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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:

The Devonian disease

Rights of Way Posted on Fri, May 10, 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 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, April 15, 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, 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.

From a Wild Frontier to the Promised Land?

Rights of Way Posted on Wed, April 10, 2019 20:47:39

I am pleased that John Andrews has agreed to post here his review of a lifetime spent battling to save and maintain public rights of way in Suffolk. John lived in Suffolk for forty-odd years, and as a doughty member of the Ramblers’ Association, did much to revive the network in Suffolk, and pursued applications to add paths to the definitive map long before such applications fully entered onto the radar screens of the user organisations (driven by the Countryside and Rights of Way Act reforms).

John is also the claimant, admirably supported by the Ramblers, in both the original and follow-up actions against the Secretary of State, which eventually showed (as was obvious then and now) that inclosure awards made under the Inclosure (Consolidation) Act 1801 could appoint new public rights of way less than 30 feet wide — for more about that, see my blogs 1, 2, 3 and 4!

By way of introduction, John writes:

‘As the years have drifted by since I moved away from Suffolk nearly 12 years ago, I have had a steadily increasing feeling that some of the episodes through which I and my friends in Suffolk Ramblers lived, notably in the 1970s and 1980s, now seem so remarkable as to make me begin to suspect that they were nothing more than products of my imagination. However, they did all happen and I hope that, in recalling them in this way, I have made it just a little harder for the events of those times to remain unknown or become lost to memory.’

Do read John’s review: it is hard to imagine now just how pioneering it was in the 1970s and 1980s, campaigning for rights of way in a rural, arable county such as Suffolk.

From a Wild Frontier to the Promised Land? — Discovering Suffolk paths

A limitation on TCPA orders?

Rights of Way Posted on Sun, July 08, 2018 11:30:11

This article was first published in the Spring 2018 issue of Waymark, the journal of the Institute of Public Rights of Way and Access Management, and is reproduced here with kind permission of the editor.

Section 257 of the Town and Country Planning Act 1990 confers broad powers on the local planning authority, by order, to stop up, divert or improve a footpath, bridleway or restricted byway (which I shall refer to indiscriminately as a ‘public path’) where it is necessary to enable development to be carried out in accordance with planning permission.

A widespread view is that paths diverted by s.257 may not be made subject to limitations. This article poses the question — why not?

An A-frame stile at Queensbury Bradford
Can a s.257 order authorise this structure on the diverted path?
Photo © Humphrey Bolton cc-by-sa

A limitation is not defined in statute law, but is generally thought to be a constraint nominally imposed by the landowner on the otherwise lawful public entitlement to use the highway. A stile or gate is the most obvious and commonplace limitation encountered on public paths.

S.257 contains no express provision about imposing limitations in an order made under that section. But if we compare it to the other widely used power to divert public paths, in s.119 of the Highways Act 1980, s.119(4) provides for:

‘A right of way created by a public path diversion order may be either unconditional or…subject to such limitations or conditions as may be specified in the order.’

This variance in drafting is often held to mean that s.257, lacking the express power to impose limitations found in s.119(4), cannot be used to create a new public path subject to limitations (let’s leave aside here the question of conditions, the meaning of which is elusive). But we should make some allowance for the diverse origin of these provisions: s.257 originates in s.94 of the Town and Country Planning Act 1968 (and before that, for highways generally, in s.49 of the Town and Country Planning Act 1947), while s.119 originates in s.42 of the National Parks and Access to the Countryside Act 1949. Thus s.119 was conceived in the 1949 Act which established the definitive map and statement — including s.27(4), which provided for the statement to contain any ‘limitations or conditions affecting the public right of way’. It was hardly surprising that Parliamentary counsel, drafting both clauses in Part IV of the Bill, saw a need for diversion orders expressly to amend the definitive statement in relations to limitations, and put words in s.42 to do just that.

And while the provision for limitations in s.119 has, because of its neighbouring familiarity, found its way into other powers subsequently inserted in the 1980 Act to divert paths — ss.119B (schools) and 119D (SSSIs) but not, oddly, s.119A (railways) — and is seen in the powers to create paths (ss.25 and 26), which also originated in the 1949 Act, it is not found in s.30 (dedication of highway by agreement with parish council). Why not? Because the 1980 Act is a consolidating act (it draws into one place provisions found previously in many acts), and s.30 does not derive from the 1949 Act, but from s.8(1)(g) of the Local Government Act 1894. It was drafted in another era, and no-one saw fit, in 1959 (when highways legislation was first consolidated) or in 1980 (when the legislation was consolidated again), to revise it to bring it into line with other provisions in the host Act. Does this mean that s.30 agreements cannot include limitations? No more nor less than s.257 orders.

Section 30 of the 1980 Act, and s.257 of the 1990 Act, have something in common. They both enable works to be carried out on the new way (whether created under s.30, or diverted under s.257). S.257(2)(b) provides that:

‘(2) An order under [s.257] may…provide—

(b) for authorising or requiring works to be carried out in relation to any [public path] for whose stopping up or diversion, creation or improvement provision is made by the order’

Whereas s.30(2) provides that, where there is a s.30 agreement:

‘(2) [the parish council] may carry out any works (including works of maintenance or improvement) incidental to or consequential on the making of the agreement or contribute towards the expense of carrying out such works, and may agree or combine with the council of any other parish or community to carry out such works or to make such a contribution.’

Subs.(2) above was added to the 1959 Act, to expand on what was originally contained in s.8(1)(g) of the 1894 Act, and remains part of s.30 of the 1980 Act.

What sort of works are contemplated by these provisions? Under s.257, the works can be done on the diverted way, or on an alternative way which is to be improved under subs.(2)(a) (it seems that the works can be done even on the way stopped up, perhaps physically to prevent continuing use). Such works might include:

  • improving the surface;
  • widening the path (if improving an existing way under s.257(2)(a));
  • street furniture (such as benches or litter bins);
  • a bridge;
  • safety apparatus (such as a chicane, or barrier adjacent to a carriageway);
  • a stile or gate;
  • a cattle grid and bypass;
  • a private road crossing with gates.

But some of these works would amount to a limitation on the newly created public right of way — for example, a gate or chicane. Can an order under s.257, or an agreement under s.30, provide for them, notwithstanding the absence of express words about imposing limitations?

Section 257 is a pretty flexible provision: it facilitates development on land crossed by public rights of way (and s.247 does something similar for land crossed by highways generally). It enables stopping up, or diversion, or combined stopping up and creation, or stopping up together with improvement of an existing highway. It enables a replacement way to be of a different status to the one stopped up (although if the replacement way is a carriageway open to mechanically propelled vehicles, it seems there can be no provision for works under subs.(2)(a)). Beyond the initial ‘necessity’ mandate, it imposes no statutory tests on the confirmation of an order other a simple merits assessment. Why should we infer that, despite this flexibility, and despite a power to provide for works, those works cannot limit the right of way in any respect?

There is no obvious reason why s.257 should address limitations: it is enacted in an Act about planning, not highways. Limitations are not mentioned in the 1990 Act (nor in the 1968 Act) in this context. It would be very odd to read ‘works’ as being confined to things which do not amount to limitations, particularly because such an interpretation would greatly limit the scope of the developer to remedy the constraint imposed by the existence of a highway across the development site. If the site is being developed for housing, that may not always be a problem — but what if it’s being developed with an agricultural barn, and stiles or gates are essential to the alternative route — can it really be intended that s.257 is useless for such purposes, and recourse must be had to s.119? What if the diverted way begins in a field, and then crosses a housing estate: must the necessary gate out of the field be authorised under s.147?

