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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Masters v Secretary Of State For Environment, Transport & Regions [2000] EWCA Civ 249 (31 July 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/249.html
Cite as: [2000] 3 WLR 1894, [2000] EWCA Civ 249, [2001] JPL 340, [2000] 4 All ER 458, [2000] 4 PLR 134, [2001] QB 151
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Case No: QBCOF/1999/1095C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD CROWN OFFICE
(HOOPER, J.)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 31 July 2000
LORD JUSTICE ROCH
LORD JUSTICE TUCKEY
and
LORD JUSTICE MANCE
MARLENE PEGGY MASTERS |
Appellant | |
- and - |
||
SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -
George Laurence QC & Louise Davies (instructed by Messrs Thrings & Long, Bath, for the Appellant)
John Hobson QC & Philip Coppel (instructed by The Treasury Solicitor for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE ROCH:
1. The issue in this appeal is the meaning of the statutory definition of a byway open to all traffic. The statutory definition is to be found in section 66(1) Wildlife and Countryside Act, 1981. It is "a highway over which the public have a right of way for vehicular and all other kinds of traffic but which is used by the public mainly for the purpose for which footpaths and bridleways are so used".
2. The issue arises because of decisions of the Somerset County Council as the surveying authority and the Secretary of State for the Environment in respect of a public right of way WN 16/11 which runs between a class 3 carriageway, the old Sherborne-Bruton turnpike at its western end and an unclassified road at Sheril's Corner at its eastern end through two adjoining farms known as Higher Clapton Farm and Lower Clapton Farm in the Parish of Maperton in the County of Somerset. Higher Clapton Farm is owned by Mr and Mrs Watts and Lower Clapton Farm is owned by Mr and Mrs Masters. Mrs Masters is the Appellant in this appeal.
3. The decision of the County Council was to modify the status of that way which had been that of a road used as a public path to that of a byway open to all traffic, using its power to modify its definitive map and statement contained in section 53(2)(b) of the 1981 Act. The decision was contained in the Somerset County Council (No.1) Modification Order 1994 which was made on 10 June 1994. That Order provided:
"1. For the purpose of the Order the relevant date is 2 March 1994.
2. The County of Somerset definitive map and statement should be modified as described in Part I and Part II of the Schedule and shown on the map attached to the Order.
3. This Order shall take effect on the date it is confirmed and may be cited as the Somerset County Council (No.1) Modification Order 1994."
Part I of the Schedule of the Order provided that "the present status of this right of way is a road used as a public path. This will be modified to the status of a byway open to all traffic."
4. That Order would not take effect unless and until it was confirmed by the Secretary of State after holding a public inquiry by an Inspector appointed by the Secretary of State, if there were objections to the modification.
5. The County Council made a second decision relating to way WN 16/11. That decision was to dismiss an application of Mr & Mrs Masters to delete that route from the definitive map. Mr & Mrs Masters appealed against that decision to the Secretary of State.
6. The first matter was heard by an Inspector, Mr J. E. Coyne, at an Inquiry held on 12/13/14 and 15 September 1995. Mr Coyne reported to the Secretary of State on 26 July 1996. The Inspector recommended that the Modification Order be confirmed having reached a number of conclusions among which were the following:
1. That evidence of the dedication of the route as a public highway had to pre-date 1930 because the route had been little used since then and such use as had been made of it since then had been challenged by the owners of the farms and could not amount to dedication.
2. The owners and occupiers of the two farms, who were the objectors to the proposed Order, conceded that there might be a public footpath over the Order route. The Inspector observed that there was little evidence to support the existence of footpath or bridleway rights. The crucial issues were: Was the route subject to a public right of way? If it was, was it subject to vehicular rights of way? The Inspector considered that it was for the County Council to establish on the balance of probabilities that vehicular rights of way existed over the route.
3. The Inspector then considered the evidence which consisted of documents, being maps, plans, title deeds, enclosure plans, dating from the middle of the 18th century to the definitive map prepared by the County Council under the Acts of 1949 and 1968 in 1977, in which the route was shown as a road used as a public path. In relation to each document the Inspector set out the submissions that the various parties had made and his conclusions.
