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An occasional blog about commons, village greens and rights of way. New posts will be tweeted at @PannageMan. Any views expressed here entirely my own. Full index to blogs:

Andrews 2: the end of the (bridle) road

Rights of WayPosted by Hugh Craddock Mon, July 06, 2015 20:26:45

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

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

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

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

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

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

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

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

  • ▪ 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.

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'Other routes with public access'

Rights of WayPosted by Hugh Craddock Sun, June 07, 2015 22:12:32

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

  • ▪ 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)

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We're all in this together?

Rights of WayPosted by Hugh Craddock Tue, May 19, 2015 21:34:27

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?

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Prescription for rights of common reaches the courts

Common landPosted by Hugh Craddock Sun, March 29, 2015 18:49:38

Last week, the High Court handed down judgment in R (on the application of Littlejohns and Littlejohns) v Devon County Council and the Duchy of Cornwall, a case brought by a Dartmoor grazier couple, to decide whether the graziers have acquired rights of common grazing by prescription — that is, by long practice of the grazing, 'as of right' (meaning, as if it had been done in the same fashion as a grazier with a right to graze, even though, at the time, there was none).

In the distant past, such a case would have been unsurprising, for many rights of common were established by prescription, even if in historical theory, they might have been attributable to some ancient manorial grant. There would have been little doubt about the rules of prescription, but the case might have been fought over the facts, such as the quantification of the rights, and the extent of the common over which the claimed grazing took place. When the registers of common land were drawn up in the late 1960s under the Commons Registration Act 1965, commoners were invited to make provisional registrations of their rights, and many would have decided what to do on the basis of past practice — essentially prescription — albeit some decided to add a bit on top for good measure. In due course, the Commons Commissioner subsequently determined the merits of disputed provisional registrations, very often on the same principles of prescription, looking at what evidence the commoner could produce of long-standing grazing practices.

Fifty years on, there is no doubt that (at least, in certain parts of England) statute law has abolished the prescriptive acquisition of rights of common, and graziers can no longer rely on prescription to convert long-standing grazing into a right of common, for s.6(1) of the Commons Act 2006 does precisely that in plain language: "A right of common cannot at any time after the commencement of this section be created over land to which this Part applies by virtue of prescription." The question to be decided in the High Court was whether abolition occurred before s.6 came into force, as a subtle consequence of the 1965 Act: not explicitly stated but to be inferred just the same? For s.6 is forward looking and has nothing to say about prescriptive rights already acquired, and even now, it has been brought into force only in the nine areas of commons registration authorities pioneering the implementation of the 2006 Act.

Prescription is the foundation of private rights, such as rights of common, but also, for example, private rights of way and rights to light. It provides a mechanism by which one person may acquire a right to do something which is or may be to the detriment of another. It operates on the principle that if that person has done something for so long (typically 20 years, formerly 30 years, but at one time, only if done since time immemorial), openly, without permission, and without hindrance, then it would be unconscionable to allow interference in what is being done, and the law will infer some legal if possibly fictional origin to it, such as a grant by the other party, even where there is evidence to show that the legal origin is in fact impossible. It is surprising therefore that there is uncertainty about whether prescription for rights of common was in fact quietly abolished by the 1965 Act, and it is worth exploring how this might have happened.

The 1965 Act was transitional legislation: it was intended to enable the establishment of registers of common land (and town and village greens) but no more: it left the question of the regulation of the exercise of rights of common, and of common land itself, to future legislation: indeed, s.15(3) said that the question of how many rights of common should be exercisable, out of those actually registered, should be resolved "as Parliament may hereafter determine" (s.15(3)). Despite this, it did two relevant things which are said to have affected prescriptive rights.

First, the 1965 Act made it compulsory to register subsisting rights of common. It did not do this through any criminal sanctions, but through the expedient of rendering unexercisable any unregistered rights: s.1(2)(b) said that from 1 July 1970 (the end of the period appointed for provisional registration), "no rights of common shall be exercisable over any [registrable common] land unless they are registered…under this Act…". The courts subsequently decided that a right which was not 'exercisable' was in practice extinguished.

