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PannageMan

About this blog

An occasional blog about commons, village greens and rights of way. New posts will be tweeted at @PannageMan. Any views expressed here entirely my own. Full index to blogs: http://www.craddocks.co.uk/pannageman/index.htm.

Luppitt 2: the Devonian disease — contagion

Rights of Way Posted on Fri, 11 September 2020 21:33:51
Western slopes of Dumpdon Hill
Footpath 61 runs along the hedge identified by the arrow
Photo © Derek Harper cc-by-sa

Looking back now, from the perspective of the 2020 pandemic, the ‘Devonian disease’ (blog, 10 May 2019) does not seem the most apposite expression to describe the subject of that blog. But it is too late now — and besides, the Devonian disease has struck again. Fortunately, this is one outbreak which it has proven possible to control.

As the original blog explains, Devon County Council made two definitive map modification orders to add to the definitive map and statement three footpaths in the parish of Luppitt, in east Devon: the Devon County Council (Footpath No. 62, Luppitt) Definitive Map Modification Order 2017 (‘order A’) and the Devon County Council (Footpaths Nos. 60 and 61, Luppitt) Definitive Map Modification Order 2017 (‘order B’). The orders are available embedded with the start notice here (at the bottom of the Devon list). The paths had been omitted from the definitive map drawn up under Part IV of the National Parks and Access to the Countryside Act 1949. In addition to the evidence that was available at the time of the 1949 Act process, new material had been discovered arising under the Finance (1909–1910) Act 1910 which lent further support to the public status of the paths.  The Ramblers therefore argued that, taking the evidence as a whole, there was sufficient evidence that the footpaths had long existed, and should be added to the definitive map.

The matter came before an inspector (acting on behalf of the Secretary of State) in 2018, who was tasked with deciding whether to confirm the orders. The inspector’s decision is here (scroll down to the relevant decision).  You can read about the detail of the evidence in the original blog, and in the inspector’s decision. The inspector decided not to confirm the orders. He said, among other things, that the decision to omit the paths from the definitive map drawn up under the 1949 Act process (the paths were identified, but a decision subsequently was taken to omit them, though by who and on what authority was unclear) was itself evidence that no right of way was believed, by the parish council, to exist at the time. That evidence should be weighed in the balance, and was sufficient to outweigh the existing and new evidence that a right of way did subsist.

The Ramblers, with support from the Open Spaces Society, sought to challenge the inspector’s decision, primarily on the ground that the inspector had placed excessive reliance on the probity of the decision to omit under the 1949 Act. The decision was undocumented (save for the terse instruction on record cards to ‘omit’ the paths), and it could not now be known on what considerations the conclusion had been reached, still less that there had been a thorough evidential analysis. And even if there had, who could say whether, in the light of the new Finance Act evidence — not then publicly available — a different conclusion might have been reached?  Leave was granted by the High Court for the Ramblers to seek judicial review, and at that point, the Secretary of State decided to consent to the decision being quashed.

Fast forward around eighteen months, and a second inspector was appointed to make a fresh determination of the orders, in the light of the original determination being quashed.  You might think that, on appointment as an inspector to determine orders where a previous decision had been quashed by consent order, you would be informed of the history and seek to avoid making the same mistake again. But no: the inspector rehearses a similar analysis to that done the first time around — you can see the decision letter here. In his consideration of order A, at para.43, he reviews the evidence about the omission of the paths from the draft map, and concludes: ‘The absence of any objection to the omission of the map from either the draft or provisional map stages of the process is in my view a significant factor which sits in the balance in favour of the objectors to the Order.’  At para.52, he concludes that, ‘there is evidence of reputation in one side of the scale which supports the Ramblers contention that the Order route is a public right of way. However, much of that evidence (save for the tithe and Finance Act records) is likely to have been considered and rejected at the time of the 1949 Act survey. In the opposite scale is the fact that, despite this supposed reputation, no challenge was made to the omission of the path at either the draft or provisional map stage.’ The inspector concludes that the claimed path has not been shown to exist and refused to confirm the order.

In respect of order B, the analysis goes the same way. But there is more. Part of the land crossed by the paths was claimed to be in settlement between 1824 and 1920, and the objectors said this excluded the possibility of dedication because the tenant for life had no capacity to dedicate (it was not, as it happens, entirely clear that capacity was absent). You might think that this was of little moment, for the paths might well have been dedicated at any point in the last millennium (or even further back), as so many of our country paths were. But the inspector concludes that: ‘An inference of dedication prior to [1824] cannot be drawn as no evidence has been submitted to show that OR60 or OR61 existed or were in use by the public prior to that date.’ Which was quite correct — but equally, there was no suggestion that the paths had come into use or been dedicated after 1824.  In such a case, where an objector seeks to show that some exception applies to prevent dedication, one would expect the onus to lie with the objector to show that the alleged dedication must have occurred during the period of settlement — not for the applicant for the order to show that it did not.

Unsurprisingly, the Ramblers again sought to challenge the decision, now of the second inspector, and this time the Secretary of State declined to support the inspector’s decision, but instead submitted to a consent order quashing the decision. The order recites that the “Inspector’s reasoning was inadequate… . In particular, undue weight was given to evidence relating to the outcome of the initial consideration – carried out by Luppitt Parish Council, Honiton Rural District Council and Devon County Council as part of the survey of public rights of way pursuant to the National Parks and Countryside Act 1949 – of the question of whether to recognise the paths covered by the 2017 Orders as public rights of way.’ One might comment that, to lose a decision to a quashing order is evidence of unlawfulness, but to make the same mistake again is evidence of incompetence.

And so the orders are now remitted back to the Secretary of State for a third determination. Let’s hope that the inspector assigned to the orders reads in on their history.

Perhaps he or she ought to read up too on the history of the Luppitt parish survey under the 1949 Act. The original survey by Luppitt Parish Council in 1951 produced a map and details of 53 footpaths and three bridleways submitted to the County Council. Forty-eight of the routes surveyed were proposed to be omitted, with some described as not required [note: not that they were not reasonably alleged to be public rights of way, which was the statutory test] and others were said to be roads or private, or were disputed. The remaining nine footpaths and three bridleways were recorded for consultations at the draft map stage in 1957, and two other additional footpath routes were included on the provisional map, with those 14 routes recorded on the definitive map. Some 56 paths reduced to 14, and yet we struggle to get recognition for just three of those which were omitted, on the grounds that the parish council did such a good job at the time that its decisions should not be revisited.



Revocation and variation of public path orders

Rights of Way Posted on Tue, 19 May 2020 13:38:18
Whitley Willows Mill, Kirklees, the target of one of very few orders varying a previous public path diversion order cc-by-sa/2.0 – © Stanley Walkergeograph.org.uk/p/900307

This article takes a look at powers to revoke or vary previously-confirmed public path orders. It was previously published in Waymark (2020, vol.34/3, p.6, the journal of and available to members of the Institute of Public Rights of Way and Access Management) and is reproduced here by kind permission of the editor. References to secondary legislation are to the position in England.

Introduction

Local authorities, in common with Ministers and some other public bodies, have powers to make legal provision under secondary legislation — whether by regulations, in byelaws, or by orders (such as in relation to public rights of way). From time to time, those who make this secondary legislation change their mind (or realise that they have made a mistake), and want to change what has been done. Fortunately, s.14 of the Interpretation Act 1978 provides, in relation to Acts of Parliament passed after 1978, that where an Act confers a power to make secondary legislation by statutory instrument, then, unless a contrary intention appears in the Act, a power is implied to amend or revoke any instrument previously made. This is hardly surprising. Unless Ministers are under a duty to make the instrument (so that it cannot be revoked without being replaced by another one), they are free to abolish what has been done, perhaps under a previous Government. 

However, public path orders, whether made under the Highways Act 1980 or the Town and Country Planning Act 1990 (the ‘1980 Act’ and the ‘1990 Act’ respectively), are not made by statutory instrument. Section 14 of the Interpretation Act 1978 therefore does not apply. Yet both the 1980 and 1990 Acts confer express powers to revoke and vary such orders. For what purposes can those powers be used? There have been remarkably few orders relying on these powers, and very little consideration of their use.  Highway Law (5th ed., Stephen Sauvain QC), is silent on the power; Rights of Way: A Guide to Law and Practice (4th ed., John Riddall and John Trevelyan), notes (para.7.2.11) that the ‘same procedures’ apply but contemplates the revocation of an order ‘re-creating the former path’.

Revocation and variation under the Highways Act 1980

Section 326(5) of the 1980 Act (as amended by the Countryside and Rights of Way Act 2000, Sch.6, Pt.I) states:

an order to which this subsection applies confirmed by the Minister, or the Secretary of State, or confirmed as an unopposed order by the authority making it, may be revoked or varied by a subsequent order made or confirmed in the like manner and subject to the like provisions, except that an order confirmed in either way may be revoked or varied by an order confirmed in the other way.

This subsection applies to a public path creation order, a public path extinguishment order, a rail crossing extinguishment order, a special extinguishment order, a public path diversion order, a rail crossing diversion order, a special diversion order or an SSSI diversion order… .

This provision applies to all the familiar (and some not-so-familiar) public path orders which may be made under s.26 and ss.118 to 119D of the 1980 Act.

It’s worth looking at what this provision tells us.

