PannageMan

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.

In 2014, Allen Lambert, an employee of the Stody Estate in Norfolk, was convicted of offences under s.1 of the Wildlife and Countryside Act 1981, involving the poisoning of raptors. The offences are not in doubt. However, a recent High Court case, R (on the application of Stody Estate Ltd) v Secretary of State for the Environment, Food and Rural Affairs, has questioned the extent of penalties which may be imposed for breaches of cross compliance under the Common Agricultural Policy.

The Stody Estate was previously farmed by the late Ian MacNicol, a former president of the Country Land and Business Association (it was the plain Country Landowners’ Association in those days, but is still known as the CLA). The late Michael Meacher, the then Minister for the Environment, was invited by MacNicol to visit his estate in the late 1990s, in the months running up to the expected Government decision on whether to pursue a statutory right of greater access to the countryside: MacNicol wanted to show the Minister that landowners (or at least, some landowners) were already providing additional access voluntarily. The Stody Estate at that time had entered into an agri-environment scheme which included additional, permissive, paths on the estate, in return for payments per unit length of path (some permissive access endures). At that time, I was working in the Department of the Environment, Transport and the Regions, and accompanied the Minister. I think it was our first ‘outing’ with him. We thought he’d left it a bit tight arriving at the platform at Liverpool Street station with about three minutes until departure — but he abruptly turned around and went off to buy a coffee. He still made it. He rather enjoyed winding up officials. During the visit, as us ‘suits’ congregated at the edge of a cultivated field, contemplating the permissive path along the edge, a jogger fortuitously passed us by (proving, unlike some agri-environment access, that this facility was valued by local people), did a classic double take, jogged back, and shook Meacher’s hand, proclaiming himself a great fan. Meacher loved that, as any politician would. Later, as we careered in an estate Land Rover over a pleasant permanent pasture reaching down to a brook, the estate manager (Meacher was closeted with the president in another vehicle) told us of the valuable wildlife, and confided that this site was incompatible with public access. Presumably, otters had nothing against Land Rovers though. (To be fair, greater access with dogs might be another matter.)

Permissive access on the Stody estate, Photo © Evelyn Simak cc-by-sa

But back to the present. In the case before the court, the judge started off on the wrong foot. She was poorly briefed by counsel on the purpose of direct payments: she says (para.1), ‘after 2003 [the scheme] changed to one of incentivising conservation: payments were directed to the preservation of the environment, wildlife and habitats.’ Well, if that’s true then, to use the words of one former assistant secretary in charge of the scheme, when challenged on this point in a stakeholder meeting, for €3.5bn per annum, ‘it’s a bloody expensive environmental scheme.’ The truth, of course, is that it’s not an environmental scheme, but a farming subsidy scheme with some environmental dressing.

Under the direct payments scheme, claimants (i.e. farmers who claim subsidy under the Common Agricultural Policy, meaning nearly all) must subscribe to cross compliance, which is a roll call of most of the sectorally-specific statutory obligations under which farmers operate (such as observing the testing regime for tuberculosis in cattle, keeping rights of way unobstructed, and yes, killing of wildlife contrary to s.1 of the 1981 Act). It will be observed that statutory obligations are just that — they must be adhered to regardless of cross compliance, or subsidy, and breaches can usually be enforced through prosecution or, in some cases, civil remedies. But cross compliance theoretically gives the enforcing agencies added heft, because a breach may also, or alternatively, be acted upon by deducting penalties from direct payments. In practice, it is usually ‘alternatively’, if at all, because the capabilities of the enforcing agencies have been undermined by a decade of cuts, and Ministerial antipathy to farm inspections. Indeed, as fewer than one per cent of claimants are inspected each year for cross compliance, it might be imagined that the deterrence effect even of cross compliance ought to be minimal.

