8. Recording of highways
8.2: Wildlife and Countryside Act 1981 continued
George Laurence Q.C.
This is the first of three articles which discuss the correction of erroneous
definitive map modification orders. This first article addresses certain points of
principle. The subsequent articles will consider some practical problems and suggested
solutions.
George Laurence Q.C.
This is the second of three articles which discuss the correction of erroneous
definitive map modification orders. This article discusses in detail two problems, one of
which requires action under paragraph (c), the other paragraph (a), of s.53(3) of the
Wildlife and Countryside Act 1981.
George Laurence Q.C.
This is the third of three articles which discuss the consequences of making,
and the means of rectifying, erroneous definitive map modification orders. The informal
views of the Secretary of State are reported on the limits of the power to prepare a
consolidated map and statement under s.57(3) of the 1981 Act. The writer makes some
proposals for reform and discusses the position when errors are made in the course of
exercising the s.57(3) power itself.
David Braham Q.C.
A case note
In this case it was held that –
(1) although a highway authority is entitled to make a modification order under
s.53(3)(c)(i) of the Wildlife and Countryside Act 1981 (‘the 1981 Act’) on the
basis that the existence of a highway of a particular kind is ”reasonably alleged to
subsist”, confirmation of an order made under that paragraph depends on discharging
the normal civil burden of proof that such a way subsists on the balance of probabilities;
(2) the Inspector had proceeded under a mistake of law when he concluded that the
then owner’s acquiescence in the preparation and submission of documents and plans
required by the Finance (1909-10) Act 1910, which excluded Sandy Lane, constituted an
express dedication by him of Sandy Lane as a public carriage road; and
(3) furthermore, the Inspector’s conclusion was vitiated by procedural unfairness in
that the objectors were not given an opportunity to comment upon new material which
affected the Inspector’s decision.
Alex Lewis, LL.B., Solicitor (non-practising), Senior Rights of Way Officer,
Hampshire County Council
In Modifying mistaken modifications George Laurence Q.C. identified a number of
difficulties that surveying authorities may face when updating the definitive map. This
article looks at other practical problems and, by comparing the 1949 and 1981 regimes for
republishing the definitive map, identifies some of the risks involved in the latter.
N. Le Poidevin, Barrister
The companion article by Alex Lewis has illustrated some of the ways in which
an authority consolidating the definitive map may introduce errors. An earlier article by
George Laurence Q.C. mentions others.A landowner who suffers loss as a result may look to
the surveying authority to make it good. How far is the authority liable?
David Braham Q.C.
The unusual feature of this case is a substantial difference between the
definitive map and the statement as to the route of a public footpath. That raised the
issues as to what evidential weight should be given to each version
(a) under s.56 of the Wildlife and Countryside Act 1981 and
(b) in the context of the definitive map modification order procedure.
The Inspector’s decision not to confirm a modification order amending the route
raised two further issues.
David Braham Q.C.
A case note
Under the Countryside Act 1968, the issue whether a road used as a public path
(“RUPP”) should be reclassified as a byway open to all traffic
(“BOAT”) on the special review under that Act did not turn simply on the
question whether a public right of way for vehicular traffic was found to exist. Paragraph
10 in Part III of Schedule 3 to the Act provided that on the special review:
“The considerations to be taken into account in deciding in which class a road
used as a public path is to be put shall be:
(a) whether any vehicular right of way has been shown to exist;
(b) whether the way is suitable for vehicular traffic having regard to
the
position and width of the existing right of way, the condition and
state of
repair of the way, and the nature of the soil;
(c) where the way has been used by vehicular traffic, whether the
extinguishment of vehicular rights of way would cause any undue
hardship”.
The main issue in this application for judicial review was whether, where a public right
of way for vehicular traffic was found to exist, reclassification of a RUPP as a bridleway
in accordance with (b) and (c) above had the effect of extinguishing the public vehicular
rights.
Philip Petchey, Barrister
A commentary on The Rights of Way (Hearings and Inquiries Procedure) (England)
Rules 2007, including references to the way in which the similar but longstanding rules
which govern the procedure for planning inquiries have worked in practice.
George Keeping, B.Sc., Rights of Way Manager, LandAspects
The history, purpose and methodology of the abandoned Discovering Lost Ways
Project and Programme is addressed.
David Braham Q.C.
Case Note
In this statutory appeal against the confirmation of a definitive map modification order
the Court addressed the degree of accuracy and detail which is required in such an order
when identifying the route.
George Laurence Q.C.
The Definitive Map and Statement is not a comprehensive guide to the existence of all
footpaths and other public rights of way. It may be out of date, incomplete or inaccurate.
However the system is made to work well in practice by those responsible for it.
Practice and precedent
S.53 and s.54 Wildlife and
Countryside Act 1981
Sch 14 WCA 1981: Applications for modification orders
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