PannageMan

In a blog late last year, I wrote about the Ministry of Defence’s application to deregister Warcop common in Cumbria, part of the army training estate. I observed then that Departmental views differed on the lawfulness of the application. I now understand that the application has been withdrawn. If so, the repeal in Cumbria of the Commons Registration Act 1965 means that the Ministry cannot at any time renew its application for deregistration under that Act: the opportunity has passed for good.

The Ministry may explore alternative options available to it, but none seems very promising: after all, the Commons Act 2006 was precisely intended to safeguard registered common land from deregistration.

Schedule 3 to the 2006 Act provides an opportunity to register historic events preceding the date of commencement, but it would be necessary to show that the compulsory acquisition of the rights of the commoners some years ago is a ‘disposition’ not only which caused Warcop common to cease to be common land, but the effect of which was not fully satisfied at the time by registering the extinguishment of the rights.

Powell and Irani v the Secretary of State for Environment, Food and Rural Affairs and Doncaster Borough Council is a rather technical but ingenious case recently decided by the High Court, which merits some comment here.

The case concerns a public footpath which formerly passed through the grounds of the vicarage at Hatfield church, Doncaster. You can see the location on Streetmap.co.uk and in Google Maps. In 1967, the path was formally diverted to an alternative route around the outside of the grounds: an alleyway in effect (visible in the Google Maps photography). But the original route, just 30 metres long, continued to be used, more so once the gate and stile at respective ends of the path became broken down and ceased to be an obstacle to passage, until in 2006 development of the old vicarage grounds began, and the original route became obstructed. Eventually, in 2012, the surveying authority, Doncaster Borough Council, made an order to recognise that the formerly extinguished footpath had come into being once again through twenty years’ use ‘as of right’ — just as can happen through long use of any path. In due course, following a decision by an inspector which was quashed in the High Court, the order was again referred to a public inquiry presided over by another rights of way inspector, who heard evidence of the use, found that there had indeed been long use ‘as of right’, and confirmed the order (see the inspector’s decision letter and map).

The claimants, who were now owners of 6 Vicarage Close, the relevant bit of the old grounds, did not in court dispute that there had been sufficient qualifying use of the former footpath. But (and this is where the ingenuity comes in) they did challenge the council’s order as not in accordance with the law.

Now, all existing rights of way are required to be shown on a definitive map and statement kept by the surveying authority. Until 1981, the authority was required to review the map every five years and update it as necessary. Subsequently, under s.53 of the Wildlife and Countryside Act 1981, the authority was required to modify the map to reflect (among other things) legal events, such as the diversion order. In neither case did the authority act on the 1967 order, so the definitive map continued to show the former footpath (and did not show the diverted path). In itself, that failing did not greatly matter: the definitive map must be read alongside any legal events which have not been recorded on it, and Doncaster’s failing was not unusual. Taken together, the map and the 1967 order were quite sufficient evidence of the effect of the diversion.

The 2012 order was made under s.53(3)(c)(i) of the 1981 Act. This required Doncaster to make the order (a definitive map modification order) on: “the discovery by the authority of evidence which…shows—(i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist over land…”. That is the usual test for an order to add a path to the map following long use. But the challenge in this unusual case was that the claimed footpath was shown on the map and statement. True enough that what was shown on the map was no longer extant: it was accepted that the footpath through the garden had been legally extinguished. But in the strict terms of the legislation, which understandably failed to anticipate such a scenario, the order could not be made to add a right of way to the map which already existed on the map (albeit the map was out-of-date). In its judgment, the court more or less acknowledged the strict legal merits of this argument, but found it didn’t need to grant relief on the strength of it, because the order could have been made under s.53(3)(b) instead, which enables an order to be made on: “the expiration…of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path…”. The court was not prepared to quash the order as incapable of having effect under one provision if the order could have been resurrected in similar form under the alternative provision (after, needless to say, the expenditure of further public funds).

