Topics: Highway – Definitive map – Modification order
Alternative Citations:  EWHC 1435 (Admin)
Hearing Date: 8 May 2014
Court: Queen’s Bench Division, Administrative Court (London)
Judge: Mr Justice Foskett
Representation: George Laurence QC and Edwin Simpson (instructed by Winston Solicitors LLP) for the claimant. Jonathan Moffett (instructed by the Treasury Solicitor) for the Secretary of State.
Highway – Definitive map. In a test case with the potential to affect 500 to 1,000 other public rights of way, the claimant challenged the defendant Secretary of State’s decision, upholding a local authority’s refusal to modify the definitive map of the area to include a public bridleway. The Administrative Court determined that, properly construed, s 10 of the Inclosure (Consolidation) Act 1801 was designed to deal with ‘private’ rights of way only. Accordingly, the authority had been right to reject the claimant’s claim and the Secretary of State had been right to dismiss the appeal.
The judgment is available at:  EWHC 1435 (Admin)
Section 10 of the Inclosure (Consolidation) Act 1801 provides, so far as material:
‘And be it further enacted, That such Commissioner or Commissioners shall, and he or they is and are hereby empowered and required to set out and appoint such private Roads, Bridleways, Footways, Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds and Land Marks, in, over, upon, and through or by the Sides of the Allotments to be made and set out in pursuance of such Act, as he or they shall think requisite, giving such Notice and subject to such Examination, as to any private Roads or Paths, as are above required in the Case of public Roads, and the same shall be made, and at all Times for ever thereafter be supported and kept in Repair, by and at the Expense of the Owners and Proprietors for the Time being of the Lands and Grounds directed to be divided and inclosed, in such Shares and Proportions as the Commissioner or Commissioners shall in and by his or their Award order and direct’.
In 1841, an Inclosure Commissioner, acting under the Inclosure (Consolidation) Act 1801 (the 1801 Act), which was a general clauses Act to enable local Inclosure Acts to incorporate, by reference, such provisions of the 1801 Act as were relevant to a local Act, and the 1816 local Inclosure Act for the Parish of Crudwell (the 1816 Act), purported to create one section of public bridle road and one section of public bridle path (the inclosure award). Those bridleways were not recorded on the definitive map for the area and there was no evidence of their existence on the ground.
In January 2012, the claimant applied to the local authority for the modification of the definitive map for its area to include the public bridleway that did not appear on that map. The authority rejected the application, concluding that there were no powers in the 1816 Act to permit the Inclosure Commissioner to set out the claimed bridleway, relying on the approach in the claimant’s prior action (see (1993) 71 P & CR 1) (Andrews No 1). In Andrews No 1, it had been common ground that the adjective ‘private’ in s 10 of the 1801 Act governed, not merely roads, but bridleways and footways (the concession). The claimant appealed to the defendant Secretary of State and her inspector dismissed the appeal on the grounds that she was bound by Andrews No 1. The claimant sought judicial review of the Secretary of State’s decision on the basis that, when s 10 of the 1801 Act was incorporated into the 1816 Act, it enabled Inclosure Commissioners to set out and appoint public bridleways, as well as private bridleways.
The claimant contended, first, that s 10 of the 1801 Act had authorised the setting out of, inter alia, bridleways and footpaths whether private or public, on its proper construction read in the context of: (i) the 1801 Act as a whole, in particular, ss 8 to 11 of that Act; (ii) its pre-enactment history; and (iii) the evidence now available as to the manner in which the 1801 Act had been interpreted and acted upon more generally. Secondly, the judge inAndrews No 1 had been plainly wrong to accept the concession that, itself, had been plainly wrong. Thirdly, recent research demonstrated that it was common practice, before the 1801 Act, for provisions made in local Inclosure Acts to include the power to set out public bridleways and footpaths, and that Parliament had to have intended to provide for it in the 1801 Act and s 10 should be construed accordingly. Further, the practice of experienced Inclosure Commissioners post-enactment of the 1801 Act supported the proposition that s 10 of the 1801 Act had to be seen as permitting the setting out of public bridleways and footpaths, in accordance with the doctrine of contemporanea exposito. Fourthly, the challenge to the existence of the bridleways created by the inclosure award was precluded by the operation of s 35 of the 1801 Act together, so far as relevant, with the provisions of s 25 of the 1816 Act.
