Maltbridge Island Management Company v Secretary Of State For Environment & Anor [1998] EWHC Admin 820 (31 July 1998)

1. MR JUSTICE SULLIVAN: This is an application under paragraph 12(1) of Schedule 15 to the Wildlife and Countryside Act 1981 to quash the Hertfordshire County Council (Sawbridgeworth 42) Modification Order 1995 ('The order'). The effect of the order is to modify the Herefordshire County Council Definitive Map and Statement of public rights of way by adding Mill Lane, Sawbridgeworth as a by-way open to all traffic, ('BOAT').

2. Mill Lane runs north from the junction between Leat Close and Station Road over a bridge across a mill stream, onto a small island formed by the mill stream on its southern side and the navigable River Stort on its northern side.

3. Once on the island, the way turns through approximately 90 degrees, runs alongside the south bank of the River Stort, turns again in a north, north east direction crossing the river by an iron bridge just to the south of a lock.

5. The 1981 Act requires the County Council, as the surveying authority, to keep the definitive map under continuous review. By section 53(2) and (3), if the County Council discovers new evidence which, when considered together with other relevant evidence available to them, shows that a right of way which is not shown on the definitive map subsists, or is reasonably alleged to subsist, they must make an appropriate modification order.

6. The County Council made the order in July 1995. The effect of the order as made by the County Council was to show the way as a BOAT from Leat Close, over the mill stream and up to the bridge over the River Stort. From there, the route across the bridge to the towpath on the opposite bank would have been shown as a public footpath.

7. Schedule 15 to the 1981 Act requires that publicity shall be given to the making of orders, enables representations and objections to be made, and provides for a public inquiry or hearing to be held by the Secretary of State if the objections or representations are not withdrawn.

8. Having considered the report of the inquiry or hearing, and the representations and objections, the Secretary of State may confirm the order with or without modifications. In the majority of cases, this decision-making power is delegated by the Secretary of State to an Inspector.

10. In his decision letter of 29th January 1997 (the decision letter), he proposed to confirm the order, subject to the modification that the whole length of the way would now be classified as a BOAT.

11. Before he was able to confirm the order as modified, the Inspector had to comply with the requirements of paragraph 8(2) of Schedule 15. He had to give notice of his proposal to modify the order and if that prompted further representations or objections, he had to hold an inquiry and consider them.

12. There were further objections, and so he held a second inquiry in October 1997. Following that inquiry he decided in a decision letter dated 24th November 1997 (the second decision letter) to confirm the order as modified. The whole of the disputed way was to be added to the definitive map as a BOAT.

13. The Applicants own property on the island which is affected by the way. Mr Ainger on their behalf submits that the Inspector made five errors of law in the decision letter, and that there was unfairness at the second inquiry which led to the second decision letter.

15. The County Council's decision to make the order was prompted initially by 136 user evidence forms and 7 letters which claimed the existence of a right of way. These dated from 1982 and were a response to a challenge to the public's right to use the route at that time.

16. At the Inquiry, six witnesses spoke and there were seven statutory declarations all supporting the order. Although there had been written objections to the order, hence the need for an inquiry, the objectors, represented by Mr Ainger, called no witnesses, but cross-examined the County Council's evidence and made legal submissions.

17. The Inspector described the route and the immediate area and then summarised the cases of the parties, beginning with the County Council, which had based its conclusion that, on the balance of probability, a right of way existed over the route, on both historical and user evidence.

10. A way across the river Stort corresponding to the Order route had been in existence for a very long time, and certainly since 1805. It was shown on Bryants map of the area of 1822, classified as a'lane or bridleway'. The route had appeared on every map issued since then. On the Sawbridgeworth Tithe Map of 1839 it was shown, in common with other local highways, coloured ochre and without a plot number. It was not identified individually in the Tithe Map Apportionment as a private road, although other private roads in the area were. These facts suggested that it was considered at the time to be a public vehicular highway.

11. Further evidence of its status was to be found on the plan of the locality prepared under the provisions of the 1910 Finance Act. The route was clearly shown on this map, running from Mill Hill (now Station Road) through the mill, past the malthouses, across the river and for a short distance on the other side. It was shown uncoloured and as there was no reason to assume otherwise, this strongly suggested that for the purposes of this map it was considered a public vehicular highway. In this case the width and strength of the bridge meant that the river crossing itself was possibly rather less likely to possess vehicular rights than the rest of the way.

14. There were, on the other hand, indications in contemporary private documents that the way may have been considered private. In conveyances relating to Sawbridgeworth Mill from 1907 it appeared that successive owners had treated it as if it were. This evidence taken in isolation would suggest that Mill Land and the route across the island were private carriageways. The evidenced of the earlier maps however indicated that on balance of probabilities the route had become a public highway many years before these documents were drawn up. Besides, even these gave no indication that public pedestrian rights did not exist, and it was in this context that the user

18. Mr Tucker, formerly managing director of Thomas Burton Ltd, stated that he had, from time to time, caused the way to be closed and had put up notices stating that the roadway was private property. A chain was strung across it sometime in 1965.