The first requirement is that it is only possible to revoke or vary an order which has been confirmed. Thus it cannot be used to sweep away, or amend, a defective order which has not been confirmed precisely because of the defect. The order-making authority will have to resolve not to confirm such an order or, if there are objections, either ask the Secretary of State to modify the order, or if she is unwilling to do so, to refuse to confirm it.

The second is that the revocation or variation is done ‘by a subsequent order made or confirmed in the like manner and subject to the like provisions’. Thus the new order appears to be subject to the same process and requirements as the original order: it must be notified in the like manner and so on, and it is subject to the same tests for confirmation and so on. The only exception is that the new order may be confirmed by the order-making authority or the Secretary of State in the usual way, regardless of who confirmed the original order.

Thus there is no such thing as a ‘variation order’ or a ‘revocation order’: instead, there is a new public path order (most likely, a diversion order), which may include provisions to vary or revoke the original order. What might such an order be used for, and what would it look like?

It should be said that there are some things that very probably cannot be done. For example, to revoke an extinguishment order which has already been made and come into force. Why not? Because the effect of such an order, apparently to resurrect the stopped-up path, is so absurd it cannot have been contemplated by Parliament. There is provision in s.121(2) of the 1980 Act for compensation to the landowner whose land is crossed by the resurrected way. But whereas an order under s.118 can be made by the authority only if ‘it is expedient that the path or way should be stopped up on the ground that it is not needed for public use’, it is to my mind impossible to see how that test, or indeed the tests for confirmation in s.118(2), sensibly can be applied to an order which has precisely the opposite effect to that intended by the section. Such an order would also be open to criticism on the grounds that the public and affected landowners would not be alerted to what is done by a notice of an order entitled ‘public path extinguishment (revocation) order’.

And above all, there is a perfectly rational alternative: for the authority to make a public path creation agreement or order, either of which does provide for sensible criteria. This alternative also ensures that there is certainty about the public path which is created, in terms of alignment, width and limitations, whereas a revocation order merely would revive the uncertainties about the original path, perhaps ill-defined in the definitive map and statement. It is still further inconceivable that a way extinguished by, for example, a rail crossing extinguishment order (s.119A), might be revived by revocation of that order. How could such an order be made ‘in the interests of the safety of members of the public using’ the crossing? (It is conceivable that the railway might have ceased operating — in which case, the correct approach would be to consider diverting the path back to the original crossing point under s.119.)

And the same criticism must apply to varying an extinguishment order, whether the effect purports to extend the length of the extinguished way (why not make a further extinguishment order instead?) or resurrect part of some previously extinguished path (why not make a creation order instead?).

These constraints are not quite so acute in relation to a diversion order. Consider an order which seeks to revoke a previously made and confirmed diversion order, so that the line of the way reverts to its original line. The tests for making and confirming an order under s.119 sensibly can be applied to the new order. Subs.(4) arguably enables the new order to impose new limitations on the revived original way which were not originally present. But if such an order conceivably might be made, what would be the point? The same outcome could be achieved more rationally, and more overtly, by making a conventional s.119 order. It is hard to understand why an authority would wish to proceed down the revocation route. (It is still less likely that a case could be made for revoking a special diversion order, such as under s.119D for protection of sites of special scientific interest, unless perhaps the wildlife context had changed, and even then, a further order under s.119D would be more sensible, justified according to the usual tests.)

However, there are circumstances where revocation or variation might make more sense, and indeed, some orders have been made in just these circumstances.

The first is where an order contains a mistake or omission. For example, a diversion order may provide that the new way is to be aligned along the south side of a hedge, but the intention was that it should be on the north side. Undoubtedly, the order-making authority could make a further diversion order to achieve that outcome, but a diversion (variation) order would more obviously relate the modification to the defect in the original order, and focus interested parties’ minds on that context. Even so, the same tests would apply in either case: that the order effecting the modification must be in the interests of the landowner or the public, the proposed new (but originally intended) way will not be substantially less convenient to the public than where the way is now (rightly or wrongly), and so on. (However, in confirming an order to vary a previously-made diversion order so as to more precisely locate the new way, an inspector appeared to rely on no criteria for confirmation other than that there was an error in the original order plan: FPS/Z4718/4/32V, decision dated 8 June 2012.)

I find it more difficult to understand how an order could be made to vary the original diversion order in terms of width of the replacement way or to rectify omitted limitations on the new way. That is because s.119(1) provides that it must appear to the authority ‘expedient that the line of the path or way…should be diverted’, and variations of this kind do not amount to a diversion at all. Thus one is in the position of making a diversion order which does not divert anything. How does one apply the tests in s.119 to a diversion where the way is not relocated? Nonetheless, orders have been made for this purpose.

Could an extinguishment order be varied so as to correct a mistake in the original order? One could conceive of circumstances which might demand a variation. For example, if it emerges that the extinguished way accommodated statutory undertakers’ services for which no saving is conferred by the original order, and there is a likelihood that the services will require costly relocation in consequence. It might be said, why not vary the extinguishment order to confer a saving of the kind contemplated by s.121(5)? (And see art.2 of Form 3, public path extinguishment order, in Sch.1 to the Public Path Orders Regulations 1993 (SI 1993/11).) Perhaps so, but the difficulty is the one already adverted to above: how does one apply the tests for making and confirming an extinguishment order in s.118 to an order which stops up nothing, but serves only to make a variation of this kind?

The second set of circumstances where variation or revocation might be attractive is where an order has been confirmed but not yet taken full effect. Suppose that a landowner requests a diversion for land management purposes, the diversion order is made and in due course confirmed, the new way is legally effective (say) seven days after confirmation, and the old way is to be extinguished following certification of the new way as fit for use. The land changes hands, and the new owner prefers the original arrangements. But both the new way and the old way are now legally in existence (albeit the new way may not yet be capable of public use). (See s.119(3) of the 1980 Act, as substituted by Countryside and Rights of Way Act 2000, Sch.6, Pt.1, para.9(3), which provides that, where work requires to be done to bring the new site of the way into a fit condition for use by the public, the extinguishment of the original way is not to take place until the new way has been certified as fit.) A new diversion order cannot assist (because it cannot divert the new way back onto an original line which still subsists), and an extinguishment order would require to satisfy a different and arguably more demanding test. A diversion (variation) order could revoke the original order, and, as we have seen, would have to show that reverting the way back to its original line satisfies the usual statutory tests for diversion. That need not be an insuperable hurdle: it is conceivable that diverting a way might satisfy the tests in s.119, and that they might be satisfied again to move it back, even though the physical context remains unchanged. There would be no need to take account of the lingering existence of the old way itself, because the purpose of the order would be achieved not by diversion as such (which cannot be done in this context), but by revocation of the original order. This seems to me to be a legitimate use of the powers conferred by s.326(5).

It does not seem that the same approach could be used in relation to an extinguishment order which has been confirmed but which has not yet taken effect. That is, to revoke the extinguishment order before the way itself is actually stopped up. Not least because the landowner is unlikely to get cold feet about the extinguishment, such an order invariably takes effect at or soon after confirmation (leaving no time to proceed with an order of revocation), and, as we have seen, it is far from clear how such an order can be ‘made or confirmed in the like manner and subject to the like provisions’. How does it make sense to adopt the tests in s.118 to decide whether the revocation of the original order should be confirmed? It is tempting to reverse the statutory tests (that is, to determine whether the way is, after all, needed for public use), but that is not what s.326(5) calls for, and in any case, the original order was made on the basis that the way was not needed for public use.

Could orders be made revoking a combined creation and extinguishment order, whether before or after they have effect? Yes, in the sense that s.326(5) expressly includes power to revoke a creation order (as well as an extinguishment order). But this possibility also suffers from the disability that these orders too must satisfy tests which are not remotely appropriate.

The difficulty with this analysis is that it seems to leave no obvious role for an order revoking an extinguishment order. Yet s.326(5) expressly provides that an extinguishment order may be revoked or varied. However, it does so within the constraint that the subsequent order is ‘subject to the like provisions’, without explaining how those ‘like provisions’ ever might be satisfied. The words in s.326(5) first appeared in s.110(2) of the National Parks and Access to the Countryside Act 1949 and applied to any order made under Parts IV to VI of the Act, including orders applying the definitive map provisions to county boroughs, access orders, and orders designating National Parks and Areas of Outstanding Natural Beauty. When the public path order provisions alone were moved into the Highways Act 1959, the draughtsman used the same formula as in the 1949 Act, but restricted to the Minister the power to revoke or vary. The 1980 Act removed that restriction, but retained similar words. It is very likely that none of the Parliamentary draughtsmen has ever thought through how the power might be employed (still less tried to employ it) in the specific context of an extinguishment order; though it must be said that the courts will strive to give effect to Parliament’s words.

Revocation and variation under the Town and Country Planning Act 1990

The 1990 Act also makes provision for variation and revocation.  S.333(7) says that:

any power conferred by any of the provisions of this Act to make an order, shall include power to vary or revoke any such order by a subsequent order.