The claimants also argued that the use of the path was not ‘as of right’ because a landowner, noting that the path was shown on the definitive map, would assume that the use was ‘by right’ (i.e. the public had an absolute right to use it), even though proper inquiry would have revealed the map to be erroneous. It was suggested that, in determining whether use was ‘as of right’, the inspector had to consider not only whether use was ‘without force, without secrecy and without permission’, but also whether it was reasonable for the landowner to have resisted use which had the appearance of being lawful (rather than trespass). In fact, the claimants admitted that there was no evidence that they, or any landowner, had been misled in that way. The major part of the judgment is devoted to reviewing the claimants’ analysis, taking the reader through some of the classic judgments on town and village green law in the House of Lords and Supreme Court (greens are also registered on the basis of use ‘as of right’). But in the end, it was the judgment in the Court of Appeal in London Tara Hotel Ltd v Kensington Close Hotel Ltd which best summarised the law. The Tara had licensed the then owner of the Kensington Close to use a roadway over the Tara’s land, but the Kensington Close had subsequently changed hands causing the licence to cease to have effect. The Tara hadn’t really sparked on the change of ownership, but did nothing to stop continued use of the roadway. The court noted the appellant’s argument that the Tara: “could be said to have proceeded on the assumption that things were continuing as they had before 1980, and so, implicitly, that the Licence still applied, and the use was with permission…[the Kensington Close’s] predecessors did not inform Tara of the change in the KC Hotel’s ownership, which meant that the subsequent use of the roadway was, from the perspective of Tara, secret”. But the court recognised there had been no deliberate secrecy, and even junior Tara staff knew of the change of ownership. In the event, the Kensington Close established a private easement over the roadway on the basis of 20 years’ use as of right after the cessation of the the licence. The court said that: “The subjective state of mind of the owner is…irrelevant”, and declined to graft some additional test of how the use might have appeared to the landowner, and whether it was reasonable for the landowner to object to the use, onto the tripartite elements of use ‘as of right’. And so in Powell, the court applied the same reasoning to decide that, whatever the appearance of the situation to the landowner, the inspector had found that the use of the path was ‘as of right’, and that was all that mattered.

Comment: The arguments of the claimants may have been ingenious, but it would have been surprising if they had won the day, for it was not claimed that anyone had been seriously misled by Doncaster’s failure to update the definitive map. Still, they came close with a challenge on the vires of s.53(3)(c)(i). The authority was in common with many other surveying authorities in devoting a low priority (or none at all?) to updating the definitive map to reflect legal events since the map was published with a relevant date of 1952, and it’s not hard to understand why, given more pressing demands on officers’ time to deliver more immediately useful outputs (such as diversion orders).

The claimants will now have to decide what to do with the public footpath across their land. Their problem is that the most obvious diversion route is already a public right of way, put in place by the 1967 diversion, so it may be that they will want to seek an extinguishment order rather than a diversion. The test for stopping up a path is notoriously more demanding than a diversion, and there is ample evidence from the inquiry that there is a latent demand to use the path. The Government’s draft guidance on the diversion or extinguishment of rights of way that pass through gardens may assist if and when it is formally published in the wake of the Deregulation Bill receiving Royal Assent in the next couple of months. With two High Court challenges and representation at a public inquiry by counsel already under their belt, it seems unlikely that the claimants will want to take it no further.

From tomorrow, 15 December 2014, anyone in England can apply to deregister wrongly registered common land. Remarkably, for many landowners and householders, this will be the first opportunity to deregister wrongly registered land since the registers were drawn up in the late 1960s.

In a recent blog, I explained that Part 1 of the Commons Act 2006 will be brought into force throughout England from 15 December 2014, but only for the limited purpose of applying to deregister land under section 19 of, and paragraphs 6 to 9 of Schedule 2 to, the 2006 Act (section 15 of the 2006 Act, which enables the registration of town or village greens, has been in force in England since 2007). Meanwhile, two new county councils will be enrolled among the existing seven commons registration authorities in whose areas Part 1 is fully implemented (North Yorkshire and Cumbria join Lancashire, Blackburn with Darwen, Herefordshire, Hertfordshire, Kent, Devon and Cornwall): we’ll call these the ‘Part 1 authorities’. In the rest of this blog, comments which relate only to the Part 1 authorities, and which do not yet apply outside these authorities’ areas, are marked with a ‘§’

New rules regulating Part 1 come into force on the same day: these are the Commons Registration (England) Regulations 2014, which revoke the predecessor Commons Registration (England) Regulations 2008 and 2009 amending regulations. How do the new regulations differ?