19. Mr Tucker was reported in the local paper at the time as having put it there....'to prevent people parking their cars there at night and to protect the property generally'...' not really intended to prevent pedestrians enjoying a walk'. Several users recalled this incident but stated that it had never stopped them from using the route. In the opinion of the County Council therefore, this had not constituted an effective challenge.

16. A more substantial challenge was made by the Maltbridge Island Management Company in 1982. As a result, User Evidence Forms were submitted by 136 local residents certifying that for periods in excess of 20 years prior to 1964, and for up to 75 years in the case of older witnesses, they had used the Order route as of right, believing it to be a public ROW.

17. This view was reinforced by six witnesses at the public inquiry, all of whom said they had used the route freely on foot over very many years, some from as long ago as the 1920s. Witnesses spoke also of other users they had seen; farmers and carters using the bridges to get to the properties on the eastern side of the Stort; bargemen with their horses going that way to be stabled overnight at 'The Fox' on Station Road; many fishermen and other local folk using it to go to, and from, the towpath. Others spoke of public use of it by their families going back 150 years. None had ever been challenged until 1982, and all believed it to be a public ROW."

20. County Council concluded by saying that whatever the position might be in respect of vehicular rights of way, the user evidence established public footpath rights certainly by 1964, and so they invited the confirmation of the order showing the route, if not as part BOAT, part public footpath, then as footpath only.

21. The Inspector summarised the objector's contentions that the historical evidence was extremely weak and that the Council had ignored or misrepresented the limited material which was available.

"22. Until the bridge over the river Stort had been built there would have been no access to Sawbridgeworth Mill other than by road, and no way across the river. Access to the mill would therefore have been only on mill business, and would have had the implicit permission of the owners. The private nature of the road was clearly suggested by the dotted line across the end of Mill Lane, shown on all the large scale historical maps called in evidence by the County Council. The river Stort was originally made navigable by the Act of 1766 which directed that the necessary works should be carried out. The lock and lock bridge were part of those works. The bridge was put there solely as an accommodation bridge to provide private passage across the river. All those that made use of it would have been local people with private rights to do so. The lock keeper at the Lock Cottage, (now known as Merriemead) was one such.

23. There was no evidence that these private rights had ever been over ridden by public ones. Certainly the Conveyances of Sawbridgeworth Mill of 1907 and 1925 clearly showed that the access to the mill was private. There was similar documentary evidence in a legal Transfer dated 1981. In each case the vendors transferred or shared private rights of access to the mill, something which would have been unnecessary had public rights existed. Also negotiated in the earlier documents was the sharing of maintenance responsibilities. There was no evidence that the local authorities had ever undertaken responsibility for the maintenance of the Order route, another strong indication that it had never possessed public rights over it.

24. The other alleged indications that there were public rights were very sketchy. The Tithe map information showed that Mill Lane was quite possibly private. Likewise the Finance Act evidence from the map and field book could be explained if, as seemed likely, this road was in private, but multiple ownership, with each side in the possession of different people. In these circumstances there would be several people with private rights over it, and it would thus appear superficially that the road was public.

25. The proposition that all those people using the road had had private right to do so was borne out in the 1973 Statutory Declarations of Mr Tucker and Muriel Banks, both of whom were in a position to make authoritative statements as to the status of the route. They stated quite clearly that there had been no public vehicular rights of way, and that steps had been taken at that time to prevent dedication of one from occurring there use.

26. That no public rights existed was confirmed by the fact that the route was not claimed as having any such rights in the 1950s, when the Definitive Map was being prepared. Since then, public rights could not have accrued. The challenge to potential users in 1965 had not been taken up, and the public had thus in effect acquiesced to the fact that no such rights existed. Likewise the challenge in 1982, less than 20 years later, had not been pursued, the public thereby once again having acquiesced to the landowners claim that the way was private. All the user evidence was thus invalid. In view of this, and the tenuous nature of the historical evidence, it was clear that neither vehicular rights nor footpath rights existed over the way, and the Order should therefore not be confirmed."

22. Having noted the County Council's proposition, that the user evidence taken independently of the historical evidence suggested that footpath rights existed on the balance of probability, and having referred to section 53 of the 1981 Act, the Inspector concluded as follows:

"29. I am satisfied that the case made by your Council based upon the historical evidence brought before me was sound. I noted that in cross-examination it stood up well, and that no significant doubt was cast upon either the details or the principles of your analysis. If anything the detailed examination of some of the Council's assumptions tended overall to reinforce the conclusions drawn. Certainly the presumption that greater weight should be accorded to the relatively objective evidence from the public documents available in this instance, such as the Tithe and Finance Act maps, rather than to the opposing evidence from private document - Indentures or Conveyances etc. appeared to be fully justified.

