Home > Cases > Whitworth v Secretary of State for Environment, Food and Rural Affairs [2010] EWHC 738 (Admin)

In October 2005, the relevant local authority made an order entitled the ‘Cumbria County Council (Parishes of Grange over Sands and Broughton East: District of South Lakeland) Public Path Modification Order No. 1 of 2005’ (the Order). The Order provided, inter alia, for a public right of way usable by all forms of traffic, namely, a byway open to all traffic, passing through the farmyard of a farm. The then owner and their successors-in-title, the claimants, objected.

The origin of the order began in 1993, when walkers and those on horseback would use a route across ‘Hampstead Fell’, which one way or another ended up at, or passed by the farm, found their way barred by locked gates, and saw a notice or notices to the effect that no horses were permitted. They complained to the authority. The routes which they could take were not designated as footpaths on the definitive footpath map. Mindful of its duty to keep the definitive map of public rights of way under continuous review, an obligation which derived from s 53(2)(b) of the Wildlife and Countryside Act of 1981, the authority, as surveying authority, considered the evidence available to it, and concluded that it should make the order. It had in mind s 53(3)(c)(i) and (ii) of the 1981 Act. The effect of the order was to identify on the plan a number of points by letters, A-H. It was opposed and an inquiry began in March 2007. The inspector, when approaching his task, described what material he had regard to in considering the case which was made by the authority, and that objected was to by the objectors (see [21] of the judgment).

The first part was an historical survey of documents and materials, and the second was, an enquiry as to the evidence available to the inspector of recent user in order to answer any questions which arose under s 31 of the Highways Act 1980 (20 years’ uninterrupted user prior to the date that the right was put into question). In May, having considered the evidence and the written material, the inspector confirmed the order, but did so subject to modifications. In particular, he did not confirm that the highway should be a byway open to all traffic. Instead, he provided that it should be a restricted byway. The consequence was that a further inquiry was necessary, limited to the proposed modifications of the original order. In October 2008, the inspector confirmed the order as he had modified it. The claimant challenged the validity of the order pursuant to para 12 of Sch 15 to the Wildlife and Countryside Act 1981. It was agreed that the nature of the challenge was akin to a judicial review.

Issues arose as to: (i) whether a right of way had been established, either at common law or by 20 years’ uninterrupted user prior to the date that the right was put into question under the 1980 Act; and (ii) the nature and character of that user.

The court held that the nature and character of the user was not essential to establish that there had been a right of way, but it was essential to establish the proper description of that right. For a decision under s 31 of the 1980 Act what would be relevant was whether or not the way in question had been used by anything which fitted within the genus of ‘non-mechanically propelled vehicle’. It was something which fitted that description, rather than a specific vehicle, which had to be looked at. It would be open to add use for a number of years by a pony and trap to use by another form of non-mechanically propelled vehicle, such as a bicycle or cart, or whatever might be. The context was important.

In the circumstances of the instant case, the objection made to the inspector’s determination had to be rejected. It followed that, there being no error of law which had been identified, the inspector was within his powers to determine as he had.

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