But what impact did s.1(2)(b) have on prescriptive rights? It undoubtedly extinguished any prescriptive rights which had already matured by 1970, for these could, and should, have been registered under the 1965 Act. But a grazier might have been grazing 'as of right' for just 15 years in 1970, and so had no basis on which to register the right by the deadline for registration in 1970. Could it be registered by 1975? On the face of it, as soon as the grazing practice matured into a prescriptive right in 1975, s.1(2)(b) acted to cut it down again, by rendering the emerging right immediately unexercisable unless and until it was registered (as to which, see below). It seems that the cow, grazing on the pasture, having acquired a right to graze on the 20th anniversary of that grazing, would immediately have it taken away, no sooner gained than gone. However, there is an alternative argument that s.1(2)(b) must be interpreted as having a 'Big Bang' impact. That interpretation says that it operates only on rights which were already subsisting on 1 July 1970, and not those which might be acquired at some later date.

Secondly, r.3(2) of the Commons Registration (New Land) Regulations 1969, made under the 1965 Act, forbad the registration after 1970 of any new or further right of common over land already registered as common land. In other words, after the closure of the provisional registration period from 1967 and 1970, the registers were seemingly to be final about what rights of common subsisted over any registered common land. A right of common over existing common land granted since 1970 by the landowner, or one acquired by prescription maturing after that date, could not be registered under the regulations. And since it could not appear on the register, then if the 'Big Bang' theory was correct, the register would present an incomplete picture of subsisting rights (because the new right would subsist, but be incapable of registration), and if it were wrong, then the new right could have no existence whatsoever (because it would have been extinguished by s.1(2)(b)).

In short, there were two schools of thought:

  • • that it were still possible to acquire new rights of common over existing common land (including by prescription) after 1970, but impossible to register them; or
  • • that the 1965 Act had terminated any possibility of acquiring new rights of common over existing common land after 1970.

None of this prevented a new right of common being acquired over land which was not previously common land: the regulations did provide for that unlikely eventuality (Pannageman has never encountered such a case, although one such was cited in debate on the Commons Bill), although if the 'Big Bang' theory were wrong, any such right would become exercisable only after registration, if at all (see below).

This uncertainty has endured since 1970. The practical effect of the regulations may have discouraged litigation: after all, because a claimed prescriptive right could not be registered, there was less incentive to demonstrate its existence.

As we have seen, s.6 of the 2006 Act legislated to remove this uncertainty for the future. The 2006 Act says nothing directly about claimed prescription between 1970 and the commencement of that section. But it is not entirely silent on the subject, because para.2(2)(a) of Sch.3 to the 2006 Act provides for registration arising from "the creation of a right of common (by any means, including prescription)" occurring between 1970 and the commencement of the Schedule. This point might be thought conclusive: there is a specific parenthetical reference to the creation of rights by prescription after 1970. But it is not: it could be taken to embrace only the acquisition of rights by prescription over land which was not already registered, where such rights had not (but could have) been registered under the 1965 Act. So the Schedule is agnostic about the potential for acquisition of rights of common by prescription after 1970: it does not attempt to clarify the point, but it does not close the door on the possibility.

Let's turn to the High Court challenge. This has been long-awaited: the 2006 Act was brought into force in Devon (and several other areas) in 2008, and while the question of prescriptive rights was immediately in play in relation to the Dartmoor commons, it has taken nearly seven years for the matter to be resolved (although PannageMan understands that there will be an appeal). The judgment sets out the facts of the case, but it is sufficient to say here that the claimants' predecessors had long exercised rights of common on certain Dartmoor commons, but for whatever reason, failed to register them under the 1965 Act before the cut-off date of 2 January 1970. They had continued to graze without objection, and the question was whether, since their rights had undoubtedly been extinguished on 31 July 1970 (the date appointed under s.1(2) of the 1965 Act) for want of registration, the claimants had acquired new rights by prescription since 1970.

The claimants applied to the council under para.2(2)(a) of Sch.3 to register their claimed prescriptive rights in March 2010, and after much consideration, the council refused the application in May 2014. This case was an application for judicial review of the council's decision.

The court began by considering the effect of the 1965 Act. It was accepted, as we have seen, that the claimants were unable to register their claimed rights under the 1965 Act. The claimants said that, nevertheless, it was possible to acquire such rights, whereas the council said that s.1(2)(b) either made it impossible to acquire the rights, or if they were acquired, they were immediately extinguished.

