PannageMan

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

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

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

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

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

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

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

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

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

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

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

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

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

While we’re waiting for the High Court judgment in Andrews (see previous post: it’s now about five weeks since the hearing), the Supreme Court has decided to hear an appeal from the Court of Appeal in R (on the application of the Trail Riders Fellowship and Tilbury) v Dorset County Council and the Secretary of State for Environment, Food and Rural Affairs and Plumbe. The Supreme Court frequently hears town and village green cases, but the last rights of way appeal was Godmanchester in 2007.

On the face of it, the TRF case is about a rather straightforward if technical question, and it seems odd that the Supreme Court is willing to opine. But, as the first claimant’s name suggests, this is also about motorised rights on unsealed highways, and therefore a tad more controversial than the dry question before the court suggests.

The claim relates to five applications made in 2004 by a third party, Mr Stuart, to record on the definitive map and statement for Dorset, five byways open to all traffic (BOATs) — public carriageways, all of them probably unsealed, but which are mainly used by walkers and horseriders. The TRF and David Tilbury took over the applications. Now, the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 provide, in regulation 2 as applied by regulation 8(2), that the map which must accompany an application “shall be on a scale of not less than 1/25,000”. It’s worth noting here that the regulations are not a model of good drafting, and moreover, neither in the regulations nor in the enabling legislation (Paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981) does it say that the map must be an Ordnance Survey map — even though Schedule 1 to the Interpretation Act 1978 helpfully defines what is an ‘Ordnance Map’.

Mr Stuart’s applications contained maps generated by PC-based software published by Anquet derived from Ordnance Survey mapping at 1:50,000 (or ‘1/50,000’, using the slightly quaint form of the 1993 regulations), but enlarged to a scale of 1:25,000. The question before the courts below, and now for the Supreme Court, is whether such an enlargement of a smaller scale map renders an application compliant with the legal requirements of the 1993 Regulations and paragraph 1 of Schedule 14 to the 1981 Act? The point of specifying a minimum scale is that the application route can be reasonable accurately determined in relation to its surrounding features, such as whether it runs on one side or the other of a hedge — only the 1:25,000 mapping and larger scales show hedgerows, fences and walls. On the one hand, an extract of England from a World Atlas could be enlarged to 1:25,000, but would clearly lack any useful identifying features of any kind. On the other, given that the legislation fails to require the use of an Ordnance map, a sketch drawn at 1:25,000 would appear to be compliant, but very likely would be a good deal less useful than the enlarged 1:50,000 map produced by Anquet software.

At this point, the reader might legitimately ask whether the question before the court really merits consideration by that court, the Court of Appeal and the High Court. After all, Dorset County Council was at liberty to waive the non-compliance with the regulations, or revert to the applicants for a compliant map. While the question itself may appear of limited relevance, the answer holds the key to the future classification of the application and other BOATs. This is because s.67 of the Natural Environment and Rural Communities Act 2006 extinguished rights for motor vehicles on most unrecorded public carriageways. But subsection (3) contained an exception for such ways which were the subject of an application to record as a BOAT, where the application had been made before 20 January 2005 (the date on which the Government’s legislative intention was announced), and the application was “made in accordance with paragraph 1 of Schedule 14”.

The Court of Appeal has already held, in R (on the application of Warden and Fellows of Winchester College) v Hampshire County Council, that ‘in accordance with’ meant in strict compliance with the requirements of paragraph 1. That judgment has meant that many subsisting applications to record BOATs have failed to attract the protection afforded by s.67(3), and at best, will now be recorded as restricted byways (at worst, the applicants will lose interest in pursuing the applications, and the applications may be lost altogether). The TRF case will now decide whether applications which were otherwise compliant, but which submitted a map not produced directly from an Ordnance Survey 1:25,000 map, are also deemed to be non-compliant, and have therefore had motor vehicular rights extinguished by the 2006 Act. That then, in this and potentially similar cases, is why the question has been escalated to the Supreme Court, and accepted by it for determination.

In the Court of Appeal, the court recognised that, in the absence of any specification of an Ordnance map in the 1993 Regulations, an applicant could submit a map at a scale of 1:25,000 which showed more or fewer features than an Ordnance map at the scale, and therefore the Anquet enlargement could hardly be criticised as insufficient. Paragraph 1(a) of Schedule 14 to the 1981 Act requires the submission of “a map drawn to the prescribed scale” (i.e. the prescribed scale of 1:25,000), and the Court of Appeal thought this satisfied by the Anquet software ‘drawing’ the map when it was printed out. But it is not hard to conceive that the Supreme Court may conclude that the Anquet map was ‘drawn’ at 1:50,000 when it was published by the Ordnance Survey, even if printed at a larger scale, if that will preserve some unsealed roads in the countryside from the perceived curse of recreational ‘off-road’ vehicles — much the same motivation which influenced the Court of Appeal in Winchester. It will be a few months yet to find out.

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

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

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

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

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

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

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

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

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

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