4. At paragraph 8.16 of his report the Inspector wrote:
"The Council have established to my satisfaction that on the balance of probabilities it is appropriate to show the Order route as a BOAT on the definitive map. I have considered whether as a matter of law the RUPP presently recorded can be converted by a section 53 Modification Order to a BOAT. Ultimately this is a matter for the courts to decide but it appears to me that following the Masters application for a Modification Order, the Council were obliged, after proper investigation, to make such an order, that is a Modification Order, as appeared to the Council to be requisite in consequence of the occurrence of "the discovery of evidence by the Council which showed that the highway ought to be shown as a highway of a different description". The Council concluded it was a BOAT, which is a highway of a different description. They could have concluded it was a footpath or a bridleway. Had the Council proceeded by way of section 54, they could have reached the same conclusion that it was one of those other descriptions of highway and then by Order "make such modification" to the map as is requisite. The objective of both sections is "modification" of the definitive map when it is requisite and although section 53 is generally adopted when errors in the definitive map have been identified, nothing in the section limits its use to such situations. The Council being satisfied that vehicular rights did exist and the Order route complied with the definition of BOAT, a description which differs from that of RUPP, had to make some Order under section 53 and were correct to proceed as they did. I do not therefore accept the submission that the Order is fundamentally flawed."
7. The submission that the County Council's Order was flawed because the County Council had relied upon section 53 and not section 54 of the 1981 Act is not a point that has been pursued before this court.
8. The Secretary of State's decisions are contained in a letter dated 6 August 1997. The decisions were, first to dismiss the Appellants' appeal against the County Council's refusal to delete the way from the definitive map and statement and, secondly, to confirm the County Council's Modification Order (No.1) of 1994. The Secretary of State stated his decision in this way:
"After careful consideration of all the representations made and for the reasons given above the Secretary of State concludes that, in respect of Mrs Masters' appeal, she has not shown on the balance of probabilities that a mistake was made when RUPP 16/11 was added to the definitive map and that no rights on foot or on horseback exist. He does not propose, therefore, to direct Somerset County Council to make an Order to delete it from the definitive map. Moreover, in respect of the Order, he is satisfied that the combination of evidence from all the various documents is such that it has been shown, on the balance of probability, that public rights of vehicular status exist. With regard to the legal submissions, he shares the Inspector's view that the Council were not in error by making the Order under section 53. He takes the view that the Council were responding to an application made under section 53 and that, as a result of that application, new evidence was discovered and an Order was made. They were not carrying out a review to reclassify the RUPP, in accordance with the terms of section 54. Thus he has decided to accept the Inspector's recommendation that the Somerset County Council (No.1) Modification Order 1994 should be confirmed. The confirmed Order is, therefore, enclosed."
9. An important part of the Secretary of State's reasons for his decision is to be found in paragraph 18 of that letter:
"It is clear that Mrs Masters is correct in her allegation that maintenance which would be expected on a public road has not been carried out on the route for a very long time, if ever, and that it has been neglected to such a degree that it has not been considered as a public road by anyone, other than the Council, in living memory. It is also clear how some of the events which have taken place over more recent years would suggest that the route was only a footpath, or bridleway at most, eg. the "No Through Road" sign and the references to the route as a footpath by Council officials, both in person and as has been shown on correspondence. However, the fact remains that it has been recorded as a public road since at least 1929, and that there is evidence to show that it was believed by the Council recording it to have vehicular rights. This is supported by its portrayal on various old documents which show it the same as other known roads, the fact that it is a through route linking two other county roads, and by its exclusion from leases and sales, which suggest that it is more than a farm track. Finally, the Secretary of State has considered the examples of other decisions made by the Department on rights of way which were submitted or referred to by Mrs Masters as being similar to this case and are, in her view, precedents, but finds that all contain fundamental differences to this case."
10. The factual position is, therefore, as follows: the route has been recorded as a public road since 1929 or since the publication in 1972 of the definitive map as a road used as a public path. There is little evidence of use of the route by the public with vehicles in living memory. On the other hand the route is shown on maps which pre-date 1929 in the way appropriate to public rights of way for vehicular traffic, for example the Ordnance Survey map of 1886. The only evidence of use by the public in living memory has been use on foot or on horseback, that is to say uses appropriate to the route being a footpath or a bridleway, which use was often challenged by the owners of the farms and some attempts to ride the route by motorcyclists with varying degrees of success.