The court sided with the council: the judge rejected the 'Big Bang' view of s.1(2)(b), and said it: "is so broadly expressed that it cannot be read as limited to rights which were in existence prior to 31 July 1970. Moreover, the parallel existence of rights which were unregistered would be contrary to the purpose of the CRA 1965." The court took comfort from the 1969 Regulations, and from the decision of the House of Lords in the Trap Grounds case, in which Lord Hoffmann said that: "because the new register is conclusive, [land claimed as a village green] does not become a village green until it has been registered". So the court took the view that new rights could not be acquired under the 1965 Act. The judge said that if she were mistaken about that, any rights which were acquired would nonetheless be extinguished on maturation because of the effect of s.1(2)(b). She concluded: "it would have been inconsistent with the legislative purpose of the CRA 1965 to allow unregistered rights of common to co-exist alongside registered rights of common. Either the unregistered rights never had legal effect or their legal effect at common law was automatically extinguished by operation of section 1(2)(b)."

The court went on to consider whether the 2006 Act affected the conclusions on the 1965 Act. It did not. Parliament could have acted to revive rights, such as the claimants', which were incapable of being registered under the 1965 Act, but did not do so. The judge said: "The Minister and Parliament were aware of the possibility that no new rights of common could have arisen over existing common land under the CRA 1965 (see Hansard, HL, vol 674, col GC 284) but made no express provision for registration of this category of rights."

The judge also noted that s.6 allowed for the creation of new rights of common over existing common land, and took the view, "that the way forward adopted by Parliament was to make express provision for applications to register new grazing rights of common over existing common land, but subject to the control of the commons registration authority which could refuse to register the rights if the land could not sustain any further grazing."

Comment: The court attributed a continuing purpose to s.1(2)(b) (i.e. that the provision does not have a once-and-for-all 'Big Bang' effect). Although the court cites the judgment in the Trap Grounds case, that judgment found only that greens had no legal status until they were registered: it did not specifically rely on s.1(2) (indeed, Lord Hoffman instead says that: "…the argument that it [the land] would have 'become a village green' is a misreading of sections 13 and 22 of the 1965 Act" (para.43)). In a dissenting opinion (on this particular question), Lady Hale specifically commented (para.141) that: "section 1(2)(a) cannot apply to land which became a green after the axe fell: otherwise there could be no new greens at all." Whereas, since the 1965 Act was enacted, a village green has been required to fulfil an entirely statutory definition in order to qualify for registration, a right of common remains a common law entity, and the 1965 Act has nothing to say about what is meant by a 'right of common', or what qualifies as a right, other than to say (s.22(1)) that it includes certain obscure kinds of sole rights and cattlegates. It is entirely plausible that a village green, now being the creature of statute, has life only when it is registered, whereas rights of common continue to arise at common law, whether or not registered.

If s.1(2)(b) has a continuing effect, it is hard to see how it operates in relation to the post-1970 period. Imagine a right of common granted by a landowner so as to create a new common (something which could be registered under the 1965 Act and the 1969 Regulations). It seems that the new right is not effective until it is registered. But if it is not registered, when does s.1(2)(b) act so as to extinguish it? Immediately on its grant? Or after a day, a month, a year, or a lifetime? It was quite clear when s.1(2)(b) had that effect in relation to rights subsisting pre-1970: on 31 July 1970. It is less easy to find the same clarity thereafter. Perhaps s.1(2)(b) simply means that the granted right is unexercisable until it is registered: but the Act uses the word 'unless', not 'until', and that encourages the 'Big Bang' perspective. Or indeed, perhaps the Act really does mean 'unexercisable' and not, as the courts have found, extinguished: but if so, that has some pretty momentous implications for the many rights which were not registered under the 1965 Act and which would turn out not to have been extinguished at all.

Nor is there any obvious reason why s.1(2)(b) should have a continuing effect. The judge said that: "the legislative intention of the CRA 1965 was that all common land and rights of common should be registered and that registration would be conclusive evidence of the matters registered, under section 10." But the 1965 Act was no more than first stage legislation: as we have seen, it anticipated (though with a gap of 40 years) second stage legislation. In the Trap Grounds case, Lord Hoffmann conceded that the 1965 Act contemplated further legislation about common land: "Section 1(3)(b) contemplated further legislation on the vesting of unclaimed common land, … . Section 15(3) contemplates further legislation affecting the exercise of rights of common, … . … There are several references to registration being a 'first stage' and to a later measure 'for the better management and improvement of common land' (2nd reading debate, 6 February 1965, col 90)", but concluded that: "It is by no means clear that Parliament contemplated further legislation about rights over village greens." And in the same case when it came before the High Court, Lightman J quoted (para.7) the Minister of Land and Natural Resources, Frederick Willey, who explained (Commons Hansard, vol 711, col 456) why two stage legislation was necessary: "First of all we should create the machinery for establishing the facts by registration: that is the simple purpose of this Bill. Until the facts are authoritatively established and recorded it would be premature to frame the further legislation that will be required. What the Bill will do is to provide the foundation for the further commons legislation making provision for statutory schemes for the management and improvement of common land." Lightman J then noted (para.9) the promise of second stage legislation embedded in the Act itself (ss.1(3)(b) and 15(3)), but concluded that (para.10), "The 1965 Act however disclosed no equivalent gaps in respect of Greens."

Certainly, the 1965 Act did not put in place a mechanism to require the registers to be kept up-to-date: for example, there was nothing in the 1965 Act to require a right of common to be removed from the register if it was extinguished, or to require an exchange of common land to be noted on the register: these things could be done, but were not made mandatory. It was not until the 2006 Act that any sanctions were put in place for that purpose. And the conclusiveness conferred by s.10 was illusory: that provision states that the matters are conclusive "as at the date of registration": i.e. at some time in the late 1960s. By the early C21, the registers were out-of-date, and anything contained within them could be challenged on the basis that they had been overtaken by off-register events. For example, the register might show a right of common attached to land: but the right could have been extinguished, varied, severed from the land, apportioned or (possibly) have been abandoned for want of use. None of these events need have been recorded in the register. The draughtsman of the 1965 Act knew this, but had little concern, because he assumed that further legislation in the 1970s would address it. So the 1965 Act could not, and did not, deliver conclusive registers, and an interpretation of s.1(2)(b) on the basis that it did intend to do so may be mistaken.

The 1969 Regulations made no provision for the registration of new rights of common over existing common land. The court did not consider whether that omission might have been ultra vires. However, it is more likely that the 1969 Regulations strictly follow the regulation-making powers in s.13 of the 1965 Act, which do not allow for amendment of the registers in relation to the creation of new rights over existing common land, and so the draughtsman of those regulations probably felt that no provision could be made for that purpose. That is more likely to reflect a flaw, or perhaps an ill-informed intention, in the drafting of the 1965 Act. Oddly, the 1969 Regulations do appear to contemplate the registration of a new right of common over land which has itself already been registered after 1970 under s.13 (see r.3(2)), but without any obvious mechanism for enabling it to happen.

The Common Land Forum, in 1986, reported that: "It seems to us that Parliament could not have intended to bring about a situation in which new rights of common could be registered over a newly created common but not over an existing registered common". The Regulations meant that, for example, where the owner of a common wished to sell a tenanted farm to the sitting tenant, and the tenant had long-standing rights of grazing on the common by virtue of the tenancy (rights which could be registered as rights of common, because the owner of a common cannot have a right of common over the owner's own land), the owner could not grant the former tenant a right of common to replace the rights under the tenancy.

The judge said that Parliament made no express provision in the 2006 Act to revive rights suppressed by the 1965 Act, referring to a debate on the Commons Bill in the House of Lords. The Minister, Willy Bach, observed (Lords Hansard, 25 Oct 2005 : Column GC284): "It is not possible to say whether any new rights of common have been acquired by prescription over existing registered common land, because the 1965 Act does not enable such rights to be registered, and some would say neither does the Act allow the rights to be exercised. Schedule 2 enables such rights, if they are capable of existing, to be registered during the transitional period." So the debate suggests Ministers' agnosticism: they did not know what effect the 1965 Act had had, and intended the 2006 Act to be neutral. They did not make any express provision to revive suppressed rights, because they were uncertain whether they were indeed suppressed.

The court noted that s.6(1) of the 2006 Act abolishes prescription prospectively. But that provision might be said to convey an implication that prescription had not impliedly been abolished by the 1965 Act. After all, if it had been, s.6(1) is all but redundant, except in relation to land which is unregistered — yet in respect of which there had been no, or perhaps one, known claim of prescriptive rights since 1970.

The court also noted the role of s.6 in allowing for the creation of new rights of common over existing commons, and thought that to be the 'way forward'. But s.6 suggests that Parliament was not opposed to the creation of new such rights, and provided for a mechanism to allow it to happen. If so, can it be taken to have intended that there was a period of 40 years, after 1970, when no new rights could be created? The role of the commons registration authority in validating the creation of new rights under s.6(6) is probably no more than an administrative formalisation of the existing common law position, which is that new rights could not be granted over an existing common if there was no capacity to accommodate those new rights, for the owner cannot grant what is not the owner's to give.