Where a breach arises from negligence, the penalties are typically a small percentage of the annual subsidy — perhaps three per cent (although three per cent of a payment exceeding £1m on a large estate of say 5,000ha is still quite a large penalty. Stody is around 1,700ha). But as the court explains in the judgment, where the breach is ‘committed intentionally by the farmer’, the penalty may be raised as high as the annual value of the subsidy itself. That is what happened in the Stody case: a penalty of 55% was imposed.

There was a further step involved in the Stody case, before it reached the court. The estate challenged the penalty, and in due course, appealed to the Minister. The Minister is advised by a panel, who hear the appellant, and report to the Minister with their recommendation. The panel is lay, the members are mainly from the agricultural community, and the secretary is an official but not a lawyer. It may be seen that this is not a structure which is likely to inspire great confidence in the wisdom of the panel’s decisions, although, if properly briefed (which the panel may not be), and effectively chaired, the panel is capable of acting as a fact-finding tribunal. But it has little knowledge of the law, and may not be briefed on the legal questions which may arise in a case. In theory, this gap can be filled by officials’ covering submission on the panel’s report to the Minister, but by then, it is too late to revisit or probe for any missing or unsatisfactory issues of fact. It may also be noted that, in practice, the decision on an appeal really is taken by a Minister. This is not a legal requirement — almost every decision of the Secretary of State may be taken by officials acting on the Secretary of State’s behalf — but one desired by Ministers (and by farmers). It contrasts with, say, decisions taken on behalf of the Secretary of State in relation to works on common land, where even the most significant determinations are made by officials or inspectors. But if a farmer appeals a £200 penalty, Ministers decide.

In the Stody case, the panel recommended a reduction in the penalty of 75% imposed by the Rural Payments Agency, and the Minister agreed. It was the decision nonetheless to impose a hefty penalty of 55% which was challenged by way of judicial review.

The court (Mrs Justice May DBE) had to wrestle with the question of responsibility for the poisoning. Undoubtedly, Mr Lambert was employed by the estate when he committed the offences. What was in question was whether the poisoning could be held to have been ‘committed intentionally by the farmer’ contrary to the relevant EU regulation. In this case, the Stody estate is a limited company, which employed Mr Lambert (one assumes that it no longer does). There is no evidence that the directing mind of the company (Charles MacNicol is currently the Managing Director) knew what was going on. It is sometimes said, in relation to poisoning done by gamekeepers, that a ‘don’t ask, don’t tell’ policy is in place, but again, there is no suggestion of that here.

The court was guided by the decision of the Court of Justice of the European Union in the Dutch Van der Ham case, where a penalty had been imposed on a farmer who had contracted operations to a third party. In that case, the European Court concluded, ‘that, in the event of an infringement of the requirements of cross-compliance by a third party who carries out work on the instructions of a beneficiary of aid, the beneficiary may be held responsible for the infringement if he acted intentionally or negligently as a result of the choice or the monitoring of the third party or the instructions given to him, independently of the intentional or negligent nature of the conduct of the third party.’ The opinion of the Advocate General was found by the court to be helpful: ‘a non-compliance is to be penalised only on the basis of the personal responsibility of the aid beneficiary, but that he need not have committed the non-compliance in person.’

That was all very well, but the Stody case related to acts done by an employee, not by a contractor. PannageMan is not a lawyer, and does not wish to research the full gamut of corporate and employment law, but he recalls a principle whereby an employer is liable for the actions of employees unless it is determined that those actions were so contrary to what was required and expected of the employee that the employee must have been off on a ‘frolic of his own’. Whatever, the court chose to chart a different course. It was unpersuaded by counsel for the Secretary of State that the European Court’s decisions in relation to competition law had treated the decisions of employees as binding the employer (para.35): ‘competition law operates as a deterrent whereas the primary purpose of the SPS is to incentivise, to encourage farmers to conserve wildlife and the environment.’ Well, hardly — and even less so if offences against the environment are to attract only a trivial and infrequent sanction under the scheme.

Equally, the court rejected a fairly heroic intervention from counsel for the National Farmers’ Union (which obtained permission from the court to intervene: perhaps the Stody estate was backed by the CLA instead) that, under the EU regulation, it was necessary that a breach was committed by the farmer him, her or itself — and in relation to the claimant company, the Union suggested that meant the managing director, Mr MacNicol, or perhaps, but only perhaps, his estate manager.

But the court did find ‘that there is no uniform understanding across Member States of the distinction between employees and independent contractors’, and the principles of the Van der Ham case could not be confined to farms using contractors. A farmer, for the purposes of the direct payments regulations, did not mean any or every employee. Mr Lambert’s activities could not, ‘without more’, satisfy ‘the requirement in Article 23 that cross-compliance breaches be “the result of an act or omission directly attributable to the farmer”.’ The Minister’s decision to impose penalties was quashed.

The judgment is at first worrying, but perhaps also understandable. Worrying, because it appears at first blush to let farmers off the hook for the deeds of their employees (or indeed, anyone else other than the directing mind of the business). That seems to offer a ‘get out of jail free’ card for any breach — ‘I didn’t do it, it was my farm worker, I told him not to do it’. But as the judge points out, in Van der Ham, the European Court did not give a farmer immunity for the actions of a contractor: it said (para.50, quoted at para.21 of the judgment): ‘In such a case, even if the beneficiary of aid’s own conduct is not directly the cause of that non-compliance, it may be the cause through the choice of the third party, the monitoring of the third party or the instructions given to the third party.’ In other words, the farmer may still be held liable, but there must be some evidence that the conduct of the farmer is intentional or negligent, perhaps in failing to properly brief an employee or contractor (e.g. as to environmental features protected by cross compliance, or failing to take steps to follow up allegations of raptor poisoning). In practice, where the penalty imposed is at the lower end of the scale at around three per cent, it may not be too difficult to find that the farmer acted negligently by failing to properly regulate the activities of those working on the farm, whatever their relationship to the farmer. After all, if you ask a contractor to harrow a field, but fail to point out that there’s a footpath across it which you want reinstated, it’s not hard to conclude that you’ve been negligent. But it’s quite another thing to demonstrate that the intention of an employee is the intention of the employer.

This appears to shift the burden onto the Secretary of State (or at least, the Rural Payments Agency) to establish intention or negligence. But not so fast. The judge (para.35) notes: ‘the approach of the Court in Van der Ham to an evidential presumption adopted by the Dutch authorities: the Court had no objection, provided that an opportunity was given to the farmer to rebut the presumption (see the discussion at paras 38–42 of the Van der Ham decision).’ So the Agency can presume the farmer to be responsible, but must give the farmer an opportunity to challenge the presumption. And that is exactly what the appeal panel should be doing — if only it were properly briefed. Instead, it approached the Stody case on the assumption that the estate was inevitably liable for the wrongs of its employees, and merely had to relay any mitigation to the Minister. It will surely now hear the claimant again, and form a view as to whether the estate had acted intentionally or negligently in the matter of the raptor poisoning.

Alternatively, of course, the Secretary of State may appeal (there is no suggestion in the report of a referral to the European Court). But I suspect that is unlikely, as Ministers may well be content with a decision which constrains their power to impose penalties. Farmers will like that.

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.

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.

Is there a right to cycle on common land?

Cycling across Coldham’s Common, Cambridge. There are plans to upgrade to a formal cycle track across the common. © John Sutton cc-by-sa

On the face of it, the answer is ‘no’. Leave aside public roads (including byways open to all traffic), restricted byways and public bridleways (which cyclists may use subject to an obligation to ‘give way to pedestrians and persons on horseback’: s.30 of the Countryside Act 1968, an obligation which is presumably integral to the offence of cycling ‘without reasonable consideration for other persons using the road’, under s.29 of the Road Traffic Act 1988). On the majority of commons to which there is a public right of access under Part I of the Countryside and Rights of Way Act 2000 (CROW), the right is, ‘to enter and remain on any access land for the purposes of open-air recreation’ (s.2(1)) subject to the general restrictions in Sch.2. And para.1(a) of Sch.2 sets out that the right does not entitle a person to be on land if that person, ‘drives or rides any vehicle other than an invalid carriage’. Let’s park for a moment whether a bicycle is truly a ‘vehicle’ for the purposes of Sch.2.