11. The submission made by counsel for the Appellant is that the statutory definition of a byway open to all traffic contains a "user test" which has three main elements. First, it must be possible to say of a given path at the time of classification that it is used, that is to say currently used, so that evidence of user in the non-recent past will not do. Secondly, its current use must be on foot and on horseback and with vehicles, so that evidence of current use by only one or two of these will not be enough. Thirdly, the current pedestrian and equestrian use combined must be more than the current vehicular use. Mr George Laurence QC for the Appellant argued that on the evidence contained in the report of the Inspector and the decision letter of the Secretary of State, route WN 16/11 simply does not come within the statutory definition of a byway open to all traffic. There is no evidence of present use by vehicles, equestrians or pedestrians. Alternatively, evidence of such uses indicate that such uses are negligible. Negligible use should be ignored. In the further alternative, such evidence of use of the way at present as there is points to the present use by the public with vehicles, namely trail motorcycles, outweigh any use of the way by the public on horseback or on foot. As a consequence the requirement contained in the statutory definition that the way is used by the public mainly for the purpose for which footpaths and bridleways are used is not and cannot be satisfied. As authority for the proposition that to satisfy the definition there must be present use of the way which meets the wording in section 66(1), Mr Laurence relies on the judgment of Dyson J. in R v Wiltshire County Council ex parte Nettlecombe and Pelham (1998) J.P.L. 707.
12. Before considering that judgment and the judgment of Hooper J. in this case, it is convenient to trace the history of legislation passed by Parliament seeking to identify public rights of way so that both the public and land owners can know what routes may be used by the public and the nature of the rights the public have over such routes.
13. The first step was contained in the National Parks and Access to the Countryside Act, 1949. Section 27 of that Act imposed on county councils an obligation to survey their counties and to produce a map showing footpaths, bridleways and roads used as public paths. Section 27(6) defined a road used as a public path as "a highway, other than a public path, used by the public mainly for the purposes for which footpaths or bridleways are so used." A public path was defined as being " a highway being either a footpath or bridleway".
14. However, whilst the showing of a route on the definitive map as a road used as a public path was to be conclusive evidence that the public had over such route a right of way on foot on horseback and leading a horse, it was without prejudice to the question whether the public had at that date any larger right of way, for example a right of way to pass with vehicles, see section 32(4)(b) of the 1949 Act.
15. Parliament then passed the Countryside Act, 1968, which required county councils to review their definitive maps and reclassify every road used as a public path as one of three ways:
1. A footpath or
2. A bridleway or
3. A byway open to all traffic.
The term "road used as a public path" was no longer to be used once the review was completed. As part of the review process consideration was to be given to the suitability of the road used as a public path for vehicular traffic and where the way had been used by vehicular traffic, whether the extinguishment of existing vehicular rights would cause undue hardship, see paragraphs 7 to 10 of Part III of Schedule 3 of the 1968 Act. One may observe that had the Somerset County Council reviewed route WN 16/11 under the 1968 Act, then it is highly unlikely that it would have been reclassified as a byway open to all traffic. By paragraph 9(2)(b) of Part 3 of Schedule 3 of the 1968 Act "Any entry......describing a way as a "byway open to all traffic" should be conclusive evidence......of a public right of way for vehicular and all other kinds of traffic." However, the Somerset County Council did not review the status of WN 16/11 under the 1968 Act.
16. It is convenient to interrupt this account of the parliamentary provisions relating to public rights of way to refer to a leading case on this subject decided by this court in 1975 - R v Secretary of State for the Environment ex parte Hood (1975) QB 891. The court consisted of Lord Denning M.R., Browne LJ and Sir John Pennycuick. The case was argued by Lord Hoffmann and Lord Woolf. In his judgment, Lord Denning said of the 1949 Act at page 896F:
"The object of the statute is this: it is to have all our ancient highways mapped out, put on record and made conclusive, so that people can know what their rights are. Our old highways came into existence before 1835. They were created in the days when people went on foot or on horseback or in carts. They went to the fields to work, or to the village, or to the church. They grew up time out of mind. The law of England was: Once a highway, always a highway. But nowadays, with the bicycle, the motor car and the bus, many of them have fallen into disuse. They have become overgrown and no longer passable. But yet it is important that they should be preserved and known, so that those who love the countryside can enjoy it, and take their walks and rides there. That was the object of the National Parks and Access to the Countryside Act 1949 and the Countryside Act 1968. In 1949 the local authorities were required to make inquiries and map out our countryside. First, a draft map; next a provisional map; and finally a definitive map. There were opportunities both for landowners and the public to make their representations as and when each map passed through each stage. In 1968 there was to be a review and re-classification.
In order to understand the statutes, one must remember the classification of highways at common law. It was threefold. First, it may be a "footway", appropriated to the sole use of pedestrians; secondly, a "packe and prime way" (called a bridleway) which is both a horseway and footway; third, a "cartway", which comprehends the other two and is also a cart or carriageway (see Coke upon Littleton, vol. 1, 56a); but, to whichever of these classes it belongs, it is still a highway, " `highway' is the genus of all public ways, as well as cart, horse, and footways": see Reg. v Saintiff (1705) 6 Mod.Rep. 255, per Sir John Holt C.J. That classification formed the basis of the statutory classification in section 27(6) of the National Parks and Access to the Countryside Act 1949."
