England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Buckland & Ors v Secretary Of State For Environment Transport & Regions [2000] EWHC Admin 279 (11 January 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/279.html
Cite as: [2000] 1 WLR 1949, [2000] EWHC Admin 279

[New search] [Printable RTF version] [Buy ICLR report: [2000] 1 WLR 1949] [Help]

NORMAN CHARLES BUCKLAND AND PATRICIA JOAN BUCKLAND AND DAVID HUBERT CAPEL v. SECRETARY OF STATE FOR ENVIRONMENT TRANSPORT AND REGIONS [2000] EWHC Admin 279 (11th January, 2000)

Case No CO/1682/1998
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Crown Office)
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday, 11 January 2000

Before:
MR JUSTICE KAY

NORMAN CHARLES BUCKLAND
AND
PATRICIA JOAN BUCKLAND
AND
DAVID HUBERT CAPEL
-V-
THE SECRETARY OF STATE FOR THE ENVIRONMENT
TRANSPORT AND THE REGIONS
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
Mr George Laurence QC (instructed by Thrings & Long) appeared on behalf of the Applicants.
Mr John Hobson (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
Judgment
As Approved by the Court
Crown Copyright ©

Tuesday, 11 January 2000
JUDGMENT

MR JUSTICE KAY:
This is an application brought by the applicants under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 ("the 1981 Act") against the decision of the Secretary of State acting by his Inspector dated 8 January 1998 by which he confirmed the County Council of Avon Definitive Map and Statement Modification Order No 1. 1994 with modifications.
Factual background to the application
The route in question runs between the villages of Winscombe and Barton and is known for a part of the route as Barton Drove. Prior to the modification with which the case is concerned it has always been shown on the definitive map as two footpaths.
The Modification Order made pursuant to section 53 of the 1981 Act purports to show those paths as upgraded to bridleways. Objections were raised to the order and as a result an inquiry under paragraph 7 of Schedule 15 to the 1981 Act was held. Following that inquiry, the Inspector concluded that the documentary evidence supported vehicular highway rights and in consequence, by paragraph 70 of his first decision letter dated 18 April 1997 indicated that the Secretary of State was minded to confirm the order subject to the modification that the route would fall to be shown as a Byway open to all traffic ("BOAT") and not as a bridleway. The proposed modification to the order required that a further opportunity be given for objections and representations pursuant to paragraph 8 (2) of Schedule 15 of the 1981 Act. A further local inquiry was held on 18 November 1997 following which the challenged decision to confirm the order modified to show a BOAT was made by letter dated 8 January 1998.
Statutory Framework
The former Avon County Council (predecessor to the North Somerset Council) as the surveying authority were under an obligation pursuant to section 53 of the 1981 Act to maintain a definitive map and statement recording rights of way and to keep it under continuous review. Upon the occurrence of certain required to modify the map and statement. Section 53(3) specifies the events as:
"(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 relates, 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."
Section 66 provides the following definitions:
"bridleway" means a highway on which the public have the following, but no other, right of way, that is to say, a right of way on foot and a right of way on horseback or leading a horse, with or without a right to drive animals of any description along the highway;
"byway open to all traffic" means 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;
.....
"footpath" means a highway over which the public have right of way on foot only, other than such a highway at the side of a public road;
....."
Judicial interpretation of section 66
The meaning of the definition of a BOAT has been the subject of judicial interpretation and two conflicting views have been expressed at first instance. One of the cases is the subject of an on-going appeal to the Court of Appeal and it will be for that Court to determine which of the competing views should prevail. Counsel invited me to consider the matter in detail. In the light of the fact that the Court of Appeal will shortly consider the matter and because I do not consider that it is necessary to resolve the issue to decide this case, I intend to do no more than consider the conflict briefly, to express my provisional view and to explain why either view leads to the same conclusion on the point that arises in this case.
The first of the two conflicting views is that of Dyson J in R v Wiltshire County Council ex parte Nettlecombe [1998] JPL 707. That was a case in which there was no evidence of current use of the highway. Mr Laurence Q.C., who appeared for the applicant in that case and who appears for the applicants in this case, successfully argued that in the absence of any evidence of current use, it could not be said that it was a highway "which was used by the public mainly for the purpose for which footpaths and bridleways are so used."
Dyson J. said at page 711
"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 two 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 use. 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 definition map and statement should be accorded to pedestrian and equestrian uses of bridleways and footpaths i.e. highways over which such users have right of way, and to say in relation to highways over which the public have right for vehicular and other kinds of traffic, that the protection of the definition 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."