But CROW is not the only statutory right of access to common land. Prior to the enactment of the CROW rights, many commons — often estimated at one fifth — were subject to rights of access conferred under older laws, and these were preserved by s.15(1): the commons to which such pre-CROW rights apply are therefore often referred to as ‘s.15 commons’.

The most significant of these pre-CROW provisions are the ‘rights of access for air and exercise’ conferred by s.193 of the Law of Property Act 1925. It is a right exercisable on commons which are now, as a shorthand, described as ‘urban commons’, but strictly, commons which, immediately before local government reform in 1974, were in the (London) Metropolitan police district, a borough or an urban district, and commons to which s.193 has been applied by virtue of a deed (revocable or irrevocable) executed by the owner under subs.(2).

The ‘rights of access for air and exercise’, conferred by subs.(1), are not attributed to any particular class of user (such as persons on foot), but para.(c) of the proviso to subs.(1) says that, ‘such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle’, and indeed, subs.(4) makes it an offence to draw or drive any of these things on a s.193 common. Para.(a) of the proviso also renders the rights subject to any byelaws or other statutory controls on the common, and para.(b) enables the Secretary of State to impose ‘limitations’ on the exercise of the rights. (In the early days of s.193, it was the practice of the Minister to impose a raft of template restrictions, similar to the byelaws applicable to public open spaces.)

In the now widely known High Court case, R v Secretary Of State For Environment, ex parte Billson, Sullivan J (as he then was) found that ‘Not merely do paragraphs (a) to (d) [of the proviso to subs.(1)] not specifically exclude horseriding, but paragraph (c), which excludes the drawing or driving of carriages, carts, et cetera, would be otiose (or addressed specifically to motor vehicles) if the public were not allowed to bring horses on to commons at all.’ He concluded (para.88) that s.193 rights did extend to horse riding on s.193 commons, adding that, ‘Riding would have been a normal way of taking air and exercise in 1925.’ (In a wry comment on the judgment, Gadsden on Commons, edited by Edward Cousins, observes at para.9–09, fn.27, that: ‘Perhaps it would be safer to say that it would have been normal for a certain section of society.’) While it is possible to criticise the judge’s reasoning (it might be said that para.(d) was there for reinforcement), the judgment has stood for nearly 20 years, was entirely consistent with the interpretation of s.193 expressed in many orders of limitation imposed by Ministers since 1925 (which regulate rather than prohibit the exercise of implied rights of access for horse riding), was consistent with one of the two opinions of the Divisional Court in the earlier case of Mienes v Stone, and simply makes sense — as Sullivan J noted (at para.90), ‘If horseriding caused a problem on any particular common then limitations and conditions could be and have been imposed prohibiting horseriding under paragraph (b) of the proviso.’

Do the s.193 ‘rights of access for air and exercise’ apply also to cycling? There has been no case directly turning on s.193, but the conventional view is that they do not. Classically, a bicycle is considered to be a carriage, and carriages are excluded by para.(c) of the proviso, as are ‘other vehicle[s]’. Indeed, it is an offence to draw or drive these things on a common under subs.(4).

‘Classically’, because there have been a significant number of cases which have had to decide whether a bicycle is a carriage, or a vehicle, for the purposes of various enactments. See, for example, Corkery v Carpenter, as to which the headnote to the report ([1951] 1 KB 102) summarises: ‘The word “carriage” in s.12 of the Licensing Act, 1872, by which “every person who…is drunk while in charge on any highway…of any carriage, horse, cattle, or steam engine…may be apprehended, and shall be liable to a penalty…or…to imprisonment…”, includes a bicycle’. S.12 remains in force today, and is also the only criminal sanction against riding a horse while drunk. The case is notable that counsel for the defendant quoted to the court the words of Daisy Bell:

‘It won’t be a stylish marriage,

I can’t afford a carriage,

But you’ll look sweet upon the seat

Of a bicycle made for two.’

