A landowner presenting hopeful walkers and outdoor pursuits aficionados with a locked gate is bound to court controversy.
This proved to be the case in Whitworth and others v Secretary of State for Environment, Food and Rural Affairs (2010), when in 1993 a Cumbrian landowner closed off her farmyard – specifically citing an interdiction as far as equestrian use was concerned.
Complaints to the council duly followed, who designated the track running through the yard as a byway open to all traffic – which made horses the least of the landowner’s worries.
A lengthy dispute and public inquiry followed, which included the adduction of an 1809 inclosure award and which resulted in the council’s inspector downgrading the route in question to a restricted byway, so cutting out the use of “mechanically propelled vehicles”. Matters came to a head in 2008, when the second public inquiry produced little more for the landowner than a large costs bill and an accusation of “unreasonable behaviour … resulting in unnecessary or wasted expense”.
The main points of law before Lord Justices Kay, Carnwath and Tomlinson in the Court of Appeal were:
- 1 that it was an error in law to see cycling as instrumental in conferring any higher class of highway status than that of bridleway (cycles have been allowed on bridleways since 1968) and in any event that cycling could not somehow trigger an upgrade of the right of way to a restricted byway; and
- that 20 years’ user by one man with a pony and trap and a couple of cyclists did not constitute presumed dedication of a public right of way.
Carnwath LJ took both these points in short order. The pony trap user did not even manage 20 years on the trot, and, because it has been legal to cycle on a bridleway since 1968, and the 20-year period in respect of presumed dedication (section 31 Highways Act 1980) was 1973-93, then the usage as understood by the landowner was no more than that of a bridleway. It followed that she could not be presumed to have dedicated further-reaching rights of way since 1968. Furthermore, he said that “since [presumed dedication] involves a statutory interference with private property rights, it is appropriate in my view … to infer the form of dedication by the owner which is least burdensome to him”.
As Carnwath LJ commented, the most sensible thing would have been for the Court of Appeal to issue an order modifying the restricted byway to a bridleway. However, the Wildlife and Countryside Act 1981 (which incorporated the second of three attempts to extinguish the RUPP) is clear in that the High Court may quash the order, either generally or insofar as it affects the interests of the applicant. This and associated legislation prohibiting the use of the previous evidence means that any council taken through this process really is back at square one.
In times when everyone’s budgets are under pressure, Carnwath LJ’s plea for a review of the statutory procedure ought to be heeded, particularly as we inch closer to the 2026 cut-off date for the recording of public rights of way, which is likely to turn up the heat on county councils in terms of contested rights of way.