The paper ‘Notes & Materials on Maps and Other Documentary Evidence‘ has been updated on 25 February 2016 to include new judgment references regarding the ‘through route presumption’, and the ‘topography and character of roads.’
The recently deceased United States Justice Antonin Scalia, in a speech at the Juilliard School in 2005: “The main business of a lawyer is to take the romance, the mystery, the irony, the ambiguity out of everything he touches.”
29 January 2016
Inspector Michael Lowe
Tests for user evidence: calling into question.
In a brief (387-word) decision letter, Mr Lowe goes through the formalities for confirming a user-evidenced-based order to add a public footpath in Swansea. This is necessary because two objections, subsequently withdrawn, caused the order to be sent to the Welsh Ministers.
Mr Lowe finds that the council made the order on the basis of a 20-year period of user between 1991 and 2011, and recites the s.31 tests to be applied, including “… a period of 20 years ending with the date that the public use of the way was brought into question.” Mr Lowe does not state the date on which the public’s use was brought into question, although establishing this is fundamental to determining whether there is a full 20-year period established.
‘Between’ means ‘in the period separating (two points in time)’, and so “between 1991 and 2011” refers to the period midnight 31 December 1991 to midnight 31 December 2010, and that is but 19 years at most by our arithmetic. If Mr Lowe meant ‘in the period spanning 1991 and 2011’ he would have 21 years available, New Year to New Year, but the period of user during 1991, and the date of challenge (both apparently untested) would be crucial.
Readers who are avid web-surfers might think that they have seen this issue before, and they would be right. On 3 October 2015 a report on the decision letter of Inspector Mark Yates in FPS/X2600/7/106 noted that in his paragraph  Mr Yates sets out the statutory requirements for deemed dedication (emphasis added): “The relevant statutory provision, in relation to the dedication of a public right of way, is found in Section 31 of the Highways Act 1980 (‘the 1980 Act’). This requires consideration of whether there has been use of a way by the public, as of right and without interruption, for a period of twenty years prior to its status being brought into question.”
S.31 of the Highways Act 1980 actually says: “Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway …”
Blanchland Road: Two Tries. Two Failures. Try Again?
An order for BOAT fails. An objection in favour of restricted byway fails. A route is added as a public footpath.
- Two orders.
- Two Inspectors.
- Two public inquiries.
- One hearing.
- four decision letters.
- Well over 20 years, application to (this) outcome.
Sometimes an Inspector’s decision in a rights of way case seems to be so bad that you have to pinch yourself to be sure that you are not dreaming. This is a bad one. Sometimes it seems that the era of egregious decisions has passed. This one shows that it lingers on. In the annals of stinkers, this is as malodorous as Wood Lane, Jack Lane, and Mohope Moor (to name but three standouts over thirty years). Am I wrong? If I am please tell me where and how.
Click the photograph to open the report.
Finally – after almost a dozen years – the southern part of The Drift Road near Slaley, Northumberland, has been added to the definitive map as a restricted byway nearly a mile in length, and the obstructions sufficiently removed to facilitate passage.
It is all a bit of a seedy story, really, and if you have any sense that the process of recording, protecting, and using ‘lost ways’ should be fair, open, and properly thought-through, then you will (I sincerely hope) find it all rather disturbing. Click on the photograph below to open the report.
In a judgment of 25 July 2012, HH Judge Roger Kaye QC dealt with a challenge to the non-registration of a town or village green on land at Belle Vue Park, Consett County Durham  EWHC 1934 (Admin). In a decision letter of 4 September 2012, Inspector Michael Moffoot confirmed an order made under s.257 of the Town and Country Planning Act 1990 to extinguish an unspecified number of ‘unrecorded public rights of way’ also at Belle Vue Park.
Mr Moffoot’s decision triggered a complaint to PINS’ ‘Quality Assurance’ department, listing seven heads of concern, on 22 October 2012.
The complainant heard nothing more, and wrote again on 11 April 2013 (25 weeks later, aka half a year) asking if he was going to get a reply. On 17 April 2013 Ian Kane, Executive Officer (Quality Assurance) responded by email.
“I apologise unreservedly for the unconscionably long time it is taking for you to receive a reply to your original letter about it … this is to assure you that I am now treating it as a matter of urgency … I am very sorry for the delay and I look forward to replying very soon.”
“Very soon” and “urgency” must each have a different meaning in Bristol. In November 2015, some two and a half years later, the complainant has heard nothing more. No letter or, as Marvin might say, no electronic sausage either. Time to outsource this role to Capita or Amey? They could hardly do a worse job, could they?
I came across the judgment for Doherty v. Secretary of State for the Environment  tucked away in a safe place (aka lost). It is clear and forceful on the point that the process of making the original definitive map cannot be unpicked 50+ years later with the intention of proving a ‘mistake’ was made. The relevant parts have been put into Notes & Materials on the Law of Bridleways and Byways, with a link from this website.
