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Cite as: [1998] EWHC Admin 962

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SECRETARY OF STATE FOR ENVIRONMENT EX PARTE NORTH YORKSHIRE COUNTY COUNCIL, R v. [1998] EWHC Admin 962 (14th October, 1998)

IN THE HIGH COURT OF JUSTICE CO/1346/97

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice

Strand

London WC2

Wednesday 14th October 1998

B e f o r e:

MR JUSTICE LATHAM

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REGINA

-v-

THE SECRETARY OF STATE FOR THE ENVIRONMENT

EX PARTE NORTH YORKSHIRE COUNTY COUNCIL

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(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Telephone No: 0171 421 4040

Fax No: 0171 831-8838

Official Shorthand Writers to the Court) - - - - - - -

MR E SIMPSON (instructed by Messrs Rees and Freres, London, SW1) appeared on behalf of the Applicant.

MR M HARRINGTON (instructed by North Yorkshire Legal Services, Northallerton) appeared on behalf of the Respondent.

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J U D G M E N T

( As Approved by the Court )

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Wednesday 14th October 1998

1. MR JUSTICE LATHAM: This is an application for judicial review by the North Yorkshire County Council of a decision of an Inspector appointed by the Secretary

of State for the Environment dated 22nd January 1997.

2. The Inspector had been appointed to consider an order which had been made by the applicants in relation to what was said to be a public highway in the parish of Cliffe in North Yorkshire. The Inspector refused to confirm that order.

3. The factual background is that the road (as I shall call it) in question runs between certain lands (including land which is said to be owned by the Cliffe Parish Council) and there is no doubt that, as found by the Inspector, it had been used at least by parishioners of the Cliffe parish for many years. It was defined on all relevant maps in the 19th century but not in such a way as to determine its status in a satisfactory way. It had not been identified as a public right-of-way in the definitive maps which were prepared by the applicants at any relevant time. However, the evidence before the Inspector suggested that no-one had challenged the right of people to pass and repass over the road until January 1993 when Mr Stephens, who owns land across which the alleged right-of-way passes, sought to prevent the public from using the road. Although, as I have indicated, that was the first evidence that anybody had challenged the right of public to pass and repass, there had in 1976 been a query raised as to the status of the road; but there is no evidence before me as to how that query was dealt with. There is simply the letter raising the query and no more.

4. As a result of the challenge by Mr Stephens effectively that the parish council requested the applicants to identify the road in question as a public bye-way, by way of modification of the relevant maps.

5. As a result of that request by the Cliffe Parish Council, the applicants originally made the order on

8th August 1994. The Order was made pursuant to the provisions of s. 53 of the Wildlife and Countryside Act 1981. The applicants had been satisfied by the material put before them that the road was at least a bridleway; and it was as a bridleway that the Order was made. The applicants were satisfied that the provisions of

s. 31(1) of the Highways Act 1980 had been met namely, that there had been continuous use as of right for a period of 20 years of the road such as to mean that the way was deemed to have been dedicated as a highway. After the making of the Order, notification was duly given to interested parties, objection was taken inter alia by Mr Stephens and as a result a public inquiry was held at Cliffe between the 10th and 13th of December 1996. It was subsequent to that hearing that the Inspector made the decision which is the subject matter of these proceedings.

6. In form these proceedings were originally between the applicants and the Secretary of State for the Environment. However, the Secretary of State for the Environment was content for the application to succeed and to submit to a Consent Order. Mr Stephens then applied to be joined as a Second Respondent. He made his application in August 1998. Correspondence took place in which the applicants indicated they would not object but no order was made joining him until I considered the matter this morning when counsel for the applicants submitted that it was a matter for my discretion as to whether or not he should be joined and put forward submissions suggesting that I should not exercise my discretion in Mr Stephens' favour. Having considered those, I gave leave for Mr Stephens to be joined. It seemed to me that it was only right, in all the circumstances, those including the fact that the applicants have in correspondence accepted that he could be joined, should not be precluded from putting forward whatever submissions he wished to put before this court. He is undoubtedly an interested party being directly affected by the designation (if it were to happen) of the road as a public highway.

7. The material before the Inspector consisted as one would expect in part of a substantial amount of material dealing with the status of the road and the contiguous land in maps from both the 19th century and the early 20th century. As I have indicated, those maps did not appear to provide any secure conclusion as to the question which was raised before the Inspector.