30. No evidence was brought which suggested that the construction put upon the historical information by your Council was mistaken. I was unconvinced by the speculative interpretations of this which were offered on behalf of the objectors. I accept that the Tithe and Finance Act data is not conclusive, and that it can be assessed only on a balance of probabilities. This means that the most likely explanation for what is shown on these maps should be preferred over less likely alternatives. I also consider the total rejection of the user evidence to be wholly untenable. For several reasons I do not consider that an effective challenge to public use of the route was mounted in 1965, certainly walkers were not prevented from using the route as a result of it, nor did it appear that vehicular use was much affected. Nor am I aware of any principle of 'acquiescence' which would apply in this case, and I am accordingly of the view that the user information, and indeed the witness statements at the Inquiry, are both valid and very persuasive.

31. It is partly because they are so persuasive that I find some inconsistency between the body of evidence that was presented to me, and the Modification Order as submitted. Taken in combination, rather than separately, I consider the documentary and user evidence mutually supportive to a greater extent than was suggested at the inquiry. For example, whereas users did not claim themselves to have driven over the route, successful did refer to vehicular and indeed bridle use by others. Thus while unequivocally suggesting the existence of the public footpath rights, they also gave indirect support to the historical indications of higher rights.

32. Taking an overview of the evidence in this way brings into prominence another important fact. Although it did not emerge as a key element in the County Council's case, one of the main purposes of this route from the point of view of the public, far from it being a cul-de-sac, was to cross the river . One of the inferences of this is that the arbitrary distinction drawn in the Order between the Byway status claimed for the route up to the bridge, and the Footpath status over the bridge itself, is not supported by the evidence, nor is it justified in terms of the relevant criterion in the Wildlife and Countryside Act.

33. A distinction which could possibly have been more readily justified was that inherent in the claim for Footpath 42 begun under the terms of the 1982 Special Review. Examination of the contemporary documents suggests that Mill Lane was assumed at that time to be a public highway anyway, and Footpath 48 was taken to start from the end of it, leading onto Maltbridge Island, and thence to the towpath on the eastern bank of the Stort. A logical extension of this analysis suggests that at the time the original Definitive Map was being complied thirty years earlier, far from overlooking this route, the surveyors assumed that the Order route was correctly depicted on the Ordinance Survey map, was a public road all the way through, (not just Mill Lane) and therefore no claim for it as a ROW was needed.

34. For all the foregoing reasons I am satisfied that the Order route is indeed a public ROW, and that from the evidence presented to me and on a balance of probabilities, it possesses, and has possessed for a very long time, public vehicular rights throughout its length. I have no alternative but to deduce that the Definitive Map should be modified to include the Order route as a Byway Open to All Traffic."

"9. The interpretation of map evidence was also challenged, not only in respect of the maps produced at the original inquiry, but also that shown in a navigation map of 1772 by Samuel Cockett which had not been available at that time but which, it was alleged, showed that prior to the construction of the lock there had been no bridge across the river at the site under discussion."

24. He then concluded that no new evidence had been submitted, which related specifically to his modification, as opposed to rehearsing issues which had been covered at the first inquiry. He therefore concluded that the modified order should be confirmed.

26. The River Stort was made navigable by 1768 under the River Stort Navigation Act 1766 (the 1766 Act). The 1766 Act authorised the undertakers to construct the lock I have mentioned above. It also authorised them to construct the towpath and by section xiii to construct such bridges over the new cuts "as shall be proper for the use of the occupiers of the lands thereunto adjoining".

27. Unusually, millers had the power to operate the locks, and Mr Ainger submits that it may be inferred that the miller who owned the mill, on what became the island, built the lock cottage on the Essex side of the river known as "Merriemead".

28. More generally, he submits that bridges across new cuts were accommodation works, and so any use of the bridge below the lock by those wishing to gain access to lock cottage, the towpath, or the lands adjoining the river on the Essex side were all referable to section xiii of the 1766 Act.

29. He relies upon the maxim omnia presumuntur rite esse acta and cites the decisions of the Court of Appeal in Yorkshire Derwent Trust Limited v Brotherton (1990) 61 P&CR 198 at pages 209 and 224 and Stoney v Eastbourne Rural District Council (1927) Ch 367 at 389. One should not infer dedication if user the way is explicable on other grounds. If user is of the kind which is authorised by statute, in this case the 1766 Act, one should assume that it is referable to that, and thus has a lawful origin, and not that it is referable to trespass.