The commentary in the journal at page 714 reads:
"The first substantive point which Dyson J. makes is that the authority can only make an order modifying the definitive map and statement so that a right of way is shown as a "byway open to all traffic" if there is evidence that the path is at present used for vehicular traffic. It is not sufficient to show that in the past such a right had existed, if it is not currently used by the public."
That view was repeated by Mr Laurence in an article which he wrote in "Rights of Way Law Review" October 1998 page 87. At page 91, he makes the submission that he has made in this case:
"It is, therefore, submitted that for a track to qualify for inclusion on the map as a BOAT as defined in section 66(1):
(1) it must be shown to be, as a matter of status, a public vehicular carriageway;
(2) it must be shown, as a matter of fact, to be currently used by the public on foot, on horseback and with vehicles;
(3) it must also be shown that the combined public pedestrian and equestrian user predominate over the public vehicular user."
The conflicting judicial view is that expressed by Hooper J. in Masters v Secretary of State for the Environment and another (unreported - judgment 1 October 1999). Hooper J. in that case himself raised the question of the correctness of the decision in Nettlecombe, counsel for the Secretary of State not having sought to argue that it was wrongly decided. Mr Hobson, who appeared for the Secretary of State in that case as in this case, frankly acknowledged that it had not occurred to him to argue that Nettlecombe was wrongly decided until the intervention of Hooper J. but he asserts, as he is quite entitled to do, that he was persuaded that Hooper J's point was good and on behalf of the Secretary of State, he maintains that position.
Hooper J. recognised that he could only depart from the decision of Dyson J. if he was sure it was wrong but he concluded that it was. He reached that conclusion by setting out a number of conclusions which he characterises as "extraordinary" if Dyson J's interpretation is correct. Having then considered Dyson J's reasoning he concludes that the section cannot have been intended to have a literal meaning and that it must be taken as "referring to a type of highway and not seeking to limit byways to those which are currently and actually `used by the public mainly for the purpose for which footpaths and bridleways are so used'".
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 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 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 Section 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.
The Section 66 point in the present case
I do not intend to say more about the conflict as to the definition of BOAT because in the present case no matter which of the definitions prevails, the conclusion in my judgment is the same.
Clearly if Hooper J. is right, provided this is a highway along which the public have a right of way for vehicular and all other kinds of traffic, this is a BOAT.
If the view of Dyson J. is, as I believe to be the case right, the issue is whether there is evidence of pedestrian and equestrian use to outweigh such evidence as there is of vehicular use. It seems perfectly clear that, since there is a part of the route where there is no defined track or anything of that kind and since there are a number of obstructions that would prevent vehicular use, there was no current vehicular use. Hence if there is evidence of some current pedestrian use and/or equestrian use, this will suffice.
The Inspector is his decision letter of 18 April 1997 at page 10 refers to evidence from the Ramblers Association (which organisation supported the objection of the landowner to reclassification of the footpaths as anything more than footpaths) gave evidence of regular use between 1972 and 1992 and spoke of one member having walked Barton Drove for 46 years from 1950. A registered charity owned a holiday home for children with special needs nearby and referred to Barton Drove being in constant use by children in groups of up to 60 throughout the camp's history since 1888.
In the light of this unchallenged evidence, the Inspector could only conclude that there was current pedestrian use and it seems clear from the tenor of both the Inspector's decision letters that he did indeed accept such use (see e.g. paragraph 37 of the second decision letter).
There was evidence of equestrian use. It was this evidence that had caused the authority to re-classify the footpath as a bridleway. The Inspector concluded in this regard:
"On balance, taking into account all the relevant evidence both before and during the inquiry including the written representations and my site visits, I find that it is more likely than not that it cannot be safely presumed that the entire Order route has been dedicated as a bridleway in accordance with Section 31 of the 1980 Act."
Whilst this clear finding rules out the possibility of classification as a bridleway, there is no clear finding as to whether there was current equestrian use since the Inspector did not approach the issues in a way that gave rise to this question. However, I have indicated if the pedestrian use outweighed the vehicular use, it is unnecessary to demonstrate current equestrian use. Thus the Inspector's failure to consider this aspect is not fatal to his decision.
The Inspector's conclusion that the route was a highway
The second limb of the challenge to the Inspector's decision relates to his conclusion that the route was a highway over which the public have a right of way for vehicular and all other kinds of traffic. Mr. Laurence advances his argument in this regard in a number of distinct ways but it is helpful first to look at the basis of the Inspector's finding in this regard.