The report does not tell us whether counsel sung the words, but he did point out, to no avail, that the song recognises what the law perhaps does not — that a bicycle is not a carriage.

There is a splendid exploration of some of the authorities touching on whether bicycles are carriages or vehicles in Coates v Crown Prosecution Service, an appeal to the High Court by way of case stated, against a conviction for riding a Segway (remember those?) on the pavement, contrary to s.72 of the Highway Act 1835, which makes it an offence to: ‘wilfully ride upon any footpath [i.e. pavement] or causeway by the side of any road made or set apart for the use or accommodation of foot passengers; or…wilfully lead or drive any horse, ass, sheep, mule, swine, or cattle or carriage of any description, or any truck or sledge, upon any such footpath or causeway’ — another venerable offence which remains in force, if widely ignored. There was some confusion in the information laid against Mr Coates as to whether he was accused of riding upon the footpath, or driving upon it, but the court found that, to the extent it was necessary to make a finding, he was guilty of both, a Segway being a carriage for the purposes of the provision and the defendant was ‘driving’ it — and ‘riding’ it too. The case cites the key precedents:

• Taylor v Goodwin (1879), which found that riding a bicycle was ‘driving any sort of carriage’ for the purposes of s.78 of the Highway Act 1835, and so the appellant was guilty of furiously driving a carriage.

S.85(1) of the Local Government Act 1888 subsequently provided that: ‘…Bicycles, tricycles, velocipedes, and other similar machines are hereby declared to be carriages within the meaning of the Highway Acts…’ (just about the only provision of that Act which remains in force: the ellipses refer not to omitted text, but to the repealed words in the section, of which the words quoted are the only words which remain extant). In the late C19, the Highway Acts provided not just for the management of highways, but the regulation of traffic using them: legislation which (greatly evolved) is now found in the Road Traffic Act 1988 and the Road Traffic Regulation Act 1984.

• R v Parker (1895), a cyclist was a person ‘having the charge of any carriage or vehicle’ under s.35 of the Offences against the Person Act 1861, and so guilty of causing bodily harm by furious driving.
• Ellis v Nott-Bower (1896), a bicycle was a vehicle used for displaying advertisements contrary to s.12 of the Liverpool Corporation Act 1889.
• A cluster of toll road or turnpike cases, Williams v Ellis (1880), Cannan v Earl of Abingdon (1990), Simpson v Teignmouth and Shaldon Bridge Company (1903) and Smith v Kynnersley (1903), to determine whether tolls applicable to carriages could be applied to bicycles — only in Cannan was it so determined, but the courts were required to interpret detailed statutory rules in each case on what could be charged and how much. The Cyclists’ Touring Club were behind some of these cases, arranging for all sorts of bicycles, including bath chairs and tricycles, to be driven over the ways concerned to test the legislation.
• Pollard v Turner (1912), not cited in Coates v Crown Prosecution Service, but worth a mention, because the offence was committed by sending out on a bicycle a boy to sell bread, contrary to s.7 of the Bread Act 1836, which required ‘any cart or other carriage’ used for that purpose to carry scales.
• Corkery v Carpenter (1951), see above

The difficulty is that all of the cases wrestle with language in legislation enacted in an era before cycling was popular, and bicycles were at best primitive and eccentric. Wikipedia refers to the ‘second bicycle craze‘ in the 1890s (the first craze in the 1860s and 70s hardly meriting the description). It is all very well to look at s.72 of the Highway Act 1835, or s.12 of the Licensing Act 1872, and conclude that Parliament sought to regulate passage along roads by users who were not on foot (or if on foot, were in control of animals). In those circumstances, it was reasonable to assume that Parliament intended to apply the controls — on riding or driving on the pavement, or riding or driving while intoxicated — to a widespread class of users including those unanticipated at the time, viz, cyclists, as they applied to horse riders, carriage drivers, drovers and sumpters.

