QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy Judge of the High Court)
| (1)The Personal Representatives of
Mr Adrian Thomas Parker
(2)Mrs Susan Parker
|- and -
|Nottinghamshire County Council
- and -
The Secretary of State for Environment,
Food and Rural Affairs
Jonathan Mitchell (instructed by Legal Services Division,
Nottinghamshire County Council) for the 1st Defendant
Robert Palmer (Instructed by the Litigation and Prosecuting Division of the
Department for the Environment, Food and Rural Affairs) for the 2nd Defendant
Hearing date: 19th January 2009
Crown Copyright ©
Mr Symons QC :
The Relevant Statutory background to the challenge
"(2) As regards every definitive map and statement, the surveying authority shall-
(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appears 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.
(3) The events referred to in subsection (2) are as follows
(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 such that the land over which the right subsists is a public path, a restricted byway or subject to section 54A, a byway open to all traffic;
(4) The modifications which may be made by an order under subsection (2) shall include the addition to the statement of particulars as to
(a) the position and width of any public path [, restricted byway] or byway open to all traffic which is or is to be shown on the map "
"(1) A definitive map and statement shall be conclusive evidence as to the particulars contained therein to the following extent, namely
(e) where by virtue of the foregoing paragraphs the map is conclusive evidence, as at any date, as to a highway shown thereon, any particulars contained in the statement as to the position or width thereof shall be conclusive evidence as to the position or width thereof at that date, and any particulars so contained as to limitations or conditions affecting the public right of way shall be conclusive evidence that at the said date the said right was subject to those limitations or conditions, but without prejudice to any question whether the right was subject to any other limitation or conditions at that date."
"(1) If any person is aggrieved by an order which has taken effect and desires to question its validity on the ground that it is not within the powers of section 53 and 54 or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 11 make an application to the High Court under this paragraph.
(2) On any such application the High Court may, if satisfied that the order is not within those powers or that the interests of the applicant have been substantially prejudiced by a failure to comply with those requirements, quash the order, or any provision of the order, either generally or in so far as it affects the interests of the applicant.
(3) Except as provided by this paragraph, the validity of an order shall not be questioned in any legal proceedings whatsoever."
"A modification order shall be in the form set out in Schedule 2 to these Regulations or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case."
"(Describe position, length and width of path or way in sections, e.g. A-B, B-C, etc, as indicated on map.)"
The Claimants' grounds of challenge
The historical facts
The 1735 Map
The North Muskham Inclosure Act 1771
"But it is right that I should examine both the Act and the Award, and any other relevant documents, to enable me to infer that it was legally executed. Given the legal standing of the procedure and the period of time which has elapsed I consider it is necessary to have very strong contrary evidence to enable me to find that the actions of the commissioners were without legal foundation."
"And be it further Enacted, by the Authority aforesaid, that the said Commissioners, or any Three or more of them, shall and may set out, appoint, and make such publick Highways, and also such Drift-ways, Horse-ways or Foot-ways in, over, through, and upon the several Lands and Grounds to be inclosed by virtue of this Act, and also over the present enclosed Lands, as shall be necessary and convenient "
" and also shall and may set out, appoint, and make such Ditches, Fences, Banks, Drains, Shuttles, Bridges, Gates and Stiles in, over through, and upon the said several Lands and Grounds intended to be inclosed by virtue of this Act, and in, over, through, and upon the said present inclosed lands, as they the Commissioners, or any Three or more of them, shall think convenient, so that such of the said publick Highways as shall be set out as Ways for Carriages shall be Sixty Feet broad at least between the Ditches and Fences; "
The Inclosure Award 1773
"That there shall be at all times for ever hereafter one other public highway for all persons to pass and repass thereon on Foot and on Horseback and with Cattle and Carriages as the same is now admeasured and set out beginning between two ancient Inclosures (numbers 62 and 59) within the Township of North Muskham aforesaid and continued from thence South Eastwards to the River Trent and that the same shall be made Sixty Feet broad between the Ditches or Fences and called THE TRENT FORD ROAD That there shall be at all times for ever hereafter one other public highway for all persons to pass and repass on Foot and on Horseback and with Cattle and Carriages beginning at the last mentioned road and going from thence Southwards between an allotment hereinafter made to Bryan Cooke Esquire (marked H) and several ancient Inclosures (numbers 67, 70, 71, 72, 73 ,74 and 75) and the River Trent and that the same shall be called the Ferry Road."
"... if the mere act of the commissioner in so setting it out by his award did constitute that road a public highway, the defendant would have made out her third plea."
"But it appears to me that that alone does not constitute a highway within the meaning of the local Act, read by the light of the Inclosure Act (1801). The commissioner is to ascertain and set out the line of the intended roads under the local Act, and, that being done, a surveyor is to be appointed, who is to form and complete the road. Until that has been done, no liability to repair the road is cast upon the parish "
The 1774 Map
Trent Navigation Act 1783
"to set out, and at all Times tomake, use and maintain sufficient and convenient Paths and Ways for haling, towing, or drawing by Men or with Horses any Boats, Barges or Vessels using the said Navigation."
"it can be safely concluded that haling paths were constructed over the entire length of the River Trent as a consequence of the passing of the 1783 Act. Nor can it be safely assumed that haling paths overruled pre-existing public rights."
Law on Historic Creation of Highways
"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 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."
The Claimants' Submissions
The first ground of appeal
"If I am to confirm the Order, I must therefore be satisfied that the evidence which has been discovered, together with all other relevant evidence available, shows that a highway which is not shown on the Definitive Map and Statement subsists over the route shown on the Order Plan and described in the Schedule."
"15. I am also required to consider whether or not the existence of a towing path (or haling path) alongside the River Trent and the various Navigation Acts, which provide for such a path, is inconsistent with, and therefore prevents the subsistence of, a public highway along part of the Order route."
The Defendants' submissions
Conclusions on the first ground of appeal
The second ground of appeal
"In some cases the width of a route to be recorded may be based on the depiction of the route on an historic plan or map The approach suggested in Illustration 3 above of shading the relevant area on the order plan, could be used or, alternatively, the schedule could refer to the width of the way as being "that shown excluded from the heriditament on the map."