In his initial decision letter of 18 April 1997, the Inspector gives the following description of the route:
"7. The Order route, known as Barton Drove, is approximately 2 kilometres in length and runs from Winscombe Hill in the parish of Winscombe and Sandford in a generally westerly direction to the road known as Camp Lane. ....
8. The route starts at a point P on the Order map, as Footpath AX29/23 and initially takes the form of a hard stony surfaced track approximately 7 to 8 metres wide between well-defined boundaries, used as a vehicular access from Winscombe Hill to properties fronting on to Barton Drove.
9. The track follows a generally westerly route passing the entrance to Old Quarry Farm about 1.07 kilometres west of point P. West of this section the way narrows in parts, to a minimum width of approximately 5 metres and the surface changes from hardcore and stone to earth and grass. The route continues as a tree-lined track with a width generally of about 7 metres for a further 350 metres approximately, passing through a timber gate and stile, and then via a second stile set in a post and wire fence with a farm gate, to a third fence across the track containing a stile giving pedestrian access into an open pasture field. Within the field some 160 metres of timber post and rail fence has been erected across the field.
10. On the western side of the field the Order route connects via a further stile with what appears to be the configuration of an ancient earth and grass surfaced track about 7 metres wide which runs for the next 100 metres approximately to a timber farm gate (referred to in evidence as the Drove gate) some 70 metres south-east of the private house known as Barton Rocks, at point Q on the Order map. Here definitive footpath AX29/23 ends and the route continues to the west as part of footpath AX29/39 which also runs generally north from point Q around the east side of the house to connect with Barton Road. Immediately south of the house the line of the Order route is again indistinct on the ground. To the west of the house a further gate gives access to a section of the route which has obvious hedged boundaries, approximately 7 metres apart, and connects, via a stony surfaced track, with Camp Lane at point R on the Order map."
The Inspector then goes on to deal with a diversion of the footpath route (AX29/39) which had subsequently been made pursuant to a Diversion Order and an Extinguishment Order at the request of the owners of Barton Rocks which diverted the footpath further to the south of Barton Rocks but nothing in the argument in this case has turned upon that diversion.
Although the Order which had led to the inquiry had designated the route as a bridleway, the authority submitted to the Inspector that the route should be reclassified as a BOAT. Its submissions were founded upon the 1797 Winscombe and Sandford Inclosure Award and a number of ancient maps. The Inclosure Award declared "the several and respective roads, ways, paths, passages and other conveniences hereinafter set out" which included:
"BARTON ROAD .... Also one other private Road or Way of twenty four feet wide beginning at a certain place in the said Winscombe Road marked on the said Winscombe plan with the Roman letter C and extending from there Westward to a certain other place marked on the said plan with the Roman letter D and which said last mentioned Road or Way is delineated on the said Winscombe plan and there is described and called by the Name of Barton Road ..."
Having set out the various roads and ways, the award provided:
"... AND WE THE SAID COMMISSIONERS do hereby order, direct and award that the several Private Roads or Ways hereinbefore particularly mentioned and described to be set out and appointed in, on, over and along the Commons or Waste Lands hereinbefore mentioned shall always be and remain of their several and respective widths and Breadths aforesaid between the ditches or walls and other fences for the use and benefit of all and every the Owners, Tenants and Occupiers of the several and respective Divisions and allotments, pieces and parcels of ground hereinafter mentioned to be by us set out, allotted, inclosed and awarded to them respectively with free liberty, power and authority for them and all and every other person or persons whomsoever having any OCCASION whatsoever to go travel, pass and repass through, upon and over the same Roads and Ways and every or any or either of them on foot or on Horseback with Horses, Cattle, Carts and other Carriages Loaded or unloaded at their and every of their free wills and pleasure or otherwise howsoever as and when and as often as they or any or either of them shall think FIT AND PROPER.."
The Award then made provision for the payment of all "charges and expenses" of maintenance and repair. In respect of those in the parish of Winscombe, the private road which had been set out was "from time to time and at all times for ever hereafter" to be maintained and repaired "by all and every the Owners, Tenants and Occupiers" at their joint expense in accordance with the Winscombe Commons or Waste Lands Rate for which the Commissioners made provision.