30. He accepts that the public may, by extensive usage, acquire a right of way over accommodation works, but in respect of any usage of this route going beyond use as a footpath, he submits that the only evidence, which the Inspector summarised in paragraph 17 and to which he cross-referred in paragraph 31 of his decision letter, was consistent with usage under the 1766 Act:

31. He submits that if there is no evidence of vehicular usage prior to 1st December 1930 which is not referable to the 1766 Act, then the use of the way by vehicles thereafter would have been unlawful, if the way had by that time become a public footpath (see the Road Traffic Act 1930, and R v The Secretary of State ex parte Stevens (1998) The Times 20th February).

32. Mr Hobson submits that paragraph 22 of the decision letter demonstrates that the Inspector was aware of the significance attached to the 1766 Act by the Applicants and that he fairly summarised their case in this respect. But he says that the 1766 Act did not prevent the subsequent establishment of a right of way by use of the way in a manner that was not referable to the 1766 Act. He submits that whilst user by the lock keeper, by bargemen and adjoining owners may have been referable to the 1766 Act, the Inspector was taking into consideration more extensive user and was entitled to conclude that a right of way had been acquired. He submits that the evidence of user found by the Inspector was sufficiently extensive to justify the conclusion that it was inconsistent with private use of accommodation works under the 1766 Act.

33. Whilst the Inspector mentioned the Applicants submission that the user was referable to the private use of an accommodation bridge under the 1766 Act, there is no indication in his conclusions that he evaluated the user evidence to see whether it might have been referable to the 1766 Act.

34. Paragraph 31 refers to the user and documentary evidence as being mutually supportive. The user evidence is summarised in paragraphs 16 and 17. It is not suggested that the user evidence forms referred to in paragraph 16 supported the existence of a right of way other than on foot. The only user evidence which supported the proposition that there was a right of way on horseback or leading a horse or for vehicles, was that referred to in paragraph 17. The witnesses, who themselves used the way on foot, had seen other users:

35. Use by bargemen, with or without horses, would clearly be referable to the 1766 Act. So too would use by farmers and carters wishing to gain access across the cut to lands adjoining the Stort. Accommodation works such as bridges over canals or railways are constructed precisely in order to facilitate such journeys.

36. Thus, I do not accept Mr Hobson's submission, that, on its face, the user described by the Inspector, insofar as it went beyond the use of the way as a footpath, was more extensive than the kind of user which would be referable to the 1766 Act. Even if it might have been more extensive, for example, carters using the bridges as part of a long distance route, there is no indication that the Inspector addressed his mind to the question whether that was the case. One would naturally except substantial vehicular traffic to and from a mill. Such traffic would be equally consistent with a private carriageway.

37. The evidence of pedestrian user was so extensive that a conclusion that a public right of way on foot had been established, in addition to the private rights enjoyed over the accommodation works provided under the 1766 Act, would have been unassailable. But insofar as the Inspector's conclusions go further, and the user evidence is said to support not merely a footpath, but a BOAT, over the whole length of the route, including the bridge below the lock, it was necessary for the Inspector to consider whether the very limited evidence of that more extensive user was referable to the 1766 Act. This he failed to do.

38. At the public inquiry the County Council had called Mr Millman, a Definitive Map Officer with the Council, to give evidence. He presented a detailed and comprehensive proof of evidence, which reviewed all the available material. He identified and discussed not merely those documents which, in his view, supported the proposition that a public right of way existed, but also those documents which might lead one to a contrary conclusion. Among the latter, were a number of documents of title.

39. Mr Ainger submitted that these documents showed that Mill Lane was consistently treated as a private road by all those who entered into the agreements, leases and conveyances at various dates between 1814 and 1981.

40. He made a number of detailed criticisms of Mr Millman's evidence in respect of these documents of title. I find it unnecessary to rehearse those criticisms for the following reasons: firstly, whether or not Mr Millman was correct in every detail, there is no doubt that his proof of evidence was a conscientious attempt to set out all the available evidence in a comprehensive and balanced fashion. He was subjected to cross-examination and the Inspector felt that the credibility of his evidence had, if anything, been enhanced as a result.

42. Thirdly, it is clear from paragraph 14 of the decision letter, which I have set out above, that Mr Millman's evidence was that these documents of title, "taken in isolation would suggest that Mill Lane and the route across the island were a private carriageway".

43. Fourthly, it is plain that the Inspector agreed with and adopted that assessment. Having referred in paragraph 29 to the public documents, he chose to give them greater weight "rather than the opposing evidence from private documents - indentures, conveyances, etc".

44. Thus, both Mr Millman and more importantly the Inspector, accepted the Applicants case that these "private documents", were opposed to the existence of a public right of way. Whether the Inspector was entitled to attach greater weight to the public documents is a separate matter, with which I will deal after considering points (3) and (4) below.

45. The County Council's evidence as to the effect of these documents is summarised in paragraph 10 of the decision letter. It is clear from paragraphs 29 and 30 of the decision letter that the Inspector accepted that the Tithe and the Finance Act documents whilst not conclusive, were to be preferred to the "opposing evidence" from private documents.

46. Mr Ainger submitted that the status of a way was immaterial for the purposes of the Tithe Commutation Act 1836, since neither public nor private roads were tithable. Thus, tithe documents whilst they could be relevant as to the existence or non-existence of a way on the ground at the date of the map and apportionment, were neutral as to its status. He cited dicta of Hilbery J in Merstham Manor Ltd v Coulsdon & Purley UDC (1936) 2 All ER 422 at pages 438 to 439.

48. Mr Ainger accepts that these dicta were obiter, but they were sited with approval by Sedley J in Issac v The Secretary of State for the Environment and Devon County Council (unreported) the transcript is dated 10th November 1995.

49. A similar approach to the relevance of Tithe maps seems to have been adopted by Goff J, as he then was, in Attorney-General v Beynon (1970) 1 Ch 1. During the course of argument on a preliminary point. In the event, Goff J looked at Tithe map de bene esse, for the purpose of determining the boundary of a way.

"Tithe maps have been held to be admissible in evidence to prove the existence of a road, but again they are not evidence as to the status of the road thereby recorded, nor as to the extent of any public right of way which might exist over any road."

51. Mr Hobson submits that Tithe maps are not irrelevant. They are part of the historical background and may be taken into consideration. In Kent County Council v Loughlin (1975) 235 EG 681, Lord Denning, MR, had thought that the Tithe maps were of great value. In the present case

52. Mr Millman's approach, which was accepted by the Inspector, was not to say that the Tithe map information was conclusive, or that because a highway was shown on the Tithe map for 1839 there must have been a public highway at that date. He accepts that such an approach would have been far too simplistic and in conflict with the data cited above.

"5.26....Most roads are shown in ochre, although some, those crossing open fields, are not. It is unlikely that the colouring of a road is used to distinguish public from private, since some road which may have been private roads running thorough parks, for example at Hyde Hall, are coloured ochre.

5.27 Some of the roads have a plot number corresponding to an entry in the Apportionment. Roads which cross private parks and which are shown bounded by pecked lines do not apparently have separate plot numbers, but usually it is apparent that they are included with the surrounding land because they are shown braced together. Generally the areas of the map which do not have a plot number and are not braced in with other plots are either those which more or less correspond with what are now country roads, or the rivers.

5.29 I conclude that if a route is shown on the Tithe Map without a plot number, it is probable that it was, at that time, a public vehicular road, and therefore will be now, unless legally stopped up or diverted. Sawbridgeworth 42 is such a route, and I conclude that its representation on the Tithe Map shows that it is probably a public vehicular highway."

"5.34 The evidence from the Apportionment shows that roads which were in private ownership were included individually in the body of the apportionment. Roads over which there were public rights were likely to be included in the total'Roads in Parish' set out in the list at the end of the Summary, but these were not, unlike Waste Land, listed separately. Such roads can therefore only be identified by their absence of listing in the body of the Apportionment. The route of Sawbridgeworth 42 is not listed in the Apportionment, and therefore I conclude that it was considered at the time to be a public road."

55. In the light of those submissions, my conclusions under issue (3) are as follows: Hilbury J's comments are acknowledged to have been obiter, and it is not clear how the evidence from the Tithe maps was deployed before him or before Sedley J. Goff J, in ruling on the preliminary point in the case before him was not concerned with the issue which arises before me.

56. The Tithe map and apportionment evidence is undoubtedly relevant as to both the existence, and physical extent, of a way at the relevant time (see the Beynon and Loughlin cases and Sauvain). Because both public and private roads were not tithable, the mere fact that a road is shown on, or mentioned in, a Tithe Map or Apportionment, is no indication as to whether it is public or private.

57. But if detailed analysis shows that even though he was not required to do so, the cartographer, or the compiler of this particular map and apportionment, did in fact treat public and private roads differently, whether by the use of different colours, the use or non-use of plot numbers, or other symbols, or in schedules or listings, I do not see why evidence based upon such analysis should not be admissible as to the existence, or non-existence of public rights of way. Whether the analysis does lead to such a conclusion, and if so, what weight should be attributed to the conclusion is a matter for the Inspector. Since it was not one of the purposes of the 1836 Act to distinguish between public and private roads, such information as can be derived from the Tithe Map and Apportionment cannot be conclusive, and must by its very nature be tentative, but the Inspector was not obliged, as a matter of law, to conclude that

59. The Inspector accepted, in paragraph 30 of the decision letter that the "Tithe and Finance Data is not conclusive", but he gave "greater weight" to this "relatively objective evidence", rather than to the private documents, which I have dealt with under issue (2) above.