The language is somewhat terser, but the effect does not seem to be much different to s.326(5) of the 1980 Act. We probably may assume that an order may be varied or revoked by a subsequent order, regardless of whether the original were confirmed by the order making authority or the Secretary of State, although the relevant words, present in s.326(5) of the 1980 Act are absent from s.333(7) of the 1990 Act. Again, what is conferred is a power which is to be exercised ‘by a subsequent order’, that is, subsequent to the original. So it seems that a further order may be made under s.257 (or possibly under s.247, by an order made by the Secretary of State), but so as to ‘include power to vary or revoke’. This seems to require that the order exercising these powers must be one for ‘stopping up or diversion’ in the manner contemplated by s.257, including provision for any of the purposes in subs.(4); creation and extinguishment, diversion, improvement, undertaking of works and so on, and that what is done must be ‘necessary…in order to enable development to be carried out’ in accordance with planning permission.

Thus it is suggested that a s.257 order cannot simply revoke a previous extinguishment order if the development no longer calls for extinguishment of the way, or the development is not undertaken before the permission expires, because neither of the subs.(1) tests can be satisfied. That seems inconvenient and regrettable, because it would be obviously beneficial to revoke a s.257 diversion or extinguishment order once the intended development was off the agenda. However, an order revoking the original order is hardly necessary to enable development. As with an order under the 1980 Act, it is tempting to apply a reversal of the usual test in these circumstances: that an order revoking the original order is justified because the original diversion or extinguishment is no longer necessary to enable development; but that is not what is in s.257, nor does it seem to be called for by s.333(7).

A more favourable context might be where planning permission is granted for development on the assumption that a way is relocated and an existing highway is improved, following which new planning permission is granted which no longer calls for the changes originally contemplated but demands a different diversion. In that case, the new order made under s.257 might revoke the original and promote a different diversion starting from a ‘clean slate’: that would have the advantage that the commitment to highway improvements in the original order also would be rescinded. Given that the original order may not even have been brought into effect at the time of the new order, revocation of the original order works better than attempting to re-divert the way a second time.

Revocation and variation in regulations

There is a further difficulty in the way of making an order which revokes or varies another order, whether under the 1980 or 1990 Act. Regulation of the form of order makes no provision for these circumstances. The Public Path Orders Regulations 1993 (SI 1993/11, as amended) provide that an order under the 1980 Act ‘shall be in the appropriate form set out in Schedule 1…, or in a form substantially to the like effect’ (r.2(1), as substituted by SI 1995/451, r.4(a)). And the forms — Sch.1, form 1–3 (as substituted by SI 1995/451, r.4(b)) — needless to say, contain no provision for revocation or variation. But as the 1980 Act confers an express power to revoke or vary, it seems that the Secretary of State merely has overlooked the need to make regulatory provision for the exercise of that power, and amendment of the form of order so far as is necessary must be within the power of the order-making authority. The same principles apply to orders made under the 1990 Act under the Town and Country Planning (Public Path Orders) Regulations 1993 (SI 1993/10, as amended) although in this case, the regulations helpfully provide (r.2(1)) that the order must be as set out in Sch.1 ‘or in a form substantially to the like effect, with such modifications as may be required‘. Inserting an additional article to revoke or vary another order to give full effect to the order must be a ‘required’ modification.

The Wildlife and Countryside Act 1981 and combined orders’

There seems to be no reason why an order revoking or varying a previously-made order should not include consequential provision modifying the definitive map and statement, in accordance with s.53A of the Wildlife and Countryside Act 1981, provided that the order satisfies the usual tests in s.53A(1). Such an order, being made under s.26 or ss.118 to 119D of the 1980 Act, and merely relying on the power in s.326(5) to revoke or vary, or likewise being made under s.257 of the 1990 Act relying on s.333(7), inevitably is within the classes of order prescribed by the Public Rights of Way (Combined Orders) (England) Regulations 2008 (SI 2008/442) And equally, there is no reason why such an order cannot revoke or vary, as may be necessary, provision in a previously-made order for the purposes of s.53A of the 1981 Act. S.53A(2) makes clear that such provision is part of the public path order (notwithstanding the expression ‘combined order’ used in the 2008 Regulations), and therefore it too must be susceptible to revocation or variation by a subsequently-made order.

Finally, it should be said that the Wildlife and Countryside Act 1981 confers no power of revocation or variation in relation to definitive map modification orders. The explanation must surely be that, if such an order is made in, or contains an, error, the answer is to make a further order to correct the error.

Conclusion

This article suggests that there is a limited but potent role in public path orders to revoke or vary previously-confirmed orders. Provision is more likely to be appropriate in relation to diversion orders, and it is hard to conceive of circumstances where it would be appropriate to revoke or vary an extinguishment order (and hard to conceive how to apply the tests to make and confirm an order for one of those purposes).

However, in the few instances where orders to revoke or vary have been made to date, it seems that these have usually been made to correct errors in a preceding diversion order. While such corrections may be within scope of the power to vary, the order made for that purpose should still be a diversion order, and should have the function of a diversion order. It is far from clear that an order which varies a previous diversion order, but does not alter the alignment of a way, can qualify as a diversion order at all. If that is correct (and the Planning Inspectorate does not yet seem to have published advice on revocation and variation), then the scope of what can be done by way of variation nevertheless is somewhat curtailed.



An unexplained curiosity

Town and village greens Posted on Sat, 28 March 2020 12:48:52
The Plestor, Selborne, Hampshire. Oddly, the Plestor was not registered as a village green under the Commons Registration Act 1965 nor under Part 1 of the Commons Act 2006

Amended on 29 March 2020 to refer to the possibility of amending the Victorian statutes by order under s.54.

The judgement of the Supreme Court in R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs explored the question of whether an application to register land as a town or village green under s.15(1) of the Commons Act 2006 must fail (notwithstanding that it satisfies all of the statutory criteria) if the registration would conflict with the statutory purposes for which the land may be held — the court’s conclusion, by a majority, was that it must. The court recognised that registration would confer on local people a right to use the land for lawful sports and pastimes, and that where the land was held by a public body, such a right could make it impossible for that body to use the land for the purposes for which it was acquired. The effect of the judgment is that most land held by public bodies, acquired under statutory powers for a particular purpose, is unlikely to be capable of registration as a green.

In their joint opinion, Lords Carnwath and Sales said:

‘7. An unexplained curiosity is that section 10 of the 1965 Act, which provided that the register was “conclusive evidence of the matters registered, as at the date of registration”, is not repeated in the 2006 Act. As things stand the repeal of section 10 has been brought into effect only in the pilot areas. (Section 18 of the 2006 Act, headed “Conclusiveness”, which has effect in the pilot areas, does not on its face go so far as section 10.) In the Trap Grounds case, Lord Hoffmann had agreed (at para 43) with Lord Carnwath’s analysis in the Court of Appeal [2006] Ch 43, para 100, that the 1965 Act “created no new legal status, and no new rights or liabilities other than those resulting from the proper interpretation of section 10”. It was on the “rational construction of section 10” that he relied for his view that land registered as a town or village green “can be used generally for sports and pastimes” (para 50), and was also subject to section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 (para 56). None of the experienced counsel before us was able to offer an explanation for the disappearance of section 10, but none sought to argue that it had made any material difference to the rights following registration. Not without some hesitation, we shall proceed on that basis.’

This blog attempts to answer the challenge posed therein: the disappearance of s.10.

Under the Commons Registration Act 1965, once the registration of a town or village green had become final (either in the absence of an objection, or following confirmation by a Commons Commissioner), it attracted conclusive status. S.10 provided that, ‘The registration under this Act of any land…as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration…’. Sounds good? Well, yes — up to a point. First, the registration was conclusive only at the date of registration. Those registrations (under s.4 of the 1965 Act) were now made over half a century ago. In practice, the elapse of time need not matter: the conclusive evidence of registration still holds good, unless one can show that the registration has been affected by some legally consequential subsequent event, such as an exchange of part of the green for other land done under s.147 of the Inclosure Act 1845 (now repealed).

Secondly, what does it mean that the registration is conclusive evidence of the matters registered? For that, we must look at what was required to be registered under the 1965 Act: the extent and boundaries of the green (recorded in the register map), the name and description of the green and the provenance of its registration (who applied to register it, and when, and how it came to be finally registered, recorded in the land section of the register). In some cases, it will also include (in the rights section of the register) what rights of common were registered as exercisable over it. It does not include the registration of ownership, if there is one, because s.10 does not refer to ownership — only to registration of land as a green and to registration of any rights of common.

What the 1965 Act did not do, at least not on the face of the Act, was to change the law relating to greens (or for that matter, common land) which was registered under it. The protections for greens which already subsisted, at common law and under statute law — for example, from encroachment or damage — applied to any land which could be shown to be a green. Registration demonstrated, by virtue of the conclusive provision in s.10, that the green did attract that protection. But — assuming that the land was rightly registered, and had long been a green, that protection was not new — it was just put beyond doubt.

The 1965 Act therefore was not very radical. It provided for the registration of land as common land or town or village greens, and the rights of common exercisable over them. But it did not go any further, and provide for reform of the law relating to such land and such rights. Or so it was thought.

Then in 2006 along came the judicial committee of the House of Lords in the Trap Grounds case (Oxfordshire County Council v Oxford City Council). Lord Hoffmann, who delivered the leading judgment, decided that, whereas the 1965 Act was predicated on an expectation of further, second stage, legislation to deliver better management of common land, its provision for the registration of greens assumed ‘that Parliament legislated for some practical purpose and was not sending Commons Commissioners round the country on a useless exercise’ (para.49). So far as it related to greens, the 1965 Act was intended to be self-contained: extent was concluded by registration, ownership was determined by the Commons Commissioners (where necessary), and ‘the rational construction of section 10 is that land registered as a town or village green can be used generally for sports and pastimes.’ Thus a right of use of a registered green could be inferred from the conclusiveness of its registration. This right was absent in plain words from the 1965 Act, but read into it by the judicial committee.