A second authority on the Acts of 1949 and 1968 is the case of Suffolk County Council v Mason (1979) A.C. 705. In his speech at p715A Lord Diplock stated his conclusions on the Parliamentary purpose behind these two statutes in six propositions, the first 3 of which were:
1. The only classes of users of highways who are intended to be benefited by the recording of public rights of way are those who may conveniently be referred to as ramblers and riders; they go on foot or horseback. Motorists are not among the intended beneficiaries, nor are cattle drovers.
2. Consequently, the only kinds of highways with which the relevant provisions of the Act are concerned are those which are exclusively, or mainly, used either by ramblers alone or by both riders and ramblers. Footpaths are much commoner than bridleways and a much larger part of the electorate are ramblers than are riders.
3. The way in which ramblers and riders are to be benefited is by providing them with an easy and conclusive way of proving their rights to walk or ride on particular routes.
17. The 1981 Act in section 54(1) requires county councils to carry out a review of roads used as public paths. Section 54(2) provides definitive maps and statements shall "show every road used as public paths by one of the following three descriptions, namely:
(a) a byway open to all traffic,
(b) a bridleway
(c) a footpath,
and shall not use the expression "road used as a public path" to describe any way." Section 54(3) provides "A road used as a public path shall be shown in the definitive map and statement as follows:
(a) if a public right of way for vehicular traffic has been shown to exist, as a byway open to all traffic;
(b) if paragraph (a) does not apply and public bridleway rights have not been shown not to exist as a bridleway; and
(c) if neither paragraph (a) nor paragraph (b) applies, as a footpath".
18. Section 53 of the Act places on county councils a duty to keep the definitive map and statement under continuous review. Subsection (1) of section 53 defines "definitive map and statement". Subsection (2) imposes duties on the surveying authority, that is to say in this case the Somerset County Council to:
"(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in subsection (3); and
(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event."
The commencement date was the 28th February, 1983.
19. The events in section 53(3) are as follows:
"(a) the coming into operation of any enactment or instrument, or any other event, whereby -
(i) a highway shown or required to be shown in the map and statement has been authorised to be stopped up, diverted, widened or extended;
(ii) a highway shown or required to be shown in the map and statement as a highway of a particular description has ceased to be a highway of that description; or
(iii) a new right of way has been created over land in the area to which the map related, being a right of way such that the land over which the right subsists is a public path;
(b) the expiration, in relation to any way in the area to which the map relates, 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;
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows -
(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies;
(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification."
20. The Appellant's application to have route WN 16/11 deleted from the definitive map and statement was made under section 53(5) of the 1981 Act which enables any person to apply to the surveying authority for an order under section 53(2). In issuing Somerset County Council (No.1) Modification Order 1994, the County Council purported to act under section 53 but it is important to note that they were also performing in part the duty laid upon them by section 54, route WN 16/11 being at that time shown on the definitive map and statement as a road used a public path.
21. The judgment of Hooper J. on the issue on which he gave leave to appeal and the sole issue for this court's consideration, namely whether the predominant use on foot and horseback over vehicular use is required to be established by the evidence to fulfil the definition of a byway open to all traffic in section 66(1) of the 1981 Act, before the way can be shown on the definitive map and statement as a byway open to all traffic, started by setting out the submissions of Mr George Laurence QC that before the way can be shown as a byway open to all traffic, there must be evidence of current use by vehicles and equestrians and pedestrians at the relevant date and that the combined use by pedestrians and equestrians must be shown to exceed the current use by vehicles. Mr Laurence drew the judge's attention to a table which Mr Laurence had used in an article he wrote in the Rights of Way Law Review for October 1998 which identified eleven categories of "full highways or cartways" of which only one, the ninth would in Mr Laurence's submission fulfil the definition of byway open to all traffic contained in section 66(1) of the Act. The judge reproduced that table in his judgment which is now reported in [2000] 2 All ER 788, the table appearing at p793E. The judge directed himself that he should confine his decision to what is the right test and not go on to apply the right test to the evidence. He accepted that if the test urged by the Appellant's counsel was the right test, the question of applying the test to the evidence should go back to the Secretary of State.
22. The judge listed what he believed would be the practical consequences of Mr Laurence's submission being correct. He listed eight matters which in the judge's view pointed against such an interpretation forming a practical solution and as a result the judge concluded that the interpretation of section 66(1) of the Act contended for by Mr Laurence could not have been what Parliament had intended.