The central and eastern parts as shown on the Inclosure Map coincided with the Order route and the authority argued that notwithstanding the description of the road in the Award as a "private road", the "extemely precise language employed by the Commissioners" showed that they specifically intended the private roads to be as available for general public use, including vehicular, without restriction, as the King's Highway. Hence it was argued that the route since it was not adopted as a classified or unclassified road fell to be recorded as a BOAT. It was further argued that the description of the road as "private" referred merely to the responsibility for maintenance and since it fell not merely on those landowners and tenants whose land bordered the route but all or most of the landowners and tenants of the parish named in the rate, it effectively fell on the whole parish.
A number of ancient maps were produced. The 1817 Mudge Old Series Map showed a route through to the hamlet of Barton on the line of the Order route. Greenwood's Map of 1822 showed a route for most of the way but was unclear at its Western end.
The 1840 Winscombe Tithe Map showed an enclosed lane as far as the Drove gate and another further west. However that part of the route which is undefined on the land today ran over tithable land and was not shown.
More modern maps starting with the 1886 and 1903 Ordinance Survey Maps showed a n enclosed lane running in the East to the Drove gate and an unenclosed track thereafter.
Itthat Barton Drove appeared at the time of the survey to be in public use as a road, albeit gated in places. Thus it was said on the balance of probabilities, Barton Drove was a highway passable to vehicular traffic, in the form of a track wider than a footpath or bridleway, for very many years and hence there was a clear common law presumption that it was public.
The contentions of the objectors, including the applicants, so far as they are relevant, were first that the designation of the way as a "private" road must mean something different from a public road, second that the user provision in the Inclosure Award was different for public roads and private roads and hence the user provision for Barton Road could not be equated to that of a public road, and third that on the evidence it was clear that in the region of Barton Rocks house the private road was never set out. A road awarded in an inclosure does not become a public road until it is set out and taken up by the public. No evidence was available that this had happened.
The relevant conclusions of the Inspector are set out in his decision letter as follow:
"64. I turn now to the documentary evidence and crucially, it seems to me, to the Shipham and Winscombe Inclosure Award. In my view this document carries greater weight than others cited in the inquiry, for example the Tithe maps because it discharged an express obligation to set out and appoint roads. I acknowledge that there is considerable legal controversy about the evidential value of such documents, as illustrated by the contradictory interpretations of the wording of this Award by opposing counsel for the parties. I further accept that the Award must be considered in the light of all other available relevant evidence when assessing whether the terms used in it imply vehicular use by a class of persons large enough to constitute "the public". In that context I have taken into account the Tithe map, and the objectors' contention that the fact that route was recorded as running over tithable land a mere 40 years after the Inclosure suggests that it was not then regarded as public highway. I also note that the Tithe map shows that while the majority of the Inclosure was carried out, many of the smaller "Private Roads" were not shown, neither was the western end of Barton Drove, a pattern repeated in later OS maps. And finally I have noted your Council's responses to all these arguments, recorded above.
65. In the light of the foregoing considerations, and the evidence as a whole, in my view the issue turns on the language of the Inclosure Award itself. I consider that the wording used is very specific and, it seems to me, deliberately comprehensive. Given the plain and ordinary meaning of words I find no room for misinterpretation, and conclude that the Commissioners plainly intended that the private roads, including the present Barton Drove, should be all-purpose roads for anyone who wished to use them, not restricted to a limited class of user. In that regard I share the view expressed by your Assistant County Archivist who described the objectors' suggestion that the use of the phrase "..having any occasion.." points to an intended restriction of use, as clutching at straws given the striking tenor of the clause as a whole. I conclude that, notwithstanding the use of the word private to describe the Order route, unrestricted public rights of way including vehicular rights were undoubtedly granted. In so doing I am not deterred by the arrangements specified in the Award for maintenance of the way, accepting your Council's contention that effectively, that responsibility was allocated not just to the affected landowners but to the whole parish.
66. With regard to the section of the Order route between points Q and R, I accept that some of the documentary evidence is less specific as to status than on the remainder of the route. The Tithe map in particular shows part of the route running over tithable land, although I note that your Council suggests an explanation for this. This section is shown generally unenclosed in the OS maps. However, taking the evidence as a whole, I believe it more likely than not that the section Q to R was intended to be of the same public status as the remainder, probably forming part of a through route, and I reject the objectors' suggestion that the Inclosure Award in that section never became effective because it was not evidently set out in the manner of the rest. The evidence showed, in my view, that despite obstruction and neglect, the defined route existed on the ground between points P and R.
67. I conclude that, on a balance of probability, at the time of the Inclosure Award the public were granted and thereafter exercised vehicular rights of way along the whole of Barton Drove. The subsequent decline in popularity of the road, as alternative routes, modes of transport and agricultural practice developed, has not diminished those rights and cannot do so in the absence of an Order lawfully stopping them up."
