PannageMan

Early last year, I first wrote (Andrews twenty years on: inclosure awarded paths revived?) about Andrews 2, in anticipation of an application to the High Court in relation to a claim to record a public bridleway near Chelworth in Wiltshire. For fuller details of the challenge, please read the earlier blog. But in summary, the application was brought by John Andrews, a member of the Ramblers’, against the Secretary of State for the Environment, Food and Rural Affairs, to test a High Court judgment from 1993, which said that inclosure commissioners had no powers to award public paths under the General Inclosure Act 1801.

The majority of rights of way in the English countryside are recorded on definitive maps held by local (‘surveying’) authorities. But many are not, and these risk being extinguished in 2026 under Part II of the Countryside & Rights of Way Act 2000 (CROW) unless recorded before then. Of the various historical sources which may be employed to demonstrate the existence of a public path, inclosure awards are among the first tier, for an award is an early form of secondary legislation, and generally conclusive of what it contains. And since the purpose of inclosure was to parcel up common land into fields and assign those fields to the former interests in the common, then the extinguishment of highways across the commons and their replacement by more rationally organised routes across the new inclosed fields was integral to the task.

So it is that inclosure awards are fertile sources of evidence about public rights of way. Most of these ways are familiar to the local path user and landowner: they are recorded on the definitive map and apparent on the ground. Having been awarded during the inclosures, they may very well follow logical alignments across the fieldscape, running along what are now green lanes between fields, striking out across fields in straight lines, and heading directly for a termination on a local road on an alignment which pays regard to both agricultural economy and parishioners’ convenience. But some escaped the definitive map: perhaps the way had become little used by the 1950s, the path was thought to be private or even a public road, or it was simply an oversight. These are the ones which, even now, may be claimed for the definitive map, prior to the CROW cut-off in 2026, solely on the basis of the award, providing that there is no evidence of any subsequent diversion or stopping up order which may have extinguished the awarded route.

The 1993 judgment was a serious impediment to those claiming such paths, because it found that paths set out under inclosure awards made under local Acts incorporating the 1801 Act were generally ultra vires: that is, the commissioners, who drew up the awards, had no powers to create such paths. The 1801 Act was incorporated in virtually every inclosure Act obtained between 1801 and 1845 (at which date was enacted the Inclosure Act 1845, which substituted a new process for Government oversight of inclosure), so rights of way researchers reviewing an award of this era would need to seek other documentary or user evidence of an awarded path to support any claim.

Conversely, the 1993 judgment was a boon to landowners, because at a stroke, it swept aside half a century of inclosure awarded public paths, unless evidence could be found which demonstrated, aside from the award, that the path was indeed a public right of way. The 1993 ruling was, however, somewhat arbitrary in its effect, since no such flaw was generally present in earlier inclosure awards (i.e. those made under Acts procured before 1801) or later (those made under the Inclosure Act 1845).

Mr Andrews’ application therefore sought to reverse the effect of the 1993 judgment, and was first heard in the Administrative Court of the High Court, where the judge was bound to have strong regard to the findings of the court in 1993. And indeed, and without causing great surprise to any party, the application was rejected in a comprehensive judgment of 141 paragraphs. You can read about the judgment in my second and third blogs.

It seems that defeat in the High Court was anticipated as quite probable, and an appeal to the Court of Appeal was always on the cards. Mr Andrews’ application was supported by the Ramblers’, and was presented to the court at both first instance and on appeal by George Laurence QC and Edwin Simpson. Moreover, Mr Andrews had concluded an own-costs deal with the Secretary of State, which meant that both parties agreed to bear their own costs ‘all the way’, so that if Mr Andrews finally lost his application, he (and the Ramblers’) would not have to pay the costs of the other party, and vice versa. This arrangement is suggestive that the Secretary of State saw her role very properly as upholding the law established by the 1993 judgment, unless and until the courts, following full argument before them, concluded that it had been wrongly decided.

A two day hearing was held in the Court of Appeal in early June before the Master of the Rolls, Lord Dyson, and Gloster LJ and Sales LJ. Messrs Laurence and Simpson again appeared for Mr Andrews and Jonathan Moffett for the Secretary of State. There were four grounds of appeal:

• that s.10 of the 1801 Act did on a simple question of construction of its language, confer a power to set out public paths;
• that the 1801 Act should be construed as having inevitably intended to confer such a power;
• that the 1801 Act was, in the years after enactment, routinely construed as having conferred such a power (the doctrine of contemporanea expositio);
• that an award made under the 1801 Act was binding in its effect, and even if ultra vires, could not now be challenged at such a remove.

All these grounds were argued before the High Court, as they were before the Court of Appeal, and are explained in the judgment of the High Court. In the Court of Appeal, Mr Laurence also advanced two further grounds:

• that if s.10 of the 1801 Act did not enable the award of public paths, then s.8 did, and the requirement in s.8 that any highway awarded under that section should be at least 30 feet wide was ‘directory’ (in other words, it was an instruction which, if not complied with, did not fatally flaw the award);
• that even if the award was capable of being challenged, the considerable passage of time now rendered it inappropriate to interfere with it (citing Micklethwait v Vincent decided in the Court of Appeal in 1893).