In addition, Lord Hoffmann found (para.56) that, ‘the effect of section 10 of the 1965 Act is to apply [‘the Victorian’] statutes to land registered as a town or village green.’ These statutes — s.12 of the Inclosure Act 1857 and s.29 of the Commons Act 1876 — confer on greens protection from encroachment and damage. Lord Hoffmann’s conclusions on these points were supported by Lords Scott, Rodger and Walker (Baroness Hale declining to express a view on the ‘examination paper’ questions).

Part 1 of the Commons Act 2006 (referred to below just as ‘Part 1’) replaces the 1965 Act. It introduces a new regime for the registration of common land and town or village greens, seeks to ensure that the registers are brought up to date and kept up to date, and allows for land (and rights of common) to be added to the register or removed from the register in certain closely defined circumstances. As it happens, Part 1 has been fully brought into force only in nine pioneer (or pilot) areas in England, so that the 1965 Act endures as the mechanism for managing registration elsewhere in England. One of those pioneer areas is Lancashire, the appellant before the Supreme Court. Therefore, in Lancashire, Part 1 is in force, and the 1965 Act has been repealed.

As the court observed, Part 1 has little to say about the conclusiveness of registration. The registers held under Part 1 are inherited from those prepared under the 1965 Act. We might alight on s.18 of the 2006 Act, headed ‘Conclusiveness’, in expectation of finding similar provision to s.10 of the 1965 Act. But it is not there. S.18 makes provision about the conclusive nature of registered rights of common, but has nothing to say about the conclusive nature of registered land. Why not?

The answer is that it no longer matters — or at least, that it ought not matter. The importance of the registers held under Part 1 is the land registered in them, whatever the provenance of the registration, and whatever the character of the land. S.2(2) provides that: ‘The purpose of a register of town or village greens is—(a) to register land as a town or village green’ (not the alternative, to register land which is a town or village green). And S.3(6) requires that: ‘Except as provided under [Part 1] or any other enactment—(a) no land registered as…a town or village green is to be removed from the register in which it is so registered’. Thus, once captured in the register, land is to remain in the register, save for express provision for deregistration. It does not matter whether what is registered is, in its common law or statutory origin, truly a town or village green, or whether some mistake was made in the past (perhaps at the time of provisional registration under the 1965 Act) — it is enough that it is registered. New land may be registered as a town or village green under s.15 if certain requirements are met (and there are other provisions to secure registration of new land under ss.14, 17 or 19 and para.3 of Sch.2); land may be deregistered if certain requirements are met under ss.14, 17 or 19 and paras.8 or 9 of Sch.2. Part 1 acts as a gateway for land to be admitted to or removed from the registers: it is not enough, in deciding whether to register or deregister land, to show only that the land is, or is not, common land or a town or village green according to any common law concept.

What, therefore, would be the purpose of deeming to be a green any land registered as a town or village green (as was the case under s.10 of the 1965 Act)? It would not endow the registration with any greater potency. Nor would it hinder an application to deregister the land, because Part 1 does not enable deregistration on grounds only that land is or is not a town or village green (note that proof that land was never a green may be relevant, but is not sufficient, to an application under para.9 of Sch.2).

Unlike the 1965 Act, which changed very little of the contextual common and statute law relating to commons and greens, the 2006 Act has a great deal to say about registered land. Part 1 is concerned with the management of the registers of common land and town or village green, and enables applications to amend the registers. Part 2 enables a commons council to be established for registered common land or a town or village green subject to rights of common. Part 3 requires the Secretary of State’s consent to works on registered common land (it does not generally apply to town or village greens because these are subject to controls under the Victorian statutes). Part 4 enables local authorities to act to protect unclaimed registered common land and greens, and the Secretary of State to defend registered common land or a town or village green subject to rights of common against unauthorised agricultural activities.

In all these cases, it matters not at all whether the registered land is truly common land, or truly town or village green — the provisions apply regardless. That is the ethos of the 2006 Act. In considering an action brought against unlawful works on registered common land under Part 3, the court ought to have no regard to whether the land was rightly registered as common land (albeit the court has discretion in deciding whether to grant an order, and might conceivably take such matters into account). It is therefore unnecessary to provide that the land is common land by virtue of being registered as such: what matters is that it is registered as such.

That said, there remains some legislation which continues to refer, in effect, to common law concepts of common land and town or village greens. For example, s.19 of the Acquisition of Land Act 1981 applies special controls to the compulsory purchase of a ‘common’, which is defined (in subs.(4)) to include ‘any land subject to be enclosed under the Inclosure Acts 1845 to 1882 [i.e. common land in the broadest sense of the term], and any town or village green’. Where a registered green might be subject to the requirements of (say) s.19 of the 1981 Act, it cannot be said with absolute confidence that the green is a town or village green for the purposes of the 1981 Act. For example, it may be said that what was registered as a green was no more than highway waste, and incorrectly registered (perhaps without objection). Under Part 1, the absence of any conclusiveness provision might reinforce such doubts. It may not be possible to rely on s.10 of the 1965 Act because, in the pioneer areas, it has been repealed — although in the absence of any contrary intention, it may be that the conclusiveness conferred by s.10 is preserved by s.16(1)(b) of the Interpretation Act 1978.

Is the absence of any replication of s.10 of the 1965 Act in Part 1 therefore an omission or oversight? No. The explanation lies in the power to amend other enactments found in s.54 of the 2006 Act. S.54 enables other legislation to be amended, by order, to provide that references in them to common land and town or village greens are to be taken to refer to registered common land and registered greens, and such other land as may be described. The intention was that s.19 of the Acquisition of Land Act 1981, and similar enactments referring only to pre-registration concepts of common land and greens, would be amended by orders made under s.54 so that they applied squarely to registered land (and to any other classes of land as might be necessary — for example, common land and greens in the New Forest, to which Part 1 does not apply). But that has not yet been done, partly because Part 1 has been implemented only in nine local authority areas — meaning that an amendment to s.19 of the 1981 Act, and other such enactments, would be complicated by the requirement to make different provision for different geographical areas depending on whether they are in or outside the pioneer areas. And partly because the initiative to implement the 2006 Act has lost its way.

As it happens, an amendment need not be abstruse: an example is the power to remove resident trespassers on common land under s.61 of the Criminal Justice and Public Order Act 1994, which was amended by para.5 of Sch.5 to the 2006 Act (i.e. without the need for a s.54 order), and which has been brought into force in England (but not Wales). S.61(9), as amended, now provides that: ‘”common land” means—(a) land registered as common land in a register of common land kept under Part 1 of the Commons Act 2006; and (b) land to which Part 1 of that Act does not apply and which is subject to rights of common as defined in that Act’. Its application to non-pioneer areas is addressed in the commencement order for the amendment (SI 2011/2460, art.3), which states that in such areas: ‘the references to a register kept under Part 1 are to be read as referring to the appropriate register maintained under section 3(1) of the Commons Registration Act 1965.’ That’s all that’s needed. With a potentially endless delay in full implementation of Part 1, it’s time to make similar amendments to other enactments, so that, where they refer to common land or town or village greens, they refer to registered common land and town or village greens and such other land as may be appropriate — with transitional provision for non-pioneer areas. That is not ideal, because the non-pioneer areas have not had the opportunity to bring the registers up to date under Part 1. But they have now had six years during which applications could be made to deregister certainly wrongly registered land, by virtue of the interim implementation of s.19(2)(a), and paras.5 to 9 of Sch.2. If that were done, one of the objectives of the 2006 Act — to achieve greater consistency in the management and regulation of common land and greens — would be satisfied, and the task of practitioners in this field would be somewhat simpler.

This leaves unaddressed the ‘unexplained curiosity’ implied by Lords Carnwath and Sales in their joint opinion in Lancashire: whether where a green is registered under Part 1 — and particularly one registered under s.15 of the 2006 Act, which has never attracted the conclusiveness provision in s.10 of the 1965 Act — a right of access is conferred for lawful sports and pastimes, and the green becomes protected under the Victorian statutes? Their Lordships, referring to Lord Hoffmann’s judgment in the Trap Grounds, said that: ‘It was on the “rational construction of section 10” that he relied for his view that land registered as a town or village green “can be used generally for sports and pastimes”, and was also subject to section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876’. Quite so. But Lord Hoffmann reached his conclusion not solely on the basis of s.10, but ‘assuming that Parliament legislated for some practical purpose and was not sending Commons Commissioners round the country on a useless exercise’ so that ‘registration would have been useless’. And he recognised that ‘the primary purpose of the 1965 Act, as applied to town and village greens, was…to create a register of town and village greens which would include all land over which statutory or customary rights of recreation existed or probably existed‘ (emphasis added). He continued: ‘it was in my view a necessary implication that land conclusively presumed to be a village green should be subject to the rights which the statute treated as creating a village green, namely the right to indulge in sports and pastimes.’ Lord Hoffmann found the judgment in the Court of Appeal in R v Suffolk County Council ex parte Steed to be in support: in that case, Pill LJ barely found it necessary to refer to s.10 in concluding that rights were conferred.

Even if s.10 of the 1965 Act was core to the judicial committee’s finding in the Trap Grounds, it is impossible to conclude that, in repealing and replacing the 1965 Act in almost identical terms in respect of the registration of new town or village greens without the provision in s.10, Parliament intended to abrogate the conferral of rights over new greens registered under s.15 of the 2006 Act, or that such greens should fail to be protected in the same way — there is no warrant for such a conclusion to be inferred from the 2006 Act. And if the courts did adopt that conclusion, it would be possible to amend the Victorian statutes by order under s.54 of the 2006 Act so that they expressly apply to all registered town or village greens (it would not be so straightforward to confer a right of access to such greens: that would demand primary legislation).

Let’s briefly approach it another way. What if Part 1 did contain a conclusiveness provision similar to s.10 of the 1965 Act — what would it mean in that context, that land registered as a town or village green conclusively is deemed to be a town or village green? So what? Such provision made sense in the earlier context of the 1965 Act, which (as it seemed at the time) did nothing other than to secure the registration of greens, and demanded some heft to show that, as Lord Hoffmann contemplated, registration was not useless. But in the later context of the 2006 Act, what ought to matter is that the land is registered as such — not that the land is, in some abstract or common law sense, a town or village green. Having been registered, the consequences flow from that registration.

As it happens, that outcome is as yet imperfect, awaiting full implementation of Part 1, and consequential amendments under s.54. And, it must be said, it is perhaps fortunate that, in the present imperfect context, their lordships were content to accept, ‘not without some hesitation’, the submissions of the parties that the absence of a conclusiveness provision in the 2006 Act did not make ‘any material difference to the rights following registration’. But it is impossible to see how it could. For what would be the purpose in registering a town or village green under the 2006 Act if what was registered attracted no rights of use, and no protection?



The Devonian disease

Rights of Way Posted on Fri, 10 May 2019 09:41:08

This blog was edited on 15 May 2019 to include new text on the ‘presumption of regularity’ and the principle of res judicata.

The Planning Inspectorate does not like having rights of way inspectors. They are inflexible (because they are trained primarily to deal with rights of way and common land casework), and they cost too much (they are on a higher grade than the basic planning inspector intake grade). And besides, the Inspectorate is focused on delivering planning casework to fulfil the Government’s ambition to promote development: anything else is a distraction.

So increasingly the inspectorate assigns rights of way and commons casework to a wider cadre of inspectors, whose ‘day job’ is to deal with humdrum appeals against refusal of planning permission. In theory, these inspectors will be trained for the purpose — but just how effective is that training? And initially they will be supervised by more experienced inspectors — but how effective is that supervision?

A decision by one such inspector, in relation to two definitive map modification orders to add three footpaths to the definitive map for Devon, suggests that the answer to both questions is ‘minimally’.

The orders are the Devon County Council (Footpaths Nos. 60 and 61, Luppitt) Definitive Map Modification Order 2017 and the Devon County Council (Footpath No. 62, Luppitt) Definitive Map Modification Order 2017. The orders are available embedded with the start notice here (at the bottom of the Devon list). There are three claimed footpaths:

  • Footpath 60 (referred to in the decision letter as part of order A), from just east of Wick Cross, southeast near the southern boundary of Dumpdon Hill, south (to the east of Crown All Wood), picking up the track to Woodhayes, then south to the road just short of the parish boundary.
  • Footpath 61 (referred to in the decision letter also as part of order A), from Lower Wick Farm, southeast, through the southern end of Crown All Wood, then picking up the track to Woodhayes by joining footpath 60.
  • Footpath 62 (order B) is further north, from Luppitt village, branching off footpath 1, generally a little south of southwest to join the road at the bend a little south of Greenland.
Dumpdon Hill, Devon
View of the hillfort from footpath 60
Photo © Derek Harper cc-by-sa

The paths are all visible on old Ordnance Survey County Series mapping, at least up until the Second World War, and in the case of footpath 62, it was still being shown on the Ordnance Survey National Grid plan as late as the 1960s — see, for the County Series first edition, the links to 60, 61 and 62 (you may need to zoom in or out to view the relevant OS map, and can switch to later editions to compare).

The inspector’s decision letter is available here (scroll down to the relevant decision). The orders were sought on behalf of the Ramblers, and contested by some local landowners: the inspector does not bother to record who objected, only who represented the objectors.

There are a number of factual difficulties with the analysis. Let’s begin with these, first in relation to footpaths 60 and 61.

Paras.15–18, on historical mapping evidence, are not obviously reconcilable with the facts so far as they are disclosed in the decision letter. The inspector refers consistently to ‘one-inch’ maps, but appears to be confused, possibly meaning to refer in certain places to 1:2,500 (i.e., twenty-five inch) maps. For example, at para.15, he states that: ‘By 1889, the OS one-inch, first edition map shows the whole of the route along the line of FP60.’ But the first edition one-inch map (the Old Series) was published at the start of the nineteenth century, and doesn’t show the way — nor would one expect it to show a cross-field footpath. Nor does the Revised New Series one-inch map. Presumably, he means to refer to the Ordnance Survey County Series first edition 1:2,500 map published around 1889 — which does show the way. If a rights of way inspector cannot even get this right, what is he doing determining rights of way cases? (For that matter, this isn’t a very promising basis on which to approach planning casework.) In the next sentence, the inspector says that: ‘The route is again shown on the 1946 one-inch map…’: perhaps this is a reference to the New Popular edition, which certainly shows the route.

But if this was an isolated slip, it is hard to make sense of the first sentence of para.16: ‘FP61 does not appear on any map until the 1946 one-inch map.’ Well — yes it does, it too is shown on the Ordnance Survey County Series first edition 1:2,500 map published around 1889. Now, if the inspector was indeed referring only to the one-inch map, that appears to be correct — although it would be a very odd if the supporters of the order referred only to one-inch maps to document a footpath — few footpaths were shown on nineteenth century Ordnance Survey one-inch maps. But as the previous reference in para.15 to the ‘1889…OS one-inch, first edition map’ appears to be a reference to the 1:2,500 map, it is hard to see that the inspector has a proper grasp of the map scales.

The position in relation to footpath 62 is more straightforward. The inspector simply records, at para.29, ‘There appears to be no dispute between the parties that the claimed route appears on a variety of OS maps dating from 1809 to 1937.’ Well, leaving aside that footpath 62 continues to appear on maps after 1937 (see below), I can find no trace of the way on the Ordnance Survey one-inch Old Series map of 1809 — nor would I expect to (unless the way were in fact an old lane now being used as a footpath)

As it happens, the County Series 1:2,500 maps show all three routes consistently from the County Series first edition published around 1889, but footpaths 60 and 61 have disappeared from the 1964 National Grid plan — whereas footpath 62 remarkably is still shown, some years after the definitive map had been published without it. (As an aside, it is interesting how the publication of public paths on Ordnance Survey one-inch mapping from the 1960s onwards, and only on 1:25,000 maps from the 1970s and 1980s onwards, had a chilling effect on the use of non-definitive rights of way: up until then, many ways, still marked on maps as a physical feature, continued to be used on the assumption that they were rights of way, until the new Ordnance Survey mapping implied that they were not, because they were not shown on the definitive map.)

Accordingly, the inspector’s conclusion at para.18 in relation to footpath 60 and 61 that, ‘The case for the physical existence of the FP61 is at best highly questionable’ is plainly incorrect, particularly when read alongside his statement at para.16 that, ‘Both sections of the Order route [i.e. footpaths 60 and 61] are marked F.P. on the 1948 edition map.’ (The ‘1948 edition map’ appears to be the 1:25,000 map referred to in para.15.) How can the physical existence be in doubt if it is marked on the map as a footpath? One might also conclude that the evidence in relation to footpaths 60 and 61 is therefore not ‘patchy’ (para.18) — only that the evidence does not greatly help with public status, because Ordnance Survey maps purport not to distinguish private and public rights of way. Perhaps the inspector merely means that there is only post-war evidence of the existence of footpath 61 — but that is only if one looks at smaller scale maps

And the conclusion (para.40) that the ‘historical mapping evidence is ambiguous with regard to Order route A [i.e. footpaths 60 and 61] but supports the physical existence of a path along the line of Order route B [i.e. footpath 62] during the first half of the 20th century and possibly before’ must also be wrong. While ‘ambiguous’ might be a reference to public/private status, it is clear from the following words that this is not what the inspector has in mind. But the historical mapping is all one way: the paths are shown consistently over several editions of large scale mapping, being omitted only after (and in the case of footpath 62, long after) the definitive map implied that there was none. And indeed, the statement as regards footpath 62 (‘supports the physical existence of a path…during the first half of the 20th century and possibly before’) is a contradiction of what was said in para.29: ‘…the claimed route appears on a variety of OS maps dating from 1809 to 1937.’ Admittedly, the inspector’s conclusion in para.29 as regards the 1809 map is wrong — but the way was certainly shown on the County Series first edition 1:2,500 map in 1889.

To be fair, we cannot tell from the decision letter exactly what evidence was provided to the inspector by either party (the surveying authority took a neutral stance) — but we can be quite sure that nineteenth century one-inch maps had nothing to offer, because early one-inch maps seldom showed cross-field footpaths.

Moving on, at para.27, the inspector notes a tree in Crown All Wood (through the southern end of which passes footpath 61) which is said to have blocked footpath for 150 years — yet the inspector has observed (para.16) that the footpath is shown on the 1948 map (and as we have seen, it has been marked on maps since the late nineteenth century).

Only one of the ways, footpath 62, appeared on the tithe map (para.29). There is some further weighty evidence cited in relation to footpath 62: quoting the inspector (para.35): ‘The Parish Council minute books show a consistent record of public money being spent to repair/replace footbridges on the Order route up until prior to the preparation of the Definitive Map. As it is most unlikely that the Parish Council would have spent public money on a private route, I consider that during the early part of the twentieth century there was a widespread belief that the Order route was a public right of way.’

None of these ways was admitted to the definitive map and statement originally compiled under Part IV of the National Parks and Access to the Countryside Act 1949 — obviously, else the orders would not have been made. Why not? Well, this was not a case where the ways were simply ignored (for whatever reason). Footpaths 60 and 61 were shown on the Luppitt parish map (prepared by the parish council, as was required under s.28 of the 1949 Act). But they were not shown on the surveying authority’s draft map (save for a section of footpath at Woodhayes Farm). It was proposed to add footpath 60 north from Woodhayes Farm on a review in 1959, but objections meant that nothing came of it. As the inspector states (para.22), ‘the exact reasons why the routes were proposed and then omitted at the various stages is not fully known today.’

Footpath 62 was recorded in the parish survey, and it was noted that it was shown in the map prepared under the Rights of Way Act 1932. But the claim schedule was marked ‘omit’, and the way was not included in the draft map. Again, the inspector notes (para.33) that, ‘It is not known why or who added these comments’.

In relation to all of footpaths 60, 61 and 62, the Ramblers had adduced evidence prepared under the Finance (1909–1910) Act 1910. The 1910 Act caused every property in England and Wales to be identified on maps and to be valued. The primary purpose was to charge a tax (increment levy) on any increase in value when the property was later sold or inherited. Two aspects of the valuation process relate to highways. First, public vehicular roads were usually excluded from adjoining landholdings and shown as ‘white roads’ (i.e. uncoloured) on the maps. Secondly, discounts from the valuation could be requested for land crossed by footpaths or bridleways: whether such a discount was sought was up to the landowner (it didn’t always pay to reduce the valuation, and anyway, landowners then as now might not want to record the existence of rights of way on formal documents). However, none of the records of the 1910 Act survey was available to the public until the 1980s.

The Ramblers’ evidence showed that deductions had been allowed for paths passing through the specific parcels of land crossed by all three claimed footpaths: given that there was no evidence of any other paths across these fields, it strongly suggested that the landowner recognised the public status of the paths at the time of the valuation.

The landowners, as objectors, pointed out that the ways had seen no use in living memory. This was hardly surprising: the ways were cross-field paths, not shown on modern maps, and presumably impassable. It was also stated that the estate crossed by the ways had been in strict settlement between 1824 and 1920, so that there was no-one with capacity to dedicate. However, the inspector does not explore the question in any more detail, such as whether the ways might have been dedicated before 1824.

So much for the facts. What about the analysis? In seeking to modify the definitive map, one must show not only that the claimed rights of way exists, but also that there has been a discovery of evidence: that is, that there is new evidence which, if the claimed way was previously under review, was not considered at that time. Thus, one cannot simply reopen a claim which was considered at an earlier date, on the basis of a fresh look at the same facts previously available. Having satisfied the ‘discovery’ test, the decision maker is then required to review all the evidence, taken together, to decide whether the claimed right of way exists, on the balance of probability.

In this case, there is no doubt that there is new evidence — that from the 1910 Act survey. So the ‘discovery’ test is satisfied, and the inspector can move on. But he does not. At both paras.29 and 30, the inspector is focused on whether evidence (the Ordnance Survey maps and the tithe map) is new: but it should not matter. This is repeated at para.36 in relation to the parish council minutes of work done on the footbridges. The inspector has accepted the discovery of new evidence, and that should be the end of the matter. What is the relevance of whether the other evidence is new or not? It is quite clear that the inspector is discounting anything which was previously available to the 1949 Act process — regardless of whether it was taken into account, and regardless of whether the decision-making process was reliable.

Let’s have a look at the assessment of the tithe evidence. In relation to footpath 62, the inspector notes (para.32) the observations in the parish survey form that, ‘The reasons for its inclusion are given as: “mentioned in P.C. minutes”‘. The comments of the Rural District Council are recorded as: ‘This footpath is shown on the map prepared under the Rights of Way Act 1932 as a public right of way.’ But the inspector also finds the tithe map supportive (para.29). The survey form is evidence that the tithe map was not used in the parish survey, else it would have been recorded in the survey form. Yet the inspector concludes (para.30) that, ‘…this evidence [i.e. the tithe map, along with old Ordnance Survey maps] cannot be considered to be new, as it was likely that is was available at the time when the DMS was being produced.’

The same issue arises with the parish council minutes of work done to footbridges on footpath 62. The inspector states (para.36), that, ‘This inevitably leads me to the conclusion that the minutes are not new evidence and that that (sic) their contents were properly taken into account in reaching the decision to omit the path from the Definitive Map process.’

Yes, the evidence was certainly available, but that does not mean it was used, and there is evidence that some of it was not used. We know that many parish councils relied primarily on parish opinion and memory (‘the evidence of the oldest inhabitants then living’) — not on documentary evidence. Strictly speaking, it should not matter whether the tithe or parish council minutes evidence is new or not — it is sufficient that there is discovery of new evidence from the 1910 Act documentation. But, given the way the inspector approached the determination, it clearly mattered to the inspector.

At para.34, the inspector gives ‘consideration weighing squarely’ against confirming the order to the omission of footpath 62 from the draft map, and the absence of any objection to the omission. But if there had been an objection, and the way were included, then there would be no order. And if the way had been included and an objection to its inclusion had been maintained, there would have been some determination of the matter, perhaps in a hearing before the county council committee, or in due course at quarter sessions. If it is right to place weight on the exclusion, for unknown reasons, of a way from the draft map, then every attempt to add a way to the map now starts from a huge disability — it will be said it cannot be a right of way because the parish council did not volunteer it for the draft map: the parish council knew best.

But parish councils were not a fair and impartial tribunal to judge whether a way was a public way, and should be included on the draft map. For a start, parish councils generally did not have or seek access to the common historical sources available to researchers today. Most rights of way were recorded by parish councils because they were reputed to be public paths, and were believed to have been used by the public for many years — not because there was documentary evidence of their existence. Often acting on poor advice, a parish council may have omitted a way from the parish map where the way was eligible to be recorded on the map, because:

  • The parish council may have overlooked the way (including where the way was mainly in a neighbouring parish).
  • The parish council may have considered the way, but concluded it was not a public right of way on the information then available to it (which may not have included any documentary evidence at all.)
  • The parish council may have concluded that the way was not a candidate to be recorded on the definitive map and statement, because it was a public road, lane or drove and perceived not appropriate to a record of ‘footpaths’.
  • The parish council may have decided not to claim the way as it was little used, intrusive, burdensome to maintain, or otherwise undesirable from the councillors’ or other local perspective, or taking into account other improper considerations.
  • Or the council may have recorded a road or bridleway as a footpath, because there was little awareness of, and little perceived need to protect, higher rights, and minimal recreational equestrian use of ways to remind people of their true status.

Frequently, no record survives of how decisions were made (in the case of footpath 62, only a terse note of a decision — by whom? — to omit the way). And, perhaps the most telling defect in giving weight to such decisions, invariably we know nothing of the balance of evidence for and against the inclusion of a particular way. It is all very well knowing that, somehow, the parish council arrived at a decision to exclude a particular way — but was that a tough call, in which the parish meeting tested the evidence of witnesses and landowners, scrutinised old parish records, heard the reports of those who had walked the way during the parish survey, was split down the middle and the chairman exercised a casting vote to exclude it? Or was there ample evidence that there was no public right of way (perhaps witness evidence no longer available) and the decision to exclude was overwhelming? Or for that matter, was the decision to ‘omit’ taken by the parish chairman in a telephone call with the County Surveyor, without ratification by anyone else? We do not know, and with the increasing elapse of time since the 1949 Act survey, we shall never know.

The inspector treated the original decisions to omit the paths as effectively res judicata — decisions which carry considerable weight, and should not be overturned lightly. In relation to all three ways, the appearance (paras.20 and 32) is that the decisions to exclude the ways was taken or assented to by the parish council (footpath 60 was also reconsidered on what appears to be a review in 1959). The inspector’s reliance on the strength of those decisions to exclude is wrong for three reasons:

  • The parish council did not have all the evidence before it — the 1910 Act evidence was not available, and the implication is that it did not consider the tithe map evidence in respect of footpaths 61 and 62. And if it had had all the evidence before it, we cannot know what the outcome would have been.
  • The parish council took into account irrelevant reasons in reaching a conclusion — this is not only a general observation (see above), but it is a matter of fact recorded in para.27 of another inspector’s decision letter of 14 December 2017 in relation to footpath 21, Combe Raleigh and 59, Luppitt, where the inspector notes that: ‘The minutes of Luppitt parish meeting of 27 March 1956 records…that “Many of the paths were considered to be now not used and were crossed off”. At a further meeting on 24 April 1956 it was recorded the “Further footpaths were discussed, many were found to be of no public use and omitted”.’ In the present case, the inspector records (para.5) that he ‘assessed these Orders on their individual merits, I recognise the importance of consistency in such matters. Accordingly, I have had regard to [the previous] decision insofar as it is relevant to my consideration of these Orders.’ So the inspector was aware of the weakness of the parish decision-making process.
  • The parish council was not intended to be a fair and independent tribunal for the purposes of its functions under the 1949 Act. And it was not one. It was not normally legally advised, and it may have had very little understanding of the law. It did not have to offer anyone an opportunity to be heard (apart, perhaps, from at a parish meeting). It was heavily influenced by the weight of opinion voiced at parish meetings, from those who were prepared to speak up. Those in charge of the process (the chairman of the parish council) were frequently not disinterested, but local landowners.

