8. Recording of highways
8.2: Wildlife and Countryside Act 1981 continued
Alan Kind LL.M.
The National Parks and Access to the Countryside Act 1949 introduced the
category of Roads Used as Public Paths (RUPPs) into the classification of minor highways.
In the Countryside Act 1968, however, the legislature decreed the abolition of this
category and provided that all RUPPs should be reclassified. Some of them were
subsequently recorded on definitive maps as footpaths, but in 1975 the Court of Appeal
held that such reclassifications were inconsistent with the 1949 Act, which was
interpreted as having provided that RUPPs carried at least bridleway rights. Although
wider powers of reclassification were subsequently conferred by the Wildlife and
Countryside Act 1981, the fact remains that many RUPPs were wrongly reclassified, prior to
1975, as having neither vehicular nor bridleway rights. Before changes can be made to the
definitive map, however, legal hurdles now contained in the 1981 legislation have to be
overcome. The resulting complex situation suffices to ensure that correcting the erroneous
reclassifications is far from straightforward. The writer of this article puts forward an
idea of his own which, if valid, would facilitate the making of such corrections for
certain former RUPPs.
George Laurence Q.C.
S.31 of the Highways Act 1980 provides that 20 years use of a way by the
public, as of right and without interruption, will result in the way being deemed to have
been dedicated as a highway in the absence of sufficient evidence of an intention not to
dedicate. In R. v. Secretary of State for the Environment ex parte Cowell in which an
attempt to upgrade certain footpaths to bridleways in reliance on s.31 was unsuccessful,
the Court of Appeal discussed the approach to be adopted to cases under the section. The
result also incidentally illustrates the difficulties which face those who seek to
challenge a decision, made under s.53(5) of the Wildlife and Countryside Act l981, not to
make a definitive map modification order.
George Laurence Q.C.
After the passage of more than ten years since Part III of the Wildlife and
Countryside Act came into force, it is appropriate to consider how its provisions are
working in practice. This article sets out the provisions for modification of the
definitive map under s.53, and for RUPP reclassifications under s.54, and considers some
difficulties which can be encountered in their application. In particular it questions the
role of the Secretary of State in the appeal process under paragraph 4 of schedule 14.
George Laurence Q.C.
The Wildlife and Countryside Act 1981, Schedule 15 paragraph 12(3) completely
ousts any challenge to an incorrectly made modification order except during a six week
period following publication of the confirmation of the order.
George Laurence Q.C.
S.53(3)(c)(i) of the Wildlife and Countryside Act 1981 provides for councils to
make definitive map modification orders upon discovering evidence which, when considered
with all other relevant evidence available to them, shows that a right of way
[a] subsists or
[b] is reasonably alleged to subsist.
The evidence necessary to satisfy [b] is less than that necessary to satisfy [a].
Edwin Simpson M.A., B.C.L., Barrister, Tutor, Christ Church, Oxford
The proper scope of the duty to modify the definitive map and statement as part
of the process of continuous review has recently been considered in R. v. Secretary of
State for the Environment, ex parte Kent County Council. The procedure for such
modifications was held not to have been appropriately used to delete the right of way
concerned; recourse should have been made to other powers under the Highways Act 1980.
George Laurence Q.C.
The incremental, or continuous, review procedure to keep the definitive map up to date
and correct under s.53 of the Wildlife and Countryside Act 1981 appears to be working
reasonably well. Questions arise as to whether it can ever be proper for those who wish a
modification order to be made, to call on a surveying authority to make such an order even
where no formal application has been made under s.53(5) of the Act; and also whether an
authority has an obligation to comply with a direction made by the Secretary of State
under paragraph 4 of Schedule 14 of the Act.
D. Miller LL.M.(Cantab.), B.A., Barrister
A case note
The applicant, a member of the Ramblers' Association, sought to quash the decision
of the Secretary of State for Wales made pursuant to his appellate powers under Schedule
14 paragraph 4(2) of the Wildlife and Countryside Act 1981 (the 1981 Act). He had refused
to direct Clwyd County Council to make a modification order, affecting the definitive map
and statement of its area, to show an alleged public footpath. The judge, allowing the
application, ordered the decision of the Secretary of State for Wales to be quashed. He
held that, where there was a substantial conflict of evidence as to whether a public right
of way could reasonably be alleged to subsist within the meaning of s.53(3)(c)(i) of the
1981 Act, the Secretary of State for Wales was wrong to resolve that dispute on
documentary evidence alone, and that procedural fairness, and perhaps the claimant's
legitimate expectations, required a public inquiry to be held in order to allow the
evidence to be tested properly.
James Stephens M.A. (Oxon), Solicitor
A case note
The Court of Appeal approved the approach to the construction of s.53 of the
Wildlife and Countryside Act 1981 which Owen J. had adopted in R. v. Secretary of State
for the Environment ex parte Bagshaw and Norton, and held that where there is a conflict
of apparently credible evidence, a right of way "is reasonably alleged to
subsist" if, reasonably accepting the evidence of one side and reasonably rejecting
that of the other, the right would be shown to exist. The Court rejected the view that in
such cases a local inquiry should be held before determining an appeal under Schedule 14
of the 1981 Act.
David Braham Q.C.
A case note
To quote from the judgment, Mr. and Mrs. O'Keefe "engaged in a three day
hearing in this Court. On this occasion they conducted their case in person with Mr.
O'Keefe as advocate, assisted by Mrs. O'Keefe in the presentation of legal arguments
summarised in 106 pages of typed script. The submission appeared to be the product of
years of research into the law affecting judicial review, into the complex legislation on
public rights of way and into the detailed factual history of this dispute and of
footpaths generally in the Isle of Wight". Nevertheless the appeal was dismissed.
Louise Davies, B.A., B.C.L. Barrister
A case note
The first issue in this case was the correct interpretation of the definition of a
byway open to all traffic in s.66(1) of the Wildlife and Countryside Act 1981. Dyson J.
decided that a way falls within the definition only if it is currently being used by the
public mainly for the purposes for which footpaths and bridleways are so used. The second
issue was whether the 1981 Act, and in particular paragraph 12 of Schedule 15 thereto,
excluded the court's jurisdiction to grant judicial review of the Council's decision to
make a modification order under s.53(2) of the Act. It was decided that the court was able
to grant judicial review where there had been a plain error of law.
David Braham Q.C.
The decision in R. v. Wiltshire County Council, ex parte Nettlecombe Limited
establishes the need to take two steps additional to the usual statutory procedures,
before making a definitive map modification order, in those cases where the way is a
public carriage road which has fallen into disuse because it is blocked by undergrowth or
deliberate obstructions.
John Trevelyan, Deputy Director, Ramblers' Association
Local government reorganisation gives rise to difficulties in
administering definitive maps and statements. Various statutory provisions result in some
authorities having more than one definitive map for their areas.
George Laurence QC
Failure to keep the definitive map up to date.
The implications of using a working copy definitive map.
Mistakes on consolidated map.
Pre-contract Inquiries
|
|