For a start, they’re slightly longer, at 83 pages incorporating 54 regulations, 8 schedules and, as before, copious model entries for amendments to the registers of common land and greens. There are now two new schedules, including new Schedule 8 (applied by r.1(3)) to explain how the new regulations apply to the majority of commons registration authorities where Part 1 is not yet fully in force. R.2(1) (interpretation) now contains a new definition of ‘register unit’, perhaps unnecessarily since the composition of a register unit is already addressed in r.6§ (register units). R.7(7) (method of registration) now confers a wide discretion on the Part 1 authority to “supplement an existing entry with information that it considers necessary or desirable for the accurate interpretation of that entry”. It’s not yet clear what Defra has in mind for this provision: it could perhaps include comments that a particular entry is outdated in some respect, but as the intention of the 2006 Act is to encourage such entries to be updated, a comment might be seen as a quick fix which would discourage a more formal application to update.

R.16(1)(a) (making an application) now requires applications under Part 1 (including applications throughout England for deregistration of land) to be made on a form provided by the Secretary of State: previously, the forms were made available by individual registration authorities. The forms have now been made available on the gov.uk website.

R.17 (application fees) now merely provides that registration authorities may specify a ‘reasonable fee’ for an application (including deregistration applications). Previously, a table of fees was specified in the regulations, but an authority could adopt its own fee, not exceeding a maximum of £1,000, having regard to its costs in dealing with such applications. There is now no maximum, and no default fees specified in the regulations, so each authority will have to appoint its own fees (deregistration-only authorities will have just a handful to appoint). The fees must be advertised on the authority’s website. If an application is to be referred to the Planning Inspectorate, a new supplementary fee will be charged by the Inspectorate in addition to the fee paid to the registration authority: this rises as high as £3,400 for an application to deregister land under paragraph 9 of Schedule 2 (other land wrongly registered as town or village green), so it wouldn’t be surprising if the total fees exceed £5,000 where the application is referred to the Inspectorate. But there is no change to the principle that no fee is payable on an application which is primarily for public rather than personal benefit, such as to register new land (whether as common land or as a town or village green).

Regulation r.19(5)§ simplifies an application to register land as common land which was provisionally registered under the Commons Registration Act 1965, but the registration was subsequently cancelled — such applications are most likely under paragraph 4 (waste land of a manor not registered as common land) of Schedule 2 to the 2006 Act (so can, as yet, be made only in the Part 1 authority areas). An application now need not be accompanied by a map, but may merely cite the register unit number of the provisional registration (however, if the application land differs from the original register unit in any way, a map will still be needed).

There is no longer a requirement on the applicant to serve notice of the application on third parties, nor a discretion on the part of the registration authority to require additional notices to be served: these burdens now fall on the registration authority (r.21, registration authority’s duty to publicise application), and presumably the additional cost will be recovered through higher fees. It will be easier for the authority to ensure compliance with notice requirements by doing the job itself than by validating what has been done by the applicant. However, the former requirement to advertise applications to register, or deregister, land in a local newspaper has been discontinued.

Formerly, any application to deregister land, and most applications to register new land, were required to be referred to the Planning Inspectorate for determination, regardless of circumstances: this reflected the potential seriousness of such an application in terms of the public interest in land remaining registered, and the impact on a landowner of land becoming registered. The new regulations (r.26(3), responsibility for determining applications and proposals) require such applications to be referred only where a person with a legal interest in the land objects. Any application must also be referred where the authority has an interest in the outcome “such that there is unlikely to be confidence in the authority’s ability impartially to determine it” (there is an ambiguity in the drafting which raises the possibility that a referral could be made in the latter case only if the application is to deregister or register land, but the context suggests that is the less likely meaning).

An inspector appointed by the Planning Inspectorate on a referral may now (r.29(3), public inquiries: general provisions) give directions to the parties involved in a public inquiry regardless of whether there is a pre-inquiry meeting — for example, to prepare and circulate statements of case. And an award of costs against a party participating in a public inquiry into an application which is referred to the Inspectorate, and which is for the deregistration or registration of land under Schedule 2 to the 2006 Act, can now be made only for unreasonable behaviour (r.37(2), award of costs in relation to certain applications), although that was in any case previously the Government’s policy set out in circulars.

Declarations of entitlement to a right of common were introduced by the 2008 Regulations in the Part 1 authority areas: they enable a person entitled to a right to identify themselves by name in the register. This is because, as a rule, the register shows the land to which a right of common is attached rather than the owner of that land. It also shows the person who applied for registration of the right, but as that application would have been made nearly fifty years ago, and as the applicant was not even then necessarily the owner of the land to which the right was attached, it is and always was mistaken to deduce entitlement from the name shown in the register. The declaration enables the addition of the relevant information: before granting the application for a declaration, the registration authority must satisfy itself that the declarant does indeed own, or occupy, the land to which the right is shown as attached. However, declarations (r.43§) are now formally to be known as ‘declaration of entitlement to exercise a right of common’, while a tenant may now seek to enter a declaration with a tenancy of only six months or more (formerly three years). A tenant wth a term of just six months may find it hard to justify the fee for such an ephemeral declaration. The registration authority may cancel a declaration which it knows is no longer subsisting (r.43(6)§).