The Northumberland County Council Parish of Seaton Valley (Public Bridleway No. 192) Creation Order 2074.
Decision date 1 October 2015.
Pins Ref’n: FPS/P2935/6/4.
Inspector Sue Arnott.
This was a creation order to make a ew bridleway near Seghill in Northumberland. Northumberland County Council specified a ‘wicket gate’ on the bridleway, as a limitation. Alan Kind objected thus: :The order is expressed to specify a ‘wicket gate’ as a limitation. Neither the Highways Act 1980, nor the British Standard on rights of way gates, acknowledges, specifies, or envisages, a ‘wicket gate’.
“The best ordinary definition I can find is: ‘a small door or gate, especially one beside or in a larger one.’ I cannot see how a ‘small door or gate’ is an adequate substitute for what 99.9% of order-making authorities would specify simply as a ‘bridle gate’ in such an order, in similar circumstances, but do please give me your reason for so specifying here.”
This same terminology had been used by NCC in another order at much the same time, and the case officer, Tony Derbyshire, told Alan Kind, “On reflection it would be more consistent to use the same terminology in the order as we use in the specification, and I will aim to do this in future orders.” Fair enough, ADK withdrew that objection on that promise.
This time around NCC took a rather different line, “The inclusion of the word ‘wicket gate’ in the order was included [sic] because this best describes the existing limitation on the footpath, which will remain if the route is upgraded to a bridleway. Interestingly the objector’s definition of a wicket gate included in his objection – ‘a small door or gate, especially one beside or in a larger one’ describes very well the existing arrangement, which is included as a limitation.” Rather destroys one’s trust in anything Northumberland County Council might promise? Anyway, Mrs Arnott cuts through with a pragmatic approach:
 “I see two separate issues here: firstly whether the type of limitation should be referred to as a wicket gate, a bridle gate or simply a gate, and secondly whether the width of the limitation proposed at point B is appropriate for the new bridleway that is being created.
 “I agree with the objector that using terminology which does not appear in NCC’s specifications (or the British Standard) is not only confusing but also meaningless. NCC’s specifications refer to pedestrian gates and bridleway or bridle gates, not wicket gates.
 “Yet whatever it is called, the point is that what is proposed on the Order route is a gate on a new bridleway. irrespective of its past use by horse riders and cyclists subject to the limitation of the present gate, this Order is made under Section 26 of the 1980 Act to create a new right of way for those users.”
 “Insofar as the Order Schedule is concerned, all that is required is that it records a gate that complies with a recognised standard, I therefore intend to modify the Order to remove the word ‘wicket’ so that the rights of the public using Bridleway 192 will be limited by ‘One gate, to comply with Northumberland County Council Gaps, gates and stiles – Specification (January 2009), situated at grid reference N228637507’. It will be for NCC to ensure that the gate at point B complies with its published standards. “
The Powys County Council (Creation of Public Footpath LS1914(A) and Bridleways LS1938(A), LS1940(A) and LS1941(A) in the Community of Glasbury) Public Path Creation Order 2013.
Decision date 23 December 2014.
PINS Ref’n: T6850/W/14/515923.
Inspector Sue Arnott.
This order created the rights of way subject to limitations of gates, described as being ‘to current British Standard.’ Alan Kind objected on the ground that this is ambiguous when incorporated into the definitive statement, and the wording should define the limitation at the date of creation: the specification for the gates is not ambulatory as the British Standard evolves. Again, Mrs Arnott gets back to basics:
 “Whilst it is widely recognised that reference to defined standards for limitations such as gates is good practice, the English guidance may not be expressly applicable in Wales but the general principles hold good. PCC clearly recognised this when it made Order A since it included a reference to the British Standard. I have no doubt it was appropriate to do so, despite there being no specific guidance encouraging this practice in Wales.”
 “However I accept the argument made by Mr Kind that it is important to be clear about the extent of the limitation(s) at the date of creation of the new rights of ways since this enshrines the right(s) of the landowner to restrict the public thereafter. That cannot alter, positively or negatively, at any later date should the British Standard for gates change in future. I therefore consider it prudent to clarify the description in the Order schedule so as to be more specific and to expressly identify the particular British Standard applicable to the five gates in this case. I therefore propose to modify the Order to include reference to BS 5709:2006 since this is the “current British Standard” PCC intended should apply.”
Norfolk County Council (Billingford) Modification Order 2012.
Order Ref: FPS/X2600/7/106M.
Final decision: 7 January 2015.
