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APPLEGARTH v. SECRETARY OF STATE FOR ENVIRONMENT TRANSPORT AND REGIONS [2001] EWHC Admin 487 (28th June, 2001)
Neutral Citation Number: [2001] EWHC Admin 487
IN THE HIGH COURT OF JUSTICE CO/4792/2000
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MUNBY
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 28th June 2001
Before:
MR JUSTICE MUNBY
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APPLEGARTH
v
SECRETARY OF STATE FOR THE ENVIRONMENT TRANSPORT AND THE REGIONS
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Applegarth appeared in person
Mr Michael Bedford appeared on behalf of the Secretary of State
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Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE MUNBY:
1 This is an application pursuant to paragraph 12 of Schedule 15 to the
Wildlife and Countryside Act 1981 by John Speed Applegarth, who is and has at
all material times been the owner of a property known as Boldon Hall. Mr
Applegarth acts in person. He has taken enormous trouble in researching and
preparing his case which he has presented, both on paper and orally, with, if I
may say so, great care, skill, lucidity, courtesy and moderation.
2 Boldon Hall is in what users of Pevsner would consider County Durham.
Immediately prior to local government re-organisation in 1974 what I will call
`old' County Durham included the whole of historic Durham up to the River Tyne
save for South Shields which was a County Borough. At that time the area in
which Boldon Hall lies was in the Urban District of Boldon and consequently
within the jurisdiction of Durham County Council ("DCC"). In 1974 parts of old
County Durham on the south bank of the River Tyne, including importantly the
area in which Boldon Hall lies, were removed from County Durham and
incorporated in the new Tyne and Wear County Council ("TWCC"). Following
further local government re-organisation the area in which Boldon Hall lies was
incorporated in the new South Tyneside Metropolitan Borough Council ("STMBC").
It is common ground that the local authorities with responsibility for highway
matters in the area in which Boldon Hall lies have been successively DCC, TWCC
and now STMBC.
3 The present dispute relates to a strip of land, which as I understand it is
the principal access to Boldon Hall and which for convenience, and without
making any assumptions or assertions either as to it's physical state or its
legal status, I will refer to as the road. It is common ground that Mr
Applegarth has vehicular rights of access over the road: precisely what those
rights are is a matter of controversy, to which I must return in due course.
TWCC asserted and STMBC asserts, though Mr Applegarth disputes, that the road
is also a public bridleway.
4 It is common ground that under the National Parks and Access to the
Countryside Act 1949 it was the obligation of DCC to prepare a Definitive Map
and Statement showing public rights of way. It is also common ground (i) that
it was open to DCC either to prepare one Definitive Map and Statement for the
whole of old County Durham or to prepare different such documents for different
parts of old County Durham and (ii) that DCC in fact chose the former
procedure. It is further common ground that DCC prepared its Definitive Map and
Statement in 1952 (the "relevant date" being 1 November 1952), that the
Definitive Map and Statement was reviewed by DCC in 1957, 1962 and 1967 (the
"relevant date" being 1 October 1967), and that at the time of local government
re-organisation in 1974 DCC was in the course of conducting, though it had not
completed, a limited special review under Schedule 3 of Part III of the
Countryside Act 1968 (the "relevant date" for which was 1 January 1973).
Finally it is common ground that the road was not recorded on the
Definitive Map and Statement as a public right of way either at the date of the
limited special review or, indeed, at any time prior to local government
re-organisation in 1974.
5 The dispute between Mr Applegarth and TWCC and, more recently, STMBC goes
back many years and is enormously complicated. There is no need for me to set
out the history. It culminated, for present purposes, in the making by STMBC on
10 August 1995 of a modification order under section 53(2)(b) of the 1981 Act
the effect of which, if validly confirmed by the Secretary of State in
accordance with Schedule 15 to the 1981 Act, was to add the road to the
Definitive Map and Statement (that is, to the Definitive Map and Statement
prepared by DCC in 1952, as reviewed by DCC in 1957, 1962 and 1967) and show it
as a public bridleway.
6 Mr Applegarth objected to the order. His objection was heard before an
Inspector, Sir Norman King KBE, at a public local inquiry in 1996. Sir Norman
decided not to confirm the order, his decision being set out in a decision
letter dated 11 March 1997. His decision was challenged by STMBC by way of
judicial review and on 19 May 1998 Carnwath J made an order by consent quashing
the decision. The question of confirmation of the order therefore fell to be
redetermined by the Secretary of State. Mr Applegarth and STMBC agreed to
proceed by way of written representations rather than by public inquiry. This
time the Inspector was Mr Brian Drury JP MA MEd. By his decision letter dated
24 November 2000 - a lengthy document running to over 28 pages - he decided to
confirm the order.