Registration authorities have always been able to enter notes in the land section of the registers about matters affecting the public: for example, a note about a scheme of regulation and management for the common made under Part I of the Commons Act 1899, and to cancel such a note if the matter was no longer subsisting (e.g. if the scheme were revoked). A new provision (r.46(5)§, matters affecting the public) now enables the authority to cancel any note made in the registers, on the same grounds, although the implication appears to be that it is intended to relate to notes made only in the land section under r.46 or its predecessor provisions.

Applications made to the majority of registration authorities in England which are not yet Part 1 authorities, to deregister land, are made under the 2014 Regulations, subject to the modifications made by Sch.8. This brings a certain amount of complexity to the handling of applications affecting the commons and greens registers in these non-Part 1 authority areas:

• applications under s.13 of the Commons Registration Act 1965 (so far as it is still in force) are made under that section, and under the Commons Registration (General) Regulations 1966 and the Commons Registration (New Land) Regulations 1969;
• applications under s.15 of the 2006 Act to register new town or village greens are made under that section, and under the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007;
• orders to deregister land made by the Secretary of State under s.17 of the 2006 Act, consequent on an application under s.16, are dealt with under that section, and under the Deregistration and Exchange of Common Land and Greens (Procedure) (England) Regulations 2007;
• applications under s.19 of, or paragraphs 6 to 9 of Sch.2 to, the 2006 Act, are made under those provisions, and under the 2014 Regulations as modified by Sch.8.

And in the last three cases, commencement orders make further provision to ensure that, where the register is referred to or modified, it is the register held under the 1965 Act which is affected, and not one held under the 2006 Act (which in these areas, does not yet exist).

Finally, note that the transitional application period, which is the initial period in the new Part 1 authority areas during which free applications may be made to update the registers reflecting historic events which took place between 1970 (the exact opening date will vary according to circumstances) and 2014, such as an agreement to extinguish rights of common, lasts three years, and expires on 14 December 2017 (r.38§, the transitional period and transitional application period). Beyond that date, applications may still be possible, but will attract a fee commensurate with the cost imposed on the registration authority.

Defra announced this week that new registration arrangements for common land will come into force on 15 December 2014 — a couple of months later than the October commencement originally announced earlier this year, but the first significant advance since 2008.

The Commons Act 2006 (Commencement No. 7, Transitional and Savings Provisions) (England) Order 2014 brings into force Part 1 of the Commons Act 2006 in two new local authority areas, Cumbria and North Yorkshire, adding to the seven authorities which have been solitarily pioneering the legislation since 2008. That brings Part 1 into full effect in just nine authorities — but together, they represent some of the largest and most important areas of the country for agricultural reliance on commoning. In Cumbria and North Yorkshire, commoners, landowners and others will be able to apply initially free of charge to update the commons registers to reflect events which have taken place since registration in the late 1960s, but which have not yet been registered — such as the variation, surrender or severance of rights of common, or an exchange of land following a new road across common land.

But the order also brings into force certain provisions in Part 1 throughout the rest of England (i.e. where Part 1 is not yet in force as a whole), to enable anyone to apply to their local authority to deregister common land in limited circumstances. This is a controversial move: it comes eight and a half years after Royal Assent to the 2006 Act, and there had been criticism that owners of wrongly registered common land (and occasionally, town or village greens) were still not able to apply outside the pioneer areas to correct the errors. The order ends the delay: but only for the purposes of deregistration. Those who seek to register new common land, and indeed, those who are waiting for the commencement of Part 1 to introduce a system for keeping the commons registers up-to-date, must continue to wait. There is a risk that, by commencing selected provisions now, the pressure to roll out Part 1 as a whole will diminish.

New regulations have been made, the Commons Registration (England) Regulations 2014, to replace those made in 2008 and 2009. These are broadly consistent with the 2008 regulations: a future blog will report on what has changed. New guidance will replace the existing guidance (although there are few changes to the legislation), but this has not yet been published, nor have the new forms for applications under Part 1 (whether in the new pioneer areas, or for deregistration of land elsewhere).