61. I have set out the passages in the decision letter which make it clear that the Inspector accepted Mr Millman's approach to the conclusions to be drawn from this evidence. Having described the procedure for the inspection of each hereditament under the 1910 Act, and that provision was made for a reduction in the value of the hereditament if it was subject to, for example, public rights of way, Mr Millman said this:

"5.47 I have looked at dozens of Inland Revenue plans. In the vast majority of cases uncoloured routes correspond to what are now Country Roads, or were before being stopped up or diverted by legal process. Therefore it is prima facie likely that a road shown uncoloured will be a public vehicular road. This view is supported by a reasonable interpretation of Instruction 560, mentioned above at 5.42.

5.48 Roads running across country parks where the ownership is the same on both sides are coloured in and not shown excluded from hereditaments. The road leading from the South Lodge to Great Hyde Hall is an example. It is part open and part fenced both sides. Part of the route of Sawbridgeworth 42 runs between plots in the same ownership, but it is uncoloured. The most likely reason for the difference in representation is that the road to Great Hyde Hall was private, the route of Sawbridgeworth 42 public.

5.49 Some routes running between hereditaments where the ownership is different on each site are coloured in and given a hereditament number. An example is the route which is given the plot number 564 on the Sawbridgeworth Tithe map and is described in the Apportionment as a lane, with an owner and occupier. On the Inland Revenue map it is shown as part of hereditament 123, but it is abutted by hereditaments 246 and 805. Most of Sawbridgeworth 42 runs between hereditaments in different ownership, yet is not coloured in. The most likely reason is that it is a public road.

5.50 It is reasonable, then, to assume that if a route is shown uncoloured it is a public highway, and in the absence of evidence to indicate that it could not physically be a carriageway, that it carries vehicular rights. On three occasions I have seen routes uncoloured which were too narrow to have been vehicular routes.

5.51 On the Inland Revenue plan for Sawbridgeworth, the route of Mill Lane is left uncoloured, as is also a route continuing over the sluice, along the bank of the Stort Navigation, and across the bridge to the towpath on the eastern bank. I conclude that the rout as far as the bridge is probably a public vehicular highway, but that the route over the bridge is only possibly a public vehicular highway, because the width and strength of the bridge raise some doubt.

62. From the ordinary meaning of the word 'road' I conclude that the'road leading down to Sawbridgeworth Mills', which can from the plans be seen to be identified with Mill Lane, was a vehicular highway."

63. Mr Ainger submits that Mr Millman made a number of errors in this evidence, which the Inspector in turn adopted in his conclusions. Mr Millman ignored the survey under the 1910 Act which stated that Plot 196 had a deduction of £10 for a right of way. Mr Ainger submits that this deduction must have been referable to a conveyance of 1907, which imposed a liability to contribute to half the cost of repairs of the lane. Here there was no evidence of any public expenditure on the maintenance of the way. If the way had been maintained at public expense prior to 1836 it would have vested in Sawbridgeworth Urban District Council. Under section 35 of the 1910 Act, not referred to by Mr Millman, no duty was to be charged on land held by or on behalf of a rating authority. One would therefore have expected an express statement that the lane was not chargeable to duty by virtue of section 35, but there was no such indication.

64. He advanced a different interpretation of instruction 560, which was referred to by Mr Millman. He also made the point that if, on the strength of the Tithe Apportionment and map, one is invited to conclude that the way was a public highway by 1838, it is difficult to understand why it was not a public highway two years earlier in 1836. If it was a public highway at that time, then it would have vested in the Highway Authority under the Public Health Act 1875. One would have expected to see evidence of expenditure upon maintenance and some reference to the exception under section 35 in the 1910 Act material.

65. Mr Hobson's submissions in respect of the 1910 Act material echo his submissions under issue (3), which I have dealt with above. He submits that if a way is shown uncoloured on the plan prepared under the 1910 Act, it is of corroborative evidential value, but it is not in any way conclusive. He cites paragraph 2-73 of Sauvain:

"The Finance Act 1910 introduced the increment value duty on land. Landowners were able to apply for a reduction in the duty payable in respect of their land where that land was crossed by public rights of way. The maps and the registers held by the Public Records Office, when read together, may be evidence, therefore, of the existence of rights of way over particular plots of land. These records, although using an ordnance survey base, do not identify the route of the right of way and, therefore, are generally only of corroborative evidential value."

66. He submits that Mr Millman looked into detail at the maps and field book entries for this particular area to see what could be deduced from them. He did not approach the issue in a simplistic manner: if the way is shown uncoloured on the 1910 Act it may be presumed to be a public highway. He accepts that such a generalised approach would not have been appropriate.

