In a post on March 20, I wrote about the judgment awaited in R (on the application of Andrews) v Secretary of State for the Environment, Food and Rural Affairs, a claim to record an inclosure awarded public bridleway on the definitive map and statement. Finally, about ten weeks after the hearing, judgment has been handed down by the High Court. To understand this blog, it’s best to read the earlier one first. There is a useful map at the end of the judgment, which can be compared to the map on streetmap.co.uk.

It’s not hard to see why it’s taken so long. The judgment is a pretty full and thorough analysis of the arguments, at 141 paragraphs. The judgment begins with a brief but genuine illumination of the historical context of inclosure, leading to the Inclosure Consolidation Act 1801, before reviewing the context of the original decision, now under challenge, of the court in R v Secretary of State for the Environment, ex parte Andrews (‘Andrews 1’) in 1993.

In 1993, the claimant, John Andrews, was represented by George Laurence QC, as he was before the court in the present claim. And in 1993, Mr Laurence made a fateful concession. There are two powers in the 1801 Act to create new highways, in sections 8 and 10. The more obvious candidate for creating new paths is in section 10, which contained a power ‘to set out and appoint such private Roads, Bridleways, Footways, Ditches, Drains, Watercourses’ and various other features of the landscape. But Mr Laurence conceded then that ‘private’ modified all the terms in the provision, so that the power could be used to create only private roads, private bridleways and so on. Clearly, a private bridleway could not be a public one. And the court found that the power in section 8 could not be used to create a public bridleway too.

This time, Mr Laurence had retracted the original concession, and pitched battle on section 10 rather than section 8. He conceded that the usual rules of grammatical construction applied ‘private’ to the entire provision, but argued that the context of the history of the Act and its implementation were persuasive to the contrary. It was only natural that section 10 made provision for private roads, because section 8 had addressed public roads, and what was left in the provision might well be public, private, or indeed neither one nor the other; more to the point, there was an obvious need for a power to set out public bridleways and public footways. Moreover, section 11, which made further provision as regards ways set out in an award, referred to ‘publick and private Roads and Ways [which] shall have been set out and made’: that too was suggestive that there was a power to award not just public roads, but also public ways. Mr Laurence also asserted that there was good contemporary case law to the effect that existing footpaths not awarded by the Commissioners were stopped up by section 11: if that were so, it must surely be the case that there was a power to preserve them in the award?

But the judge was unpersuaded. The normal grammatical rules of construction applied, the headings to the sections confirmed the application of those rules, the reference to ‘publick and private Roads and Ways’ in section 11 was distinct from later reference to ‘Roads, Ways and Paths’ and did not embrace bridleways and footways, and any absurd result could be discounted because the local Act, which was necessary to incorporate and give effect to the 1801 Act, could make further provision as thought appropriate. The court in Andrews 1 was correct to accept Mr Laurence’s concession.

The court went on to consider whether further research into contemporary practice under the 1801 Act should cause any uncertainty about the judgment in Andrews 1. The research had found that, pre-1801, local inclosure acts generally made provision for the award of public bridleways and footpaths. And none of the post-1801 local inclosure acts made further provision for awarding public bridleways and footpaths over new inclosures, but many did make provision for creating them over old inclosures not otherwise subject to the award [this would enable a rational route to be laid out from end to end, including across intervening old inclosures]. The researcher observed, ‘It is difficult to imagine that such a large body of professionals, from all corners of the kingdom, should have been wrong in supposing that there was statutory authority for them to set out public footpaths or public bridleways. It is also difficult to conceive, had it been so obvious that they were acting illegally, that nothing should have been done to redress the situation.’

Again, the court was unimpressed. Counsel for the Secretary of State had adduced competing research which suggested that perhaps Commissioners had ignored the absence of powers and gone ahead and made unlawful awards anyway, too late to influence the construction of the 1801 Act. [But if that were so, why did experienced surveyors not lobby to ensure that local Acts did contain the elusive powers?] The court noted wider precedent which suggested that the court could derive some meaning from a long history of consistent interpretation, but in the event, concluded that the research was not all one way. For example, the research found that at least one-third of local Acts did make specific provision for ‘public watering places’, provision which might be unnecessary if the list in section 10 were unconstrained by the word ‘private’. And around one-third also made special provision for stopping up public paths across inclosures, even though Mr Laurence’s interpretation might make such provision redundant, for he thought that could be achieved under section 11.

Finally, it was argued that, even if the award of the public bridleway was unlawful, it was now far too late to quash it, a point which apparently was not argued before the court in 1993. Both the 1801 and the local Act contained ouster clauses, providing that the award was final and not to be questioned except by means of a timely challenge. The argument was given short shrift [though see my earlier analysis on this point]. There was no case to allow an ultra vires award to stand, and where the legislation purported to oust the jurisdiction of the courts to interfere in an unlawful act, it would be set aside.

Nothing is said in the judgment about leave to appeal. So the question arises as to whether leave will be sought from the Court of Appeal.

Comment: This was always going to be a tough call. As the court noted, the historic evidence does not all point one way. And the judge has taken great care to ensure that the decision is fully considered.

The court’s conclusion on that evidence is perhaps the weakest element. The court recognises that the deemed absence of powers under the 1801 Act to create new public paths across inclosures might be seen as absurd, were it not for the fact that such powers could be conferred in each local Act incorporating the 1801 Act — as indeed other often essential powers were missing from the 1801 Act. But time after time, local Acts did not confer such powers — yet often (the judgment does not appear to specify in precisely what proportion of cases) the awards did purport to set out public paths. If the experienced surveyors who toured the country drawing up awards knew that they were sailing on thin ice, why did the communities which procured new local Acts not address the deficiency by including specific powers to put the matter beyond doubt? Why was there no amendment to the 1801 Act even though two amending Acts provided an appropriate vehicle? Above all, why was there no contemporary challenge to the validity of those awards? The court alighted on one such challenge (Logan v Burton) as illuminating the meaning of section 10 — but the case does not directly address the role of section 10, and is so poorly expressed that even the court described it as “a difficult case to follow and the report is hardly a model of lucidityâ€.

As for the construction of section 10, legislation in the early nineteenth century was notoriously poorly drafted by today’s standards. Applying today’s rules of grammar to such drafting as the default construction may produce a result, but only analysis of the contemporary context is likely to produce the right answer, and the context tends to suggest the opposite result.

Finally, as to the validity of a challenge to the vires of the award 200 years after the event, see the prepenultimate paragraph of my previous post.