‘bridleway’ or ‘footpath.’
That seemed to him (his Lordship) to suggest quite clearly that roads
used as public paths were not to be down-graded beyond the status of bridleway
unless there was evidence that could be properly considered under section 33 of
the 1946 Act as amended by the schedule. Nothing could have been easier than to
have provided in paragraph 10, if Parliament had so intended, that Part III of
the third schedule was to authorise a free-ranging inquiry; that in deciding
whether or not a ‘road used as a public path’ should be classified as a
bridleway or footpath there were to be no restrictions upon the evidence that
could be received; and that the ‘conclusive evidence’ provisions of section 32
(4)(b) were no longer to operate in this regard. That that had not been done in
clear terms was incontestable, and there appeared to him (Ackner J) to be no
warrant for filling the lacuna by implying words–and many words would be
required–which the draftsman had considered unnecessary. If Parliament wished
substantially to increase the powers of authorities to interfere with or reduce
public rights, it should do so in clear and unequivocal terms.
What the
inspector here did, as he was entitled to do, applying the three tests for
reclassification provided in paragraph 10, was to conclude that the route ought
not to be included on the draft revised map as a ‘by-way open to all
traffic.’ That conclusion left
unresolved whether the path should be classified as a bridleway or footpath.
The inspector had gone on to conclude, while reserving to the Secretary of
State the legal issue as to whether the provisions of section 32 (4)(b) of the
Act of 1949 had been affected by the third schedule to the Act of 1968, that it
was ‘unlikely, in the context of this route’s general situation and
relationship to other rights-of-way, that bridle rights ever existed, except
perhaps in a general way over all the land included in Herne Common.’ In his opinion, the route should therefore be
reclassified on the revised map as a footpath. His recommendation to that
effect, which was accepted by the Secretary of State, was thus based neither on
the criteria of paragraph 10 nor on the basis of evidence acceptable or
admissible within the terms of section 33 of the 1949 Act as amended by the Act
of 1968. He (his Lordship) concluded, accordingly, that the Secretary of State
was not entitled to reclassify the road otherwise than in accordance with the
conclusive presumptions created by section 32 (4)(b) of the 1949 Act, that was
to say as a bridleway, and he for his part would therefore have quashed the
decision.
The
application was dismissed with costs.
