Highway – Right of way – Definitive map – Claimant challenging validity of order modifying definitive map and statement to show route as byway open to all traffic (BOAT) – Inspector appointed by defendant secretary of state deciding part of route being restricted byway – Claimant applying to quash order – Whether statutory exception for ways shown in local authority’s list of highways maintainable at public expense applicable – Application granted
Within the area of Hertfordshire County Council was a “route” known as Oakridge Lane. It was about 675 metres long from point A to point F, where it became a public vehicular highway. Between those points the lane was a path or track which passed through open fields and countryside. It was common ground that there had formerly been a long-established vehicular right of way continuous between points A and F such that it was lawful to ride a motorbike continuously along its whole length. The lane had not previously appeared on the definitive map and statement (DMS) maintained by the local authority pursuant to section 53 of the Wildlife and Countryside Act 1981.
The British Horse Society applied to modify the DMS to add Oakridge Lane as a restricted byway upon the DMS, thus formally recording the right of horses to be ridden along it. However, a restricted byway did not confer or include a right of way for mechanically propelled vehicles. The claimant, an organisation whose objectives were to preserve the full status of vehicular green lanes and the right to ride motorcycles on them, contended that the DMS should be modified to show the whole of the lane as a byway open to all traffic (BOAT).
Part 6 of the Natural Environment and Rural Communities Act 2006 provided for the ending of certain existing unrecorded public rights of way. It was common ground that, immediately before the commencement of the 2006 Act, there was an existing public right of way for mechanically propelled vehicles over the whole of the lane, although it was not at that time shown in the DMS. Thus, the existing right of way was, by operation of the 2006 Act on the commencement date, automatically extinguished unless it was saved by the exception in section 67(2)(b), as being shown in the “list of streets” compiled by the local authority under section 36(6) of the Highways Act 1980, listing the highways maintainable at public expense.
A question arose whether the historic vehicular rights of way over the lane, which had not previously been recorded in the DMS, were saved by the exception in section 67(2)(b). The lane was described in the list of streets as running between points A to F. However, an inspector appointed by the defendant secretary of state concluded that the lane was a BOAT between points A and C and between points E and F; but only a restricted byway between points C and E. The modification order gave effect to that conclusion. The practical effect was that a motorbike or other mechanically propelled vehicle could no longer lawfully travel the whole length of the lane. The claimant challenged the decision under para 12 of Schedule 15 to the 1981 Act. The issue was whether the inspector erred in law such that the order was not within the powers under section 53 of the 1981 Act and should be quashed.
Held: The application was granted.
The inspector had made an error of law. Although she correctly recognised differences between a list of streets and a DMS, she had treated the map within the list of streets as if it was required to contain, and did contain, the cartographic accuracy and precision of a DMS, and treated it as conclusive, although a list of streets was not required to include any map at all. The purpose of a list of streets was essentially to identify and record which streets were maintainable at public expense but not, in contrast to a DMS, precisely to delineate them.
The requirement of section 67(2)(b) of the 2006 Act was simply that immediately before commencement the way “was shown in a list required to be kept under section 36(6) …”. The descriptive list in list form clearly showed and described a continuous way from beyond or south of point F to point A, and the map clearly depicted a continuous path twice labelled as “Oakridge Lane”. The whole of the lane was patently shown in the list of streets and section 67(2)(b) neither required nor justified the decisive concentration which the inspector gave to the precise course of the line on the map. That led her to reach a conclusion which was perverse and which Parliament could not have intended.
Whilst the primary purpose of Part 6 of the 2006 Act was clearly to extinguish existing but unrecorded public rights of way for mechanically propelled vehicles, Parliament clearly intended to make exceptions for those which were shown either in a DMS (which might be expected to be accurate and precise) or in a list of streets (which might not be). That admitted historic and continuous right of way was so shown in the list of streets and it was perverse that over one section of its length it was automatically extinguished because of imprecision in the line upon the map which was part of, but not the whole of, the list of streets.
In the circumstances, the court was satisfied (as para 12(2) of Schedule 2 to the 1981 Act required) that the inspector made an order which was founded upon a clear error of law and was not within the powers under section 53. As the error had created a perverse result, it could not, in the court’s discretion, be overlooked.
Eileen O’Grady, barrister