As earlier indicated, because the Inspector had not confirmed the Order in the form proposed, i.e. as a bridleway, a further inquiry was held. At the second inquiry the point was taken by the objectors that the Commissioners had no power to create public roads which did not conform to the criteria in the enabling Act. The relevant Act was the Shipham and Winscombe Inclosure Act of 1797. This Act empowered the Commissioners to:
"Set out and appoint such Public Carriage Roads ... as they shall think necessary and proper, all of which shall be and remain of the Breadth of Forty Feet at the least."
The Commissioners were also "empowered and required" to
"Set out and appoint ... such Bridle Roads and Footways, and private Roads and Ways ... in, over, upon, and leading to and from such Commons and Waste Lands hereby intended to be divided and inclosed as they shall think requisite".
There was no width prescription in the case of private roads. The Act also provided that a surveyor should be appointed to form the public roads and put them in good and sufficient repair. He should certify when he had done this and deliver his certificate to the Justices at Quarter Sessions within three years. Thereafter the public roads were to be kept in repair "in the same manner" as other public roads within the said parishes of Shipham and Winscombe". In the case of the private ways they were to be kept in repair "by such persons and in such manner" as the Commissioners should direct and appoint.
The objectors, therefore, contended that the Commissioners had no power to set out public carriage roads of less than 40 feet, and subject to the other requirements of the Act. The Commisioners could not avoid the requirements in relation to public roads by calling them private roads and granting rights to everyone to "pass and repass" on them.
The authority presented no new evidence at the second inquiry and relied on its earlier contentions.
In his second decision letter, the Inspector concluded:
"33. ..... I have noted the submission of the PC that my earlier conclusion with regard to the intentions of the Inclosure award Commissioners was wrong because, if my supposition was correct, the Commissioners were acting outside the authority transferred to them, having regard to the precise terms of the enabling legislation. After further review of the cited documents, all of which were before the first inquiry, and in the light of opposing interpretations of them at the second inquiry, I reject that view and see no reason to alter the conclusion expressed in my letter dated 18 April 1997. It seems clear to me that the Commissioners necessarily had implied powers to state who might use the "private Roads and Ways", and I remain entirely satisfied that the language that they chose to employ in that regard was so precise as to allow of no other reasonable interpretation. I conclude that they intended, with lawful authority, that the entire Order route should be a public vehicular highway, and that it so became.
34. In arriving at this conclusion, I have taken account of the objectors re-stated opinions on the evidence concerning the setting out of the claimed road, and of their analysis of patterns of user of local ways at the time of the Award, but I do not find either argument persuasive."
The applicants attack the Inspector's findings in a number of ways:
1. It is argued that the Inspector was wrong to conclude that the language of the award, on a proper construction, operated to confer public status on the private roads. Reference is also made in this regard to the repair provisions and the Inspector's conclusions about them
2. The Commissioners had no jurisdiction to set out by their award public carriage roads of a breadth less than forty feet wide. Insofar as the Inspector was right to treat the award as having purported to set out Barton Road as a public carriage road, it was ineffective in law to do so.
3. There was no evidence that Barton Road had been certified by a surveyor as being fully formed as required or that the certificate had been allowed and confirmed by the justices as required.
4. There was no evidence to support the conclusion that "on a balance of probability at the time of the Inclosure Award the public were granted and thereafter exercised vehicular rights of way along the whole of Barton Drove".
On behalf of the Secretary of State, Mr Hobson made the following submissions:
1. The wording of the Award indicates the clear intention of the Commissioners to set out Barton Road as a public carriageway.
2. The wording of the 1797 Act indicates that they lacked the power to do this.
3. However, this lack of power would not prevent a way which is created pursuant to an award becoming a public highway. Whether a public way does result depends upon a consideration of all the relevant circumstances. These include, of course, the terms of the award. Of these terms, the most important must be the provision as to user.
4. If a way is actually created in accordance with the terms of an award which makes it clear that the public are permitted to pass and repass with carts and carriages without any restriction, a public carriageway will have come into existence.
5. Accordingly if the whole length of Barton Road had been laid out in accordance with the Award, and this was e.g. revealed on the Tithe Map, this would be overwhelming evidence that the public rights had come into existence and could not be disputed.