67. Mr Hobson accepts there may well be other alternative interpretations of the 1910 Act material. For example, he submitted that the £10 deduction for a right of way was most probably referable to a way marked "right of way" on the Inland Revenue map within Plot 196 itself. But, he submitted, the Inspector had considered in paragraph 30, the alternative explanations, in the light of the evidence-in-chief and the cross-examination of Mr Millman, and had concluded that Mr Millman's interpretation was to be preferred on the balance of probabilities: this he was entitled to do. I accept Mr Hobson's submissions on this point. It is true that different explanations can be advanced for what is shown in the 1910 Act material. The Inspector was entitled to consider whether Mr Millman's explanation seemed the more likely on the balance of probabilities. He was entitled to treat this information as being of some corroborative value. He was not obliged to regard it as neutral, as submitted by Mr Ainger. Whether he was entitled then to give it "greater weight", than the previous documents, I will consider after dealing with issues (5) and (6).

68. Mr Ainger submitted that the Inspector erred in concluding, in paragraph 30 of the decision letter that there was no effective challenge to the public's use of the way in 1965. He pointed to evidence before the Inspector that a chain had sometimes been placed across the way and a notice stating that it was private property had been displayed. That evidence is summarised by the Inspector in paragraph 15 of his decision letter.

69. Mr Ainger submits that such conduct was sufficient to bring right of public to use the way in question. There did not have to be an actual interruption of the user. He referred to Fairey v Southampton County Council (1956) 2 QB 439, in which Denning LJ, as he then was, had stated at page 457, that if the public did nothing in response to such a challenge, "the acquiescence of the public tends to show that they have no right of way."

70. Mr Hobson submitted that by analogy with the questions whether user was as of right, and whether there was sufficient evidence of lack of intention to dedicate, whether conduct was sufficient to bring the right of the public to use the way into question, was also a matter of fact to be determined by the Inspector. He referred to the dicta of Rose LJ in R v The Secretary of State for the Environment ex parte Cowell (1993) JPL 851 at 856:

71. He then answered that question by looking at the evidence before Quarter Sessions and concluded there was sufficient evidence before the Justices to support their finding that there had been a challenge in 1931.

72. I accept Mr Hobson's submissions upon this issue. There was ample evidence on which the Inspector could conclude that whereas there was no effective challenge in 1965, there was an effective challenge in 1982, so effective indeed that it led to no less than 136 local residents completing user evidence forms. It is unnecessary to consider what role, if any, "acquiescence" may play in such inquiries, because in this case far from there being any acquiescence, there was very substantial opposition to the effective challenge in 1982.

73. In any event, this point seems to me to be academic, because whether the 20 year period in section 31 of the Highways Act 1980 is taken to run back from 1965 or 1982, there was ample evidence of user on foot for well in excess of the requisite period.

74. Mr Ainger submitted that there had been unfair conduct by the County Council and the Inspector at the second inquiry. Between the first and the second inquiries a large scale plan, dated from 1772, was donated by Harlow Museum to the County Council's archives. Mr Millman sent a letter to the Planning Inspectorate, with a copy to the applicants, which said inter alia:

"Since the first Inquiry, a large scale plan of the Stort Navigation dating from 1772, probably associated with the Act of 1766, had been donated to the County Archives by Harlow Museum. The reference is D/Ex 941 P1. I have seen it and I do not believe that it adds to, or detracts from, the case put forward by the Council at the first Inquiry. If anyone wishes to look at this plan, it is available for inspection in Hertfordshire Archives and Local Studies (ex County Record Office)."

78. I am unable to accept that criticism. Mr Millman acted with complete propriety. He did not consider the map to be of any particular significance, but he nevertheless drew to the Applicants attention and said they could look at it if they wished.

79. The Applicants were free to do so, and to make whatever submissions they chose about it. Mr Ainger also submitted that the Inspector had unfairly restricted the evidence at the second inquiry. I find it unnecessary to decide the extent to which the Inspector was entitled to restrict the evidence at the second inquiry to his proposal to modify the order as made by the County Council, and to decline to embark upon a reconsideration of the evidence relating to the merits of the order as a whole, because it is plain that the Inspector did take all the submissions which the Applicants wished to make into account. He summarised them in paragraphs 6 to 9 of the second decision letter, even though they reiterated to a very large extent arguments which had already been well ventilated at the first inquiry.

81. There was ample material which would have entitled the Inspector to conclude that a public footpath had been established over this way, notwithstanding the right to use accommodation works under the 1766 Act. The evidence of pedestrian user was, as the Inspector put it, "very persuasive". But the order made by the Inspector did not add the way to the definitive map as a footpath, it was as added a BOAT. One therefore has to ask the question, what material was there before the Inspector which was capable of justifying the conclusion that further public rights of way, on horseback, or leading a horse, or with vehicles had been established. Questions of weight are for the Inspector, but one must be able to identify some material on which he would reasonably have concluded that, on the balance of probabilities, a BOAT had been established.

82. Paragraph 31 of the decision letter describes the documentary evidence and the user evidence as being "mutually supportive". In my view that conclusion was erroneous as a matter of law on two grounds.