Section 30 had different antecedents. But it is now nearly 125 years old. It would be an empty power if a parish council could not agree with a landowner to create a new highway unless it was free from limitations. It would be impossible to create a public path across fields (no stiles or gates allowed).

Apart from s.30 (and s.119A), s.116 of the 1980 Act also lacks a power to impose limitations. S.116 enables a highway to be diverted in the magistrates’ court. Its origins are found in s.16 of the Highways Act 1773, and quite possibly earlier than that. But neither s.116, nor the provisions from which it is derived, have anything to say about limitations or even works. Yet many readers will have encountered court orders diverting public paths which inevitably provided for the negotiation of field boundaries by gates or stiles. Some are still made with such limitations today. Is the presence of these limitations unlawful even now — after all, limitations cannot be legitimised by the passage of time?

Or can we conclude that the express power to impose limitations in the s.119 suite of provisions is an ‘avoidance of doubt’ provision — there to make clear that the power exists (and should be employed where appropriate), but not to be taken so that its absence from other provisions implies that the power is then wanting? After all, the creation of a new public path is a bargain between the local authority acquiring new rights across land on behalf of the public, and the landowner conceding those rights. Why should it be an ‘all or nothing’ arrangement by which the landowner is compelled to retain nothing of benefit (such as the right to maintain a gate)?

Even if the answer is ‘no’ (and that would have a pretty radical impact on the efficacy of s.116 orders), we can still rely, for the purposes of s.257 and s.30, on the power to construct works. Works specified in a s.257 order or s.30 agreement may well not be limitations, and need not be recorded in the definitive statement — but they may be, in which case, they should be. It surely is a bizarre interpretation of s.257 which requires the works contemplated by s.257(2)(b) carefully to be sifted out to decide which do not amount to limitations and so are capable of authorisation, without any clear words to impose such a requirement. If the draughtsperson intended such an outcome, why was the expression ‘works’ not expressly constrained in any way?

But what about the prescribed form of s.257 order? R.2(1) of the Town and Country Planning (Public Path Orders) Regulations 1993 provides that:

‘A public path order shall be in the relevant form set out in Schedule 1…or in a form substantially to the like effect, with such modifications as may be required…’.

Form 1 in Sch.1 allows for the order to recite (in art.2) how the new way will be improved, or (in art.4) how works will be carried out to it, and these improvements or works should be described in the schedule to the form of order. Once one accepts that the order may specify works which amount to a limitation on the public right of way, and those works are recited in the schedule to the order, it remains only to record those works as limitations in the definitive statement via the consequential legal event modification order made under s.53(3)(a) of the Wildlife and Countryside Act 1981, or in a combined order. For example, the order might provide:

‘4. The following works shall be carried out in relation to the highway described in Part 2 of the Schedule: installation of gate to British Standard 5709:2006 at point X on the order plan.’

and Part 2 of the Schedule might read:

‘Description of site of alternative highway

…passing through a gate at point X, grid reference TQ05677650…’

Such drafting is consistent with r.2(1), and the gate is a work contemplated by s.257(2)(b). Why should the gate now not be recorded as a lawful limitation in the legal event modification order?

The express reference to limitations in s.119 of the 1980 Act is helpful, and ensures that provision for limitations is considered in the context of any public path diversion order. But it should not be taken to establish the benchmark for all other provisions enabling the creation of new public paths, which originate in other enactments, from other eras, with other purposes. There need be no limitation on the use of limitations.

DMMO applications: paragraph 1 compliance

Rights of Way Posted on Sun, August 27, 2017 16:50:58
Roman Road, Sutton next Ripple, Kent: PannageMan applied under para.1 in November 2016 to record this short length of Roman Road as a restricted byway (the paved road turns left here)

A previous blog explored applications under s.53(5) of the Wildlife and Countryside Act 1981 to surveying authorities for a definitive map modification order (DMMO), so as to amend the official definitive map and statement to add a right of way, to modify the details of an existing recorded right of way, or to delete a right of way already shown. It looked at the procedure in para.3(2) of Sch.14 to the 1981 Act for the Secretary of State to direct an authority to determine such an application where it remains undetermined one year after the date on which the application had been certified by the applicant as compliant with para.2. This blog looks at the requirements of a s.53(5) application, and in what circumstances such an application might be rejected for non-compliance.

An application under s.53(5) is to be made in a certain form set out in para.1 of Sch.14. It must be ‘made in the prescribed form’ — that is, prescribed by the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (SI 1993/12), ‘accompanied by—(a) a map drawn to the prescribed scale and showing the way or ways to which the application relates’ (the prescribed scale being 1:25,000: see r.2 applied by r.8(2)), ‘and (b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application.’ R.8(1) provides that an application must be in the form set out in Sch.7 to the Regulations, ‘or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case.’

Many such applications are made, often by applicants who have little or no interest or practice in rights of way as such, but are motivated by particular circumstances which befall them — a challenge to a long-used path, or a conviction that a path through their premises was wrongly recorded. Surveying authorities often provide a template of the Sch.7 form to assist applicants (with words to be inserted or crossed-out as the case may be), but even if the form is correctly completed (and it may not be), there is still room for error in getting the map wrong, or providing the right copies of documentary evidence. Indeed, one question to which PannageMan seeks an elusive answer is what amounts to a copy of documentary evidence: if an application relies on the entry in a deposited railway plan and book of reference, is it sufficient to supply a copy of the particular intersection of application path and proposed railway in the plan, and the relevant entry in the book of reference, or must one supply a copy of the relevant pages in both, or of the entire set of plans and book of reference?

But what if, as is likely, an application fails quite to comply with the requirements of para.1, including those prescribed in the 1993 Regulations? Is the application invalid, and to be disregarded, or must it be treated as an effective application anyway?

Some commentators turn for assistance to R (on the application of the Warden and Fellows of Winchester College and Humphrey Feeds Limited) v Hampshire County Council and the Secretary of State for Environment, Food and Rural Affairs, decided in the Court of Appeal. This was a judicial review of the decision of the defendant council to make DMMOs to record two byways open to all traffic across the claimants’ land. The DMMOs had been made in response to two s.53(5) applications. Rights for mechanically propelled vehicles (MPVs) along the ways were potentially extinguished by s.67 of the Natural Environment and Rural Communities Act 2006, but s.67 provided that the rights were excluded from extinguishment if the s.53(5) applications were made before a certain date (they were) and if the applications were: ‘made in accordance with paragraph 1 of Schedule 14’. In fact, the applications were defective, because they listed the documentary evidence supporting the applications, but did not provide copies. The court decided that the applications were not ‘made in accordance with paragraph 1’ for the purposes of s.67, and so they were not valid applications for the purposes of excluding the extinguishment of rights for mechanically propelled vehicles under s.67.

Winchester is sometimes taken to mean that a s.53(5) application must be fully compliant with the requirements of para.1, or it is not a valid application. But that is not what Winchester decided. As Dyson LJ (who gave the only judgment) made very clear in Winchester, ‘It is important not to lose sight of the precise question raised by the first issue [before the court]. It is whether, for the purposes of section 67(3) of the 2006 Act, the Tilbury and Fosberry applications were made in accordance with paragraph 1 of Schedule 14 to the 1981 Act.’ [Emphasis from the judgment, not me]

He went on to repeat the point: ‘I wish to emphasise that I am not saying that, in a case which does not turn on the application of section 67(6), it is not open to authorities in any particular case to decide to waive a failure to comply with paragraph 1(b) of Schedule 14 and proceed to make a determination under paragraph 3; or to treat a non-compliant application as the “trigger” for a decision under section 53(2) to make such modifications to the DMS as appear requisite in consequence of any of the events specified in subsection (3).’

