PannageMan

A recent application (see the notice for Church Hill Common, Ringland) in Norfolk under Part 1 of the Commons Act 2006 has highlighted the new opportunity to get land registered as common land, or as a town or village green, even in the majority areas of England which are not pioneering the full implementation of Part 1.

Part 1 of the 2006 Act provides for new arrangements for keeping and maintaining the registers of common land and town and village greens in England and Wales, but in England, Part 1 has been fully brought into force only in nine pioneer commons registration (i.e. local) authority areas (see the list in Sch.1 to the Commons Registration (England) Regulations 2014), and in Wales, not at all. Elsewhere, Part 1 has been commenced for particular purposes only: primarily, to register new town or village greens under s.15, and, with effect from 15 December 2014, to deregister certain wrongly registered land — a fuller explanation can be found in my November 2014 blog.

At the time, in my blogs of November 2014 and December 2014, I mistakenly assumed that the commencement order for these provisions (the Commons Act 2006 (Commencement No. 7, Transitional and Savings Provisions) (England) Order 2014) brought s.19 into force (apart from the pioneer areas) solely for the purposes of correcting mistakes in the register made by a commons registration authority so as to deregister wrongly registered common land. Such a mistake might have been made where at the time (between 1967 and 1969) of provisional registration of land as common land, the map of the common supplied by the applicant for registration was incorrectly transposed by the authority into the register to include land not in fact shown on the application map (this occasionally happened where the application map excluded island cottages within the common, but the authority failed to pick these up). There is no doubt that such land may now be the subject of an application for amendment of the register under s.19 — and not before time, since at least 45 years will have elapsed since the mistake was made.

The commencement order does indeed bring s.19 into force for the limited purpose of para.(a) of subs.(2): “correcting a mistake made by the commons registration authority in making or amending an entry in the register” (see art.3(2)(b) of the commencement order), and then only on an application made by any person (so that the authority cannot make a proposal to amend the register on its own initiative — see the exclusion from commencement of s.19(4)(a) in art.3(2)(b)). But there is no restriction on the scope of an application for the purpose of s.19(2)(a): so an application could be made equally if the authority’s error in transposing the original application map was to omit land shown on that map. Or if the authority, in registering a provisional right to graze 100 cattle, actually registered a right for 10 cattle.

The result is a little surprising, because the only other substantive provisions in Part 1 which have been brought into force (again, outside the pioneer areas) are paras.6 to 9 of Sch.2 which enable the deregistration of land (see art.3(2)(d) and (3)(b) of the commencement order). Indeed, art.3(3)(a) of the commencement order, which states that s.19 is brought into force “for the purpose given in section 19(2)(a) (correcting a mistake made by the registration authority in making or amending an entry in the register)”, appears to be largely redundant, because that constraint has already been achieved by art.3(2)(b). And note that applications for the purpose of s.19(2)(a) are free: see the entry for s.19 in Sch.5 to the the 2014 Regulations.

Thus it is that the application for Church Hill Common, Ringland is to add land to the register which was excluded from the original provisional registration which has long since become final. If, indeed, the omitted land was contained within the original application map, and if the commons registration authority (Norfolk County Council) is satisfied that the exception in s.19(5) does not apply, then the outcome will be the addition of new common land to the Norfolk registers, even though Norfolk is not one of the pioneer authorities. Similar applications seem likely elsewhere.

And the s.19(5) exception? This easily overlooked gloss on s.19 says that: “A mistake in a register may not be corrected under [section 19] if the authority considers that, by reason of reliance reasonably placed on the register by any person or for any other reason, it would in all the circumstances be unfair to do so.” This exception might apply if, for example, someone had bought land having confirmed that it was not registered common land nor town or village green, had no reason to suppose that a mistake had been made in giving effect to the original provisional registration, and now would suffer significant detriment if the omitted land were registered. There may be some precedent for the measure of ‘unfair’ness in s.19(5), to be found in s.14 of the Commons Registration Act 1965, which enables rectification of a registration made under that Act if the court considers it ‘just’. Those who wish to explore the test of justness, and by analogy, the exception of unfairness, would do well to look at the judgment of the Supreme Court in Taylor v Betterment Properties (Weymouth) Ltd and Adamson and others v Paddico (267) Ltd, which explored this issue in detail, in relation to applications from two landowners to deregister two different town greens under s.14(b) of the 1965 Act.