23. The judge looked at certain cases including those of Suffolk County Council v Mason and others (1979) A.C. 785 and R v Secretary of State for the Environment ex parte Hood (above). Then the judge considered the case of Nettlecombe citing this passage from the judgment of Dyson J.:
"I reject Mr Gordon's arguments. First, the language of the definition is clear and unambiguous. It is expressed in the present tense, and refers to current use, not past or future or potential use. Secondly, I cannot think of any policy reason why Parliament should have intended an authority to carry out the difficult exercise of speculating into the future as to the possible uses of highways. Finally, I find nothing odd in the notion that in relation to byways open to all traffic, Parliament was concerned not with rights of way, but with actual user. The aim and object of Part III of the 1981 Act is to protect the interests of walkers and riders in the countryside. It is entirely sensible and rational to say that the benefit of the definitive map and statement should be accorded to pedestrian and equestrian users of bridleways and footpaths, i.e. highways over which such users have rights of way, and to say in relation to highways over which the public have a right for vehicular and other kinds of traffic, that the protection of the definitive map and statement is accorded only if they are actually used by the public mainly for the purpose for which footpaths and bridleways are used. In my view, it is open to an authority to have regard to recent use when it decides whether a highway is currently being used by the public within the meaning of the definition of byway open to all traffic in section 66(1). There will be borderline cases in which it is difficult to decide how far back in time an authority can properly go in order to determine the present use of a highway.....I should add that the interpretation contended for by Mr Laurence is consistent with the meaning of "road used as a public path" in section 27(6) of the National Parks and Access to the Countryside Act 1949. The "road used as a public path" was the predecessor of the "byway open to all traffic" under the 1981 Act. It was defined as "a highway, other than a public path, used by the public mainly for the purposes for which footpaths or bridleways are so used". Dicta in R v Secretary of State for the Environment, ex parte Hood ([1975] 3 All ER 243 at 246, 251, [1975] QB 891 at 897, 904) "but which are used nowadays by people walking or riding horses", "a public way which is mainly used as a footpath or bridleway", and Suffolk County Council v Mason ([1979] 2 All ER 369 at 372, 375, [1979] AC 705 at 710, 715) "those which are exclusively, or mainly, used either by ramblers alone or by both riders and ramblers", show that, in relation to a road used as a public path, there had to be actual current use. I am fortified in my conclusion by these dicta, since the definition of a byway open to all traffic points even more clearly to actual current use than did its predecessor."
24. Hooper J. went on to accept that these passages in the judgment of Dyson J. offered support for the proposition that the definition introduces a requirement of current use, adding that they could not be decisive of the issue. Hooper J. took the view that the definition of byway "open to all traffic" in section 66(1) had to be construed in a purposive manner. The definition is referring to a type of highway and not seeking to limit byways open to all traffic to those which are currently and actually used in the way section 66(1) describes. That this was the correct approach was confirmed by the common law principle "once a highway, always a highway", that is to say once it is shown that a highway has been dedicated for a certain use by the public that use of that way cannot be lost at common law. That use can only be terminated or altered by virtue of some power created directly or indirectly by statute, or possibly by some natural event such as erosion by the sea, which removes the land over which the public had enjoyed the right of way.
25. The decision of Dyson J. in R v Wilts County Council ex parte Nettlecombe Ltd and Pelham (above) insofar as it is material to the issue in this appeal appears in that passage of Dyson J's judgment cited by Hooper J. when deciding the present case.
26. The most recently reported decision is that of Kay J., as he then was, in Buckland and others v Secretary of State for the Environment [2000] 3 All ER 205 in which that judge, according to the report, is said to have followed the decision in Nettlecombe and to have refused to follow the decision of Hooper J. in the present case. In fact Kay J. during his judgment, see page 207J of the report, considered that either view of the definition in section 66(1) in the case he had to decide would lead to the same result. Kay J. held that on the true construction of section 66 of the 1981 Act, a highway could not qualify for inclusion on the definitive map as a byway open to all traffic without evidence of current use. He said:
"With respect to the view expressed by Hooper J., it is my clear understanding that the interpretation of a statute by means other than the language of the section only becomes permissible when the language is not clear and unambiguous. Like Dyson J., I have no difficulty in concluding that the language of this section is `clear and unambiguous' and requires evidence of current use. I should, therefore, have had no hesitation in deciding the point that arose in ex parte Nettlecombe in the same way as Dyson J.
I do not, however, begin to accept the interpretation of Dyson J's judgment contained in the commentary. Nowhere, so far as I can see, did the judge decide that there needs to be evidence of current vehicular use. He held that there must be evidence of current pedestrian and/or equestrian use since without it the definition cannot be satisfied but no more than that.
I reject a number of the submissions made by Mr Laurence as to wider aspects of the definition. (i) I see no reason why there has to be evidence of current vehicular use. Mr Laurence's argument is that `mainly' must imply some vehicular use but I reject that argument. As I rather inelegantly put it during the course of argument, `exclusively' is simply the extreme form of `mainly' in this context. All that needs to be demonstrated is that the pedestrian and equestrian use outweighs the vehicular use and it matters not whether the latter is limited or non-existent. (ii) I equally reject the argument that there needs to be demonstrated both pedestrian and equestrian use. Mr Laurence compares the definition of a BOAT in s.66 with the definition of a `road used as a public path' (RUPP) in the National Parks and Access to the Countryside Act 1949 which defined a RUPP as: `a highway, other than a public path, used by the public mainly for the purposes for which footpaths or bridleways are so used.' He particularly points to the use in the definition of `purpose' in the singular and the replacement of `or' in the reference to footpaths and bridleways with the word `and'. I do not accept that this change has the significance suggested. Under the definition of a RUPP it was arguable that one could not aggregate pedestrian use with equestrian use when making the comparison with vehicular use. As I read the definition of a BOAT, that matter is put beyond question. The only exercise required is to see whether the combined pedestrian and equestrian use, if any, is greater than any vehicular use."
27. There is an important difference between the facts in Buckland's case and the facts in the present case. In Buckland's case the Secretary of State was confirming a modification order upgrading a public right of way shown on the definitive map and statement as a footpath to the status of a byway open to all traffic, under section 53 of the Act. That could only be done if the evidence showed that the way in question came within the definition of a byway open to all traffic contained in section 66(1). In the upshot Kay J. held that the Secretary of State's decision had to be quashed because his inspector's conclusion that the route was a highway was flawed.
28. The submissions of Mr Hobson QC for the Respondent were that the reading of the definition of a byway open to all traffic adopted by Hooper J. accords with Parliament's intention as it is to be gathered from the Act and the Act's predecessors. That reading is consistent with other provisions in the 1981 Act which could not be applied consistently with the literal interpretation of the definition in section 66(1) for which the Appellant contends. If it had been Parliament's intention, when enacting the 1981 Act, that roads used as public paths should be deleted from the definitive map if they failed to satisfy some user test derived from the definition in section 66, Parliament would have expressly so provided in section 54, or if not in section 54, in section 53. Parliament's intention was to preserve rights of way giving access to the countryside for walkers and horse riders. Parliament intended to include ways over which the public had vehicular rights of way, which rights were rarely if ever exercised by the public. The last thing that Parliament intended was that once a way was shown on the definitive map as a byway open to all traffic, it could be the subject of applications to remove it from the definitive map and statement altogether because the use made of the way by the public had ceased or the balance between the various uses made by the public of the way had changed. The reading of the definition given by Hooper J. did not involve "the wholesale rewriting" of the definition or indeed any rewriting. The purpose of the definition was to identify the way Parliament intended should be shown on the definitive map and statement by its type or character.
29. I accept these submissions made by Mr Hobson on behalf of the Respondent and I would uphold the judgment of Hooper J. in the court below.
30. The intention of Parliament in passing the Acts of 1949, 1968 and 1981 is in my judgment clear. That purpose is that county councils should record in definitive maps and statements ways, including what Lord Diplock called "full ways or cartways" for the benefit of ramblers and horse riders so that such ways are not lost and ramblers and horse riders have a simple means of ascertaining the existence and location of such ways so that they may have access to the countryside. Parliament intended that "full highways or cartways" which might not be listed as highways maintainable at the public expense under the Highways Act 1980, should be included in the definitive map and statement so that rights of way over such highways should not be lost. Parliament's purpose was to record such ways not to delete them.