When the Supreme Court reviewed the decision in Winchester, in R (on the application of Trail Riders Fellowship and another) v Dorset County Council, Lord Carnwath started, ‘from the general principle that procedural requirements such as those in the 1981 Act should be interpreted flexibly and in a non-technical way. …Such a flexible approach is particularly appropriate in the context of an application to modify the definitive map. …under section 53 of the 1981 Act the primary duty to keep the definitive map up to date and in proper form rests with the authority, as does the duty (under section 53(3)(c)) to investigate new information which comes to their attention about rights omitted from the map. An application under section 53(5), which may be made by a lay person with no professional help, does no more than provide a trigger for the authority to investigate the new information (along with other information already before them) and to make such modification “as appears to [them] to be requisite. …”‘

The judgments in both Winchester and TRF make clear that the judicial interpretation of the requirements of the saving for MPV rights in s.67 of the 2006 Act should not be extended to decide whether an application under s.53(5) should be treated as validly made or otherwise questioned: in that respect, s.67 has no relevance to most s.53(5) applications. In his judgment in TRF, Lord Carnwath refers to the speech of Lord Steyn in R v Soneji (para 23) as summarising the modern judicial approach to deciding whether a decision is invalidated where the decision maker fails to abide by some legislative procedural requirement imposed on it, in which Lord Steyn said that the emphasis is: “on the consequences of non-compliance, …posing the question whether Parliament can fairly be taken to have intended total invalidity.” That is the approach which, in theory, a court could apply if deciding whether a defective s.53(5) application is valid.

But for two reasons, that analysis will seldom if ever be called for. First, because a surveying authority, on receiving such an application, must decide whether the application is duly made (i.e. whether it is what it purports to be — a validly made s.53(5) application) and if it is, include it on its register of such applications held under s.53B of the 1981 Act. Under the Public Rights of Way (Register of Applications under section 53(5) of the Wildlife and Countryside Act 1981) (England) Regulations 2005 (SI 2005/2461, as amended), an application must be registered within 28 days of the date the application is received by the authority (r.3(6)(a)). If the authority decides that the application is invalid, and it is not minded to waive the invalidity or to seek to resolve it, then the application is not an ‘application’ under s.53(5) and it need not be registered. It follows that, if the authority registers the application, it must be satisfied that the application is validly made, or by implication, it has decided to waive any outstanding non-compliance.

One could enter into a debate as to the extent of the surveying authority’s powers to waive non-compliance. After all, para.1 does impose certain requirements on an application. Such a debate would have to consider the principles enunciated in Soneji to decide whether Parliament intended non-compliance with those requirements to promote total invalidity (noting again the expectation of Lord Carnwath in TRF that such an application, ‘may be made by a lay person with no professional help’).

But the debate would be sterile, and that leads us to the second reason why. The effect of an application is to alert the authority to events which call for the modification of the definitive map and statement. But the application is no more than a signal to the surveying authority that it has a duty under s.53(2) to ‘keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event’.

When the Wildlife and Countryside Bill was introduced to Parliament in 1980, it did not contain provision for applications to be made to the surveying authority for the purposes of triggering a DMMO. This provision was introduced in the House of Lords by Lord Bellwin on behalf of the Government, responding to criticism of the omission. And so the provision for applications was bolted on to s.53 and Sch.14, without quite resolving the tension created by those amendments — why does a member of the public need to make a formal application for a DMMO if the authority itself has a duty to act ‘as soon as reasonably practicable after the occurrence…of…events’? An authority cannot be omniscient, but surely, at least in theory, it would have been sufficient for a member of the public to write to the authority pointing out that certain events had taken place, and wouldn’t the authority (pursuant to its statutory duty) like to investigate and, if it thought fit, make a DMMO? Conversely, why impose regulatory requirements on an applicant, if a simple letter ought to be all that is necessary? The Minister, speaking to his amendment, said, ‘that to protect authorities from frivolous applications a formal procedure such as is provided for in the amendment was essential. That a person takes the time and trouble to produce the necessary evidence and plan is a clear indication that the claim is not frivolous, and that his application merits serious consideration.’ But an authority receiving a frivolous letter need have done nothing at all.

Even if the application is defective in some way, the surveying authority will be on notice that events have occurred which trigger its duty to make a DMMO. It therefore does not greatly matter that the application may be defective in some way: it has achieved its purpose, which is to nudge the authority into performing its standing duty. Of course, if the application is so defective that the authority does not have the slightest idea why the applicant thinks that a DMMO is called for (in which case, it ought to have been rejected at the time of the application as not duly made), or having weighed the evidence, the authority concludes that, on the balance of probabilities, there is no case to make a DMMO, it need do nothing (apart from refusing the application).

But what if, at this stage, the application is identified as defective in, for example, lacking copies of certain documents listed in the application, or the scale of the attached map is less than the prescribed 1:25,000? Neither of these flaws impairs the communication to the surveying authority of the nature of the events referred to in it. Therefore, what basis can there be for the authority to reject the application as defective and to refuse to make a DMMO if the evidence otherwise stacks up?

If a surveying authority does wish to rely on the legislative requirements for an application, the proper time to impose such requirements is within 28 days of the date of application, before the application is registered in the s.53B register, by refusing the application as not duly made. In PannageMan’s opinion, once the application is registered, the authority must, in due course, determine the application as if it were validly made, on the strength of the evidence submitted.

Directions for all

Rights of Way Posted on Sat, July 22, 2017 17:25:11
Jouldings Lane: PannageMan’s sister crossing Jouldings Ford

Sch.14 to the Wildlife and Countryside Act 1981 sets out the procedure for applying for, and the determination of, applications to a surveying authority for a definitive map modification order to amend the definitive map and statement — for example, to add a path not currently recorded, or to delete a path which is said to be wrongly included. An applicant must apply under s.53(5) of the 1981 Act in a form compliant with para.1 of Sch.14, serve notice on the landowners and occupiers affected (para.2(1)), and then certify to the authority that the applicant has served the notices (para.2(3)).

Having done this, para.3(1) of Sch.14 provides that:

‘As soon as reasonably practicable after receiving a certificate under paragraph 2(3), the authority shall—(a) investigate the matters stated in the application; and (b) after consulting with every local authority whose area includes the land to which the application relates, decide whether to make or not to make the order to which the application relates.’

There is no particular time limit imposed on the authority to carry out the investigation and determination, but para.3(2) provides that, if the authority has not determined the application within 12 months of the para.2(3) certificate, the applicant may make representations to the Secretary of State, and the Secretary of State may direct the authority to determine the application within a specified time.

Any applicant making such representations (see the guidance) is informed that:

‘The Secretary of State in considering whether, in response to such a request, to direct an authority to determine an application for an order within a specified period, will take into account any statement made by the authority setting out its priorities for bringing and keeping the definitive map up to date, the reasonableness of such priorities, any actions already taken by the authority or expressed intentions of further action on the application in question, the circumstances of the case and any views expressed by the applicant.’

This is the formula set out in Circular (remember those?) 1/09, para.4.9. For many years, indeed as long as anyone can remember, the Secretary of State would compare the applicant’s case against the circumstances of the particular surveying authority, conclude that the authority was performing satisfactorily against its commitments, and decline to make a direction. This was so, even where, according to the authority’s own assessment, the application was already some years old, and was not due to be considered for many more years.

All this changed several years ago, when, for reasons never explained or announced (but nonetheless welcome from applicants’ point of view), the Secretary of State began to tire of surveying authorities’ excuses, and started to give directions after all. The volte face was all the more startling, because before long, directions were being given even where the delay was quite modest.

PannageMan sought directions in relation to two applications which he made for paths near the Hampshire/Berkshire border, at Jouldings Lane and Riseley Common Lane, in May and December 2013 (Jouldings Lane straddled the boundary with Wokingham Borough Council, but Hampshire had the more substantial interest). Concerned that Hampshire County Council was quoting an eight-year lead time to determination, he wrote to the Secretary of State in June 2016 asking for directions.

The Secretary of State’s decisions finally arrived today, with directions to Hampshire County Council to determine the Riseley Common Lane application within six months, and to both Hampshire County Council and Wokingham Borough Council the Jouldings Lane application within eight months. By present day standards, this is no surprise. But what does surprise PannageMan is the sheer lack of quarter now given surveying authorities.

In his decision letters on behalf of the Secretary of State, the inspector, Michael Lowe, duly recites the relevant words from Circular 1/09, and notes that both applications are ranked well down Hampshire’s list of applications (53rd and 49th respectively out of 68). He then reiterates the expectation that applications will be determined within 12 months (helpfully quoting from the words of the Minister in moving amendments to the then Wildlife and Countryside Bill that suggest that para.3(2) was intended to enable the Secretary of State to administer a swift administrative boot to any authorities that failed to adhere to the target 12 months), notes that PannageMan has been waiting for more than two years already, and finds that the council’s statement of priorities cannot be reasonable under normal circumstances if it does not deliver determinations within 12 months.

So there you have it. The Secretary of State now appears to have moved all the way to a policy under which, if an application has not been determined within 12 months, a direction may be expected to follow, and never mind what the authority has to say. What would happen if the other 66 applicants (or at least, those who have been waiting more than 12 months) in Hampshire also sought directions is anyone’s guess — we can be quite sure that there would be insufficient resources to deliver the casework in the time that the council would be given. But North Somerset Council was directed to determine 20 applications over a period of 21 months, which for a small unitary council suggests an heroic rate of activity.

More’s the pity that, under reforms enacted through the Deregulation Act 2015, the responsibility for delivering that ‘swift boot’ will be transferred to the magistrates’ courts. Instead of making representations to the Secretary of State (online if desired), an aggrieved applicant will need to apply to the magistrates’ court for a hearing, and convince the magistrates that the authority should be directed to determine the outstanding application. Who will want to do that — even before considering the £720 court fee, and the possibility of an award of the authority’s costs against the applicant (think £5,000 upwards)? Meanwhile, landowners, under those same reforms, will get a new right to appeal against the failure of a highway authority to determine an application to divert a public path — an appeal which will lie to the Secretary of State, not the courts.

But for now, applicants who are on a long waiting list for determination are advised to consider the para.3(2) route. And for those who risk being ‘queue-jumped’ because of ‘directions for all’? They should go down that route too.

A diverting story

Rights of Way Posted on Sun, December 11, 2016 15:23:29

The diversion of public highways, and particularly public paths, is commonplace. Path diversions are generally made by administrative order under s.119 of the Highways Act 1980, or s.257 of the Town and Country Planning Act 1990: the procedure is relatively inexpensive, and usually successful (if success is equated with the order being confirmed). Even before s.42 of the National Parks and Access to the Countryside Act 1949 first conferred such administrative powers on highway authorities, it had always been possible to divert a highway (of any description) by an order of the magistrates’ court (and still is, under s.116 of the Highways Act 1980). So it is that many highways which exist today have been diverted at some point in their history. Sometimes, that diversion may have taken place so long ago that no record exists of the diversion, and no available map is sufficiently old to show its former alignment (but perhaps a slightly sunken track by an old hedgerow may suggest the original way today). More often, in relation to public paths, the highway authority will have diverted the way after the definitive map and statement was drawn up in the 1950s.

But what if a path, recorded on the definitive map as a public footpath, and diverted under s.119 of the 1980 Act, turns out after the event to host ‘higher’ rights than those recorded? What is the effect of the order on those rights which were latent at the time of the order, but unrecognised?

Surprising to report, there seems to be no authority on the question. In Brand & Brand v Philip Lund (Consultants) Ltd, an action which successfully proved (at least between the parties) that Ramscote Lane in the Chilterns was a public carriageway, HH Judge Paul Baker QC notes that:

‘an order was made diverting the track so that it now runs round the edge of the wood. The order was made under the Highways Act 1959 section 111, which is now the Highways Act 1980 section 119. …By adopting the plan in the statement of claim, Lund Consultants appear to accept the efficacy of this order as regards the route of any vehicular way it may be able to establish. I have had no argument on that particular point.’

At that time, s.119 conferred powers to divert only a footpath or a bridleway, and indeed, the order made by the council referred to a bridleway. However, in discussion between the bench and counsel after judgment was handed down, it was realised that, if an order was to be made declaring a vehicular right of way along Ramscote Lane, it was necessary to decide whether the right of way existed along the original way, or the replacement way following the diversion. The judge concludes that:

‘the common-sense of this is that, once there has been a diversion, whatever rights there were over the road are diverted. Just a quick look at the relevant section of the Highways Act would seem to show nothing that precluded that view.’

It seems that counsel for Lund was denied an opportunity to make further representations on that point later at a resumed hearing later in the day, but as his client got his declaration of a vehicular right of way over the replacement way, he might not have been too disappointed about that (although the width of it was tight: 6ft at one point). So the vires of the diversion order was not seriously challenged by any of the parties. Which is a pity. For, so far as I am aware, this is the only reported case even to touch on the question. In due course, following the trial, the ‘bridleway’ became shown on the definitive map as a byway open to all traffic throughout: you can see here where the byway now follows the edge of the wood where it formerly passed through adjacent fields.

Public footpath along Tenchleys Lane, near Limpsfield Chart, Surrey.

The public footpath formerly followed the course of the Lane through the gate to left and through the garden of Tenchleys Barn. Following a recent diversion, it now follows what, at the time this photograph was taken, was marked as an ‘alternative path’. What if Tenchleys Lane were now proven to be a bridleway? In fact, an attempt to demonstrate just that failed in 2015 (see Pannageman’s report).

For any way with unrecorded higher rights diverted by order so as to expressly address only the recorded rights, there must be at least five conceivable outcomes (in this exploration, I refer to the original way as such, and the diverted way as the replacement way):

  1. The order is effective, and unrecorded rights are lost. The order stops up the original way (of whatever status), and creates the replacement way of the status set out in the order.
  2. The order is effective, and the replacement way is of the status of the unrecorded rights. The order stops up the original way (of whatever status), and creates the replacement way of the same status commensurate with the unrecorded rights formerly embodied in the original way.
  3. The order is effective, but unrecorded rights are preserved. The order stops up the original way only so far as provided in the order, but the higher unrecorded rights are retained along the original way. The order creates the replacement way of the status set out in the order.
  4. The order is effective, but only so as to create the replacement way. The order does not stop up the original way, and creates the replacement way of the status set out in the order.
  5. • The order is ineffective. The original way continues to subsist, and the replacement way has no legal status (unless, perhaps, it has been in use for so long that it is deemed to have been dedicated).

