Right of way – Definitive map – Byway open to all traffic (BOAT) – Claimant modifying definitive map and statement to show route as bridleway – Inspector appointed by defendant secretary of state modifying order showing right of way as BOAT – Claimant challenging decision – Whether inspector making erroneous findings on common law dedication – Whether inspector erring on effects of section 67 of the Natural Environment and Rural Communities Act 2006 – Application granted
The claimant local authority made an order adding to its definitive map and statement, as a bridleway, a right of way along Blandford Road North (BRN) in Slough in accordance with its duty under the Wildlife and Countryside Act 1981. There were objections, importantly that it should be shown as a byway open to all traffic (BOAT) so that mechanically propelled vehicles could pass along it. The objections required resolution by an inspector appointed by the defendant secretary of state. Following a public inquiry, the inspector decided that the order should be confirmed with the modification showing the right of way as a BOAT. He found that there had been a dedication at common law.
The claimant challenged that decision pursuant to para 12 of Schedule 15 to the 1981 Act, contending that the inspector had erred in his findings on: (i) common law dedication, including the significance of the evidence of cycle use, vehicular use before 1961 when its use by vehicles was blocked, and the way in which it was said he had ignored the significance of that blocking for his assessment of an earlier dedication for vehicular use; and (ii) the effect of section 67 of the Natural Environment and Rural Communities Act 2006 which, subject to a disputed exemption for highways maintainable at public expense in a list kept under section 36 of the Highways Act 1980, extinguished the rights of users of bridleways by mechanically propelled vehicles.
Held: The application was granted.
(1) A dedication at common law was found at or before the start of the period of use, as the more probable justification for the subsequent use, rather than trespass or tolerance. In effect, the decision-maker worked back through the evidence of use to determine whether the proper inference from it was that the use began with a dedication. But drawing that inference required no set period of use to be examined, but rather the whole period of use had to be considered, to see if dedication was the more probable explanation for the use, than trespass or toleration. Section 30 of the Countryside Act 1968 conferred on pedal cyclists the right to ride a bicycle on any bridleway, giving way to pedestrians and horse-riders. By 1968, the way had the status of a bridleway. After the 1968 Act came into force, the landowner lost the right he previously had to prevent use by cyclists. Cyclist use after 1968, and the relevant period began after 1968, could not therefore be used to infer his acquiescence in such use. That gave context for the way in which the cyclist use in this case needed to be approached. It was accepted that cyclist use was vehicular use and, were a way dedicated to vehicular use, it would normally be a BOAT, usable also by mechanically propelled vehicles: Turnerv Walsh(1881) 6 App. Cas. 636 applied. R (on the application of Godmanchester Town Council)v Secretary of State for the Environment, Food and Rural Affairs[2007] UKHL 28 followed.
(2) It was not sufficient to say that dedication had already occurred so that the blockage was irrelevant. The existence of the blockage was relevant to whether the dedication for vehicular use should be inferred, and whether the continued cycling use before 1959 could be explained as mere toleration of such a use, rather than a dedication. The absence of any endeavour to remove the blockage was also relevant. The inspector had found a clear change in the use of the route in the mid-1950s, followed by a blockage a few years later to mechanically propelled vehicles. Those particular circumstances required consideration of the stage at which it was being found that dedication for vehicular use took place, as there was a considerable difference in how the blockage could be seen in those sets of circumstances. The inspector had either failed to consider the role of the blockage and response in drawing the inference of dedication, thus ignoring a material consideration, or failed to give legally adequate reasons for his conclusion on one of the most important issues raised. There was no reason to impute generosity on the part of the landowner when drawing inferences for common law dedication. A dedication for some rights of way could be accompanied by toleration of part of some wider class, rather than dedication of the whole gamut of vehicles which might come within it: Whitworthv Secretary of State for the Environment, Food and Rural Affairs[2010] EWCA Civ 1468 applied.
(3) Section 67 of the Natural Environment and Rural Communities Act2006 extinguished existing public rights of way for mechanically propelled vehicles if, immediately before commencement, it was not shown on the definitive map or it was shown on the map as a footpath, bridleway or restricted byway. However, there was an exemption in section 67(2)(b) if immediately before commencement it was not shown in a definitive map and statement but was shown in a list of highways maintainable at public expense required to be kept under section 36(6) of the Highways Act 1980. The claimant’s list included adopted roads, maintainable at public expense, and unadopted roads, not so maintained. BRN was described in the list as a “private street”. The inspector was wrong to interpret the claimant’s list as showing that BRN was a highway maintainable at public expense when the very entry for BRN said that it was not. If he had not made that error, there was no other basis upon which he could have concluded that the exemption did not apply to what he found the position to be. The rights of way for mechanically propelled vehicles along BRN ended in 2006, and he was bound so to conclude.
Tim Buley (instructed by HB Public Law) appeared for the claimant; Ned Westaway (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister
