England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		October 20 2006

Mr Justice Lawrence Collins:

Mr Justice Lawrence Collins:

I Introduction

1. Wood Farm in Cambridgeshire has been owned by the Mear family since 1948, and since 1996 the Mears have been in dispute with their neighbours and with Cambridgeshire County Council ("the Council") over rights of way over a track which runs along the south side of their property. Wood Farm is to the east of the village of Waresley. From the west of Wood Farm there is a public vehicular highway, called Vicarage Road, which leads from a cross-roads in Waresley (where the village church and public house stand). From the east of Wood Farm there is a public bridleway across land owned by the claimants. A map is attached to the hard copy of this judgment.
2. For present purposes the contentions relate to the track between Point A and Point B ("the Red Land") and between Point B and Point C ("the Yellow Land") and to 3 gates: Gate 1 between Point A and Point B, Gate 2 at Point C, and Gate 3 on the bridleway to the south-east of Gate 2. At Gate 1 there is a motorised fieldgate and a bridlegate or handgate. There is a gate stop positioned a metre away, which precludes anyone on horseback from passing through.
3. In briefest summary the Mears say that the Red Land is footpath, and the Council says that it is public vehicular highway ("highway"), although the Council is prepared to make an application to the Magistrates Court under the Highways Act 1980, section 116, for an order stopping up the highway on the Red Land, subject to the reservation of a bridleway. It has now been conclusively established that the Yellow Land is public bridleway ("bridleway"), and the only issue is whether a declaration to that effect should be made.
4. These proceedings began after the Council had served notices in August 2002, pursuant to the Highways Act 1980, section 143, requiring the claimants to remove Gates 1, 2 and 3. The proceedings were for an injunction restraining the Council from removing or interfering with the Gates, and declarations, including a declaration that the Red Land was footpath only. The Council counterclaimed for orders removing or modifying Gate 1 and removing Gates 2 and 3, and for declarations that the Red Land was highway and the Yellow Land was bridleway.
5. On February 20, 2003 HH Judge Richard Seymour QC made interlocutory orders relating to the gates, pending a public inquiry which involved the status of the Red Land and the Yellow Land.
6. Following reports and decisions by inspectors appointed by the Secretary of State for Environment, Food and Rural Affairs, on June 2, 2006 the Council made an application for a final order declaring that the Red Land is highway, that the Yellow Land is bridleway, and that effect be given to the 2002 notices requiring the Gates (and the stop on Gate 1) to be removed.
7. For reasons upon which I shall elaborate, on the hearing of this application it was accepted by the Council that this application should be treated as an application to vary Judge Seymour's order by declaring that the Yellow Land is bridleway, and ordering that Gates 2 and 3, and the stop on Gate 1, be removed.

II Background

8. Until the local government reorganisation in 1974, the relevant highway authority was Huntingdonshire County Council. On May 20, 1908 it received the report of the Main Roads and Bridges Committee, which stated that St Neots RDC had applied for certain highways to be declared main roads, including a highway from the Church to Topham's Farm in the Parish of Waresley (of 2 furlongs, 66 yards), and made a provisional order that it be made a main road. In its report of September 22, 1908 the committee recommended that the provisional order be confirmed.
9. The Council says that this is the road eastwards from the Church to Point B, including the Red Land, which is simply a continuation of Vicarage Road. The claimants say that Topham's Farm is not the same as Wood Farm, and that Mr Topham lived at Manor Farm.
10. The father of Stephen Mear (and grandfather of John Mear) purchased the land in 1948 from Mr John Walker, who had owned it since 1943. In 1988 Stephen Mear gave by deed of gift to John Mear the original Wood Farm House comprising the farm house, the stables, and other land.
11. Until 1990 the Mear family occupied the farmhouse known as Wood Farm. In 1990 Mr and Mrs Mear sold the land comprised in the deed of gift, and Stephen Mear sold the paddock at the rear of the properties. The purchasers were Mr and Mrs Leach. The sale was completed in April 1990, from which time onwards the original Wood Farm House was known as Chase Farm, which is on the southern side of the Red Land.
12. The family home now occupied by Mr and Mrs Mear is a more recent property known as Wood Farm on the northern side of the track, which was constructed in about 1992.

III Legislative background

A Wildlife and Countryside Act 1981 ("the 1981 Act") and the definitive map and statement ("DMS")

13. By section 53(1) of the 1981 Act:

"In this Part 'definitive map and statement' in relation to any area, means, subject to section 57(3) and 57A(1), -

(a) the latest revised map and statement prepared in definitive form for that area under section 33 of the 1949 Act; or

(b) where no such map and statement have been so prepared, the original definitive map and statement prepared for that area under section 32 of that Act; or

(c) where no such map and statement have been so prepared, the map and statement prepared for that area under section 55(3)."

14. The 1949 Act is the National Parks and Access to the Countryside Act 1949, the relevant provisions of which were replaced by the 1981 Act.
15. In the Council's area the DMS falls within the description in section 53(1)(a), having been originally made by the Huntingdonshire County Council in September 1953 and reviewed in December 1961.
16. There was no provision in the 1949 Act for publicly maintainable vehicular roads to be included on a DMS. By section 27 of the 1949 Act the purpose of a DMS was to show only footpaths, bridleways and roads used as public paths.
17. Section 27(1) of the 1949 Act required county councils to carry out a survey of all lands in their area over which a right of way was alleged to subsist and within three years prepare a draft map showing footpaths and bridleways.
18. "Right of way" was defined in section 27(6) as meaning "a right of way such that the land over which the right subsists is public path". The subsection defines "public path" as either a footpath or bridleway. Public vehicular roads were thus excluded.
19. Section 53(2)(b) of the 1981 Act places a duty on the surveying authority to keep the DMS for its area under continuous review, and confers a power to make modifications by order to the DMS as appear requisite in consequence of the occurrence of events set out in section 53(3)(a). By Schedule 15, paragraph 12, a person aggrieved by such an order may within 42 days of the publication of the order apply to the High Court for the order to be quashed on the ground that the order is ultra vires or the interests of the applicant have been substantially prejudiced by a failure to comply with the requirements of the Schedule. But except as provided by paragraph 12 "the validity of an order shall not be questioned in any legal proceedings whatsoever" (paragraph 12(3)).
20. Section 56(1) provides:

"A definitive map and statement shall be conclusive evidence as to the particulars contained therein to the following extent, namely -

(a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover a right of way on foot …

(b) where the map shows a bridleway, the map 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 on foot and a right of way on horseback or leading a horse …

(c) where the map shows a byway open to all traffic, the map 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;

(d) where the map shows a road used as a public path^[1], the map 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 on foot and a right of way on horseback or leading a horse … ; and

(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 limitations or conditions at that date."

B Highways Act 1980 ("the 1980 Act")

21. Section 36(6) of the 1980 Act requires highway authorities to keep a list of streets maintainable at public expense, corrected and up to date.
22. By section 116 a magistrates' court may, on application by the highway authority, authorise a highway to be stopped up if it is unnecessary or can be diverted so as to make it nearer or more commodious to the public.
23. A council has power to stop up footpaths and bridleways (section 118) and to divert "footpaths" and "bridleways" as defined in section 329 of the 1980 Act by extinguishing the existing right of way and creating a new right of way (section 119).
24. By section 118(1):

"Where it appears to a council as respects a footpath, bridleway …in their area … that it is expedient that the path or way should be stopped up on the ground that it is not needed for public use, the council may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order, extinguish the public right of way over the path or way."

25. By section 119:

"(1) Where it appears to a council as respects a footpath, bridleway …in their area …that, in the interests of the owner, lessee or occupier of land crossed by the path or way or of the public, it is expedient that the line of the path or way, or part of that line, should be diverted (whether on to land of the same or of another owner, lessee or occupier), the council may, subject to subsection (2) below, by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order, -

(a) create, as from such date as may be specified in the order, any such new footpath, bridleway … as appears to the council requisite for effecting the diversion, and

(b) extinguish, as from such date as may be specified in the order … the public right of way over so much of the path or way as appears to the council requisite as aforesaid.

An order under this section is referred to in this Act as a "public path diversion order".

(2) A public path diversion order shall not alter a point of termination of the path or way -

(a) if that point is not on a highway, or

(b) (where it is on a highway) otherwise than to another point which is on the same highway, or a highway connected with it, and which is substantially as convenient to the public."

26. Section 329 contains these definitions:

"bridleway" means a highway over which the public have the following but no other, rights 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 the right to drive animals of any description along the highway;

…

"carriageway" means a way constituting or comprised in a highway, being a way (other than a cycle track) over which the public have a right of way for the passage of vehicles;

…

"footpath" means a highway over which the public have a right of way on foot only, not being a footway;

"footway" means a way comprised in a highway which also comprises a carriageway, being a way over which the public have a right of way on foot only;

27. Section 130(1) provides that it is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.
28. By section 130(3)(a) it is the duty of a highway authority to prevent, as far as possible, the stopping up or obstruction of highways for which they are the highway authority.
29. Section 130(6) provides:

"If the council of a parish … represent to a local highway authority -

(a) that a highway as to which the local highway authority have a duty imposed by subsection (3) above has been unlawfully stopped up or obstructed …

it is the duty of the local highway authority, unless satisfied that the representations are incorrect, to take proper proceedings accordingly and they may do so in their own name."

30. By section 137(1) it is an offence for a person, without lawful authority or excuse, in any way wilfully to obstruct the free passage along a highway.
31. Section 143 provides that where a structure has been erected or set up on a highway otherwise than under a provision of the 1980 Act or some other enactment, a highway authority or a district council may by notice require the person having control or possession of the structure to remove it within such time as may be specified in the notice.
32. Section 147 allows a highway authority to authorise the erection of gates where the owner or occupier of agricultural land represents, as respects the footpath or bridleway that crosses that land, that it is expedient to have gates there for agricultural purposes (which now includes the breeding of horses: section 147(5)).

IV The 1953 DMS

33. Following a survey report in 1952 the DMS was prepared by Huntingdonshire County Council in 1953.
34. The DMS showed the Yellow Land as bridleway (BR2), but described it as starting "at the end of the County Road [i.e. Vicarage Road] east of Wood Farm [i.e. what is now Chase Farm]" and running "in a general south-easterly direction … to its termination on the County Boundary." The map did not show or describe either a footpath or a bridleway on the Red Land, but it did contain (both in 1953 and in the 1961 revision) a statement of a footpath (FP1) starting on the roadside opposite Wood Farm (now Chase Farm) and running in a general north-easterly direction, round the edge of Waresley Wood, to its termination on the Great Gransden Parish Boundary. The widths of the paths were not recorded.
35. Huntingdonshire County Council ceased to exist in 1974 and Cambridgeshire County Council became the highway authority, and then from November 1981 the surveying authority under the 1981 Act.

V The Public Path Diversion Order 1992 and the Cambridgeshire County Council (Public Footpath No 1, Waresley) Definitive Map Modification Orders 1993 and 1995 ("DMMOs")

36. In the early 1990s the claimants constructed the present Wood Farm in the field diagonally crossed by FP1, and Waresley Parish Council sought a public path diversion order pursuant to section 119 of the 1980 Act. The purpose of the order made by Huntingdonshire District Council on July 1, 1992 ("the 1992 Order") was to give effect to a longstanding unofficial diversion of FP1 away from the diagonal route and take it instead around the field edge.
37. Paragraph 1 of Part A of the Schedule described the existing footpath, and paragraph 1 of Part B described the line of the new footpath in such a way as to indicate that the footpath shown running along both the Red Land and the Yellow Land.
38. In an attempt to show accurately on the DMS the effect of the 1992 Order, the Council made DMMOs in 1993 and in 1995, both of which, the Council now maintains, were incorrectly drawn. The schedule to the 1993 DMMO referred to the diverted footpath as rejoining the existing footpath, and the 1995 DMMO, which was intended to rectify the error, wrongly designated the whole of the Red Land and the Yellow Land as footpath.

VI Disputes arise

39. In 1995 there was a breakdown of the relationship between the Mears and the Leaches when the Leaches told visitors to enter their property through the farmyard. Mr and Mrs Mear erected a gate across the farmyard which interfered with vehicular access to Chase Farm. There was also an argument about Mr and Mrs Leach placing a skip for waste building materials on a gravelled area adjacent to where the Mears wished an electricity supply for the re-erection of gates in 1996. Mr and Mrs Leach claimed ownership of a strip of land of about 12 feet in width between the stables which the Mears had previously erected and the Grain Store, access to which could be obtained only across the Red Land.
40. It was in the course of the disputes with Mr and Mrs Leach and the Council that it became apparent that John Mear had no legal title to the Red Land because it had been omitted from the transfer by his father.
41. Mr and Mrs Leach complained to the Council asserting that the Red Land was highway and requiring the Council to take action under section 130 of the 1980 Act to secure the removal of the gate. A representative of the Council attended Wood Farm and gave the Mears a letter saying they had no right to erect a gate over a public vehicular highway.
42. In December 1996 Mr and Mrs Leach commenced proceedings in the Cambridge County Court against Mr and Mrs Mear claiming ownership of the strip of land mentioned above.
43. In April 1997 Mr and Mrs Leach sought judicial review of the Council's refusal to require removal of the obstruction by the Mears of the Red Land caused by the gate, but by the time the matter came on for hearing in October 1997 the Council had begun proceedings in the Bedford County Court (later transferred to the Cambridge County Court) requiring removal of the gate.
44. The dispute with Mr and Mrs Leach came to trial in May 1999, and resulted in a settlement. Mr and Mrs Leach made a cash payment in consideration of a transfer of the strip of land and a payment in respect of costs. Mr and Mrs Leach agreed to procure that their solicitors wrote to the Council withdrawing the claims which they had made in the judicial review proceedings that a highway existed over the Red Land. It was agreed that the Mears could re-erect the gate further westwards to a position which it now occupies at Gate 1. As John Mear had no legal title to the Red Land, Stephen Mear, who had been present in court, countersigned the heads of terms.
45. It seems that the settlement was not fully put into effect because the Leaches continued to maintain that the Red Land was highway, and consequently the Council was not willing to discontinue its action against Mr and Mrs Mear.
46. The Council's action against Mr and Mrs Mear came on for trial on May 16, 2000. After a site visit there were discussions between counsel, which resulted in a consent order dated May 17, 2000. Mr and Mrs Mear accepted that the Red Land was highway. Additional terms were endorsed on counsels' briefs, including an undertaking by the Council that it would promote a stopping up order in respect of the Red Land, subject to the reservation of a bridleway. It also undertook to promote a definitive map modification order to show Point B as the western extremity of the bridleway. Mr and Mrs Mear undertook to co-operate as far as necessary and not object to the DMMO nor make further complaint or objection.
47. At the end of 2000 a Mrs Hogan sought judicial review of the order of May 17, 2000 and permission for judicial review was dismissed on paper and at an oral hearing, and the Court of Appeal refused permission to appeal. The Council says that it transpired that Mrs Mear was funding the action and indemnifying Mrs Hogan.
48. Since about the end of 2000 Mr and Mrs Mear have maintained that they were badly advised and/or misled by their solicitors and counsel about the compromise at the county court action.
49. From about 2000 the Mears decided to sell some of their arable farmland in order to concentrate mainly on breeding racehorses, as well as keeping free-range poultry for egg production.

VII Claimants' application under the 1981 Act

50. Following the May 2000 settlement the Council was prevented from applying to the magistrates court for a stopping up order because the parish council withheld consent. The refusal of consent was withdrawn in 2002 and the claimants were advised that the Council was willing to proceed with the stopping up order application.
51. In January 2002 gates were erected across the track. The claimants did not remove them when told that permission was required, nor when served with notices under section 143 of the 1980 Act. The Council removed the gates under their 1980 Act powers in April 2002, but by the end of July 2002 new gates and gate stops had been erected. Further section 143 notices were served and the claimants began this action.
52. In April 2002 the claimants applied to the Council to use its powers under section 53 of the 1981 Act to make a DMMO to delete FP1 and BR2 from the DMS altogether on the grounds that public rights of way never existed over the routes and that they should not have been entered on the DMS.

VIII The present proceedings

53. The present proceedings were commenced in August 2002 by the claimants in order to prevent the Council from removing the Gates 1, 2 and 3. HH Judge Richard Seymour gave judgment on February 20, 2003 in applications by the claimants to restrain the Council from enforcing the notices until trial and by the Council for orders that the claimants comply with the notices.
54. Judge Seymour said:

"…Mr de la Piquerie on behalf of the claimants submitted that it was not appropriate for the court to consider the material put before it in so far as what that material revealed were disputes, because whatever the true status of the Red Land and the Yellow Land for the purposes of the 1981 Act, that was a matter to be determined at the public inquiry. … He further submitted that the court, first, has no role in determining what is the appropriate status of the Red Land and the Yellow Land for the purposes of the 1981 Act; and secondly, and in any event, that the court on these applications is not in a position to resolve disputed questions of fact.

…

Although, on their face, the applications in each case are for orders pending trial of the action or contemplating that there will be a trial of the action, in fact, it is obvious that there never will be a trial, at any rate not in court, so far as the issue of the status of the Red Land, and the Yellow Land are concerned.

The question of the status of the Red Land and the Yellow Land is an issue as to which there is vigorous dispute of fact which I cannot possibly resolve. I must, as it seems to me, proceed on the basis that for the time being there is at least a public footpath running across the Red Land and the Yellow Land, but that there is a good arguable case that the registration should be discharged altogether; there is a good arguable case that the registration should be modified to designate the Red Land and the Yellow Land as bridle way; and that there is a good arguable case that the Red Land may be a public road.

…

The relief which is sought on behalf of the Council, at any rate in its original and first revised forms, seems designed to pre-empt, at any rate until the decision following the public inquiry is known, the outcome of that public inquiry.

…

In the result it seems to me that in deciding what order is appropriate I should have regard only to the circumstances immediately before me in so far as those circumstances are not contested. The concern which I have on the premise, which I think is the appropriate premise to adopt, that the Red Land and the Yellow Land is designated as footpath and the Blue Land is designated as bridleway, is as to whether the existing gates obstruct the use of the Red Land and the Yellow Land as footpath and the use of the Blue Land as bridleway.

On the evidence I am satisfied that the second gate, Gate 2, is a new obstruction which is not arguably a replacement for an old obstruction, that it is in fact an obstruction to the use of the Yellow Land as a footpath and that it should therefore be removed.

The position of Gate 1 is the position of an historic gate. It is well arguable that the gate ought to be permitted to remain whatever the correct status of the Red Land. However, the presence of the stop does inhibit the opening of the gate to provide access for pedestrians to a degree which on the evidence seems to me to be excessive. While noting that the relevant British Standard has no statutory force, nonetheless the terms of the standard were not contested. It was not suggested that the standard was unreasonably generous, or anything of that sort. It seems to me that the effect of the stop on the personnel gate, being in the position in which it is, is to limit unreasonably pedestrian access. While it may be appropriate for a stop to remain, the stop should be repositioned so as to permit the gate to open for a width of one metre.

On the uncontested evidence in relation to the appropriate strength of springs, it seems to me that the springs at Gate 1, the personnel gate, ought to be modified so as to require no greater force that five kilograms to be exerted in order to open the gate.

For the same reason it seems to me that the springs on Gate 3, which again is in the position of an historic gate, and in relation to which there is a good arguable case that it is a gate that should be permitted to remain, should also be modified so as to require a force of no greater that five kilograms to open it.

In the result it seems to me that the appropriate order to make is…that the claimants should be restrained from obstructing or interfering with the officers or agents of the Council in exercising their statutory power by removing Gate 2 and that the claimant should also be restrained from interfering with the exercise by the Council of their statutory powers so far as Gate 1 and Gate 3 are concerned, but only in the limited respects which I have indicated I consider to be appropriate."

55. The effect of the judgment was that the proceedings were in effect adjourned to await the outcome of the public inquiry, and meanwhile an order was made which (as subsequently amended) had the effect that the claimants were required (a) to re-position the gate stop at Gate 1 to provide an opening gap of 1 metre, (b) to ensure that the tension of the springs on Gates 1 and 3 was not more than 5 kilos; and (c) to remove part of a chicane on the Yellow Land, and construct a new post and rail fence at Gate 2 leaving a gap of not less than 2 metres.

VIII Decision on the claimants' application for DMMO

56. The application by the claimants for a DMMO to delete FP1 and BR2 from the DMS was refused in February 2003, and in March 2003 the claimants sought permission for judicial review of the decisions which the Council had made on their applications for DMMOs. The claimants appealed to the Secretary of State for Environment, Food and Rural Affairs ("the Secretary of State") against the decisions, but asked the Secretary of State to leave the appeal in abeyance until the judicial review proceedings were completed. In July 2003 the claimants, accepting that judicial review was not appropriate given the existence of the statutory appeal procedures, withdrew the judicial review application. The matter was referred to Dr John Ritchie, a planning inspector, who concluded that the surveying authority was justified in its decision not to make an order to delete FP1 and BR2 over the lines recorded and published in the DMS in September 1953. The Secretary of State agreed and dismissed the appeal.
57. Dr Ritchie concluded (para 107) that the mapping of the access road from Waresley village to the commencement of BR2 was consistent with its definition by the Inclosure commissioners as Town Road, by the surveying authority as Vicarage Road and as a county road in the DMS. Why and when the highway authority chose to maintain it only in part was not known. The unsurfaced length appears to have been taken into possession by the owners of what is now Wood Farm to be used as a farmyard sometime later than 1936 or 1943. He referred to the fact that the then owner of the land claimed an allowance under the Finance Act 1910 for "public rights of way or user". He also concluded that (para 120) that while the owners of Wood Farm required, and sometimes declined, permission for persons to cross the farmyard, they probably had no legal right to do so.

IX The Cambridgeshire County Council (Public Footpath No 1 Waresley) Definitive Map Modification Order 2003 and the Cambridgeshire County Council (Public Bridleway No 2 Waresley) Definitive Map Modification Order 2003

58. These DMMOs were made on April 28, 2003. The effect of the footpath DMMO was to delete the footpath on the Red Land from the 1953 DMS, and the effect of the bridleway DMMO was to show the Yellow Land as bridleway. The claimants (and others) objected.
59. Following a public local inquiry in September 2004, the inspector, Mr Peter Millman, in an order decision dated October 18, 2004 confirmed the footpath DMMO and deleted the FP over the Red Land. He confirmed the bridleway DMMO, subject to modifying it to show a defined width of the bridleway across the Yellow Land. That modification required advertisement, and following objections by the claimants a second public inquiry was held in November 2005, following which the inspector confirmed the bridleway DMMO on January 10, 2006.
60. The inspector stated (paragraph 10 of his decision of October 18, 2004) that he could delete the footpath on the Red Land by confirming the footpath DMMO only if he was satisfied that the evidence showed on the balance of probabilities that the Red Land was highway and therefore should not be shown on the definitive map.
61. His reasoning in relation to the status of the Red Land was as follows. The nineteenth century documents did not assist much. Although the evidence from the Waresley Inclosure Map and Award of 1822 showed Vicarage Road as a highway, no firm conclusion could be drawn as to the current position of the gate where it ended. Four other maps from the later nineteenth century did not provide evidence of any significant weight. The 1904/1908 documents were evidence that in 1904 Vicarage Road was publicly maintained and almost certainly public vehicular road, and the measurement of 2 furlongs and 66 yards suggested that the maintenance liability extended to include the Red Land, and the ordnance survey maps of the period showed no gates before point B (i.e. where the Red Land meets the Yellow Land). He therefore concluded (para 53) that Huntingdonshire County Council took on maintenance liability for the Vicarage Road as far as point B in 1908, and that this was strong evidence supporting a conclusion that it was public vehicular highway to that point. He concluded as follows (para. 65):

"A consideration of all the evidence taken together suggests the following: that the western part of Vicarage Road was a public vehicular highway before 1822. The evidence is unclear as to where it ended, although it was probably between A and B. Maps or plans from 1834, 1841, 1886 and 1900 recorded a gate across the route at B, and by 1908 this had become fixed and accepted as the end of the public highway, although there is no evidence of the mechanism by which this occurred. Despite failure to maintain up to that point, the extent of vehicular rights remains the same. While only the 1904 and 1908 maining documents provide strong positive evidence of the extent of vehicular rights to B, all the other evidence is consistent with it, apart from that of the petrol pump. I conclude finally that Vicarage Lane is, on the balance of probabilities, a public vehicular highway from the cross-roads to point B. As there was no evidence presented to the inquiry that the section from A to B fitted the definition of a Byway Open to All Traffic in Section 66 of the 1981 Act, the line showing it as a footpath it should be deleted from the Definitive Map."

62. The inspector concluded that the Yellow Land was bridleway, and rejected the argument that the 1992 public path diversion order had extinguished bridleway rights. Because DMMOs should show widths he proposed to modify the bridleway DMMO to show the Yellow Land as a bridleway with a width of 4 metres.
63. In his second decision the inspector confirmed the order showing the width of the bridleway (BR2) on the Yellow Land as 4 metres and refused a request from the claimants that the order show a gate across the Yellow Land.
64. The Council gave notice of confirmation of the footpath DMMO on November 24, 2004 and the claimants did not challenge it under schedule 15, paragraph 12, of the 1981 Act. The Council gave notice of confirmation of the bridleway DMMO on January 25, 2006, and the claimants similarly did not challenge it. The consequence is that the DMMOs cannot be challenged: paragraph 12(3).

X Subsequent events

65. By a letter of March 7, 2006 Messrs Brignalls Balderston Warren wrote on behalf of Mr and Mrs Mear to the Council to say that the effect of the decisions was that there was a bridleway cul-de-sac on the Yellow Land and no rights of way over the Red Land, and that an application would be made to the court to delete Gate 1 from the order of Judge Seymour. Deletion of footpath from the Red Land meant that there was no public access.
66. By letter of May 5, 2006 the Council's solicitors required removal of the three Gates. On May 11, 2006 Stephen Mear wrote to the Council's solicitors to deny the existence of public rights of way over the farmyard.
67. In May Waresley Parish Council and Little Gransden Parish Council wrote to the Council to assert and protect the access rights of horse riders to the bridleway. There are witness statements of two local horse riders, Jane Bowering and Elaine Mason, describing how closure of the route through Wood Farm forces riders onto roads with traffic.

XI The Council's arguments

68. The Red Land is highway, and the Yellow Land is part of BR2 Waresley, a public bridleway. Since 2002 the erection of gates across the routes has prevented the public from exercising their right to pass and repass other than on foot along a route which connects Waresley with Gamlingay and Great Gransden to the east. Numerous complaints have been received, particularly from horse riders and cyclists.
69. Section 130(6) of the Highways Act 1980 places certain duties on highway authorities where a parish council represents that a highway has been unlawfully stopped up or obstructed. In such a case the highway authority "unless satisfied that the representations are incorrect" must take proper proceedings accordingly. It is not for the court to decide whether there is a public footpath or not: the question is whether there is sufficiently strong evidence on which the highway authority could reasonably have decided that a public footpath existed: R v Surrey County Council, ex parte Send Parish Council (1979) 40 P&CR 390, a decision on the predecessor of this provision in the Highways Act 1959.
70. The claimants chose not to challenge the DMMOs pursuant to the 1981 Act, Schedule 15, paragraph 12.
71. It was the claimants' own counsel in February 2003 who proposed the adjournment of the case so that all the relevant issues could be determined by an inspector. It took nearly three years (until January 2006) for that process to be completed, during which time the public have been unable to exercise the full extent of their highway rights.
72. The evidence as to the status of the Yellow Land as bridleway and the Red Land as highway has been upheld following the two public inquiries under the 1981 Act. In relation to the Yellow Land, the evidence is conclusive by reason of section 56(1). In relation to the Red Land, the 1981 Act procedure provides no mechanism for establishing the status of publicly maintainable vehicular highways. For that reason, although the inspector concluded that the Red Land is such a highway, his conclusion, though strongly persuasive, is not binding in law.
73. It is common ground that the inspector's conclusion about the status of the Red Land does not amount to a final determination of its legal status as a highway. Such a final determination requires to be in the form of a declaration of the court. Nevertheless his findings were based on careful consideration of the evidence and in the Council's submission it is safe for the court to accord them significant weight.
74. Before confirming the footpath DMMO the inspector was obliged to satisfy himself that it was a maintainable vehicular road in order to ensure the survival of public rights of passage upon the deletion of the footpath. He made that finding after extensive consideration of the evidence, including extensive cross-examination by both parties.. Although the inspector's findings in relation to status of the Red Land do not have the statutory force of his findings in respect of the Yellow Land, they were soundly based and ought to be relied upon.
75. The fact that the Red Land is not specifically shown on the DMS as publicly maintainable vehicular highway is of no significance: the legislation provides that the DMS should show rights of way to which the 1981 Act relates. It does not provide (1) that a DMS should show publicly maintainable vehicular highways or (2) that a DMS is evidence of the status of such a highway.
76. The Council remains prepared to consider application to the Magistrates Court under section 116 of the 1980 Act for an order stopping up the highway on the Red Land and reserving bridleway and footpath rights.
77. Mr and Mrs Mear were parties to the 2000 consent order in the proceedings in Cambridge County Court stating that a public vehicular highway existed over the Red Land. By the consent order they undertook not to object to the orders which the Council proposed to promote.
78. The claimants' argument that the 1992 Order had the effect of removing bridleway rights over the Yellow Land and downgrading it to a footpath was rightly rejected by the inspector in the October 2004 order decision, and he confirmed the existence of a bridleway over the Yellow Land.
79. There is no power under section 119 of the 1980 Act to extinguish either footpath or bridleway rights without granting a corresponding right along a new line. The 1992 Order extinguished FP1 where it crossed the field, but it did not create a new footpath over the Red Land and Yellow Land: higher rights already existed over those Lands and could not be extinguished by an order under section 119. Extinguishment of such rights would have required an extinguishment order under section 118 or an application to the magistrates' court under section 116.
80. The plan of maintainable roads inherited by the Council from Huntingdonshire CC on local government reorganisation shows (a) the point where maintainable road becomes BR2; (b) FP1's previous termination point (Point E); (c) the section (dotted double line) diverted in 1992; (d) the boundary line of the field to which it was diverted; and (e) the point where that boundary joins BR2 (Point G).
81. Since the NE route from Point E took FP1 through the site of the claimants' new house (the replacement Wood Farm) a diversion was clearly in the interests of the landowner, as required by section 119(1). The 1992 Order diverted FP1 so that, where it previously crossed the field and terminated at Point E on the track, it now skirts the field and terminates at Point G on the track, thus satisfying 1980 Act, section 119(2).
82. Therefore where the 1992 Order, which did not purport to delete any part of BR2, shows G-E as footpath it is technically in error. The majority of G-E was shown on the DMS as BR, the remainder (for a short distance east of E), being already publicly maintainable vehicular highway.
83. This error is not capable of altering the pre-existing status of G-E, since the Schedule to the Order did not purport to delete existing rights over that stretch, nor to offer an alternative route.
84. The central purpose of the 1992 Order was satisfied by diversion of FP1 (for the convenience of the claimants), so that FP1 went round the edge of the field instead of through their house.
85. The claimants say that Gate 3 and the gap at Gate 2 are both designed to admit horses to pass through. That it is possible for horse riders to pass is evidenced in the correspondence, although it is apparently necessary for riders to dismount in order to open Gate 3. The evidence is that the claimants have turned people back from the position of Gate 1, claiming that no public rights exist west of that point.
86. The DMS does not mention that the bridleway is subject to any limitation. Whether or not Gates 2 and 3 are capable of being negotiated, they therefore constitute an unauthorised obstruction: Wolverton UDC v Willis [1962] 1 WLR 205.
87. Whether or not Gate 1 was in place in the 1950s, it is similarly unauthorised and constitutes an obstruction. It is open to the claimants to apply to the Council as highway authority for authorisation pursuant to the 1980 Act, section 147 to erect gates across the bridleway for the purpose of securing that the use, or any particular use, of the land for agriculture shall be efficiently carried on. The claimants have not done so.

XII Claimants' arguments

88. What appears on the DMS map is the minimum that has been established or reasonably believed to exist (1981 Act, section 56). Thus although a "footpath" may be entered on the map under the 1981 Act that does not mean that there are not higher rights. Under the 1980 Act what is created is created and no other higher rights exist. Unless and until an entry is removed from the definitive maps whether it has been entered correctly or wrongly, it takes effect as entered (section 56). If and when removed under the 1981 Act, the effect of the former "registration" ceases to be relevant and whether any and if so, what rights ought to be registered under the 1981 Act can be enquired into, challenged on appeal under the 1981 Act, determined by an inspector and then acted upon by a minister who may or may not accept the inspector's recommendations.
89. There is no power under the 1981 Act to alter any order made under the 1980 Act. The functions of the two Acts are completely different.
90. The 1992 Order was made pursuant to the powers vested under section 119 of the 1980 Act. The public right of way, referred to in Part 1 of the Order (paragraph 1) was a diversion of "existing footpaths" shown A-B-C and D-E on the plan annexed thereto. Secondly the public rights, referred to in paragraph 2 of Part A, being "existing bridleway" was diverted. This is shown as H-J on the map. Thus initially there was diverted a footpath A-B-C and D-E, and the bridleway H-J. Thirdly after the expiration of 6 days from the confirmation order a public footpath shown at paragraph 1 of Part B of the order, being 2 metres wide, was created and this is shown on the plan as A-F-M-C and D-G-E. This was the "new footpath" and finally there was a new bridleway and this is shown on K-L-J. This was the order which remains in force.
91. Nothing can be done under the 1981 Act to change or vary the order made under the 1980 Act. The only power of varying or modifying this order under the 1980 Act, is by employing procedures specified in the 1980 Act, which include consultations, enquiries, reports, and intervention of the relevant Minister. This order remains as it is drafted and confirmed under the 1980 Act and the Red Land is only a footpath as defined in section 329, 1980 Act.
92. So far as is relevant what is shown as E-G on the plan annexed to the 1992 Order, being the "proposed new route of the footpath", which became a footpath 6 days after the order was made, concerns what is now known as A-C. It is designated a "footpath" as defined in the 1980 Act. Diversions must be along an entirely new path, not an existing way: Lake District Special Planning Board, ex parte Bernstein, The Times, February 3, 1982. New "footpath", A-C, cannot be on a highway for vehicles. Such a way would have to be a "footway" and not a "footpath".
93. There is an obligation under the 1981 Act to maintain the DMS and to update it (section 53). The map must be updated (section 53(2)) as the result of events occurring in sub-section (3). One of these is "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 rights subsist is a public path …" (section 53(3)(a)(iii)). Thus there is a statutory duty to record the effect of the order that was made creating and diverting footpaths and bridleways on the map. The order was not accurately recorded.
94. Since there is no power under the 1981 Act to modify any order made under the 1980 Act, when the matter came before the inspector which resulted in his enquiries and purported findings of fact, the inspector should have (1) checked whether what was recorded on the DMS accorded with the order creating and diverting the footpaths, under the 1980 Act, (2) provided that it did, confirmed that it had been correctly recorded, (3) indicated that he has no power under the 1981 Act, which was the only Act under which he was appointed to carry out the inquiry, to modify the 1980 order, and (4) therefore simply dismissed the applications before him to delete and upgrade the "footpath" A-C because the alleged ground for its removal was that there should be no footpath, when in fact there was a footpath which was correctly recorded and accorded with the 1992 Order creating it.
95. The only power an inspector has is to (1) confirm that which is recorded on the DMS, or (2) if he should come to the conclusion that the minimum that is recorded does not exist recommend that it is modified or deleted. The deletion of A-B from being recorded as a footpath, which correctly reflected the diversion order made under the 1980 Act, does not have the effect of interfering in any way with the creation and diversion order made. Its deletion is a breach of section 53(3)(c)(iii) of the 1981 Act and is ultra vires.
96. The only change which has occurred since the matter came before Judge Seymour is that the footpath has wrongfully been deleted on the Red Land and wrongfully upgraded on the Yellow Land. The deletion does not have the effect in any way of modifying the order made under the 1980 Act, which remains in full force. The effect of the wrongful upgrading and removal of this footpath from the DMS map is that it now does not record the order made under the 1980 Act which it should but the deletion has not brought about a change justifying any variation of the interim order. The Red Land is still a footpath pursuant to the 1992 Order despite its removal from the map as such and no alternative being substituted.
97. So far as Gates 2 and 3 are concerned, the statutory procedure in respect of the "bridleway" as registered has been dealt with under the 1981 Act and there has been no challenge to the final order made in respect of those two gates by the Secretary of State who stated that the Yellow Land is bridleway, and it is so recorded. The Red Land footpath registration has been deleted and nothing put in its place. In respect of the Red Land therefore there is nothing registered and therefore section 56 of the 1981 Act does not apply.
98. There is a limited power following an inquiry and even an erroneous recommendation by the inspector and acted upon by the Secretary of State to challenge any such decision (1981 Act, Schedule 15, paragraph 12). The order which was made here was to delete the designation "footpath" from the map on the Red Land. It is not open to the claimants now to assert that that was done ultra vires. Although the deletion was in breach of the statutory duty under section 53(3)(c)(iii), the correctness of the deletion cannot be questioned under the 1981 Act. What can be raised in these proceedings is that there is no power under the 1981 Act to alter or in any way modify the order made under the 1980 Act which still subsists and creates the Red Land a footpath only.
99. As regards the highway status of the Red Land, no evidence was produced at the inquiry to prove that the public highway had been dedicated expressly or that vehicles ever used any part of the Red Land. The only evidence relied upon by the inspector was documents and his inferences to be drawn, as he did in his report, from such documents put in front of him. There is a substantial body of evidence put forward by Mrs Mear as to why there never was vehicular highway over the Red Land and why the inspector was wrong. There is additional evidence that was not available to put in front of the inspector, including photographs, a petrol licence dated 1959, and confirmation from the planning inspectorate on October 17, 2005 that the issue of an "adopted highway" is not an issue that an inspector can take into account when deciding orders made under the 1981 Act, and that his remit is restricted to footpaths, bridleways and byways.
100. So far as Gates 2 and 3 are concerned, given that the inspector designated the way as a bridleway and given that there was no appeal from such determination, the status of the Yellow Land as a bridleway has been conclusively determined under the 1981 Act. Therefore the declarations sought are meaningless and unnecessary and contrary to the principle of the 1981 Act that such matters are resolved by registration under the 1981 Act and not by the court.
101. An obstruction of a highway is one form of public nuisance. A public nuisance is some matter that materially affects the reasonable comfort and convenience of a class of subjects who come within the sphere or neighbourhood of a population. To commit a public nuisance is a crime at common law. In Seekings v Clarke (1961) 59 LGR 268 Lord Parker CJ said: "It is perfectly clear that anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction". So far as the bridleway is concerned the existence of Gates 2 and 3 does not substantially prevent the public from exercising bridleway rights. So far as Gate 1 is concerned there is no substantial interference with the right of way by pedestrians over the footpath.
102. The interim order as varied by agreement has resulted in the three gates remaining in situ. Gates 2 and 3 are both designed to admit horses to pass through. The evidence of Mrs Mear clearly indicates together with the photographs of the two Gates that there is no obstruction to horses on the "bridleway".
103. Gate 2 has a gap of 2.41 metres, and is in excess of the 2 metre requirement in the Schedule to the order of Judge Seymour as amended. 1.5 metres is the accepted and correct gap for bridleway use. Consequently the Gate order causes no obstruction.
104. Judge Seymour said that Gate 3 was not an obstruction. It was in the position of an historic gate, and there was a good arguable case that it should be permitted to remain. Gate 3 was not the subject of the statutory procedure carried out by the Council. The bridleway DMMO covered only the Yellow Land. The historic gate had not been altered since the judge's order and continues to cause no obstruction to BR2.
105. As regards Gate 1, the allegation that it was necessary to adjust a spring tension to this gate as it was more than 5 kilograms was untrue. The officer responsible for making the complaint on behalf of the Council, Mr Cooper, was in attendance after the hearing in February 2003 and tested himself the spring on the site. It was accepted that the allegation of a force 5 kilograms being required to open the gate was incorrect. There is no impediment or interference with pedestrians caused by Gate 1.

XIII Conclusions

106. The essence of Judge Seymour's decision was as follows. He was under the impression that because of the statutory procedure for consideration of revision of the DMS the merits of the claim were not ultimately to be decided by the court at all. He proceeded on the basis that for the time being there was at least a footpath across the Red Land and the Yellow Land, but there was also a good arguable case that (a) there were no footpath rights at all; (b) the Red Land and the Yellow Land were bridleway; and (c) the Red Land might be highway. The relief which the Council sought was designed to pre-empt the outcome of the public inquiry. The relief sought by the claimants would inhibit the Council in the exercise of its statutory functions. In deciding what order was appropriate he should have regard only to the circumstances immediately before him so far as they were not contested, and he should proceed on the basis that the Red Land and the Yellow Land was designated as footpath and the Blue Land (i.e. the track to the east of the Yellow Land) was designated as bridleway, and therefore whether the existing gates obstructed the use of the Red Land and the Yellow Land as footpath and the use of the Blue Land as bridleway. On that basis he decided that Gate 2 was a new obstruction to the use of the Yellow Land as footpath and should be removed; Gate 1 was in the position of an historic gate and it was arguable that it ought to be permitted to remain, but the presence of the stop inhibited the opening of the gate to provide access for pedestrians to a degree which was excessive. It was arguable that Gate 3 should remain as an historic gate, but the springs should be modified.
107. It is apparent from the judgment of Judge Seymour that he had the impression from counsel for the claimants that all outstanding matters would be determined under the public inquiry procedure, although Mr De La Piquerie says that his submissions did not in fact go so far. Judge Seymour's judgment records that he submitted that the court had no role in determining what is the appropriate status of the Red Land and the Yellow Land for the purposes of the 1981 Act, and that the court on the applications before Judge Seymour was not in a position to resolve disputed questions of fact. As a result the judge accepted that there would never be a trial as to the status of the Red Land and the Yellow Land.
108. On the present application, the Council sought final orders on the basis that the position since the interim order of Judge Seymour had changed. The errors on the DMS had been corrected by the DMMOs, and in the light of these corrections and the findings of the inspector, Judge Seymour's order should be varied and made final, by declaring the Red Land to be highway and the Yellow Land to be bridleway. The inspector's conclusions, the DMS modifications, and the documents exhibited in the evidence, together provided sufficient evidence to enable the court to make final orders in respect of both the Red Land and the Yellow Land.
109. Alternatively, if the court concluded that there was insufficient evidence on which to make the declarations (or to make a declaration in respect of the Red Land), the Council asked for an interim order to allow equestrians, cyclists and pedestrians to have free passage across both the Red Land (and also across and the Yellow Land, if no declaration were granted) until final judgment.
110. The claimants' position was that the Council was in effect seeking summary judgment without complying with CPR 24. The question whether the Red Land was highway was not finally determined by the inspector. There was a substantial body of evidence (including evidence not before the inspector) to show that he was wrong. The planning inspectorate had confirmed that the highway issue was not one which the inspector could take into account when making orders under the 1981 Act. The court should not grant a declaration based upon the conclusion reached by the inspector on the inferences drawn by him from such documents as were put in front of him and the evidence he heard.
111. A declaration as regards the Yellow Land was unnecessary given that there was no appeal from the determination of the status of the Yellow Land as a bridleway, which cannot now be questioned in any court of law.
112. At the hearing the Council accepted that the decision of the inspector as regards the highway status of the Red Land was not in any sense binding on the parties. After taking instructions, counsel for the Council accepted that this hearing would not be appropriate for a final determination of that issue in the light of the fact that evidence (including expert evidence) might be relevant on whether the Red Land was highway, but the Council continued with its application for final relief as regards the status of the Yellow Land and as regards the orders in relation to Gates 2 and 3. In the event I was satisfied (and the Council accepted) that, although the inspector (Order Decision, January 10, 2006) had refused to record Gate 3 as a limitation, that did not have conclusive effect (section 56(1)(e), 1981 Act) and that it would not be right to make a summary order without giving the claimants an opportunity to adduce evidence, when Judge Seymour had proceeded on the basis that it was arguable that Gate 3 was an historic gate.
113. Since the decision of Judge Seymour the position has materially changed in that as a result of section 56(1)(b) of the 1981 Act the status of the Yellow Land as bridleway is conclusively determined by the DMS. Although what the inspector said about the status of the Red Land as highway is not conclusive or binding, nevertheless to the extent that Judge Seymour was led to believe that all matters in issue would be determined at the public inquiry, he was wrong. In these circumstances it seems to me that the court is justified in revisiting the order in the light of (a) the now concluded status of the Yellow Land as bridleway and (b) the very strong case for the argument that the Red Land is highway.
114. Since the status of the Yellow Land has been conclusively determined the only questions as regard the Yellow Land are whether a declaration should be made and whether an order should be made as regards Gate 2. I am satisfied that I should make a declaration that the Yellow Land is bridleway, and that I should order that Gate 2 should be removed, and the claimants will be ordered to ensure that there is unobstructed bridleway of 4 metres at that point.
115. So far as Gates 1 and 3, and the Red Land, are concerned, the question is what further interim relief (if any) should be granted.
116. I take into account the Council's concession that it will not insist on the vehicular rights for the Red Land and will be content ultimately for the public to have bridleway rights only over the Red Land.
117. As regards the balance of convenience issues, the principal points made by the claimants are these. The nature of their business demands proper security and fencing. Their two principal business activities are the raising and breeding of race horses and the distribution and sale of fresh, free range eggs. At any one time they have in excess of forty thoroughbred horses which are raised and bred exclusively for bloodstock and horse racing. On average they have about eight mares. They will have yearlings and there will also be foals. They have some of their other horses which are in and out of training from time to time and which they look after on a periodic basis. If the stop at Gate 1 were removed, horses would be able to pass through. Mrs Mear referred to evidence (which was not before me, but was before Judge Seymour) setting out the risks of infection to their horses which would be posed by other horses crossing the Red Land and the Yellow Land.
118. The claimants say that horses bred specifically for racing are highly strung and unless there is effective and secure fencing there is a far greater likelihood of these animals escaping, and if they end up on the highway they are more likely to cause injury to third parties and to themselves. Insurance would be more expensive. There could be considerable injury or even death caused to third parties if the horses broke out onto the public highway. The claimants also run two very large free range egg producing units, and have at any one time about thirty thousand chickens in production. While fences and gates are not necessary to keep chickens in, they are crucial in ensuring sufficient security. The removal of the gates would increase the risk of criminal activity. There would be a small but significant risk of criminals escaping from elsewhere into the countryside and using the farm buildings as hideaways.
119. The question of the status of the Red Land (and therefore of Gate 1) and the permissibility of Gate 3 remain for trial. In my judgment the point on the risk of infection is of little significance once it is accepted that the Yellow Land is bridleway and that the public has a right to ride horses on it. I have taken all the balance of convenience factors into account, and the changes since the order of Judge Seymour, and in particular what the claimants say about the risk of their horses bolting and escaping. In my judgment I consider that a reasonable balance between the rights of the claimant and the public requires that the stop on Gate 1 should be removed, but that Gates 1 and 3 should remain until trial or further order. I will hear further argument, should it be necessary, on whether the springs are such as to prevent reasonable user by horse riders, and whether a bridlelatch should be fitted to Gate 1.
120. This matter has gone on far too long. I would hope (although the history of the matter does not suggest that this is a likely outcome) that the matter can be resolved without a trial, but I consider that all matters should be resolved as soon as possible, and that the matter should be transferred to the Central London County Court with a view to an early trial date being obtained. I am confident that trial management will ensure that the issues and the likely nature of the evidence (including expert evidence, if any) will be determined in good time for any hearing.

Note 1   Section 56(1)(d) was amended by the Countryside and Rights of Way Act 2000, section 51 and Sched. 5, Pt 1, para 6(1), to replace the expression “road used as a public path” with “restricted byway.” The latter expression is defined by section 48(4) of the 2000 Act. The amendments came into force on May 2, 2006 (SI 2006 No 1172), but are not relevant for the purposes of this judgment.    [Back]