31. The definition in section 66(1) is the descendant of the definition of "road used as a public path" which is to be found in section 27(6) of the 1949 Act. That definition read " "road used as a public path" means a highway other than a public path used by the public mainly for the purposes for which footpaths or bridleways are so used." "Public path" was defined as meaning a highway being either a footpath or a bridleway. This definition was described by Sir John Pennycuick in Hood's case at p904G as a definition "of outstanding obscurity". Sir John Pennycuick continued "but it appears to denote a public way which is mainly used as a footpath or bridleway but is not exclusively so used, the implication being apparently that there is also occasional but subsidiary use for carts or other wheeled traffic". That was a passage on which Mr Laurence placed reliance. In the same case, Lord Denning observed that the word "mainly" is the problem. Lord Denning went on "the object of the draftsman was to include cartways over which there is a public right of cartway, but which are now used mainly by people walking or riding horses, like the Berkshire Ridgeway or the ways over the South Downs. The draftsman intended to exclude metalled roads used by motor cars." The definition in section 66(1) of byway open to all traffic requires the public to have a right of way for vehicular and all other kinds of traffic over the highway in question but does not require the highway in question to be used by the public with vehicles unless the word "mainly" in the second part of the definition is read so as to exclude "exclusively". I would agree with Kay J. on this point: "exclusively" is simply the extreme form of "mainly" in this context. Although it can be said that the words "but which is used by the public mainly for the purpose for which footpaths and bridleways are so used" are unambiguous if read in isolation, to read those words in isolation is in my judgment to fall into error. The definition read in its entirety is ambiguous. In those circumstances Hooper J. was right to adopt a purposive approach to the construction of the definition.
32. The definition in section 66(1) has to be read in its statutory context and in particular with the provisions of section 54 and section 56 of the Act in mind. The whole purpose of Part III of the Act is the ascertainment of public rights of way. Under the previous legislation roads used as public paths had had to be recorded in definitive maps and statements but this had led to difficulties. In the 1968 Act provision was made for the reclassification of roads used as public paths and county councils were permitted in deciding whether to reclassify such roads as byways open to all traffic, bridleways or footpaths to place the way in the category of bridleway or footpath despite the existence of vehicular rights of way if the way was not suitable for vehicular traffic and the extinguishment of vehicular rights of way would not cause undue hardship. Those provisions were not re-enacted in the 1981 Act, because, as Mr Laurence conceded, it was thought by Parliament that those provisions conflicted with the common law rule that once the public had a right of way of a certain type over land then in order to extinguish or even vary such a right, intervention by statute either directly or indirectly should be necessary c.f. Purchas LJ in R v Secretary of State for the Environment ex parte Burrows & another and R v Secretary of State for the Environment ex parte Simms (1991) 2 Q.B. 354 at 363F-G. Section 54(2) of the Act places on the surveying authority a duty to reclassify ways shown on the definitive map and statement as roads used as public paths by one of three descriptions. If a public right of way for vehicular traffic has been shown to exist over the road used as a public path then it is to be shown as a byway open to all traffic. Once that is done then under section 56(1)(c) the definitive map and statement shall be conclusive evidence that there was at the relevant date a highway as shown on the map and that the public had thereover at that date a right of way for vehicular and all other kinds of traffic. It is, in my judgment, clear from those provisions that Parliament did not contemplate that ways shown in definitive maps and statements as roads used as public paths should disappear altogether from the definitive maps and statements simply because no current use could be shown or that such current use of the way as could be established by evidence did not meet the literal meaning of the definition in section 66(1). In my opinion it is much more likely that Parliament intended the way to be shown in the definitive map and statement so that thereafter, if no current use was being made of the way, ramblers and horseriders would come to know the existence of the way and start to use it. This approach is consistent with the report of the Hobhouse Committee in 1947 on which the 1949 Act was based which in paragraph 21 stated "in spite of the maxim "once a highway always a highway" it is a fact that a very large number of rights of way are being lost through disuse....many have already disappeared. Others have become overgrown and are no longer passable; unless steps are taken before many more years elapse, these rights of way will be forgotten and lost for all time. We consider it essential that a complete survey should be put in hand forthwith so that an authoritative record of rights of way in this country may be prepared before it is too late". This paragraph was cited by Lord Hailsham in his speech in Mason's case at p720B-C.
33. Whereas Mr Laurence accepts the duties placed on county councils by section 54 with regard to the re-classification of ways shown in the definitive maps and statements as roads used as public paths, he argues that section 54 must be read as being subject to or subordinate to section 53. Section 53(2) places on county councils duties, one of which is to keep the map and statement as from 28 February 1983, the commencement date, under continuous review and as soon as reasonably practicable after the occurrence of any of the events set out in subsection (3) of the section make such modifications to the map and statement as appears to the county council to be requisite in consequence of the occurrence of that event. Mr Laurence submitted that cessation of user of the way or a change in the balance of user so that use by pedestrians and equestrians no longer outweighs vehicular use would be an event giving rise to the county council's duty to make modifications to the map and statement, the modification being the deletion of the way from the map and statement altogether.