None of these options is a particularly attractive one to apply to every possible case, which is why it is hard to formulate principles which can be universally applied. That is not to say that a court should or would adopt principles tailored to the particular circumstances — it ought to be possible to discern some general principles which would apply in every like case. But the approach which a court might apply in a case which comes before it might well be influenced by the circumstances — even though the legal principles, enunciated in that case, but applied in a similar case with different circumstances, might produce unfortunate results.

Let’s illustrate these circumstances with three examples, each of which contemplates the diversion of a footpath subsequently discovered, thanks to historic evidence, to be (or at least, to have been) a bridleway. First, consider a way which is diverted out of a cross-field alignment so that the replacement way runs along the farm drive. In these circumstances, there is no practical reason why the replacement way, a farm drive, should not serve as a bridleway instead of a footpath.

What if the original footpath were diverted to pass through a new housing estate, so that the replacement way were designated with a width of one metre, and were enclosed by two metre high panel fencing on both sides? In these circumstances, the redesignation of the replacement way as a bridleway would be highly unsatisfactory, being of insufficient width to pass two horses. Yet the original way might now be lost under the housing development, and incapable of being resurrected. Practicality (from the landowner’s perspective) desires that the higher, bridleway, rights, should have been extinguished without replacement.

For our third example, imagine a footpath which is diverted out of a farm yard and onto an elaborate detour around the farm buildings, on a narrow alignment with a width of less than one metre, and several stiled crossings of farm access routes. As in the second example, the replacement way is entirely unsuited to use as a bridleway: it is indeed physically impossible to use it as such, and there is no warrant to dismantle the stiles which are lawfully set out as limitations in the diversion order. But, much as the farmer might regret the resurrection of the original way through the farm yard, it is still physically practicable to pass that way, even if it is not particularly welcome to the farmer.

So a court could hardly help but be influenced by the circumstances of a case which comes before it. What of the legal principles which it should apply?

In every case, an order has been made that purports to divert a way which is not as it is described. That constitutes one inevitable defect in the order, which is a failure of description, but there is a second possible defect, which is an absence of powers. If a public path diversion order is made by a local authority under s.119 of the Highways Act 1980, the authority has a power to divert by order any public footpath, bridleway or restricted byway (the last owing to amendment of s.119 by SI 2006/1177, r.2 and the Schedule) in accordance with the requirements of the 1980 Act. What if the original way turns out to have been a carriageway over which rights for mechanically propelled vehicles endure (in effect, what might properly be recorded as a byway open to all traffic)? The authority has no power to divert such a carriageway. The order may have been duly advertised, processed and confirmed, but it remains that the order purports to do what the authority has no power to do. Will a court, advised of the error long after the date of confirmation, leave such an order undisturbed notwithstanding that it was, and remains, blatantly ultra vires? In R (Andrews) v Secretary of State for the Environment, Food and Rural Affairs (generally referred to as Andrews 1), the High Court was eager to rescind an unlawful award of a public path in an inclosure award made nearly two centuries earlier, on the ground that the inclosure commissioners had no power to make the award. That decision was subsequently overturned, over twenty years later, in Andrews 2 (see Pannageman’s final comment on the case), but only on the ground that the commissioners did have the necessary powers: the Court of Appeal left undisturbed the finding of the original court that it was proper to revisit the question of powers after such a long elapse of time. Would an ultra vires public path order be equally vulnerable to rescission? Para.4 of Sch.2 to the 1980 Act (applied by para.5 of Sch.6) provides that, after the expiry of the six week period for statutory challenge, an order may not, ‘be questioned in any legal proceedings whatever’ — but there was a similar ouster clause in Andrews 1. It must be said that the question of the ultra vires exercise of powers by public bodies could, and does, fill a substantial part of a legal text book, Andrews 1 cannot be considered, by a long way, the final word on the subject, and I do not intend to explore the point further here. But it is a vexed question surely because, whatever the circumstances, it is unattractive to apply the same rules in every one of a substantial number of highly diverse cases.

Usually, however, a public path diversion order will not have purported to extinguish rights for mechanically propelled vehicles. Far more likely is that the rights addressed in the order are within the scope of s.119 (i.e. the original footpath is subsequently discovered to be a historic bridleway or restricted byway, or the original bridleway is subsequently discovered to be a historic restricted byway), but the order is defective in adverting to the original way as only a footpath or bridleway (as the case may be). In such a case, the order is defective, in that it purports to extinguish something inferior to the true status of the original way, and to set out a new way which is equally inferior. But this time, there is no doubt that the authority had a power to divert the way according to its proper status, even though it did not properly exercise the powers, nor invite objections on that basis. And while the order is defective, the legislation seems to make the position clear: s.119(1)(b) provides that the council may, by order, ‘extinguish, as from such date as may be specified…, the public right of way over so much of the path or way as appears to the council requisite as aforesaid.’ This provision does not provide for the extinguishment of whatever is specified in the order (be it a footpath, bridleway or restricted byway), but the extinguishment of the ‘public right of way’. A court might find the comprehensive scope of that provision seductive in determining the effect of the order on previously undiscovered higher rights.

But there is no compensating solace in s.119(1)(a). This enables the council, by order, to ‘create, as from such date as may be specified in the order, any such new footpath or bridleway as appears to the council requisite for effecting the diversion’. There is no flex in those words to infer that, despite the authority’s error in specifying the creation of a footpath, the legislation has actually operated to create a bridleway (or a restricted byway, as the case may be). My belief, albeit on fairly meagre provision, and in the absence of a compelling set of practical considerations to direct the court to a different conclusion, is that, provided that the order could lawfully stop up the original way, it will be taken to have done so — and that the replacement way will be precisely as specified in the order, and no more.

Of course, different legal mechanisms may lead to different outcomes. If the way was diverted by order of the magistrates’ court under s.116 of the 1980 Act, the magistrates had undoubted power to divert and stop up any highway, and I would conclude that, even if the original way was described only as a footpath or bridleway, but was subsequently established to be a carriageway for all vehicles, the order will be taken to be effective in the terms described in the order.

But that is to decide only between the first two of the conceivable alternatives set out earlier in this blog. What of the other three? In my view, they are conceivable alternatives — but barely so. Alternative three contemplates the designation of the original way as a class of highway unknown to the common law: a bridleway over which there exist no rights on foot, or a restricted byway over which there exist no rights on foot, and perhaps no rights on horseback or on cycle (depending on the terms of the diversion order). Such highways are not entirely alien: motorways and some roads subject to traffic regulations orders are prohibited to ‘inferior’ classes of traffic — but these highways have been so designated for coherent reasons. I find it impossible to imagine how a bridleway available to horse riders but unavailable to pedestrians could make sense. If, however, one conceives that the original way endures without any restriction on the classes of traffic which may use it, then that is alternative four… .

Alternative four is superficially more attractive from a public interest perspective: the original way is found to endure, as does the replacement way. But it has little support from the legislation, nor from logic. The landowner will suffer a ‘triple whammy’: once the error has been identified, not only is the original way resurrected long after it was purported to be extinguished by order, but it is now found to carry higher rights than previously manifest — and the landowner is also lumbered by the replacement way too (it will be small solace that the replacement way has only the status set out in the order).