Defra has made an order to establish the Bodmin Moor Commons Council (The Bodmin Moor Commons Council Establishment Order 2015). The order follows consultation, launched in February 2015, on a draft order. You can see the consultation paper, the draft order, and the outcome of the consultation, on gov.uk. For more about the order and the background, see my earlier blog on the draft order, and the explanatory memorandum.

In deciding to make the order following the consultation, the Secretary of State must be satisfied that there is substantial support for it, having particular regard to responses from those (such as commoners and landowners) with a legal interest in the land. It seems that there is little doubt about that, for 202 responses were received, of which 96% were in favour; of those 166 respondents who demonstrated a legal interest, again 96% were in favour. This is a remarkable response rate for a highly focused consultation, although we are not told, and perhaps no-one yet quite knows, how many persons are entitled to exercise rights of common on the Bodmin Moor commons, and therefore what proportion expressed support.

The Bodmin Moor Commons Council will be the second council to be set up under Part 2 of the Commons Act 2006, although the third council in England (the Dartmoor Commoners’ Council was established under a local Act, the Dartmoor Commons Act 1985). The council comprises 24 to 26 members, most of whom are elected by the active or inactive commoners with rights of common exercisable over the Bodmin Moor commons. Further council members are appointed by the landowners, and there is a power to co-opt up to two further members. There is an initial electoral process between the coming into force date of 1 September 2015, and the date of 1 March 2016 on which the council is established, so that the council’s membership is fully constituted by the latter date. The council will have powers to manage the grazing, vegetation and rights of common on the Bodmin Moor commons, and its most potent tool for this purpose is a power to make rules, or byelaws: for example, a rule may prohibit the turning out of animals by a person without a right to do so, and therefore attempt to tackle grazing by farmers with no rights of common (or those who are exceeding their rights) — although the grazier will first have to be identified. Breach of a rule may be made a criminal offence: for this reason, such rules must first be approved by the Secretary of State.

The order as made has been slightly amended from the version on which consultation took place (whereas an affirmative resolution order laid in draft before Parliament cannot be amended after approval by Parliament, it seems there must be some flexibility to amend the consultation draft, and it would be odd if the Secretary of State could not respond to any comments made during the consultation, other than to withdraw the order and begin again). Some minor errors relating to the provision numbering and duplicate register units have been addressed. More significantly, whereas the draft contained no provision about regulations under the Commons Act 1908, art.11 now abolishes any such regulations. The 1908 Act enabled committees of commoners to be elected to make such regulations to control the turning out of entire animals, and there is some evidence that regulations were indeed made in relation to some of the Bodmin Moor commons. However, PannageMan understands that evidence for the precise form of any regulations still in force was elusive, despite a search of National Archives files (see for example MAF 235/201), and art.11 therefore has general effect in revoking any extant regulations, rather than, as would be usual, revoking specific regulations.

No modification has been made to the order in respect of para.13 of Sch.2, by which the owners of the Bodmin Moor commons are still required to act in unison in appointing their four representatives, So there remains no provision for a situation in which the owners cannot agree on a slate of four appointees.