8. It was undoubtedly, however, true, looking at that material, that those who wished the road to be determined as a public highway had not made any claim to that status for the road until after Mr Stephens challenged the public's right to pass and repass in January 1993. The Inspector recorded in his report that the council laid claim to ownership of the road as part of its case as well as asserting rights of ownership over certain contiguous or reasonably adjacent parcels of land. He recorded in his report at paragraph 9 the following:

"In the course of preparation of the original Maps and Statements, parish councils were supplied with copies of the schedule and format and of Ordnance Survey maps on which to record any public rights of way believed to subsist; the Parish Survey for the relevant area of Cliffe is available and does not refer to the route now claimed in the Order; it is possible that this was because the Parish Council

(the Council) believed at that time that higher rights than those of a footpath or bridleway already existed."

9. From that paragraph it was clear that the Inspector was at least at that part of his report prepared to accept that there was a justification for the parish council failing to seek to have the road defined as a public highway on the grounds that they believed that it was a public highway but with higher rights than a footpath or bridleway. Indeed, it is correct to point out that the parish council sought its designation as a byway, not simply a bridleway, when it made its application to the applicants for the order in question.

10. Also before the Inspector was a substantial body of material consisting of statements, and statutory declarations of persons who alleged that they had regularly used the road. That material was substantial in amount and enabled the Inspector (as we shall see) to conclude that there had been significant use of the road for at least the past 40 or 50 years. That material came almost exclusively from parishioners of Cliffe. I say almost exclusively because there were three statutory declarations from persons outside the parish, two from a neighbouring parish and one from a person who lived in York. The statements on their face suggested that those who made them believed that the use that they had made and had seen made of the road was as of right by reason of it being a public bridleway. The Inspector, having considered all the material and heard the relevant submissions, came to the following relevant conclusions:

"Land Ownership

101. Much attention has been given, in this case, to the question of landownership. It is clearly in doubt and I am not empowered to decide such matters. I find that none of the parties has produced substantive evidence of ownership of the land over which the Order route runs; I therefore conclude that the owner is at present unknown. This would not, however, negate any presumption of dedication which might otherwise be justified under the criteria of Section 31 or at common law.

102. Title has not been clearly established to the adjoining lands of Broad Wood and the Sandpits, claimed by the Council. However, I note that the parties agree that the Council does hold land adjoining the route, on behalf of the inhabitants of Cliffe and I accept that this would result in an acquired private easement or right of access, along the Order route for parishioners permitted by the Council to visit these sites. I further agree, however, that exercising this right would not give rise to a presumption of dedication to the public at large.

The Definitive Map

103. No claim, for addition of the route to the Definitive Map, was made until 1993. There was no response to the 1949 Act, or consequent upon the 1981 Act or during revision of the original Map nor did the Council react to the letter in 1976 asking whether it had been registered; it was only at the instigation of the County Council that an application was finally made for a modification order. With regard to the 1949 Act, it was my understanding that specific guidance was given to parish councils on the recording of carriage roads, mainly used as footpaths or as bridleways; the corresponding annotations were to be 'CRF' or 'CRB'.

104. Thus, for over 40 years, the Council chose not to seek a public right of way over the Order route and I must therefore conclude that they did not believe one existed. This is consistent with their belief that they owned Broad Wood and the Sandpits, and possibly Clay Lane as well, or that they were commons, and that parishioners could therefore use the Lane.

105. Annual walks had been conducted by the Council and a ride was also organised and these actions must have been taken in the full knowledge that the Order route was not shown on the Definitive Map as a public right of way. Whilst the 1981 Act clearly acknowledges that the public rights may exist, which are not shown, it is for those who believe in such rights to make such application for them to be recorded and this was not done. If therefore, these walks and the ride were designed to exercise a public right, I conclude that they were carried out 'regardless of the rights of the landowner', whoever he may be, and do not therefore fulfil the conditions of Section 31.

11. The Use of the Order Route

106. There has clearly been significant use of the Order route, and in particular of the short section from Lara Bridge to Broad Lane, over the past 40 or 50 years but that use has been almost exclusively by the inhabitants of the Parish of Cliffe. The only exceptions are three statutory declarations which record use by two residents from a neighbouring parish and two visits by someone accompanying a Parish resident. I do not regard this evidence as sufficient to influence my decision.