This last point raises a point apparently unconsidered in the case: was it possible for the claimants to acquire a right of common over the Dartmoor commons after 1970 if the commons were oversubscribed? The consequence of registration under the 1965 Act was to create registered rights exercisable over many commons which were well in excess of the commons' grazing capacity. We are not told the position in relation to the particular commons affected by this claim (Okehampton Common (CL 155); Forest of Dartmoor (CL 164); and the Triangle (CL 135)), but the Duchy of Cornwall, the landowner, did not take part in the case, and therefore we do not know whether a successful claim by the claimant would have diminished the grazing available to the existing registered commoners. All we can say is that it seems no objection has ever been made on these grounds.

Finally, the debate about whether the prescriptive acquisition of rights of common grazing was abolished under the 1965 Act or 2006 Act may have overlooked an even earlier if unlikely source of abolition: the Theft Act 1968. S.1(1) provides that, "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it", and 'property' includes "things forming part of land and severed from it by him [where the person] is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed". Indeed, s.4(3) specifically has to exclude mushroom picking from the scope of theft (if done for personal use). So grazing animals on someone else's land, so that the animals sever and consume the grass growing on it, might show the necessary ingredients of an offence under the 1968 Act. In the past, the courts have been reluctant to recognise a prescriptive right to do something illegal. However, recent judgments (Bakewell Management Ltd v Brandwood and others, R (on the application of Best) v Chief Land Registrar and The Secretary of State for Justice) suggest that a prescriptive right can be acquired to do something which may be a criminal offence, if the person against whom the right is acquired could have consented to the act and rendered it lawful.

The comments in this blog are not intended to suggest that the court was necessarily wrong in its conclusion. But they may suggest that the question has not yet been fully explored, and would merit consideration on appeal.

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Direct payments on common land

Common landPosted by Hugh Craddock Tue, March 17, 2015 07:29:10

Defra announced yesterday a new methodology for calculating payments on common land under the Basic Payments Scheme (BPS, the direct payments subsidy for farmers under pillar 1 of the Common Agricultural Policy). The change means that, from 2015, the whole area of a common will generally be allocated among those who claim on it for the purposes of the BPS. That means a larger notional area for claimants on most commons, and subject to other factors, potentially larger payments.

Defra has also announced that, following a legal challenge to the existing methodology under the Single Payment Scheme (SPS), it has concluded that the methodology used since 2005 was unsound, and that certain commoners may be eligible for compensation.

As the announcement is closely connected with my role in Defra, please refer to the website for further information.

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The Bodmin Moor Commons Bill resurrected

Common landPosted by Hugh Craddock Sun, March 15, 2015 10:42:45

Ponies on Bodmin Moor: © Jonathan Billinger and licensed for reuse under this Creative Commons Licence

Defra is consulting on a draft commons council establishment order for the Bodmin Moor commons. The consultation closes on 13 April 2015, but, as the closing date occurs after dissolution of Parliament for the election, the order cannot be made until well after the election, even if the outcome of the consultation is supportive.

Commons councils are established under Part 2 of the Commons Act 2006. Part 2 was brought into force in 2010 (SI 2010/61, as amended by SI 2010/2356), along with a standard constitution for commons councils (SI 2010/1204). Three commons, or groups of commons, have been candidates for commons councils since then: Brendon Commons, Bodmin Moor, and the Cumbrian fells. The Brendon Commons Council was the first and so far only council to be established, in 2014 (SI 2013/2959). You can find out more about commons councils on the regrettably archived Natural England website.

A commons council for Bodmin Moor would therefore be only the second such to be established, and the consultation contains a draft order for that purpose. Under s.27(4) of the 2006 Act, the Secretary of State may not make the order unless she is satisfied that there is 'substantial support' for it. The consultation is therefore intended to gauge whether such support exists, and the Secretary of State must have particular regard to representations by landowners, commoners and others with an interest in the commons which would be regulated by the proposed council (s.27(5)).

The Bodmin Moor commons are extensive: the area to be regulated under the draft order is not stated, but a summation of the areas of the common land register units listed in Schedule 1 to the order suggests 7,056 hectares (just over 70 square kilometres). Proposals for better management of Bodmin Moor have history: a Bodmin Moor Commons Bill was introduced to Parliament in 1994, for much the same purpose as the present draft establishment order, and drafted along the lines of the previously enacted Dartmoor Commons Act 1985. This was several years before the enactment of the right of access to common land in Part I of the Countryside and Rights of Way Act 2000, and the Bill was blocked because the promoters refused to concede a public right of access to the commons. It now appears that the commons to be regulated by the proposed commons council will be those which would have been regulated under the Bill: indeed, the map of the commons in annexe A to the consultation paper is labelled 'Bodmin Moor Commons Bill'.