Accordingly, the decisions of the parish council to exclude the paths should have been afforded little or no weight. They should not have been treated as res judicata, a convincing vindication that the way does not exist. Still less where, as here, there is convincing new evidence — the 1910 Act evidence — which could not have been taken into account at the time.

The inspector does not mention res judicata, although that principle seems to have been on his mind. Instead, constantly the inspector refers to the presumption of regularity. At para.38, the inspector states that he: ‘must assume the County Council carried out their duties with proper diligence and therefore the “presumption of regularity” applies.’ Is there any evidence that the county council took the decision, or was even involved in it, to omit the way from the draft map? Indeed, we do not even know why the parish council ignored footpaths 60 and 61, and decided to omit footpath 62. At para.40, the inspector says that, ‘the Parish Council minutes in respect of Order route B would have been before the County Council when it made its decision to omit the route from the definitive map in the early 1950s.’ How does he know the parish council minutes were before the county council? And is there evidence that it was the county council which took that decision? What is the relevance of the presumption of regularity? Even a kangaroo court might observe its own rules — but that does not mean its verdict ought be afforded any more respect. What is wrong with the inspectors’ decisions is that they afford a degree of respect to the very part of the 1949 Act process which was, and was intended to be, its least reliable and most pragmatic element: the parish survey and submission.

What the inspector has done, particularly in relation to path 62, is to discount any evidence which either was before the local councils in the 1949 Act process, or could have been; concluded that the decision to omit the paths was correctly arrived at (assuming that proper process was sufficient to synthesise a correct decision) and founded in relevant evidence (as opposed to irrelevant evidence, such as the lack of need for the path); and looked for new evidence to the contrary, of such cogency that it could outweigh the decision to omit. This he fails to find in the 1910 Act evidence — which is hardly surprising, because the weight of the evidence to omit is unknowable. It is as if the inspector fears that the parish council had possession of a stopping up order, now lost. But there is no evidence of that. The likelihood is that the parish council, influenced by landowner objections, decided that there was no need for the ways, notwithstanding evidence that they were public rights of way, and decided to omit them. That, no doubt, is why the decision to omit is documented only by the one word itself — ‘omit’ (para.32). That was an unsurprising flaw in the 1949 Act process. But it does not deserve to undermine applications to rectify those flaws today.

The inspector’s decision in this case is insupportable. It is not only muddled, but it espouses an entirely new principle: that the exclusion of a way from the 1949 Act map represents a glorious synthesis of the opinion of the key participants at the time — local people, landowners, farmers, the parish council, the district council and the county council. But in so many cases, it was no more than a matter of oversight, or a shabby transaction conducted without adequate scrutiny.

Worse, this is not the only decision to adopt this principle: look at the determinations for Devon in 2019, and the decisions in respect of (Bridleway No.15, Thelbridge and Bridleway No. 14, Washford Pyne) Definitive Map Modification Order 2012 and the (Footpaths No. 21, Combe Raleigh and No. 59, Luppitt) Definitive Map Modification Order 2016. Both adopt a similar approach. This is the evidence for the Devonian disease of the title to this blog — three decision letters, broadly contemporary in date, all in relation to Devon, all passing over good quality historical evidence in favour of the sanctity of the 1949 Act process. Two of those decisions were taken by an experienced rights of way inspector, and one — the present case — by a less familiar ‘planning’ inspector. Was this coincidence? Or was the planning inspector under the tutelage of the more experienced rights of way inspector, by which the Devonian disease was contracted? Quite why an experienced inspector has fallen victim to the disease in two successive inquiries in the same area, and passed it on to a colleague, is unclear.

The Open Spaces Society has provided assistance with reviewing all three cases. The other two decisions were both considered by user groups at the time — the British Horse Society (BHS) looked at the Thelbridge decision, and the Ramblers at the Combe Raleigh decision. The BHS sought counsel’s opinion, but the prospects for success were insufficiently certain. Happily, the Ramblers has responded by challenging the Secretary of State on the Luppitt decision. Although he initially defended the decision, a judge granted leave for the matter to go to trial, and the Secretary of State then agreed to quash the decision (not before time). The decision has now been quashed (as is recorded on the gov.uk website), and the order will have to be redetermined. The Ramblers will now be able to address the issues raised by the inspector’s quashed determination at a future public inquiry, and we must hope that the outcome makes more sense. And I have prepared a paper for the BHS on ‘the parish role in preparing the definitive map’, which will enable those in support of such orders to show the weaknesses in the 1949 Act process, and why a decision to exclude a way cannot be relied upon as probative. It is too late for the Thelbridge and Combe Raleigh orders (though if further new evidence can be found, new applications can be made for definitive map modification orders), but the orders for the Luppitt ways will be redetermined, one hopes with the Devonian disease banished.



What makes an application? Dealing with s.53(5) applications

Rights of Way Posted on Mon, 15 April 2019 07:10:28

This article was first published in Waymark, Winter 2018–19 (£, vol 31/3), the journal of the Institute of Public Rights of Way and Access Management, and is reproduced here by kind permission of the then editor. It was prepared by me for and on behalf of the Open Spaces Society. The version here incorporates amendments to the original article in the light of subsequent correspondence — I’m grateful to those who have highlighted any shortcomings. The article refers to the current law in England, but while the relevant provisions of the Deregulation Act 2015 do not extend to Wales, I believe the present position broadly to be the same in Wales.

An application for a definitive map modification order to record this way, at Dane Hill, near Palmstead, Kent, was registered within one week, prior to the application being notified. Not all surveying authorities are willing to register prior to notification.

The promise (if that is the right word) of the reforms to rights of way contained in the Deregulation Act 2015 (the 2015 Act: ss.20–26) appears like a mirage — always shimmering on the horizon, but never quite within reach. So the news, announced in autumn 2018 by Defra, that implementation has been put back a further six months, and now cannot be sooner than late 2019 (but don’t bet on that target), means that we must live with existing systems for recording rights of way for at least another year, and perhaps a good deal longer. And as rights of way user bodies begin to shift into a higher gear on promoting and co-ordinating research into historical rights of way, and volunteers (and in the case of the BHS, professional contractors under its Project 2026) raise the rate of application for definitive map modification orders (DMMOs) under s.53(5) of the Wildlife and Countryside Act 1981 (the 1981 Act), the operation of the existing legislation for handling such applications deserves continuing scrutiny. Not just because surveying authorities — at least in some parts of the country — are now receiving considerable numbers of applications for historical routes, but because proposed transitional arrangements under the 2015 Act will rely on the correct processing of applications by the authority to which they are made.

The 2015 Act, taken with Part II of the Countryside and Rights of Way Act 2000, will — if brought into force — extinguish historical (i.e. pre-1949 in origin) footpaths and bridleways if they are not recorded on the definitive map and statement by the ‘cut-off date’ of 31 December 2025. Under draft regulations considered by the stakeholder working group (which commended the 2015 Act reforms), a historical way will be excluded from extinguishment if it is identified in an application for a DMMO — but only if the application has been registered. Registered means the application must be included in a register held by the surveying authority under s.53B of the 1981 Act. Applicants ought to be (or at least, will in future be) keen to ensure that every application founded in historical evidence is duly registered, so that the application way endures past the cut-off date. There remains some uncertainty about what will happen to applications made close to the cut-off date which are not registered in time, but we can probably assume that specific provision will be made.

The procedure for an application for a DMMO is set out, for now, in Sch.14 to the 1981 Act. But practice varies between surveying authorities. Some register an application soon after receipt, while others do nothing until they have received (under para.2(3) of Sch.14) a certificate of service of notices on owners and occupiers of land. A few — perhaps unfamiliar with applications — appear to have no register at all. What does it take to get an application registered?

The starting point is that an application must be made in accordance with para.1 of Sch.14 — that means in the prescribed form (Sch.7 to the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993), with a map to at least a scale of 1:25,000, and copies of the evidence. There seems little doubt that authorities can waive some non-compliance with those para.1 requirements — Dyson LJ in R (on the application of Winchester College & Anor) v Secretary of State for Environment, Food and Rural Affairs expressly allowed for local authority discretion where the extinguishment of rights for motor vehicles is not in issue (see para.55 of the judgment): anyone who tells you that Winchester is authority for demanding strict compliance in the general context of a DMMO application doesn’t understand the judgment. But if the authority wants to insist on rectifying non-compliance, now is the time to do so — not after registration, and certainly not some years later when an officer finally grapples with the detail of the application.

