Whitworth and others v Secretary of State for Environment, Food and Rural Affairs

Right of way – Definitive map and statement – Modification order – Section 31 of Highways Act 1980 – Section 30(1) of Countryside Act 1968 – Respondent’s inspector confirming order modifying definitive map and statement to show restricted byway running through appellants’ farmyard – Whether entitled to infer rights for non-mechanically propelled vehicles from use by cyclists – Whether such use properly referable to status of way as bridleway – Appeal allowedThe appellants owned a farm in Cumbria. Over the years, walkers and riders had passed through the farmyard as part of a route that ran over a fell and joined up with a highway. This led the local authority to review the position, as a result of which they made a modification order, under the Wildlife and Countryside Act 1981, modifying the definitive map and statement to show the existence of public rights of way over the route.Following two public inquiries before an inspector appointed by the respondent secretary of state, the modification order was confirmed so as to designate the way as a “restricted byway”, which included rights of way on foot, on horseback or leading a horse and with non-mechanically propelled vehicles. The inspector concluded that deemed dedication of the route as a public right of way had occurred, under section 31 of the Highways Act 1980, by reason of its use as of right by both equestrians and non-mechanically propelled vehicles during the 20-year period from 1973 to 1993. He found that the way had acquired the status of a bridleway by 1968 and that later, during the relevant 20-year period, it had been used by people on foot and on horseback, as well as by cyclists and a pony and trap.The appellants’ claim to quash the relevant part of the order was dismissed and they appealed. They contended that, inter alia, use of a bicycle could not support a finding that the route was anything more than a bridleway since the public had been entitled to use bridleways for cycling since section 30(1) of the Countryside Act 1968 came into force. The respondent argued that even if the court found in favour of the appellants, it should decline to quash the order since the possibility of use by non-mechanically propelled vehicles in addition to bicycles was insufficiently prejudicial to the appellants’ interests as to warrant the time and expense involved in reopening the whole inquiry process.Held: The appeal was allowed.Whether a right of way existed under section 31 of the 1980 Act depended on the existence of evidence of use as of right, over a 20-year period, to support a deemed dedication of a public right of way at the commencement of that period. The underlying principle was of acquiescence by the landowner in a use of the way carried on openly and in the manner that a party rightfully entitled would have used it: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 applied. Although, by section 31(1A)(b), use by non-mechanically propelled vehicles was to be taken into account when considering that matter, that said nothing about how the resulting right of way was to be characterised. For that purpose, it was necessary to consider what was implied by the owner’s acquiescence. Since the inspector had found that the route through the appellants’ farmyard was a bridleway by 1968, use of the way by cyclists was thereafter permitted by the 1968 Act and the landowner would have had no power to prevent it. Accordingly, it could not be inferred that the landowners were acquiescing in anything other than bridleway use. It was irrelevant that the cyclists were aware of the legal position; what mattered was the effect of the use as seen by the landowner. Accordingly, the use by cyclists had to be disregarded when considering the extent of the deemed dedication. Since the only other evidence of use by vehicles was by one pony and trap, which did not extend for the full 20 years, there was no basis for confirming the modification order to confer anything more than bridleway rights.The same conclusion would have followed even without a finding of pre-existing bridleway rights. In that situation, the question would be what inference was to be drawn from the actual use between 1973 and 1993. Although regular use by horse-riders and cyclists over that period would be consistent with an assumed dedication as a restricted byway at the beginning of that period, it was no less consistent with an assumed dedication of a bridleway. Since this involved a statutory interference with private property rights, it was appropriate, other things being equal, to infer the form of dedication by the owner that was least burdensome to him.Accordingly, the 2005 order designating the route as restricted byway could not stand and should be quashed. It was not appropriate to refuse relief. Once the appellants’ had established that the designation of a restricted byway was wrong in law, they were entitled to a remedy. The fact that the only available remedy seemed disproportionate might be a defect of the Act but was not a reason for denying a remedy altogether.Anthony Elleray QC (instructed by Napthens LLP, of Preston) appeared for the appellants; Lisa Busch (instructed by the legal department of Defra) appeared for the respondent.Sally Dobson, barrister