The draft order is not dissimilar to that establishing the Brendon Commons Council. The numbering of provisions and footnotes has unfortunately gone awry, probably the consequence of merging two complex Word documents into one, but this does not have any serious impact on understanding the provisions. There are to be 24 members of the council, supplemented by up to two who may be co-opted (one of whom must be a vet) but who have no voting rights. The commons are divided into eight 'sections' (listed in Sch.1 to the draft order), and four 'section-groups' (identified in art.2): each section is empowered to elect two members from among the active commoners, and each section-group is able to elect one representative from among the inactive commoners. A further four members are appointed by the owners of the commons, and although this presumably reflects the owners' preference, it is not clear what would happen if the owners were unable to agree among themselves. For example if just one owner refused to endorse the appointments, would that leave the owners unrepresented until they could resolve the deadlock, for it seems that the landowners must act as one? Powers are conferred on the council under art.5(d) to make rules relating to "agricultural activities, the management of vegetation and the exercise of rights of common on the Commons; [and] the leasing or licensing of rights of common", subject to following the procedures set out in art.7, and obtaining a super-majority of two-thirds of the council (para.2(2)(a) of Sch.3). The council must maintain a live register (under art.8), and this is to include various information about the animals turned out on the common; however, the live register is not allowed to 'bypass' the statutory register maintained by Cornwall Council, as the proviso to art.8(1) requires that the live register may not contain "information as to any matter which is, or was, capable of being registered under Part 1 of the 2006 Act, but which has not been so registered" (but the exception for voluntary declarations of entitlement to exercise a right of common, which is present in what ought to be numbered para.8(b) of Sch.2, is omitted here).

Schedule 1 to the draft order contains a list of the common land register units which will be regulated by the council, and an assignment of the commons to the 'sections' for the purposes of elections. Hamatethy Common is oddly listed as register unit CL763, which does not appear in the 'biological survey' catalogue but appears to be a 'late arrival' in the registers, and CL247 appears twice (in the same section). One only has to take a brief look at the complexity of the register maps, and the numerous additions and deletions, to realise the complexity of the extent of registered common land: one can only hope that these have been fully resolved by the parties behind the order, because an amendment to the order, once made, would be unlikely.

Schedule 2 contains the arrangements for the election and appointment of council members, and makes clear that a commoner with rights over commons contained in more than one section may (by notice to the returning officer) vote in the election for each such section, but may not be elected as a member for more than one section (but nothing stops a commoner standing for election in more than one section). Where there is an equality of votes in an election, the votes are to be weighted according to the extent of the rights held by each elector, which suggests that the ballot cannot be secret (or at least, that the returning officer must be able to identify the elector who has completed a ballot paper).

Although s.36 of the 2006 Act enables an order to vary or abolish any regulations made under the Commons Act 1908, no such provision has been made in the draft. These regulations enable committees of commoners to regulate the turning out of entire animals (i.e. stallions, bulls, rams and boars). This is surprising, since regulations have been made under the 1908 Act in relation to some Bodmin Moor commons, and it is hard to see how the commons council could make rules under art.6(1)(c) for that purpose which overlap the jurisdiction of regulations made under the 1908 Act.

It now remains for the commoners, landowners and other interests in the draft order to respond to the consultation in sufficient numbers to show 'substantial support'. Silence cannot be taken as assent, so the parties behind the order will need to 'get out the vote' in order to make a success of the consultation, and enable the Secretary of State to proceed to make the order. Twenty years after the Bodmin Moor Commons Bill fell in Parliament, it is possible that much the same provision will now be made under secondary legislation, and with far less fuss. That is thanks to the 2000 Act, which rendered a right of access to the commons, at least on foot, as beyond debate.

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Bradley Lane or Bradley Path?

Rights of WayPosted by Hugh Craddock Thu, February 26, 2015 21:43:27

Trail Riders Fellowship v Secretary of State for the Environment, Food and Rural Affairs is a judgment of the High Court given in January in a challenge concerning what is often known as an 'unclassified county road' (UCR). The UCR in question is a country lane in Derbyshire, Bradley Lane, which runs between the village of Pilsley and the A619 in the valley below, 60 metres lower down. You can see the lane on the Ordnance Survey Explorer Map here, marked with green dots as 'other routes with public access' (ORPA), in the photograph below, and on Geograph here: 1, 2 and 3.