Under regulation 17 of the 2014 Regulations, each local authority must appoint fees for applications under Part 1, and publish those fees on its website. It appears (although regulation is not explicit on the point) that if an authority has not published the fee on its website by the time an application is made, it cannot levy any fee at all (note that certain applications, specified in Schedule 5 to the 2014 Regulations, are in any case free of charge). It will be interesting to see whether around 145 local authorities which undertake commons registration functions (but are not among the pioneers) will all have published their tariffs by the time the first applications start to arrive. Some of the existing pioneer authorities are charging around £1,000 to deregister land, so presumably the arrival of an application with an authority which has no tariff on its website, and which must be processed gratis, will be a powerful incentive to rectify the omission.

Andrews 2 is a pending Court of Appeal case about the eligibility of public paths made under inclosure awards in the first half of the nineteenth century. Could Inclosure Commissioners, acting under local Acts incorporating the Inclosure Consolidation Act 1801, award public footpaths and bridleways over the old common lands being inclosed (as they appear to have thought), or are those paths null and void?

The question is not an academic one: quite the opposite. Hundreds of inclosures were made under powers incorporating the 1801 Act, and most of those do contain awarded public paths. Indeed, most inclosure awards, from the eighteenth century on to the early years of the twentieth century, did set out public paths. An award is a legally conclusive document made under an Act of Parliament, so a public path set out in the award is normally conclusive proof of its existence, even now perhaps two hundred or more years later — but uniquely those awarded under the 1801 Act are claimed to be fatally flawed.

A High Court decision in 1993, R v Secretary of State for the Environment, ex parte Andrews (“Andrews 1”), decided that the 1801 Act did not contain powers to award public paths (except in certain limited circumstances), and you can read more about it in my first blog on the case. This year, a fresh challenge (“Andrews 2”) was brought to revisit the same question, with the same claimant, John Andrews, represented by the same counsel, George Laurence QC, and judgment was again given against Mr Andrews by the High Court on 8 May: more about that in my second blog.

Both judgments are well reasoned and comprehensive. They both find that the following wording of s.10 of the 1801 Act:

“And be it further enacted, 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”

must be taken at face value — that ‘private’ qualifies the entire list of features which may be awarded, and that therefore only private bridleways and private footways were within the competence of the Commissioners. This blog looks at some of the extraordinary consequences of those decisions, in anticipation of an appeal to the Court of Appeal sometime next year.

In Andrews 1, the court noted that s.11 provided for the stopping up of any existing public rights of way across the common lands or fields which were being inclosed:

“all Roads, Ways, and Paths, over, through, and upon such Lands and Grounds which shall not be set out as aforesaid, shall for ever be stopped up and extinguished”

but decided that, as the 1801 Act did not enable replacement footpaths to be ‘set out as aforesaid’, then s.11 could not extinguish existing footpaths (and impliedly bridleways) across the inclosures.

This finding, which appears to be endorsed by Andrews 2 in the High Court, is remarkable. In the days before the widespread use of motorised transport, most people travelled by foot. Some — farmers, carriers, wealthy professionals and major landowners — kept horses, and had the option to travel by horse or by horse-drawn carriage. Most did not. People made mainly local journeys: from home to the village, to the market town, to the mill, to the pump or just to neighbouring villages, hamlets or farmsteads. And because, pre-inclosure, most of the surrounding lands were open commons, they tended to take the shortest route: the land was unenclosed, uncultivated and of poor quality, many of the local inhabitants would have had rights over the common (or at least, used the common), and there was no reason why the owner, the lord of the manor, would have had any interest in trying to stop such use, for to him it had little or no productive use. Commons then were rather like land surrounding African bush villages today: a complex web of desire lines. By way of example, when the Duke of Wellington obtained an inclosure award for Riseley Common (north-east Hampshire) in 1861, the award recited no fewer than 16 public rights of way which were to be stopped up across a relatively small common about two kilometres across (see the recital in the annexe here). Had Riseley Common been inclosed under the 1801 Act, it seems that most or all of the footpaths and bridleways contained in the recital would endure today.