34. For this submission to succeed Mr Laurence has to show that evidence that the user of the way does not fulfil the terms of the definition in section 66 is one of the events referred to in section 53. Initially Mr Laurence relied upon section 53(3)(a)(ii) namely an event whereby a highway shown or required to be shown in the map and statement as a highway of a particular description has ceased to be a highway of that description. Having heard the submissions of Mr Hobson for the Respondent, Mr Laurence conceded that he could not rely on that part of section 53(3). Mr Hobson pointed out that the words "any other event" in section 53(3)(a) had to be read in the same sense as the earlier words, "the coming into operation of any enactment or instrument". Mr Hobson submitted that Parliament was referring to formal acts or events such as those specified in sections 16 and 17 of the Defence Act 1842 or section 40 of the Defence Act 1860 where Parliament had conferred the power on certain persons to stop up or divert rights of way. Mr Hobson also drew the court's attention to the provision in section 53(6) which provides that orders under sub-section 2 of section 53 which make any such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (a) of subsection (3) shall take effect on their being made. The provisions of Schedule 15 do not apply to such a modification. The procedures in Schedule 15 would apply to all other modifications which county councils propose to make under section 53.
35. Section 53(3)(b) can have no application relating as it does to the creation of public rights of way. That leaves the events described in section 53(3)(c). Mr Laurence accepted that paragraphs (i) and (ii) have no application. Mr Laurence relied on (iii).
36. I accept Mr Laurence's first point on paragraph (iii) that there are two limbs to this provision. The first is "that there is no public right of way over land shown in the map and statement as a highway of any description......" In my judgment the Appellant cannot rely upon this limb to seek the deletion of way WN 16/11 from the definitive map and statement because the evidence has shown that there is a public right of way over the land shown in the map and statement as a byway open to all traffic. In order to bring the Appellant's case within the first limb, Mr Laurence was forced to add to the provision, after the words "public right of way", the words "of one of the kinds included in this part of this Act". I can see no justification for including such words. Parliament's intention in my view is quite clear that the map is to be modified by removal of the way from the map and the statement only in a case where the new evidence taken with other evidence shows that there never has been a right of way of any description over the land.
37. With regard to the second limb, I would read the word "particulars" in the second limb as referring to the details such as the position, width of the public path or byway open to all traffic and any limitations or conditions affecting the public right of way thereover. I do not consider that the deletion of a byway open to all traffic from the definitive map and statement is a modification of particulars contained in the map and statement.
38. Consequently in my judgment, it cannot be shown that evidence that the use of the way by the public does not satisfy the so-called user test or has ceased to satisfy the so-called user test, is an event the occurrence of which Parliament intended should lead a county council to make an order modifying the map and statement. Again this reading of section 53 is consistent with Parliament's undoubted intention that rights of way over which persons may access the countryside on foot or on horseback should not be lost, but should be recorded.
39. This result also avoids the absurdity that the adoption of a literal interpretation of the statutory definition of byway open to all traffic would produce; that county councils might have to review their maps and statements every few years as evidence was submitted to them that the patterns of use of such ways had altered. That in turn could lead to a plethora of public inquiries to determine whether a way which appeared on the map should be deleted or a way which had been removed from the map should be restored. Mr Laurence invited us to view that prospect and the prospect of such ways following deletion from the map and statement being lost with equanimity because the public right of way would survive following the common law's principle of "once a highway, always a highway".
40. On the other side, as Mr Hobson pointed out, were the use made by the public of the way to change so that vehicular use increased to the point where it inconvenienced the farmer or deterred ramblers and horseriders from using the way, section 54(7) of the Act makes clear that those problems can be cured by the use of a Road Traffic Regulation Order, the operation of which in relation to byways open to all traffic is preserved by this subsection. Mr Hobson relied on this subsection as a further indication of the irrelevance of current user when determining whether a way is a byway open to all traffic.
41. Conclusion
I consider that in defining a byway open to all traffic in the terms set out in section 66(1) of the Wildlife and Countryside Act, 1981, Parliament was setting out a description of ways which should be shown in the maps and statements as such byways . What was being defined was the concept or character of such a way. Parliament did not intend that highways over which the public have rights for vehicular and other types of traffic, should be omitted from definitive maps and statements because they had fallen into disuse if their character made them more likely to be used by walkers and horseriders than vehicular traffic because they were more suitable for use by walkers and horseriders than by vehicles. Indeed, where such ways were previously shown in the maps and statements as roads used as public paths, Parliament made it obligatory that they continue to be shown on maps and statements when these were reviewed after 28 February 1983. For those reasons I would uphold the judgment of Hooper J. and dismiss this appeal.
Tuckey LJ: I agree
Mance LJ: I also agree
Order: Appeal dismissed; leave to appeal refused; costs to follow the event.
(Order does not form part of approved judgment.)