Under the Public Rights of Way (Register of Applications under section 53(5) of the Wildlife and Countryside Act 1981) (England) Regulations 2005 (the 2005 Regulations), an authority must register an application within 28 days of receipt (r.3(6)(a)). The 2005 Regulations do not define ‘application’. So what is an ‘application’, the receipt of which triggers the 28 day countdown?

It seems that the authority must, prior to registration, look at what it has received simply in order to establish whether it is indeed a para.1 application. For example, if the authority received a letter stating (in so many words) that there was a historic right of way between A and B, and please would the council make a definitive map modification order — the authority would not wish to register that as an application. (An irony of the requirements imposed on an applicant by para.1 of Sch.14 is that such a non-compliant letter might nevertheless alert the authority to evidence of the existence of an unrecorded right of way, and trigger its duty under s.53(2)(b) and (3)(c)(i) of the 1981 Act anyway to make a DMMO. It is only because this general duty is widely ignored that applications are so important.)

That is not to say that the authority must, before registration, determine the application, or even carry out a preliminary assessment (as it will be required to do after the 2015 Act is brought into force). At this stage, it must be enough to exercise common sense — check for the correct form, properly completed, map to sufficient scale, list of evidence, evidence attached (not whether the evidence is sufficient), signed, dated. This is not the time for an investigation, but a cursory check. But if there is anything present (or not present) which, later on, would cause the authority to decide that it cannot even determine the application (as opposed to refusing it), then it should be identified and communicated right away.

if the application looks properly made in accordance with the requirements of the legislation, it can be registered — and if it isn’t, the authority should write back and point out the mistakes.

This might also be a good time for the authority to offer any advice to the applicant about the ownership or occupation of the land affected by the application, if the authority has particular knowledge. Whether an authority can communicate that knowledge to an applicant (who, after all, by virtue of para.2(1) is under a duty to serve notices on the owners and occupiers) without breaching data privacy is an interesting question to which I do not have the answer.

But it is at this stage that some authorities’ practice differs, with an insistence that the authority will take no action on an application until the applicant has proceeded to comply with the requirements of para.2 — the service of notices, and certification of compliance. It may be said by the authority that there is no ‘application’ at all, and that the requirements of the 2005 Regulations do not bite, until the applicant has got past para.2. That insistence may be wrong, for several reasons.

First, there is the plain language of the 1981 Act itself. Para.1 provides that ‘An application shall be made in the prescribed form’, and sets out what must accompany the form. Para.2(1) then requires that, ‘the applicant shall serve a notice stating that the application has been made…’. This makes clear that ‘the application has [already] been made’. What is required of the applicant by para.2 is notice of something that has already happened — the application.

Thus, where the 2005 regulations refer to an ‘application’, they must bear the same meaning as in the parent Act — and that is that an ‘application has been made’ when the requirements of para.1 are satisfied.

Secondly, there is Defra’s Register of definitive map modification order applications — Guidance for English surveying authorities to accompany Statutory Instrument 2005 No 2461 (i.e. to accompany the 2005 Regulations). Inevitably, Defra’s guidance is no longer maintained on gov.uk, meaning it has a zero profile, and leaving one uncertain whether Defra means that it still should be relied upon (in practice, the absence of a profile simply reflects Defra having lost control of its web presence). It is available archived [scroll down to Registers of modifications, applications and declarations.]. The guidance states at footnote 2, that:

‘While, by virtue of paragraph 3(1) of Schedule 14 WCA 1981, the obligation to investigate the matters stated in the application does not arise until a surveying authority has received a certificate under paragraph 2(3) of Schedule 14 WCA 1981, by virtue of regulation 3(6) [of the 2005 Regulations] the obligation to include an entry in the register relates to the date the application is received by an authority. Thus, the obligation to include an entry in the register is independent of the receipt of certification that paragraph 2 of Schedule 14 WCA 1981 has been complied with. Of course, the fact that there is an entry on the register in relation to an application does not affect: (i) the date on which an authority must begin investigating the application, or (ii) the notice requirements set out in paragraph 2 of Schedule 14 WCA 1981.’

The third reason relies on an amendment made by the Deregulation Act 2015 (Sch 7, Pt 1, para.4), to insert new s.53B(4A) into the 1981 Act (this amendment, in common with the 2015 Act reforms generally, has not yet been brought into force). The amendment provides that (following implementation of the 2015 Act), the 2005 regulations can be amended so as to provide that an entry need not be made in the register until after the authority has served notice of the application on owners and occupiers (under the 2015 reforms, the authority takes on from the applicant responsibility for service of initial notices). Such an amendment would be redundant if an application was not complete until notices had been served. It suggests that the 1981 Act (and therefore the 2005 Regulations) contemplate an application being complete after compliance with para.1 — and before compliance with para.2.

The fourth is a matter of practicality. It is unhelpful to wait until the applicant has wasted his or her time, the notified owners’ and occupiers’ time, and the officer’s time, by serving notices and providing a certificate of service (still less by posting notices on site where required under para.2(2)), and then point out, after all of this has been done, that the application was non-compliant — and please could the applicant fix it and start all over again? The applicant surely is entitled to be informed, soon after application, whether the application is considered sufficiently whole to be entered on the register, and to be notified to the owners and occupiers. The applicant can then proceed to para.2 notification. Owners and occupiers need be troubled only when the applicant, and the authority, are confident that the application is duly made.

And for the fifth, we must turn to the 2005 Regulations. The provision, in r.3(6)(a), demands that: ‘An entry in the register [relating to an application] shall be made by the later of: (a) the date falling 28 days from the date such application is received by a surveying authority’ — not the date that the para.2(3) certificate is received by the authority. The regulations demand that the application (referred to as such) is registered within 28 days regardless of whether, and if so, when, it is certified. If the regulations intended to allow 28 days from the date of receipt of the certificate, vice the application, they ought to have said so.

It is not that para.2 notification is dispensable. An applicant may in certain circumstances be content that the application remains on the register potentially indefinitely, and see no need to comply with para.2. But para.3 is clear that the authority is under no obligation to determine an application, and the applicant cannot after one year ask the Secretary of State to direct determination, unless the para.2(3) certificate of service has been received. That is a powerful driver for compliance with para.2, at least for most applicants.

It must be said that some eager applicants — aided and abetted by misleading guidance published by some authorities and others — sabotage the legislative scheme in Sch.14 by making a ‘rolled-up’ application which purports to comply with both para.1 and para.2 — that is, the application is accompanied by the certificate of service, presumably which together were despatched by the applicant at the same time as the notices were served. This cannot be right: an application cannot be made, the notices served, the notices received and the certificate issued, all on the same day (at least, not without some incredibly nifty footwork involving personal delivery at all stages) — even assuming that the applicant does not need to be assured of successful service through recorded delivery or other tracking mechanisms (a point which deserves an article of its own). In R v Isle of Wight County Council ex parte O’Keefe and O’Keefe [(1989) 59 P & CR 283, [1989] JPL 934], one of the grounds of challenge to an order was that the relevant notices had not been served (the judgment wrongly refers to the duty being on the authority to serve notices). Macpherson J said:

‘The point is taken that the date of the relevant notice addressed to Mr. O’Keefe (…11th May 1987) is the same as the date on the paragraph 2(3) certificate (…). Therefore there could not have been service on everybody before the certificate was signed on 11th May 1987.’

Applicants accordingly should be advised to take paras.1 and 2 step by step:

  • apply (para.1)
  • await validation of application as ‘duly made’
  • await registration (s.53B and the 2005 Regulations)
  • following registration, serve notices (para.2(1), and para.2(2) if relevant)
  • certify service of notices after the applicant is confident that the para.2(1) notices have been received (and if relevant, the para.2(2) notices have been erected on site) (para.2(3))

Each of these elements should be taken sequentially.

Some surveying authorities resist registering applications ahead of certification partly because, in consequence, a landowner may be astonished to discover a registered application (of which the landowner has not been notified), still more one which the authority has no duty to determine, yet is destined to remain on the register indefinitely — a blight on the property. Perhaps so — although the authority cannot be held liable for implementing the legislation in accordance with its duty.

But consider the position where a person acquires land following a clean pre-purchase search, only to discover subsequently that the surveying authority was in receipt of a duly made application to record a right of way across that land, and that the application did not appear on the register (and was not notified on the search) because, owing to the para.2(3) certificate being outstanding, the authority had failed to register it within 28 days in accordance with the 2005 Regulations. The authority may well be liable for nonfeasance, because the authority would be in breach of its duty to register, and the failure to register may have serious consequences for the purchaser. The primary duty must be for the authority to register applications — not to concern itself with the consequences of registration where the registration is done lawfully.

In any case, any open-ended sterilisation of land arising from a registered application which has not been certified will, on current expectations, be brought to an end by regulations implementing the 2015 Act. These may well require surveying authorities to carry out a preliminary assessment on all registered applications, whether they have been notified or not. If those arrangements are confirmed, expect to see more applicants resile from para.2 service in the run up to the implementation date. Otherwise, the service of notices by the applicant generally is a pre-requisite to determination. But it is not a pre-requisite to registration, and common sense suggests that authorities should confirm whether applications are duly made within a short time of receipt — and if they are, add them to the s.53B register within the 28 days allowed.



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