The application would be dismissed.
(1) Properly construed the natural and grammatical construction of the meaning of the word ‘private’ in the list in s 10 of the 1801 Act was that it applied to all constituent elements of that list. That s 10 of the 1801 Act was designed to deal with ‘private’ rights of way and s 8 of the 1801 Act was designed to deal with ‘public’ rights of way was confirmed by the provisions concerning how the maintenance expenses of each were to be met. The argument that the terms of s 11 of the 1801 Act showed that the word ‘private’, at the beginning of the list in s 10 of the 1801 Act, was confined to ‘roads’ did not survive the arguments to the contrary. Parliament could have inserted the words ‘public or private’ before the balance of the list in s 10 of the 1801 Act if it had wished to do so, as it had in s 11 of the 1801 Act. Any arguments as to the suggested ‘absurdity’ of the consequences of such interpretation could not be regarded as sufficient to overcome the natural meaning of the words used because it was very difficult to remove in time to evaluate what would or would not have been regarded as an intended or unintended consequence of the drafting, and the ultimate authority for any enclosure process had been the 1816 Act itself and any unintended consequences of the drafting of the 1801 Act could have been rectified at that point (see  of the judgment).
The natural and ordinary meaning of the relevant expression in s 10 of the 1801 Act was not forced to yield to any other interpretation by reason of an analysis of the wording in ss 8 to 11 of the 1801 Act (see  of the judgment).
Harber v Rand 9 Price 58 considered.
(2) It was highly unlikely that the judge in Andrews No 1 would have accepted a concession if he had not thought about it and considered it to have been correctly made. The normal grammatical construction of the expression in s 10 of the 1801 Act supported the correctness of the concession and, thus, of its acceptance. The concession had been correctly made and the judge in Andrews No 1 had been correct to accept it. At the very least, he had not been plainly wrong to have done so (see ,  of the judgment).
(3) It was impossible to draw anything like a sufficiently clear conclusion about the meaning to be attributed to the expression ‘public carriage roads’ in the pre-1801 Act era to say that public bridleways and public footpaths had not been included within it so as to drive the interpretation of the 1801 Act. The one clear conclusion that could be drawn about the 1801 Act was that it had not set out to be comprehensive in its treatment of provisions usually inserted in Inclosure Acts. Unless the doctrine of contemporanea exposito could come to the claimant’s rescue, the natural meaning of s 10 of the 1801 Act had to stand. It was not possible to rewrite the express terms of s 10 of the 1801 Act in the way contended for and the evidence had not established the prima facie presumption required for the doctrine of contemporanea exposito to come into play in any determinative sense (see ,  of the judgment).
Logan v Burton 5 B & C 513 considered; Clyde Navigation Trustees v Laird & Sons 8 App Cas 658 considered; R v Casement [1916-17] All ER Rep 214 considered; Isle of Anglesey County Council v Welsh Ministers  3 All ER 1110 considered.
(4) Doing something that was wholly outside both the 1801 Act (meaning ss 8 and 10 of the 1801 Act) and the 1816 Act was not something that s 35 of the 1801 Act precluded from challenge in the courts. Subject to the arguable issue of whether the court’s discretion might be utilised in rejecting a challenge many years after the event when there had been general acceptance of the existence of a right, in fact, created ultra vires , there was no objection in principle to such a challenge being maintained, quite the converse, in order to avoid the consequence of the immunity from challenge of an award that had plainly been invalidly made (see  of the judgment).
The authority had been right to reject the claimant’s claim and the Secretary of State had been right to dismiss the appeal (see  of the judgment).
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