Whereas in the Riseley Common example, the ways to be stopped up were specifically identified in the award, the same cannot be said of most awards made under the 1801 Act, because the inferred effect of s.11 was that all public ways were to be stopped up unless specifically set out anew, and nothing more need be said. That means that it is now difficult, up to two centuries later, to identify what public paths existed prior to inclosure which endure today. But the extraordinary effect of Andrews is that they do endure: whatever the impact on the allottee, however inconvenient to the cultivation of the land, regardless of the alignment relative to the boundaries of the new allotments. Since, without any other legal process, a highway in existence pre-inclosure is a highway now, it is unlikely that any of these public paths has ceased to exist. They are rarely if ever marked on the award maps, nor is any provision made in the award or on the map to preserve their alignment across the allotments, such as to ensure that stiles, gates or gaps were provided. It is impossible to avoid the conclusion that the parties to the inclosure awards did form the view, apparently wrongly, that the old public paths were stopped up, for they did nothing to record them or ensure their preservation. Yet legally, they were not stopped up, and the complex pattern of desire lines still survives, awaiting those who can demonstrate their existence from the sparse evidence available today. Ironically, the effect of Andrews is in theory to revive far more public paths in the countryside than were ever set out in inclosure awards.

In Andrews 1, the judge commented on a submission from Mr Laurence that:

“the scheme of the Act is that all rights of way, public and private, should appear in the award and be shown on the map and that anything not thus shown is extinguished. It is an attractive submission in the sense that, if correct, it would mean that there would be a clean start for the area and everyone would know where they stood.”

The judge concluded that Mr Laurence’s inviting ‘clean sheet’ proposition could not draw him away from his interpretation of section 11, and in any case, if a clean sheet was what the parties to an inclosure wanted in any particular case, they could include additional clauses to that effect in the local Act incorporating the 1801 Act. But the evidence seen by the court was that in most cases, the parties did not do that. We know from the evidence recited in the judgment that few local Acts took specific powers to award public paths, but the judgment does not record whether significant numbers of local Acts conferred powers to stop up public paths, to plug the loophole in s.11 of the 1801 Act. It seems very likely that they did not.

Of course, it is possible, as the courts have acknowledged, that surveyors implementing inclosures after 1801 either knew that the 1801 Act was defective and ignored the defect (perhaps the local Act was a fait accompli by the time they were appointed), or they were quite unaware of the defect. Either way, it is remarkable that no-one took any steps to address the problem, most notably that solicitors promoting inclosure Bills in Parliament did not at any time include appropriate additional clauses, even after many Bills had previously passed through Parliament and been put into effect.

That is not all. The judgments find that s.10 is incapable of sustaining an award of public paths. If that is so, s.10 is also incapable of sustaining an award of any public “Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds and Land Marks”. Any public feature so awarded, unless supported by an enabling clause in the local Act, must also be ultra vires. It may be hard to conceive of the relevance of ‘public…fences’, but awards of public watercourses, public watering places and public quarries (typically for use of the surveyor of highways in digging for roadstone) were commonplace. None of these awards was lawful. But if so, what happens to them: do the awarded features revert to the lord of the manor, and if so, why (the lord having been amply compensated in the award as put into effect)? Must the highway authority compensate the lord of the manor for past unlawful extraction from the quarry, or must it backfill what has been extracted? Who now owns and manages those public watercourses?

Finally, in Andrews 2, the court observed:

“The landowner of the farmland in Wiltshire that is the subject of the current case has been made the Second Interested Party to these proceedings and, not unnaturally, has expressed considerable concern that, if it succeeds and a public bridleway has to be created across his land where there has been no such bridleway before, considerable interference with (and loss of profitability of) his arable farming operations would result.”

The path selected for the challenge in this case appears to have been a pure example of one which relies entirely on an inclosure award (made under the 1801 Act) for its existence — i.e. there is no history of use or more recent historical evidence for it. That ensures that the court is not distracted by ‘irrelevant’ evidence: it can focus solely on whether the inclosure award was valid. But it also has the consequence that the claim for the path appears stark, for it would, if granted, give rise to a right of way across farm land where none has apparently been recognised for two centuries. In fact, the position is not quite so stark. For the most part, a defined track along most of the awarded alignment was certainly in use: it appears as a feature on the Ordnance Survey map appended to the judgment, which appears to be the first series twenty-five inch map from 1875, and continues to appear on maps up until the 1924 six-inch map (these maps can also be viewed at old-maps.co.uk). None of these maps shows the north-west portion of the bridleway, across a field to what is now the A429. But it does appear on the Ordnance Survey’s one-inch drawing, the working draft of the first one-inch map drawn in 1817, and now kindly made available online by the British Library, even if, by the time of the published one-inch map, the north-west portion had already been removed. Not so stark after all.