Alternative five might be equally acceptable to the public: the order is deemed to be of no effect whatsoever. Given that the order was defective (we assume here it was not wholly ultra vires), that might not seem unreasonable — but flaws in the procedural process do not necessarily void the action taken by a public body. And in terms of practical realities, it is perhaps the outcome least likely to make sense, in that the original way may long since have been developed on the assumption that it has ceased to exist, and the public will have used the replacement way as if they had a right to do so. Indeed, throwing open the replacement way for public use might be taken to amount to common law dedication of a right of way, were it not that in the ordinary course of events, the order expressly creates the right of way. In Powell and Irani v the Secretary of State for Environment, Food and Rural Affairs and Doncaster Borough Council (reported by Pannageman), the court found that a way which had been used by the public long after it had been diverted elsewhere, had come into being through presumed dedication, even though the landowner might have assumed he had no power to interfere with use of the way because it was still shown incorrectly on its original alignment on the definitive map. So alternative five might, in many cases, be indistinguishable from alternative four: both may lead, after a sufficiently long interval, to the establishment of public rights over both the original and replacement ways.

If this analysis turns out to be correct, it has significant implications for research to identify and record, on the definitive map and statement, under-recorded rights of way. For if the candidate right of way was previously diverted with only the status then apparent, it may be that any application to ‘upgrade’ the way cannot succeed, at least in respect of the original way stopped up. Given how widespread is the diversion of public rights of way, this may be a significant impediment to such research.

Restoring the record in East Kent

Rights of Way Posted on Fri, November 11, 2016 11:32:38

Those who have ventured from the Pannageman blog into the web pages mentioned in About the author opposite may have stumbled upon the ‘Applications‘ suite of pages. This reflects a personal interest in rights of way research, and catalogues a number of applications, and draft applications, to add to the official record various unrecorded public rights of way, and in one case, common land, largely focused on East Kent. I’m sometimes asked what inspired me to embark on research in this area, given that I live in Surrey. So here goes.

I’ve always been fascinated by Britain’s rights of way network, and a keen walker and rider. But rights of way research — researching, documenting and applying for the recording of public paths which escaped the creation of the definitive map of rights of way in the 1950s — is a more recent interest. I first got involved in identifying the historic character of a route in Fetcham, Surrey, which I and others from our livery stables had ridden for years, but had lately attracted criticism from some locals because of its recorded status as footpath. Research in the late 1990s demonstrated that the ‘footpath’ was an old road, part of Kennel Lane, which had been eclipsed by development of housing, and escaped being tarred in the industrious period between the two World Wars when most public roads were visited by the tar painting gang. The county council compromised by obtaining an order from the magistrates’ court to stop up the road subject to bridleway rights, and today, the route is recorded as a public bridleway.

Unsealed former carriage road bridge on Kennel Lane, Fetcham

Fast forward to the present decade, and I embarked on some research on the Hampshire and Berkshire border, near Bramshill, to identify two restricted byways (carriageways over which rights for mechanically propelled vehicles have been extinguished) in an area where my sister lives, and which I have frequented on many walks and a few rides over the years. Two applications for these restricted byways to be recorded on the definitive map were made in 2013: these and subsequent applications can be viewed here.

In 2013, a friend who had been walking in East Kent ventured down the minor road to sequestered Knowlton village to view St Clement’s church, a redundant church under the care of the Churches Conservation Trust. The Ordnance Survey Explorer map at that time (and still, at the time of writing), showed the continuation of Knowlton Lane past the church as a ‘yellow road’ for about 100 metres — usually a good indication of public status, but the visitor was confronted by a sign which read ‘Private: No public right of way’. Knowing that I’d be interested in the contrast between map and reality, he passed on the details.

It didn’t take me long, even from desk-top research, to conclude that there was something missing from the map. A little east from Knowlton, beyond the end of that ‘yellow road’, the Explorer map shows a public footpath, beginning at the parish boundary, east towards Thornton Lane; moreover, the Ordnance Survey marks the way ‘Black Lane’ — as it has ever since the first large scale map was published in 1872. Enquiries to the county council revealed that, when the definitive map was drawn up in the early 1950s, there was confusion about whether the way between St Clement’s church and the parish boundary was a public road, which did not need to be recorded on the definitive map, and the parish of Goodnestone did not claim it. Over the years since then, research has shown that Black Lane is an old road or bridle-road of some significance, frequently referred to in the C18 as the main route between Canterbury and Deal. An application for Black Lane to be recorded on the definitive map was made in 2015, with 39 pieces of evidence (though some of the C18 maps are distinctly unhelpful).

At that time, I concentrated on researching the background to Black Lane (and the background is voluminous: the tally of 39 has now reached beyond 50). But the nature of rights of way research is that one thing leads to another. As one trawls the archives, it is impossible not to notice clear indications that the status of other ways has been under-recorded (typically, roads or bridleways as footpaths), or that such ways have been omitted altogether. As an example, the tithe map of Eastry, across which Black Lane runs, shows Black Lane as a distinct track or road. But it also marked two other ways as ‘bridleway’ — one of which is not recorded on the definitive map at all, and one of which is recorded only as a footpath. Such evidence is not conclusive of the status of a way as a public bridleway: it might be argued that the tithe map was not drafted with the purpose of identifying public paths, or that the bridleway was no more than a private right of way (though private bridleways are a rare thing outside inclosure awards). It does, however, inspire further research in pursuit of corroboration.

Black Lane, Knowlton, between Thornton Lane and the dismantled East Kent Light Railway. Of the 2,930m applied for, this short stretch is the only (barely) accessible part — on foot.

Over several years, I have acquired perhaps 25GB of maps, documents and registers covering the former Eastry rural district council’s area, from visits to the Kent County Archives, the National Archives, the British Library and the Canterbury Cathedral Archives. All four have been hugely helpful, and I am also grateful to the British Horse Society’s Kent area for reimbursing my expenses in gathering the data, and Phil Wadey’s and Sarah Bucks’ Restoring the Record for guidance. The consequence is that it is now possible to form a preliminary view on the historic case for any particular way in that area, on the basis of desk-top research drawing on data already accumulated. These data are never the full story: it is often possible to identify further historic documents specific to a particular parish or manor. An estate plan or parish map may provide key evidence, and this will still require additional visits to the archives. But the key building blocks for an application are in place. I have made four applications for ways in East Kent at the time of writing. Three more are in the pipeline, and others may follow.

I was asked by a friend whether I thought about the landowners whose land these ways cross. All of the ways applied for to date cross agricultural or grazing land: in my view, acquiring land brings with it responsibilities as well as benefits. Land has always been subject to often hidden obligations: both private and public rights of way, other easements, rights to light, rights of common and other profità prendre, even the obligation to maintain the chancel of the church or to maintain a public road. These obligations have been pared away over recent years: some of them must now be registered by the beneficiary against the registered title to the land, while the scope to enforce unregistered easements is now somewhat more restricted than previously. But public rights of way, even those not recorded in the definitive map, are not entirely hidden: a cursory look at historic large scale Ordnance Survey maps (now available on-line) will reveal many apparently public paths which, if sufficient other evidence exists, may be the subject of a future application. Consultants are available who will carry out more detailed research for a fee, in anticipation of a prospective purchase. To date, none of my applications has intruded on ‘private space’: a home or its immediate grounds — but even if one does in future, new powers available to local authorities under the Deregulation Act 2015 will enable authorities to negotiate with landowner to agree a diversion order (known as a modification consent order) as part of the recording process.

Why were these paths not recorded on the definitive map? The Dover Express and East Kent News for 4 August 1950 records a parish meeting in Adisham to discuss the parish survey to inform the new definitive map. The report says that:

‘A large map of the Parish was closely scrutinised, showing 13 footpaths and 12 bridle roads. Each path and bridle road was dealt with individually, and, of 13 paths, it was agreed that 7 were necessary, 2 necessary for part of their length and that 4 no longer had any useful purpose. Of the 12 bridle roads, 7 were considered to be still serving a use [sic] purpose, 2 for part of their length and 3 were considered of no use whatever.’