But what of s.193 of the Law of Property Act 1925? S.193 originated as a backbench amendment to what became s.122 of the Law of Property Act 1922, later consolidated in the 1925 Act. It was enacted long after cycling had become commonplace, and over thirty years after s.85 (as enacted) of the the Local Government Act 1888 abolished local byelaws on cycling, declared cycles to be carriages for the purposes of the ‘Highways Acts’ (certainly including the Highway Act 1835), and required cyclists to carry lights at night and to ring a bell when passing other carriageway users. If horse riding was ‘a normal way of taking air and exercise in 1925’, so too was cycling. Yet s.193 has nothing to say on the subject. It can hardly be said that Parliament was not cognisant of cycling in 1922, yet it conferred a right of access which, as we have seen, extends to horse riding — and surely includes, for example, swimming (where possible), dog walking and pram pushing — and expressly restricted only the use of ‘a carriage, cart, caravan, truck, or other vehicle’, a class of things which, in this context, carries a strong implication of heavy conveyances which might injure the common and interfere with the exercise of the rights of access and rights of common. Even if ‘other vehicle’ might otherwise be said to include a bicycle, the euisdem generis rule of construction suggests that a cycle no more belongs in the class than a skateboard or a scooter. It is no argument to say that mountain biking in the twenty-first century is far more intrusive than cycling on paths in 1922: what matters is the intention of Parliament at that time.

This blog does not assert that cyclists are among those who may exercise the rights to air and exercise under s.193 — only that the point is not, in Pannageman’s view, free from doubt. Arguably, the same considerations arise under schemes of regulation and management made under Part I of the Commons Act 1899, which typically confer (in the words of the current template scheme contained in the Schedule to the Commons (Schemes) Regulations 1982 (SI 1982/209)), ‘a right of free access to every part of the common and a privilege of playing games and of enjoying other kinds of recreation thereon, subject to any byelaws made by the Council under this Scheme.’ And whatever the position with legal rights, there can be no doubt that such rights may be regulated, or perhaps even suppressed, by byelaws or limitations to the contrary.

And the CROW right of access, which is excluded from a person who, ‘drives or rides any vehicle other than an invalid carriage’? Well, in R v Parker, which we met above, a cyclist was a person ‘having the charge of any carriage or vehicle’ under s.35 of the Offences against the Person Act 1861, although I have not seen a report of the case to ascertain whether the court found that a bicycle was both a carriage and a vehicle. But the CROW restrictions on the right of access in Sch.2 to CROW are imported largely unchanged from the Second Schedule to the National Parks and Access to the Countryside Act 1949, where they applied to land to which access was conferred under an access agreement or order. What is notable about that Second Schedule, however, is a certain assonance with the approach in section 193 of the 1925 Act: neither provision expressly refers to horse riding or cycling. There is no parallel in the Second Schedule to the 1949 Act to para.1(c) in Sch.2 to CROW, which excludes a person who, ‘has with him any animal other than a dog’ — although the Second Schedule does exclude a person who, ‘takes, or allows to enter or remain, any dog not under proper control’. Just as we may infer that the 1925 Act and 1949 Act rights are available to horse riders for want of an exclusion where one might be expected, so the exclusion of carriages (in the 1925 Act) and vehicles (in the 1949 Act) is not necessarily intended to exclude cyclists from enjoying those same rights. Whether the same argument can be spun forward into the CROW Act is another matter. For what it’s worth, I can confirm that the small team of civil servants involved in drafting Part I of the CROW Bill did expect cycling to be excluded by virtue of the reference to vehicles. But we shall need a doughty successor to Robert Billson to answer these questions for certain.