In the next few days or weeks, the Administrative Court of the High Court will hand down judgment in R (on the application of Andrews) v Secretary of State for the Environment, Food and Rural Affairs. The case relates to a claim for a bridleway near Chelworth on the Wiltshire border with Gloucestershire (the path crosses the corner between the A429 and the Oaksey Road here, and the path begins here, heading diagonally across the cropped field). But while the geographical context is novel, the parties, the facts and the law are almost identical to a case decided over twenty years ago.

R v Secretary of State for the Environment, ex parte Andrews, was a judicial review in 1993 of the Secretary of State’s decision to refuse to direct Suffolk County Council to make an order to add to the definitive map and statement a four foot wide footpath to Barton church (in Suffolk). John Andrews had applied to the council to record the path, and the council, following the Secretary of State’s guidance, had refused. The footpath was one which was set out in an inclosure award of 1805, the award being made by Inclosure Commissioners under a local act incorporating the General Inclosure Act 1801 (sometimes known as the Inclosure (Consolidation) Act).

An inclosure awarded highway is generally sufficient proof of the existence of a highway, provided there is evidence that the highway was actually set out: ‘once a highway, always a highway’. That is so even if the awarded highway has not been actually used for as long as anyone can remember. But the Secretary of State took the view that the 1801 Act, which was a clauses act intended to be incorporated in most local inclosure acts subsequently passed from 1801 until 1845 (meaning it contained general clauses likely to be required in most inclosure acts, but enacted in a single public act), did not contain any power to set out footpaths. This might seem odd, for the purpose of an inclosure is to divide up the common lands into regular parcels of land awarded to local commoners and farmers, and ancillary to the division of the common lands is the stopping up and diversion of the many rights of way which would have lain across the commons. While even in the early nineteenth century, footpaths could give rise to conflict between landowners and local people, they were, far more than today, seen as essential ways for people to go about their business in the community.

The 1801 Act contained two relevant provisions about highways. Section 8 provided that Commissioners could appoint ‘Carriage Roads and Highways’, and stop up existing ones, but that ‘such Roads and Highways shall be, and remain thirty Feet wide at the least’. Clearly, a four foot wide footpath could not be created under section 8. While counsel for Mr Andrews (who then, as now, was George Laurence QC) argued that section 8 contained an implied power to award public footpaths, it was to no avail.

What is peculiar in the original trial is that section 10 contained a power ‘to set out and appoint such private Roads, Bridleways, Footways, Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds, and Land Marks’. There was a strong argument that the adjective ‘private’ in this context modified only the following noun ‘Roads’, and that the other items in the list were unqualified — indeed, that ‘Roads’ were necessarily qualified as private to distinguish them from public roads referred to in section 8, but that the other items did not need to be qualified, as they might be private, public, or indeed, such status might be irrelevant. But the report briefly notes that: ‘It was common ground that the adjective ‘private’ in section 10 governed not merely roads but also bridleways and footways.’ So the point was not argued before the court.

Yet section 11 went on to provide that all highways across the inclosed lands, not otherwise set out under the award, were to be stopped up. The judge recognised that it would be surprising if Parliament had intended that existing footpaths should be stopped up with no provision for their replacement, but decided that, since footpaths could not be set out under the award, the stopping up provision in section 11 could not apply to them — therefore they endured unaffected. Moreover, the local act could itself confer powers to set out footpaths if needs be (a few local inclosure acts do just that, which only muddies the waters further). But that finding was questionable: why would Commissioners wish to preserve existing footpaths across the inclosed lands, whatever the illogicality of their alignment, and whatever their inconvenience to the owners of the awarded parcels?

Finally, the court did not address (and presumably counsel did not argue) the objection to a court in 1993 deciding that the Commissioners had acted unlawfully in 1805, and in effect, quashing the provision made in the inclosure award nearly two centuries earlier. Whereas the claimant had brought a challenge against the decision of the Secretary of State, it seems that the Secretary of State had in turn successfully challenged the decision of the Commissioners, somewhat outside the three months conventionally allowed today for public law challenges.

Even so, it can be argued that if the Commissioners acted unlawfully, the award should not be recognised today. However, an award is a package: a carefully crafted compromise between the interests of the parish. Each commoner who lost rights of grazing on the common was compensated with an award of land or new rights elsewhere; the lord of the manor was compensated for the loss of his interest in the common. Landowners might surrender parts of the old inclosures so as to tidy up boundaries, in return for the award of new land elsewhere. And commoners, landowners and villagers could expect reasonable provision to be made for essential journeys across the newly inclosed lands, to replace the comprehensive network of paths and tracks which would have formerly lain across the commons. Take away any element of that compromise and it calls into question the package as a whole: if the award had itself excluded provision for a footpath to the church, would it have attracted the same substantial support which enabled the award to be confirmed? Who can say two hundred years later? No-one suggests that the entire award should be declared void, for that would have the most extraordinary consequences: but if not, is it right to disturb any element of it, so long after the event?

The High Court will now have another opportunity to decide whether the decision reached in 1993 was correct. It’s likely that the High Court will find itself bound by its earlier judgment. But a hint that the court might have decided otherwise if it were not so bound, and moreover, a leave to appeal, would pass the baton to the Court of Appeal.

There could be hundreds of claims for paths which may be revived if the original judgment is overturned. That is an aspect which will concern landowners and their representatives (although it is only the period 1801 to 1845 which imposes this special constraint on claims); but equally, that underscores the likelihood that Commissioners must have believed that they were acting lawfully in awarding footpaths (and bridleways), for the legacy of such ways is widespread.