7 On 28 December 2000 Mr Applegarth issued his proceedings in the High Court.
The relief he seeks is (i) an order to quash the decision by Inspector Drury "
as being unsound in law and perverse to the documentary evidence" and (ii) a
declaration that no public rights of way exist over the road. In the details of
his claim he sets out seven `Grounds of Appeal' which embody nine
`Submissions'. He also filed a skeleton argument dated 10 February 2001 which
identifies seven `Issues' and adds a further `Submission', in effect a further
ground of what Mr Applegarth would call appeal. At the commencement of the
hearing before me on 11 June 2001 he helpfully handed in the note of argument,
cross-referenced to the documents, which he had prepared for his own use. Mr
Michael Bedford of counsel who appeared before me on behalf of the Secretary of
State had prepared a skeleton argument dated 29 May 2001, paragraph 1.2 of
which contained in tabular form a helpful and as it seems to me accurate
analysis of the inter-relationship between the various `Grounds', `Submissions'
and `Issues'.
8 Part 2 of Mr Bedford's skeleton argument contained a dispassionate and
accurate summary of the background to the case. I take from paragraphs 2.6 and
2.7 of his skeleton the following summary of the Inspector's findings:
"The basis on which the Inspector confirmed the order was that he was satisfied
that the requirements for deemed dedication of a highway under section 31(1) of
the Highways Act 1980 were met and as such there had been an "event" within
section 53(3)(b) of the 1981 Act so as to justify the making of the order under
section 53(2)(b) and its confirmation under paragraph 7 of Schedule to the 1981
Act. In particular the Inspector reached the following conclusions:
(1) the right of the public to use the way had been brought into question by
the actions of Mr Applegarth in 1979;
(2) the relevant 20 year period was therefore 1959 to 1979;
(3) throughout that period there was public use of the way as a bridleway as
of right;
(4) within that period there was no effective interruption of the way;
(5) there was not sufficient evidence of a intention on the part of the
landowner not to dedicate the way as a highway;
(6) the way was of such a character that public use of it could give rise at
common law to a presumption of dedication.
In particular the Inspector rejected Mr Applegarth's case that private rights
reserved under an 1888 conveyance in favour of Mr Applegarth (amongst others)
were incompatible with the subsequent creation of public rights over the
way."
9 I need not set out sections 53(2)(b) and 53(3)(b) of the 1981 Act. I shall
set out the material parts of section 31 of the Highways Act 1980 a little
later.
10 I can now turn to deal in turn with each of Mr Applegarth's complaints about
the Inspector's decision. I agree with Mr Bedford that it is convenient to do
by considering in turn each of Mr Applegarth's `Grounds', including in each
case the relevant `Submissions' and `Issues'. I start with Grounds 1 and 2
which can, I think, conveniently and appropriately be considered together.
11 Before doing so, however, I should make clear the nature of the court's
function. Mr Applegarth does not have a right to "appeal" to the High Court.
Paragraph 12 of Schedule 15 to the 1981 Act gives him, as a "person aggrieved"
a right to "make an application to the High Court". The effect of paragraphs
12(2) and 12(3) is that I cannot interfere, whatever my own view of the merits
of Mr Applegarth's contentions might be, unless I am "satisfied" either (i)
that the modification order made by STMBC on 10 August 1995 is not within the
powers of sections 53 and 54 of the Act or (ii) that Mr Applegarth's interests
have been "substantially prejudiced" by a failure to comply with the
requirements of Schedule 15. Even if I am so satisfied my only power is to
"quash" the modification order in whole or part. It follows that I have no
power to grant Mr Applegarth any declaration or other relief.
12 I ought also to add, as both Mr Applegarth and Mr Bedford will, I am sure
appreciate, that it is neither necessary nor appropriate for me to deal in this
judgment with the detail of every submission they made. I should, however, make
it clear that I have of course considered very carefully everything that Mr
Bedford and, more particularly Mr Applegarth, put in front of me, whether in
their written materials or in the course of their oral submissions.
Grounds 1 and 2
13 The issue here, as Mr Applegarth identifies it (Issue 1), is as to the
procedures the Inspector should have followed given the basis upon which
Carnwath J had quashed the earlier decision. Without going into the matter in
any great detail the background to Mr Applegarth's complaints under this head
is that, although the reason why Sir Norman's decision had been quashed by
Carnwath J was because of legal error on Sir Norman's part in construing
section 31 of the 1980 Act, STMBC by what appears to have been a most
unfortunate error issued a public invitation to any persons interested to
submit further factual representations. No fewer than thirty-two such
representations were received, all supporting confirmation of the order. Those
representations were duly considered by the Inspector in arriving at his
decision though Mr Applegarth's expectation had been that Mr Drury would simply
take the facts as found by Sir Norman following the 1996 public inquiry and
confine himself to dealing with points of law.