83. First, the documentary evidence. I have indicated in answer to issues (3) and (4) above, that the Inspector was entitled to place some weight on the Tithe and Finance Act material. Once some weight can be placed on a piece of evidence, the amount of weight to be placed upon it is normally a matter for the Inspector, but there does come a point when the court is entitled to say: no reasonable Inspector could prefer one piece of evidence to another. It will be less difficult for the court to reach that conclusion where, as here, the evidence consists of documents, as opposed to an assessment of the credibility of witnesses giving oral testimony.

84. I can well understand the proposition that, in general terms, greater weight should be attached to "relatively objective" public documents, rather than private documents. But in applying that general approach to the Tithe map information in this case, one has to ask the question: what was the statutory purpose of the Tithe Map and Apportionment? Or, to put it another way, what was the information about which they might be expected to be "reasonably objective"? Since it was not the purpose of the Tithe Map and Apportionment to distinguish between public and private highways, it is difficult to see why they should be accorded any greater weight than private documents when they are being used for the purpose of answering this particular question, rather than, for example, the question whether there was a way (public or private) across tithable land, at a particular time, and if so, what was the boundary between the way and tithable land.

85. The private documents before the Inspector spanned a period of many years. They dealt specifically with the way in question, and were entirely consistent with the existence of a private carriageway to the mill and the accommodation bridge. In some cases private documents might be regarded as less reliable than public documents because, for example, they might be self serving, or they might be based on inadequate information because of the absence of detailed investigation and any opportunity for what would nowadays be described as public consultation. But there is considerable force in Mr Ainger's submission that, to take the example of the 1907 conveyance, there would have been no point in imposing conditions dealing with the cost of keeping the lane and the river bridge in repair if the way was a public highway. These were onerous repairing obligations. Both parties to the conveyance would have had every reason to ascertain the true position and then to reflect it in the conveyance.

86. I am not allowed to substitute my own assessment of the documentary evidence (public and private) for that of the Inspector. I do not do so, but I do conclude that in view of the limited weight that could properly be attached to the Tithe map information for the purpose of deciding whether a way was public or private in 1838, and the "corroborative" role of material prepared under the Finance Act, the most that could reasonably have been concluded against the Applicants was that the documentary material, when viewed as a whole, was neutral, with indications pointing both ways.

87. Looking at the documentary evidence as a whole, both the public and the private documents, I do not consider that it could reasonably have been concluded that it was supportive of the existence of public rights of way on horseback, or leading a horse, or with vehicles, rather than a private carriageway for such purposes, leading to the mill and to the lock.

88. Even if I am wrong about that, and the Inspector could reasonably have concluded that the documentary evidence was supportive of a BOAT, he based his decision upon the proposition that it and the user evidence were "mutually supportive".

89. The second error relates to his treatment of the user evidence in the light of the 1766 Act. I will not repeat my conclusions under issue (1) above. It is sufficient to say that the evidence of user on horseback or leading a horse, or with vehicles, was not merely very limiting, it was prima facie capable of being referable to the 1766 Act, and the Inspector failed to consider whether, on the balance of probabilities, that was in fact the case.

90. Since the Inspector did not suggest that either the documentary evidence or the user evidence was sufficient on its own to justify his conclusion that the way should be classified as a BOAT, even if he had erred in respect of the user evidence alone, his decision would have been fatally flawed.

91. As I mentioned at the beginning of this judgment, the County Council made this modification order as long ago as 1995. It is a matter for considerable regret that I do not have power under the 1981 Act to remit the decision for reconsideration. My only power is to quash the order. Mr Hobson did not submit that I should decline to quash the order in the exercise of my discretion if I concluded that the Secretary of State had erred in law on either of the two grounds that I have identified. It follows that the order must be quashed and this lengthy process must be begun afresh. I can only hope that this judgment may be of some assistance to both the County Council and the Applicants in deciding whether a public footpath, rather than a bridal way or a BOAT may reasonably be alleged to exist over the way leading to the towpath, which is itself a public footpath.

94. MR JUSTICE SULLIVAN: We discussed this the other day. It is a statutory challenge, so you do not need leave if you want to appeal in any event. Very well, the order is quashed. The Applicants to have their costs paid by the Respondent. Thank you, Mr Hobson, for your very helpful submissions, and, Mr Waterworth, if you will pass on my thanks to Mr Ainger when he returns from sunnier climes.

England and Wales High Court (Administrative Court) Decisions

MALTBRIDGE ISLAND MANAGEMENT COMPANY v. SECRETARY OF STATE FOR ENVIRONMENT and HERTFORDSHIRE COUNTY COUNCIL [1998] EWHC Admin 820 (31st July, 1998)

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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Maltbridge Island Management Company v Secretary Of State For Environment & Anor [1998] EWHC Admin 820 (31 July 1998) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/820.html Cite as: [1998] EWHC Admin 820