The council will come into existence on 1 March 2016, after the initial electoral process has been concluded, and will then be free to embark on bringing new management to the Bodmin Moor commons, for the first time since manorial management structures faded away over a century ago, and 20 years after the Bodmin Moor Commons Bill was presented to Parliament seeking similar powers through primary legislation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Introduction

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:

• the definitive map of public rights of way (under Part IV of the National Parks & Access to the Countryside Act 1949);
• the depiction of definitive public rights of way on Ordnance Survey maps (from 1960, apparently on the initiative of the Ramblers’ Association)
• the right of access to open country and registered common land (conferred by Part I of the Countryside & Rights of Way Act 2000)
• 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:

• ‘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)
• selectivity is exercised even over what is otherwise eligible (e.g. whether to depict ORPA along an isolated residential road)
• 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:

• main roads which have long been the maintenance responsibility of the county council
• 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?)
• 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:

• 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
• 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)

The south-east regional newsletter of the Ramblers carried this short article in 2014, with the highlighted passage about Tenchleys Lane, a claim for a bridleway on the Surrey/Kent border near Limpsfield Chart made by the British Horse Society.

A disinterested bystander might reasonably assume that all organisations promoting the use of rights of way in the countryside would be equally trenchant in promoting claims to record rights of way previously omitted from the definitive map and statement (the official record of such things). And in the sense that the Ramblers, the British Horse Society, the Trail Riders’ Fellowship and others all bring such claims, the bystander’s assumption would be correct. But as the article demonstrates, they are often on opposing sides to the determination of a particular claim.

Every claim which appears to be duly made and well-founded is (eventually — reaching this stage can take decades in some areas) publicised and representations can be made by anyone, including landowners, occupiers and other user groups. Where, as in the case of Tenchley’s Lane, the claim is entirely built on historical evidence (in other words, there is no current use to support the claim, but historical records are said to show that the claimed route was a highway of a certain status), objections will carry weight only to the extent that they add to or inform the interpretation of the evidence: a submission which for example, puts a different, weaker gloss on one piece of evidence, or new evidence which tends to negate the claimant’s. So representations that the way would be unsuitable for motor vehicles, or carriages, or horses, are irrelevant, unless there is evidence that the way was simply incapable of accommodating such users.

And when a user group (or indeed anyone else) submits a claim, it is quite common for a user group with different interests to object, and to seek to secure the rejection of the claim, or to promote the determination of the claim with different rights, typically to exclude motor vehicles, carriages or horse riders, but sometimes to show that ‘higher’ rights exist beyond those claimed.

It is unsurprising if user groups are alert to ensure that a claim does not under-record the rights on a particular route. Good research should ensure that any claim correctly reflects the supporting evidence, but PannageMan suspects that claims may occasionally be made by, say, walkers for footpaths or bridleways, where the evidence better suggests a restricted byway or byway open to all traffic, either because the claim might meet less resistance or because the claimants would resent the intrusion of vehicles consequent on the determination of the claim to confirm higher rights. In other words, ‘we’re going to claim this old road, but we want it only for [walkers][horse riders][horse-drawn carriage drivers] and not for [horse riders][horse-drawn carriage drivers][motorists]’ (substitute as appropriate).

A source close to PannageMan can reveal that half of New Years Day 2014 was dissipated in writing a rebuttal of an objection from the Ramblers to the claim for Tenchley’s Lane. The objection surprised PannageMan, because much of the claimed route was entirely ‘new’, comprising a sunken lane not recorded on the definitive map, running south off Limpsfield Chart down to Itchingwood Common. Another part lay along an existing drive. But a key part was coincident with what was recorded as a public footpath: a steep climb uphill along a modestly narrow path between fences. It was perhaps the last which had stimulated the objection, owing to concern about horses and pedestrians sharing the same path — although this is common enough elsewhere, there are far narrower bridleways even in Surrey, and people and horses get by (literally). Had the claim been successful, the width of the claimed lane ought to have required the close-set fences to have been set back, giving everyone more space.

The claim was rejected by the Planning Inspectorate, as the historical evidence was found just insufficient. The Ramblers’ objection was not the only objection, nor was it necessarily material in deciding the claim. But the outcome is that there is less access than there might have been for walkers, horse riders and cyclists, and volunteers’ time is spent unproductively on depreciating each others’ work. And one is left wondering whether user groups are most effective when they are engaged in sniping at each other, rather than in promoting more and better access for all. Is this what an ‘important victory’ should look like for a user group?