Bradley Lane: © Andrew Hill and licensed for reuse under this Creative Commons Licence

Bradley Lane was originally recorded on the definitive map and statement as a 'Road used as Public Path' (RUPP), a fix adopted by the National Parks & Access to the Countryside Act 1949 to record public ways in the countryside which appeared also to be used by vehicles. RUPP status allowed the way to be recorded as available to walkers and horse riders without any need for corroboration of public vehicular rights. Bradley Lane was more unusual, in that, long before it was captured on the definitive map as a RUPP, it was maintained by the former Bakewell Rural District Council as one of its local 'roads', and when responsibility for maintenance was formally transferred to Derbyshire County Council under s.30 of the Local Government Act 1929, Bradley Lane was shown on its 'handover map' as an 'unscheduled other district road', or what was to become known among the initiated as an UCR — a road which was of such lowly class that it was neither distinguished with a classification number, nor tarred during those years after the Great War when most public roads were given a sealed surface.

Strictly speaking, what was handed over at that time was responsibility for all publicly maintainable highways which were not already vested in the county council, including most footpaths and bridleways. But what both councils were really interested in was the extent of the road network, and the liability to maintain which was transferring from one to the other. So the rural district councils drew up handover maps, on which were marked in colour all the minor highways recognised as being maintainable at that time, sometimes distinguishing those which were tarred and those which were not. It follows that, because the transfer was not confined to minor roads, it cannot be concluded with any certainty that highways marked on the handover maps were carriageways: i.e.with a right of way for motor vehicles. But that seems generally to have been the intention, even if the maps represented no more than the experience and assumptions of the rural district council's highways officer.

This court challenge sought to overturn the decision of an independent inspector, determining a definitive map modification order, to show Bradley Lane as a public bridleway (you can see the interim and final decision, including maps, on the planning portal, scrolling down for case reference FPS/U1050/7/66). The application for the order had been made by a member of the Trail Riders' Fellowship, seeking to show the lane as a byway open to all traffic (BOAT). But the inspector, reviewing the historic evidence of status, concluded that there was insufficient evidence of vehicular rights, and (following two public inquiries) downgraded the outcome of the order to bridleway. The Fellowship was aggrieved, perhaps less because they disagreed with the inspector's interpretation and balancing of the evidence (though they undoubtedly did), but more because their starting point was that, as a UCR with the history described above, that should strongly weigh the balance in favour of rights for vehicular use.

It is not hard to sense the Fellowship's frustration with the inspector's decision, and imagine that it will be still less happy with the court's judgment. Much of the evidence for vehicular rights was circumstantial: the inclusion on the handover map, the exclusion from the first definitive map (presumably because Bradley Lane was then thought to be a road not appropriate for inclusion), the subsequent designation as a RUPP rather than a bridleway. And in each of those cases, the court concluded that the evidence could point either way. It was right about that — but they were all strong pointers in one direction. The judgment does not in itself affect the status of UCRs nationally. But it does undermine the expectation that most such UCRs, at least in the countryside, are carriageways, even if evidence is sometimes lacking. However, an expectation is all it ever was, and all it can be. Given that some UCRs are pretty certainly not carriageways, there can be no presumption that any particular UCR is one, for one can only assess the probability that a particular UCR is a carriageway, rather than draw a conclusion in a particular case on the basis of probability alone.

Counsel for the Fellowship had a go at undermining the inspector's decision on the evidence, but in a challenge of this kind, it is not enough to convince the court that it might have arrived at a different conclusion: it is necessary to show that there was some error of law or irrationality. There was an attempt to assert that the expression 'lane' (in the name of the route, 'Bradley Lane') itself indicated a carriageway: there was some support for this approach in case law. But the court was unimpressed, and again, it seems the best that can be said is that a lane very often is a minor road running between two other roads — but not that it inevitably is so. (It is not hard to find exceptions, although an exception today may not necessarily have been an exception in the past.)