107. I note that the majority of witnesses gave word of mouth as the origin of their belief and it would be understandable for them to take their lead from the Council. Many of the users are, or were, members of the Council some refer simply to believing in a right of way and some claim that the route must be public; since none refer to use other than by themselves and their fellow inhabitants I am satisfied that their use of the word public does not imply the public at large.

108. I am mindful here of the words of Lord Parke (Poole v. Huskinson 1843 - 11 M & W 827 to 830):

'There may be a dedication to the public for a limited purpose but there cannot be a dedication to a limited part of the public.'

12. In the case before Lord Parke, residents of the same parish were held to constitute a limited part of the public and I therefore believe that the inhabitants of the Parish of Cliffe should also be held to constitute a limited part.

109. To sum up on the matter of use, I find the actions of the Council and the users to be completely consistent with a belief in ownership of the land, in an easement for access to the relevant adjoining lands and possibly in a right of common for the inhabitants of Cliffe, but not with a belief that there was a public right of way which should be on the Definitive Map."

13. The applicant's arguments essentially fall into three parts. The applicants challenge the Inspector's conclusions in relation to land ownership asserting that that was not a matter for his jurisdiction in any event. They challenge the way in which the Inspector dealt with the fact that the Council had not sought the road to be identified as a public right of way on the definitive map. Thirdly, they challenged the approach of the Inspector to the evidence relating to the use of the road.

14. As to land ownership, the applicants point out that the Inspector has misunderstood the evidence before him in relation to the ownership of land. In asserting that all parties agreed that the Council held land adjoining the route on behalf of the inhabitants of Cliffe he misstated the position. It was challenged and indeed challenged by Mr Stephens. Secondly, the applicants assert that there was no material upon which he could conclude that even if the council owned land adjoining the route that would result in an acquired private easement or right of access along the order route.

15. For Mr. Stephens it is said that in the end this particular part of the Inspector's decision letter was immaterial because what mattered for the purposes of the issues before him was what people believed rather than what the actual state of the evidence justified.

16. I agree with Mr. Stephens in this regard; the point being this. At the end of the day, as can be seen from the extract from the Inspector's report which I have cited, the issue before the Inspector was the extent to which he could conclude from the undoubted use made of the road that the proper inference was that those using it were purporting to exercise rights as members of the public as opposed to rights either as quasi-parishioners or in some other more limited way. In those circumstances, whilst it seems to me that the Inspector was undoubtedly in error in his conclusions as to the position of the respective parties as to ownership and indeed had no material upon which to come to any conclusion about whether there was a private easement or not, nonetheless there had been an assertion before him there was a private easement and that it was what people thought that mattered and not what the real position was.

17. The next submission by the applicant related, as I have indicated, to the way in which the Inspector dealt with the evidence relating to the Parish Council's failure to seek to have the route identified as a public right of way on the Definitive Map. In paragraph 104 the Inspector came to a clear conclusion in the first sentence that the council did not believe that there was a public right-of-way over the road. The reason he gave was because the council chose not to seek to have a public right-of-way identified on the definitive map. In my judgment, that flies in the face of his account in paragraph 109 of the fact that the council could possibly have believed that at the relevant time there were higher rights than those of a footpath or bridleway. He gives no justification, in my view, for the conclusion which he seeks to rely on in paragraph 104 and gives no reason for coming to the conclusion that he does in paragraph 104. The respondent seeks to say that, as far as that matter is concerned, he was entitled to come to the conclusion that he did. It was a curious feature of the case that the council had not sought to identify the road as having a public right of way before 1993. However, in my judgment, when one looks at the decision letter as a whole, in particular at paragraph nine of the decision letter, it seems to me that the Inspector had fallen into error in coming to the conclusion that he did without any proper reasoning that he did not believe that any public right-of-way existed. It seems to me that that is a particularly important conclusion in the context of this particular case because, as we shall see, it infects the remaining part of his reasoning.

18. The further complaint made by the applicant in relation to this part of the Inspector's decision letter relates to his conclusion in paragraph 105 that the annual walks and the ride were not carried out in the exercise of public rights but were, as he put it,

carried out "regardless of the rights of the landowner". That is puzzling in the light of the words which precede that quotation because he was there asserting that the walks and the ride were designed to exercise a public right. If those who were involved were seeking to exercise a public right they would not be exercising the right regardless of the rights of the landowner because the public right would not be in disconformity with the rights of the landowner.

