In The Ramblers Association v Secretary of State for Environment Food And Rural Affairs [2017] EWHC 716, the High Court has confirmed how highways rights incompatible with statutory undertaker ownership should be dealt with.
Dove J dismissed the challenge to an inspector’s refusal to confirm a definitive map modification order (adding a footpath and allowing closure of a level crossing) under Section 53(5) of the Wildlife and Countryside Act 1981. The highway authority initially refused to make the modification but following an appeal directing it to do so, Network Rail objected and an inquiry was held. The inspector found that confirmation of the order was incompatible with Network Rail’s statutory railway duties and so Network Rail would be incapable of dedicating a right of way over the level crossing.
In dismissing the challenge, Dove J held that deemed dedication of the footpath (under section 31(1) Highways Act 1980) would be incompatible with statutory duties governing railway safety and operational efficiency. As such, the railway undertaker had no power to grant a public right of way (applying British Transport Commission v Westmoreland County Council [1958] AC 126 and the incompatibility saving provision in Section 31(8)). Such incompatibility should, he held, be considered at the date of the decision (albeit considering whether on the balance the statutory undertaker’s statutory duties would be likely to be compromised in future).
Although the inspector had not specifically addressed Section 31(8), he had applied the test under section 31(8) which in any even mirrored the common law position on incomptaibility that he had addressed. There was no reason to consider that the decision would be other than highly likely to be the same under Section 31(2)(a) of the Senior Courts Act 1981.
The judgment also upheld the inspector’s finding that the claimed public use was trespassory under Section 55 of the British Transport Commission Act 1949 (as a matter of fact) and that he had been entitled to give overriding weight to the public interest in the safe and efficient use of the railway that Section 55 was intended to achieve when applying the doctrine of illegality.
Finally, the argument that the inspector should have modified the order to allow for two culs-de-sac routes on either side of the railway was rejected. For deemed dedication purposes, mere use by the public of a cul-de-sac in the absence of some particular point of attraction could not justify a finding that dedication had occurred (applying Attorney General v Antrobus [1905] 2 Ch. 18).
The decision consolidates several lines of authority and is likely to have wider implications for many public bodies and undertakers faced with similar claims.
Roy Pinnock is a partner in the planning and public law team at Dentons