It remains to be seen whether, in fact, those 3 or 5 bridleways ‘considered of no use’ in 1950 were indeed excluded from the definitive map. What was considered useless in 1950 is not necessarily useless today (and vice versa). But the sentiments of the meeting are not likely to have been unique to Adisham.

Research is now up against a deadline. At the end of 2025, most unrecorded public footpaths and bridleways will be extinguished under Part II of the Countryside and Rights of Way Act 2000 (CROW). Were it not for the CROW cut-off, it might be that many unrecorded paths would have been quietly forgotten. But the cut-off, sought by the landowning and farming bodies as a quid pro quo for the right of access granted by Part I of CROW, gives new impetus to identifying these unrecorded routes. And there are only nine years left.

Andrews 2: the end of the (bridle) road

Rights of Way Posted on Mon, July 06, 2015 20:26:45

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘Other routes with public access’

Rights of Way Posted on Sun, June 07, 2015 22:12:32


If one was to compile a list of post-war initiatives to promote public access to the countryside, what might appear? Certainly, any list should include:

  • â–ª the definitive map of public rights of way (under Part IV of the National Parks & Access to the Countryside Act 1949);
  • â–ª the depiction of definitive public rights of way on Ordnance Survey maps (from 1960, apparently on the initiative of the Ramblers’ Association)
  • â–ª the right of access to open country and registered common land (conferred by Part I of the Countryside & Rights of Way Act 2000)
  • â–ª the power for local authorities to provide country parks, the signposting of public paths, and the right to ride cycles on public bridleways (under the Countryside Act 1968)

Perhaps too, recognition should be given to the efforts of access organisations, and particularly the Ramblers’, to secure better recognition by local authorities of their responsibilities to maintain and promote their public rights of way networks.

But there is one more candidate for inclusion: ORPA. No, not the killer whale, but ‘Other Routes with Public Access’, a symbol used by the Ordnance Survey (OS) on its leisure mapping since about the turn of the present century to represent selected public highways which are not public rights of way on the definitive map and statement. The idea for ORPA seems, again, to have originated with the Ramblers’ Association. (Ironically, ORPA is also an initialism of the Off Road Promoters Association, which has a particular interest in these routes.)

ORPA symbols

Here are the ORPA symbols used on the OS’ 1:50,000 and 1:25:000 maps:

What are ORPA? The OS uses the following text in its key: “The exact nature of the rights on these routes and the restrictions may be checked with the local highway authority”. Which is mystifying and unhelpful but consistent with the OS’ practice of minimising its responsibility for the existence of a right of way along any route shown on its maps.

The list of streets

The provenance of ORPA is the list of publicly maintainable streets held by every local highway authority under s.36(6) of the Highways Act 1980: this sparsely worded provision simply requires that, “The council of every county, metropolitan district and London borough and the Common Council shall cause to be made, and shall keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense.” Subs.(7) goes on to provide that the authority must keep the list available for public inspection at its own office, and the relevant part at the office of any district council (if there is one). And ‘street’ is given the meaning assigned to it in s.48(1) of the New Roads and Street Works Act 1991, which is to say: “any highway, road, lane, footway, alley or passage, any square or court, and any land laid out as a way whether it is for the time being formed as a way or not.” Although this definition has a rather Dickensian feel to it in its reference to ‘passage’, ‘square’ or ‘court’ (similar language can be found in the definition of a ‘street’ in s.3 of the Town Police Clauses Act 1847), there seems to be little doubt that the list of streets must identify any public way, whether in the countryside or in town, which the highway authority is obliged to maintain. And this includes not only the main roads in the authority’s area (but not trunk roads nor motorways: these are maintained by Highways England), but also most residential roads, country lanes, byways open to all traffic, restricted byways, public bridleways and footpaths, just so long as they are publicly maintainable. Whether any particular way is in fact publicly maintainable will be a matter of provenance and history: for example, any public road in existence before the Highway Act 1835 is publicly maintainable, and most public rights of way are — but there are exceptions, including footpaths added to the definitive map of rights of way since 1949 on the basis of long use.

It follows that the list of streets should have a vital role in the highway authority’s functions: it tells the authority, and the public, which highways the authority must maintain, and by implication, those ways (some of which will nevertheless be public highways) which it does not maintain. In practice, the role of the list of streets has been eclipsed for two reasons: first, because highway authorities focus on maintaining the ‘street works register’ required under s.53 of the New Roads and Street Works Act 1991, which must show every street for which the highway authority is the ‘street authority’ (r.4(5) of the Street Works (Registers, Notices, Directions and Designations) (England) Regulations 2007), and the highway authority is the street authority for every publicly maintainable highway, s.49(1)(a). And secondly, because few highway authorities include all publicly maintainable rights of way in their list, even though it seems they should.

How ORPA were identified

Nevertheless, it is the list of streets which provides the provenance of ORPA. The OS has explained to me (in a letter of 2008) that “ORPA were collected [from highway authorities] as a one off exercise approximately ten years ago. Field surveyors visited the local authority highways department and selected from the local authority list of streets with the objective of linking gaps in the existing rights of way network. The list is not comprehensive, for example ORPAs are not shown in urban areas. Currently there is no mechanism in place to update them.” The implication is that it was the OS which selected, from routes shown in the list of streets, those ways which were appropriate to be depicted as ORPA. Remember that most entries in the list relate to the conventional tarred roads in the authority’s area: so the OS was not interested in showing as ORPA roads which were already coloured on its 1:25,000 and 1:50,000 maps, nor in marking ORPA along residential roads which might be assumed to be part of the ordinary highway network. What the OS was targeting was those highways, mainly in rural areas, which were included in the list of streets, but which if they appeared on the OS map at all, did so as ‘white roads’, and where the map user might at best be uncertain about whether there were any public right of way, and at worst, might well assume that there were none, or have no reason to suppose that any existed at all. Uncertainty about public rights was compounded by the untarred character of many of these highways, so that they might be green lanes, or cross field tracks, but with little or no evidence of their legal status. In practice, the public status of some of these ways was transparent: perhaps they were included as part of a National Trail, or they were the only means of access to the start of one or more public paths (although it is not inevitable that a public path begins on another public way). Alternatively, tell-tales of public status might have been discernable to the experienced user: perhaps traces of a tarred surface put down in the 1920s and not maintained since the Second World War, or a highway authority ‘Unsuitable for Motor Vehicles’ sign, which, in the perverse language of bureaucracy, can be roughly translated as ‘Public road which we must maintain for motor vehicles, but don’t’:

Unsuitable for motors: The Drift, off Denton Lane, Harston, Leics © Alan Murray-Rust and licensed for reuse under this Creative Commons Licence

The consensus seems to be that it was the OS which decided what to depict as ORPA, and what to exclude, given access to the entire list of streets. It may be that in some highway authority’s areas, a more prescriptive approach was taken, where the highway authority provided ‘advice’ on what it wanted to be shown, and what it wanted excluded. In many areas, it remains unclear why some ‘white roads’ have been marked as ORPA, and others (known to be included in the list of streets) have not. For example, in Surrey, which has relatively few unsealed public roads, many were either overlooked or excluded from the original survey, but have now been recognised for inclusion in the next edition of the relevant OS maps. In deciding what to show, the OS appears to have adopted some basic rules:

  • â–ª ‘coloured’ roads are never shown as ORPA (colouring in practice means the road is either a public road, or in the odd few exceptions, open to the public, though possibly tolled: see the OS statement here)
  • â–ª selectivity is exercised even over what is otherwise eligible (e.g. whether to depict ORPA along an isolated residential road)
  • â–ª ORPA is not shown where the route is on the definitive map and is therefore shown as a public right of way (even if ORPA implies there may be higher rights)

This last point means that some ORPA are shown as discontinuous, alternating with say a public footpath where the definitive map public right of way lies alternately inside and outside the boundaries of the green lane.