6. However although the whole length was not laid out in accordance with the Award, a substantial length of it plainly was. Furthermore the way as laid out was not an isolated stretch e.g. serving a particular farm, but was part of a through route. Persons using the route after it was created would do so because it was a way over which the public had the right to pass and repass, pursuant to the Award.

Mr Hobson then considered various aspects of the documentary evidence and invited the court to conclude that the Inspector was entitled to reach the conclusion at which he arrived.
Conclusions
It is clear that a public highway may be created in a number of ways and once a highway it will remain a highway. It may be expressly so created by statute. An Act of Parliament may authorise the creation of a highway in some other way but any provisions and conditions of the Act will have to be satisfied before the purported creation of the highway becomes effective in law. In either of these cases, the way becomes a public highway without any necessity for the public accepting it and using it unless that it is a condition imposed by the statute. If the way is not created as a highway in this way, it will only become a public highway if the evidence establishes either express dedication or user such as to give rise to the presumption of dedication.
In this case, I am in no doubt that the Commissioners did not have power under the Act of 1797 to create a public highway otherwise than in accordance with the precise powers given under the statute. It was not open to them to circumvent the conditions necessary before a road would become a public highway by purporting to create a private way but to make it open to the public at large. Thus irrespective of the precise meaning of the user provision in the award, the Inclosure award cannot have created a public highway. Mr Hobson is right, in my judgment, to concede that the Commissioners did not have the power to set Barton Road as a public carriageway.
Equally, I am satisfied that Mr Hobson is right when he submits that this lack of power does not prevent a way which is created pursuant to an award becoming a public highway. Where such a way is accepted by the adjoining landowners as a public highway and used by the public at large as a public right of way then notwithstanding the original lack of power to create a public highway in the purpoas a result of the user acquire the status of a public highway. However, to reach such a conclusion it is necessary first to acknowledge that the award of the Commissioners did not in itself create a public highway and that the purported creation is ultra vires. Then, and only then, is it possible to look and see whether the evidence of user is sufficient to give rise to the presumption.
The difficulty from the Respondent's point of view in this case is that nowhere does the Inspector follow such a line of reasoning. In the original decision letter, he says in terms:
"I conclude that, on a balance of probability, at the time of the Inclosure Award the public were granted (emphasis added) and thereafter exercised vehicular rights of way along the whole of Barton Drove."
In the second decision letter, he says:
"It seems clear to me that the Commissioners necessarily had implied powers to state who might use the "private Roads and Ways", and I remain entirely satisfied that the language that they chose to employ in that regard was so precise as to allow of no other reasonable interpretation. I conclude that they intended, with lawful authority, that the entire Order route should be a public vehicular highway, and that it so became."
There can be no doubt, in my judgment, that the Inspector was working on the clear basis that the Commissioners were entitled to create a public highway in the way in which they dealt with Barton Road. That I am satisfied was a wrong approach and as a result although he did consider matters of user he did so from that fundamentally flawed position. He did not subject the evidence of possible user to critical examination in the light of the initial unauthorised act of the Commissioners.
As Mr Hobson points out, if there was evidence that the whole length of Barton Road had been laid out in accordance with the award, that might provide very powerful evidence that a public highway had come into existence but Mr Hobson overstates the position when he adds to the submission that the presumption could not be disputed. Such a situation would still require any other evidence to be examined to see if it pointed in a different direction.
However, in this case, the evidence did not permit of a firm conclusion that the whole route had been laid out, and the Tithe map provided evidence to suggest that at the date of the document, the land over which it is suggested part of the route ran was treated as tithable land.
A number of possibilities arise as a result of the lack of evidence of the laying out of the whole route, particularly since no good reason has been suggested why the route should have been completed only to the point at which it seems clear that it ceased to be laid out in accordance with the award. Could it be that the Commissioners appreciated that they were acting ultra vires either of their own motion or on the objection of one of those over whose land the road would run and abandoned the project?
No such possibility would merit consideration in a case where the route was completely laid out but in a case such as this it seems to me that the decision maker has to acknowledge the various possibilities and then go on and consider all the available evidence before arriving at his conclue failed to acknowledge that the Commissioners had no power to create a public highway in the guise of a private road, the Inspector seems to have gone straight to an assumption that the road must have been used by the public. That it seems to me must invalidate his decision, which, since it is impossible to reach any clear conclusion as to what the outcome would be but for this flaw, cannot stand. There are arguments advanced on both sides as to what the correct conclusion is on the evidence, but it is not for the court to evaluate that evidence and reach its own conclusion.
It follows, therefore, that I quash the decision of the Inspector.