Inspector Mark Yates. “ A proportion of the people who have used the claimed route on horseback have also done so on foot and pedal cycle. Six people used the route on foot and cycle. There is an issue with determining the amount of cycling use from the other types of user and it generally covered a relatively recent period of time. Overall, from an analysis of the relevant UEFs and the evidence of those people who spoke at the inquiry, I was not satisfied that the use by cyclists is sufficient to establish the dedication of a vehicular highway
“. Although cyclists have a right to use a bridleway, I do not consider that evidence of use by cyclists can serve as a replacement for the lack of sufficient evidence of use by horse riders.”
In the decision of the Court of Appeal in Whitworth v. Secretary of State for Environment, Food and Rural Affairs  EWCA Civ 1468. Carnwath LJ said (at paragraph 42): “In my view, the same conclusion would follow even if there had been no finding of pre-existing bridleway rights, so that the claim had rested solely on use after 1973. One would then be considering the inference to be drawn from the actual use between 1973 and 1993. It is true that regular use by both horse-riders and cyclists over that period would be consistent with an assumed dedication as a restricted byway at the beginning of the period (had that concept then existed). But it is no less consistent with an assumed dedication as a bridleway, of which cyclists have been able to take advantage under the 1968 Act. Since section 30 involves a statutory interference with private property rights, it is appropriate in my view, other things being equal, to infer the form of dedication by the owner which is least burdensome to him.”
In Consistency Guidelines – 8th revision July 2013 Section 5 page 12, “Section 31, HA80, as amended by section 68 of NERC06, provides that use of a way by non-mechanically propelled vehicles (such as a pedal cycle) can give rise to a restricted byway. In Whitworth it was suggested that subsequent use by cyclists of an accepted, but unrecorded, bridleway, where use of the bridleway would have been permitted by virtue of section 30 of the CA68, could not give rise to anything other than a bridleway. Whilst Carnwath LJ accepted that regular use by horse riders and cyclists might be consistent with dedication as a restricted byway, it was also consistent with dedication as a bridleway. In such an instance of statutory interference with private property rights, he determined, it was reasonable to infer the dedication least burdensome to the owner.”
Mr Yates dismisses the cyclists’ user because (he finds) there was “lack of sufficient evidence of use by horse riders.” Well, had there been ‘sufficient’ horse user, then there would have been … sufficient; and Lord Carnwath in Whitworth was plainly considering the aggregation of cycle and horse user evidence as valid evidence of deemed dedication of a bridleway.
Norfolk County Council (Billingford) Modification Order 2012.
Order Ref: FPS/X2600/7/106.
Interim decision: 6 February 2014 (not amended in the final decision of 7 January 2015).
Inspector Mark Yates.
Many years ago, when PINS was still an approachable organisation, looking to engage with its ‘customers’, and trying to improve its performance and engagement, the then Chief Inspector, the estimable Brian Dodd, on hearing that yet another inspector, in yet another case, had misapplied the double-negative s.54 test, told me, ‘I tell them to write out the statutory provision exactly as it appears in the Act … if they do that it is harder to go wrong …’ Well, plainly that is a lesson that did not get through to all.
In his paragraph  Mr Yates sets out the statutory requirements for deemed dedication (my emphasis): “The relevant statutory provision, in relation to the dedication of a public right of way, is found in Section 31 of the Highways Act 1980 (“the 1980 Act”). This requires consideration of whether there has been use of a way by the public, as of right and without interruption, for a period of twenty years prior to its status being brought into question.” Nearly right, but no biscuit.
S.31 of the Highways Act 1980 actually says: “Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway …” Can you spot the difference?
In this case the date of ‘bringing into question’ was found to be “2010”, and the necessary period of 20 years of user to be “between 1990 and 2010.” ‘Between’ in this usage seems to mean, ‘in the period separating two points in time.’ So ‘between 1990 and 2010’ means the period between 31 December 1990, and 31 December 2009, and that amounts not to 20 years passage of time, but to 19 years, while s.31(1) of the Highways Act 1980 requires a “a full period of 20 years.”
Since the Act demands a ‘full period of 20 years’, finding that the date of bringing into question was one of the 365 days during 2010 (but not knowing which day) must surely demand a period of user reaching back 20 years from (the start of) 1 January 2010, which is to (the start of) 1 January 1990. If the date of bringing into question was later in 2010 than 1 January, but not known, then there is a full period of 20 years accounted for in this approach, but a notional 1 January 1990 is not satisfied by “between 1990 and 2010.” “Between 1989 and 2010” would bracket a full period of 20 years.
What does PINS say in Consistency Guidelines? In [5.3] “Under s31 HA80 dedication of a route as a public highway is presumed after public use, as of right and without interruption, for 20 years, unless there is sufficient evidence that there was no intention during that period to dedicate it. The 20 year period runs retrospectively from the date of bringing into question.” Again, the statutory requirement is not properly set out here. Needs fixing?