There was also some discussion of plans for the Manchester, Buxton, Matlock and Midlands Junction Railway. Such plans are often used in rights of way claims. A company proposing to build a railway needed a private Act of Parliament, and standing orders of Parliament required that the company must deposit, in addition to a Bill, plans of the proposed line and books of reference containing details of the land which might be acquired. Particularly during the years of 'railway mania' in the middle of the nineteenth century, many lines were proposed which never saw the light of day, but which progressed far enough to be deposited with Parliament, even if the Bill were thrown out, or the company withdrew (perhaps bought out by a competitor). In this case, the railway was clearly not built, but although the evidence is unclear, it appears that an Act for the railway was in fact given Royal Assent in 1848 (c.cxcii here). It may be that the plans were approved by Parliament, but perhaps the specific proposals for a line over Bradley Lane were withdrawn from the Bill. The inspector concluded that, "the railway was not pursued in this locality. This limits the weight that can be given to these documents." The court agreed, and said, "Nevertheless, the plans were never put before Parliament and so there was no detailed consideration of the issue." Either way, the comments are unhelpful: what mattered is that, regardless of the outcome, there was an extensive process of local survey and what today would be called consultation with owners, tenants and parish authorities, carried out by experienced surveyors, to inform the deposited plans. Whether, in fact, the line was built, or indeed, whether the plans were endorsed by Parliament, is very much a secondary issue, but on the face of it, the inspector, and the court, were too quick to dismiss the evidence.

The residents of Pilsley, and walkers and horse riders, may be delighted with the outcome of the order, and the failure of the court challenge, and it is impossible to say that either was in error. But one comes away with the sense that it could easily have been a different outcome, given a more sympathetic hearing from the inspector. Look again at the photograph above, and you'll see, even today, a reasonably wide lane capable of accommodating a car: is it likely that such a way would not have been used by horse drawn carriages? That is at the heart of this case.

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Decision making in local authorities with executives

GeneralPosted by Hugh Craddock Sun, February 15, 2015 11:01:32

DCLG is half way through a consultation on the proposed Local Authorities (Functions and Responsibilities) (England) Regulations 2015. The regulations, if made, would not be novel, but would consolidate the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 and no fewer than 15 amending regulations. The consultation closes on 6 March and one suspects that the intention is to make the regulations before the end of March in order to clock up the revocation of a further 16 statutory instruments before the election.

The regulations are a consequence of the legitimisation of executive forms of local government introduced by Part II of the Local Government Act 2000, meaning that, where authorities have an executive in place, many decisions must be made by an executive mayor or a small cabinet of executive councillors. The effect of s.13 of the 2000 Act is that decision making is vested in the executive unless regulations provide otherwise. Broadly speaking, the regulations tend to provide that regulatory functions are not capable of being discharged by the executive: e.g. licensing and planning development control. However, any function may nevertheless be delegated to officers, either under s.101(1)(a) of the Local Government Act 1972, or under s.14, 15 or 16 of the 2000 Act.

As an example, the existing regulations (para.3 of part I of Sch.1 to the 2000 Regulations) require that the 'power to divert footpaths and bridleways' under s.119 HA 1980 is one which cannot be exercised by an executive member, but must be done by committee or by council (or by an officer, if an appropriate delegation is in place). This is why highway authorities have rights of way, regulatory, or similar committees to discharge these functions, even if they operate executive arrangements, and of course, why every planning authority still has a planning committee.

The consultation is of considerable relevance to highway authorities, because of the continuing requirement that public path orders are not made by the authority though executive arrangements. Note, however, that the relevant entries in Part I of Sch.1 to the draft regulations refer to exercising the power to 'make' an order, which suggests that confirmation of an unopposed order could be done by the executive.

There are also various other specified commons, CROW access, highway and rights of way functions which, generally as before, are excluded from executive arrangements, including:

  • power to enter into agreements to form means of access under s.35 CROW 2000
  • power to create means of access under s.37 CROW 2000
  • registration functions under s.13 Commons Registration Act 1965 (with exceptions)
  • registration functions under Part 1 Commons Act 2006 (with exceptions)
  • power to apply for enforcement order under s.41 Commons Act 2006
  • power to protect unclaimed common land under s.45 Commons Act 2006
  • power to authorise gates and stiles on public paths s.147 Highways Act 1980

There is also a rather bizarre removal of reference in the regulations to determination of applications for public path orders under s.118ZA of the Highways Act 1980, because that provision is not yet in force, yet with Royal Assent to the Deregulation Bill imminent, it may well be commenced in the next few months (the consultation does not even mention the parallel s.119ZA). From which one might guess that there has been no thorough prior consultation within Government, and it's all a desperate rush to complete the job before Parliament is dissolved and no new regulations may be laid before Parliament.

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Warcop: the army in retreat

Common landPosted by Hugh Craddock Tue, February 03, 2015 22:09:37

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.

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Up the garden path

Rights of WayPosted by Hugh Craddock Thu, January 29, 2015 21:47:21

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 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.

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