What rights are implied by ORPA?

This bring us to the question of what exactly can be inferred from a route being marked as ORPA? The inclusion of a way in the list of streets technically confirms only that the highway authority accepts that it has a duty to maintain the way (and even then, mistakes are sometimes made, so that ways are wrongly included in the list, and significant numbers of ancient ways may be omitted from the list — not to mention all those rights of way wrongly excluded in most local authority areas). Inclusion does not of itself confirm the status of a way, although it is a safe assumption that if a way is publicly maintainable, it must be at least a public footpath. In practice, most county highway authority’s lists of streets comprise three classes of publicly maintainable ways:

  • â–ª main roads which have long been the maintenance responsibility of the county council
  • â–ª local roads, responsibility for maintenance of which was formally transferred to county councils under s.30 of the Local Government Act 1929 (as noted in my blog on Bradley Lane or Bradley Path?)
  • â–ª urban paths and alleyways, which are typically tarred, and have traditionally been maintained as part of the urban street network

This is a broad simplification: practice varied across county councils, and in urban boroughs, what is contained in the list may be a complete inventory of known public rights of way. Indeed, some boroughs were wholly excluded from the requirement to draw up definitive maps of public rights of way until s.55(3) of the Wildlife and Countryside Act 1981 was brought into force, and even now, lack comprehensive definitive maps for their areas. Bradford is the most egregious example, but in compensation, its list of streets contains details of most of the public rights of way within the former city borough, and the OS has brought that information to life by showing the extensive network as ORPA (see for example this photo of a bridge over a beck near Thornton, Bradford, which is marked on the OS map as ORPA, but which is apparently no more than a footpath). In a typical rural county area, there is a pretty strong likelihood that any way depicted as ORPA and therefore shown in the list of streets is an old vehicular highway — but likelihood is not proof, and from time to time, definitive map modification orders are made for such ways which achieve no more than bridleway status (Bradley Lane is one such example).

Updating ORPA

The OS considers the collection of list of streets data to have been a one-off exercise, and has no plans to review or update the data. In the author’s experience, the OS will make changes only on instructions from the highway authority, and is reluctant to act on any third party intervention, although user groups have secured increased coverage in some areas (such as Norfolk). I infer the OS position currently to be that:

  • â–ª new routes must be validated by the highway authority (the OS says it no longer holds the original survey data, so it is unable to validate nominations against those data), including confirmation that the authority considers the route suitable for depiction, so that the OS has assigned editorial discretion to the authority
  • â–ª the OS will consider adding only routes which are in the list of streets

This means that, where the highway authority is not pro-actively taking an interest in the ORPA data, and engaging with the OS (and given that in most authorities, unsurfaced roads are still managed by the highways team rather than the rights of way team, there’s precious little resource or zeal for these routes), the ORPA data are sterilised, with perhaps the odd route dropping off the map when somebody complains to the authority, and the authority takes the line of least resistance by calling for it to be quietly removed from the OS map (such action of course technically having no impact on public rights).

The OS will not consider adding privately maintainable public highways as ORPA, nor public highways not maintained by anyone, even though these fit the description of ‘other routes with public access’. In a 2010 report to a committee of Devon County Council concerning a network of lanes south of Honiton which had been subject to a ‘cessor’ order (i.e. the court had ordered that the lanes should cease to be publicly maintainable), it states that the matter was concluded with the “Town Council resolving to ask the County Council to request the Ordnance Survey to depict this section as available for public use. Ordnance Survey was contacted accordingly, and the route appears marked accordingly on its most recent mapping” (see streetmap). However, whatever the past policy, it appears that the OS will not now do this — though why not is unclear.

The future for ORPA and the CROW Act 2000

Many unsurfaced roads in the countryside have been affected by Part 6 of the Natural Environment and Rural Communities Act 2006 (NERC2006), which extinguishes rights for mechanically propelled vehicles over certain public carriageways. Generally speaking, NERC2006 will not have extinguished rights over list of streets routes, because s.67(2)(b) specifically exempts from extinguishment ways which were included in the list at the date of commencement. (Ways which were both included in the list and shown on the definitive map are not automatically exempted, but these will not be shown on the OS map as ORPA.)

There is also the question of whether these ORPA are threatened by the extinguishment of rights of way in 2026 (or later if delayed by regulations) under Part II of the Countryside and Rights of Way Act 2000 (CROW2000). The short answer is generally no: first, because carriageways are not affected by Part II, and secondly because there is an expectation, endorsed by the stakeholder working group on rights of way, that routes on the list of streets (and therefore underpinning almost all ORPA) in 2026 will be preserved from extinguishment even if they are not carriageways, on the grounds that they are duly recorded, even if not on the definitive map and statement.

The longer, more careful answer, is probably not in most cases. Some hesitancy is called for because in some circumstances, ways now shown as ORPA will (on currently understood criteria) be eligible for extinguishment because:

  • • a way shown as ORPA on the OS map is erased from the list of streets by 2026 (whether by due process or otherwise), and also is not a carriageway
  • • a way shown as ORPA on the OS map was not sourced from the list of streets, and is privately maintainable, or not maintainable at all (see the Devon example above), and also is not a carriageway
  • • there may be no comprehensive exemption of list of streets routes in regulations and the way shown as ORPA on the OS map is also not a carriageway
  • • amending legislation is passed to extend the CROW2000 provision to unrecorded carriageways, and any of the above applies irrespective of whether the way is a carriageway

Some of these outcomes could occur de facto on the basis of a particular way shown as ORPA on the OS map being assumed to be a public footpath or bridleway, and not a carriageway, and it being asserted that public rights have been extinguished. Since there is no automatic administrative or judicial process to confirm whether a right of way has been extinguished under Part II of CROW2000, this may be a significant practical difficulty. Indeed, under s.54A of the Wildlife & Countryside Act 1981 (inserted by para.4 of Sch.5 to CROW2000), no carriageway may be added after 2026 to the definitive map and statement (or any later date substituted by regulations) as a byway open to all traffic, so even if a way is considered to be a carriageway, there will be no accessible mechanism available to users to demonstrate that the way is a carriageway, still less any means to preserve a public record of that status for perpetuity in a definitive map and statement.

Conclusion The inclusion of ORPA on OS leisure mapping has promoted substantially improved access to the countryside in areas where untarred roads are a significant part of access opportunities — and it has demonstrated how widespread such access can be, and how poorly was publicised information about this access previously. It must be said that the OS’ diffidence about the rights available over ORPA leaves some map users bemused about precisely what rights exist — but then that largely reflects the uncertainty inherent in the data. Just by way of illustration, consider how widespread are the ORPA in this area of Stokeinteignhead in South Devon. Pre-ORPA, any visitor to the area would have struggled to determine whether this extensive network of charming but unsignposted untarred lanes were public or private. Now, the OS map confirms that these delightful lanes, such as this one, can be enjoyed by all:

Unsealed public road to Lower Rocombe near Stokeinteignhead, Devon (photo by the author)

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