19. I confess that in this particular regard I am not entirely sure how the respondent was able to answer it. I certainly cannot see any answer to that particular criticism. However, it is right to say that it seems to me to have been more than by way of an aside than any significant part of his reasoning and that by itself would not seem to me to infect the decision to any significant extent.

20. The fundamental point made by the applicant relates to the way in which the Inspector treated the evidence of user. The applicant says that in dealing with user the Inspector failed to make a proper analysis of the evidence. In effect he makes a false dichotomy between private and public rights of way and is clearly, in his conclusions, carrying through the view that he had expressed which I have already referred to in paragraph 104 that the Council did not believe that there was indeed a public right-of-way.

21. The respondent, on the other hand, says that fairly read all the Inspector was saying in the relevant passages was that because there was clearly evidence that people appreciated that the council had rights over the road and the land, then he was not satisfied by the evidence that the material before him went further than asserting those limited rights, that is limited in terms of the category of people who could be entitled to exercise their rights, so as to entitle him to conclude that those using the road were not doing so out of any understanding that the use was one to which the public generally was entitled.

22. I accept that if the Inspector concluded that the users who gave evidence believed that they were merely exercising rights of parishioners and were not exercising their rights on the basis that the public generally had a right to use the road, then that would have entitled him to refuse to make the order. But to

do so he needed to have the necessary evidence. He needed to remind himself that the mere fact that parishioners gave evidence, other than the three to whom reference has already been made, did not mean that they were suggesting that it was only parishioners who were entitled to exercise those rights. He needed to remind himself in particular that the mere fact that there may have been a belief in the existence of private rights, or indeed the fact that there were private rights, did not exclude the possibility that they believed that there was also a public right. He clearly, in my judgment, allowed his decision to be infected by the conclusion that he had reached as to the reason why the council had not previously sought an order. Having come to that conclusion in relation to the council, as one can see from paragraph 107, he caused that, in my judgment, to affect and infect his assessment of the evidence of the parishioners. He gave therefore, in my judgment, no proper reasons for coming to the conclusion that he did, that the material before him was only sufficient to justify the conclusion that the action of the council and the users, as he put it in paragraph 109, was consistent with a belief in the parish's ownership of the land and in an easement for access to the relevant land. It is particularly important to note that he said that the actions of the council and users was not consistent with the belief that there was a public right-of-way which should be on the definitive map. It seems to me that that was a conclusion to which he was not entitled to come on the material before him. The position seems to me to be one where he has allowed the conclusion he reached in relation to the council to cloud his assessment of the evidence of those who used the road. It may or may not be that on a reconsideration of that evidence the conclusion that an Inspector reaches will nonetheless be the same as the conclusion that this Inspector reached; but that will, I hope, be against a proper evaluation of the evidence, taking into account the fact that there is no bar on the co-existence of private rights-of-way with public rights of way and against a proper assessment of whether or not it is proper to conclude that the council did not hold a belief as to the public rights existing over the road. For the reasons that I have given, I therefore quash this decision.

23. I do not think that I need say any more in relation to the order itself. What do you say as to costs?

24. MR SIMPSON: My Lord, I would seek an order that the First Respondent do pay the costs of the applicant incurred up to the 10th of September 1998. My Lord, I have a letter from the Treasury Solicitor which I can hand up to you ....

MR JUSTICE LATHAM: Yes.

25. MR SIMPSON: ... confirming that the Treasury Solicitor is content for the matter to be dealt with on that basis.

MR JUSTICE LATHAM: Yes.

26. MR SIMPSON: ... and that the Second Respondent do pay the costs of the applicant incurred thereafter. I would add that I understand the Second Respondent to be legally aided and therefore I think the order should be subject to s. 17 of the Legal Aid Act 1988, such costs to be taxed if not agreed.

MR JUSTICE LATHAM: Mr Harrington?

27. MR HARRINGTON: I do not think I can resist that.

28. MR JUSTICE LATHAM: As far as costs are concerned,

29. I order that the First Respondent do pay the applicant's costs until 10th September and that the Second Respondent do pay the costs as from the 10th September. However, because the Second Respondent is legally aided I will say such costs not to be enforced without the leave of the court. I do not see that I need say more than that.

30. MR HARRINGTON: My Lord, all I ask for is an order for legal aid taxation?

31. MR JUSTICE LATHAM: Yes. Legal aid taxation of the Second Respondent's costs.

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