In the event, the court gave a judgment clearly in favour of Mr Andrews on the first two grounds (consolidated as the ‘first issue’ in the judgment), and therefore found it unnecessary to deal with the remaining grounds.

The first ground was about interpretation of s.10 of the 1801 Act, which follows s.8 about public carriage roads. This provides: “That such Commissioner or Commissioners shall, and he or they is and are hereby empowered and required 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, in, over, upon, and through or by the Sides of the Allotments to be made and set out in pursuance of such Act…”. Does ‘private’ (which I have italicised) qualify just ‘Roads’ (as Mr Laurence contended, so that the commissioner had a power under s.10 to award public Bridleways and Footways) or the whole list including Bridleways and Footways (as Mr Moffett contended, so that the power extended only to private ones)?

In its single judgment given by the whole court, the court notes (para.30) in its analysis of the first ground: “We start by observing that the 1801 Act is not drafted with the degree of accuracy and consistency of language that is found in modern statutes.” This sets the agenda for the judgment: in contrast with the judgment at first instance, and in 1993, the court is signalling that the principles of judicial interpretation applied to a modern statute are not necessarily appropriate to a two centuries old enactment drafted in an entirely different era, when the draughtsman may have had very different motivations and principles. The judgment recognises that the Act was prepared long before the Office of Parliamentary Counsel first started to impose common standards of legislative drafting. And it adopts Mr Laurence’s analysis of s.8, which contains a mishmash of different expressions to refer to the same concept of public carriage roads, even within the same section, suggesting that the draughtsman saw little need to adopt consistent language. As the court says (para.32), “This is not a promising basis on which to mount a linguistic argument as to the meaning of section 10 of the 1801 Act.” The judgment explains (para.33) that it may adopt a ‘purposive interpretation’ to reflect the intention of Parliament where a literal interpretation produces a result which is inconsistent with the statutory purpose or makes no sense or is anomalous or illogical, and concludes that a purposive interpretation is all the more appropriate in a statute which is couched in language which is less consistent and more imprecise than that generally found in modern statutes. However, the court concludes that “it is not necessary to find that a particular interpretation would be perverse or absurd before it can be rejected as one that Parliament cannot have intended. That is to set the bar too high.” It therefore rejects the precept on which the lower court proceeded (that a purposive approach will be applied only if, otherwise, “the interpretation contended for is ‘absurd’ or ‘perverse’).

The court goes on to explain (para.35) that practice adopted in enabling inclosures prior to 1801 “provides strong support for the appellant’s case that section 10 should be interpreted as having conferred the power to set out and appoint new public bridleways and footpaths”, and reviews how the 1801 Act is likely to have been founded in such practice. It observes that the purpose of the Act was primarily to consolidate provisions previously contained in local inclosure Acts, rather than to “to change the law, practice or procedures” (para.36), notes research which showed that most such pre-1801 Acts did confer powers to set out public paths, and concludes (para.38) that, “It seems unlikely that Parliament would not have intended to give commissioners the power which they had previously exercised repeatedly pursuant to local Acts to set out and appoint public bridleways and footpaths.” The court notes the defendant’s argument that the 1801 Act did not include some provisions frequently found in local Acts (though I would note, as an aside, none appears quite as essential to the usual process of inclosure), but is unpersuaded. It concludes (para.41) that Parliament would have intended to confer powers in relation to public paths (“It is most unlikely that it did not intend to do so”) because:

• the 1801 Act was intended to embrace the key powers usually needed for inclosure;
• “public bridleways and footpaths were crucially important in the late 18th and early 19th centuries for those who wished to travel on foot or on horseback (the majority of the population)”;
• the 1801 Act conferred powers to set out public carriage roads and private paths: why not public paths too?

In short, the court says (para.42), “unless the statutory language compels us to interpret section 10 as applying only to private bridleways and footpaths, a purposive interpretation leads to the contrary conclusion.”

The court, having justified the adoption of a purposive approach, then somewhat revisits its arguments to explain three compelling reasons why a purposive interpretation must lead to the conclusion that Parliament intended to confer powers in relation to public paths.

• “Public bridleways and footpaths would have had a far greater public importance than private ones and potentially the same public importance in practical terms as public carriageways. …There would inevitably be a need in almost all cases for provision to be made in relation to public bridleways and footpaths.” (para.44) In PannageMan’s view, the court strays a little (para.45), when it questions “that it is difficult to identify any strong public interest in a public official like a commissioner setting out private roads and footpaths on private enclosed land at all. It might be asked: why not leave it to the owners of the newly enclosed land to decide whether and where to create private paths and roads?” The purpose of creating such private routes was because the route conferred an easement for one allottee over land allotted to another: if the award failed to set out such easements, then the first allottee risked having no or inadequate access to the allotted land, and no means to compel the second allottee to rectify the position. Be that as it may, the court nevertheless concludes that Parliament cannot sensibly have intended to confer powers to confer private paths, but not public ones.
• The court also picks up on a bizarre consequence of the original judgment in Andrews and conceded by the defendant in the present case: that if the inclosure commissioner had no power to set out new public paths, then he had no power to extinguish existing paths. The defendant had also accepted that an inclosure commissioner could include existing public paths in the award (in effect, for information), on their original alignment, because there was nothing to say that he could not. As the court observes (para.47), “it would be very odd if the award and map, which were intended to be definitive, in fact could not be treated as definitive in relation to existing public bridleways and footpaths stipulated in the award and shown on the map, because (on Mr Moffett’s argument) those would always be vulnerable to inquiry into the pre-existing facts to determine whether or not a public right of way existed before the inclosure award was made.”
• And thirdly, the court accepts that redrawing the network of public paths was essential to inclosure (para.48): “There was likely to be a strong need in many cases to redraw the network of footpath and bridleway public rights of way in a locality so that it would be coherent in the new landscape which was being created.” It was accepted that the commissioner had a power to divert existing public paths, but it made no sense to provide for diversion, but not the extinguishment of a path and its replacement by another.

And so the court concludes (para.50) “that section 10 should be interpreted as giving commissioners the power to create new public bridleways and footpaths unless the language of the section cannot bear that meaning.” The judgment reverts to the words of s.10, quoted above. In court, both parties conceded that the natural interpretation of s.10 was that ‘private’ qualifies the whole list, but Mr Laurence sought to show there were grounds to adopt a different construction. He invited the court to compare the clause to one in a Will: if a Will provides for the disposal of male horses to A, and female horses, pigs and cattle to B, it is unlikely that the testator means that B should get only the female pigs and cattle, but not the male ones (for which no specific provision is made): this attracted some laughter in the court, but when Mr Moffett later sought to underpin the natural construction of s.10, there was a chorus of reminders from the justices about Mr Laurence’s ‘Will’. And so it is in the judgment: the court notes the ‘linguistic imperfections’ in the 1801 Act, and observes (para.56) that, “Since section 8 dealt with public roads, that naturally left private roads as a separate item requiring provision in the context of the standard powers to be created by the 1801 Act. When viewed in that light, it is reasonable to think that the draftsman intended to use the word ‘private’ to qualify only roads rather than to qualify all the items in the list.” The court also draws attention to some supporting arguments advanced by Mr Laurence — although none of these were clinchers, and all were adequately answered by Mr Moffett. Perhaps the most convincing is that ‘private’ must qualify all the words in the list in s.10, or just ‘Roads’: the researcher’s evidence suggested that all of these features could be either public or private, and, just as it was unconvincing that Parliament intended to confer powers to set out only private paths, so it was also unlikely that everything else in the list should also be set out as private — and that if a commissioner wished to award a public watering place for example, special powers would need to be sought in the local Act.

Early nineteenth century case law dealing with these matters was found to be unhelpful and provided ‘little assistance’. And so the court decides that Andrews was wrongly decided, as was Andrews 2 at first instance, and judgment is found for the appellant. In due course, the Secretary of State will have to reconsider Mr Andrews’ claim to record the Crudwell bridleway, and decide whether to direct the local surveying authority to make a definitive map modification order. Or perhaps the surveying authority will accept the inevitable, and decide to proceed with Mr Andrews’ claim without further prompting.

The Secretary of State has yet to decide whether to seek leave to appeal: though if she does, the clear, confident reasoning of the court does not suggest that leave will lightly be granted. There is also the theoretical possibility of amending legislation, to restore the position to that decided in Andrews. That would be decidedly tricky, since there is now no logical reason why paths awarded under the 1801 Act should be treated any differently to those awarded under later or earlier legislation. And CROW is likely to extinguish most such unrecorded inclosure paths in 2026.

The decision of the Court of Appeal will be salutary in enabling, and revitalising, claims for the recording of rights of way, awarded in post-1801 inclosures, on the definitive map and statement. The High Court was told that there were “between 500–1,000 other public rights of way across private land might be capable of being established in other parts of England and Wales if the Claimant’s argument succeeds”. Such claims probably now need to be brought before the CROW cut-off in 2026. It is perhaps a pity that the court did not adjudicate on Mr Laurence’s other grounds of appeal, in particular that inclosure awards must be considered settled law so long after the event, for there will continue to be awards, made under other legislation, where the powers of the inclosure commissioners remain contested. But in spite of that, the Ramblers will be pleased with the outcome, as will other user organisations with a similar agenda.

Reported in The Guardian, The Independent, Grough, BBC News, Western Daily Press.

PostScript: PannageMan understands that there will no appeal. The law is as it is stated in Andrews 2.