14 Mr Applegarth complains first (Grounds 1 and 2 and Submission 1) that the
Inspector acted outside the terms imposed by the consent order in improperly
taking into account the representations obtained by what he calls "irregular
means" and which formed no part of the evidence given to the public inquiry in
1996 and, secondly (Submission 2) that by considering what he calls "this alien
evidence" the Inspector has disadvantaged him and breached the principles of
natural justice.
15 In response Mr Bedford made a number of submissions which, in my judgment,
were plainly correct and to which, at the end of the day, Mr Applegarth had no
effective answer. Reduced to essentials Mr Bedford's case was based on four
propositions, with each of which I agree.
16 The first was that the proceedings before the Inspector had necessarily to
be conducted within the framework of Schedule 15 to the 1981 Act and, in
particular, in accordance with paragraphs 7 and 8. The Inspector's obligation
in these circumstances was to consider the merits of the modification order as
a whole - whether to confirm it with or without modifications - and to consider
any evidence relating to it unconstrained by the terms of the particular
objection which had triggered the process. That obligation to consider all the
evidence was in no way reduced or modified either by the fact that the parties
had agreed to adopt the procedure of written representations or by the fact
that, in circumstances which probably no-one had envisaged, STMBC solicited
further evidence from the public. The Inspector simply had no power under
Schedule 15 to disregard any relevant material which had been brought to his
attention.
17 In this connection Mr Bedford referred me to Marriott v Secretary of
State for the Environment Transport and the Regions [2001] JPL 559 at
p 575 where Sullivan J said:
"the scope of inquiries held under both paragraphs 7 and 8 is not defined by
the terms of the objections which have been duly made. Once an objection has
been duly made and an inquiry has to be held under paragraph 7, the Inspector
is obliged to consider the merits of the Order as a whole - whether to confirm
it with or without modifications - and must consider any evidence relating to
the Order, unconstrained by the terms of the particular objection or objections
which triggered the need for the paragraph 7 inquiry."
At p 576 Sullivan J said that the Inspector
"was obliged to take account of all relevant considerations of which he became
aware up to the time when he was able to make his final decision under
paragraph 7."
I respectfully agree.
18 Mr Bedford's second proposition was that the terms of Carnwath J's order did
not, and indeed could not, circumscribe the procedure to be adopted by the
Inspector. There is nothing in Carnwath J's order which even purports to
identify let alone to prescribe the procedure to be adopted: it merely
envisaged that the Secretary of State would "proceed to reconsider whether or
not to confirm the Modification Order". Moreover, as Mr Bedford correctly
pointed out, Carnwath J would have lacked any power to prescribe the
appropriate procedure. In the first place, his only power was to quash Sir
Norman's decision. Secondly, there is in any event no judicial power to vary
the statutory procedures mandated by Schedule 15.
19 Mr Bedford's third proposition was that The Town and Country Planning
Appeals (Determination by Inspectors) (Inquiries Procedure) Rules 1992 to which
Mr Applegarth referred have and had no application to the task upon which the
Inspector in this case was embarked.
20 Mr Bedford's final proposition was that the Inspector's consideration of the
additional evidence generated as a result of STMBC's error did not in fact
disadvantage Mr Applegarth in any way, or cause him any unfairness, or breach
the principles of natural justice. I have no doubt that Mr Applegarth's initial
assumption was - and, I might add, quite reasonably - that the Inspector's task
would be limited, in effect, to re-visiting the point of law in relation to
which Sir Norman was found to have to have fallen into error. But as Mr Bedford
was able to demonstrate wholly convincingly, having taken me through the
relevant correspondence, the short, simple and ultimately determinative facts
are that (i) the whole of the new material was supplied to Mr Applegarth and
his comments were invited (see the letter dated 19 May 2000), (ii) at no stage
did Mr Applegarth indicate that he no longer wished the Inspector to proceed by
way of the written representations procedure and (iii) Mr Applegarth did in
fact comment on the additional evidence (see his letters dated 31 May 2000 and
27 July 2000) and those comments were considered and taken into account by the
Inspector. Put shortly, says Mr Bedford, the procedure adopted enabled Mr
Applegarth to comment on all the evidence and met the essential requirements of
fairness and natural justice. I agree.
21 As I have said I agree with Mr Bedford's submissions. At the end of the day,
having anxiously considered everything Mr Applegarth has said and the whole of
the correspondence, I am quite satisfied that there was here no failure to
comply with the requirements of Schedule 15. I am equally satisfied that the
procedures fairly and appropriately adopted by the Inspector did not prejudice,
let alone substantially prejudice, Mr Applegarth's interests.
22 Accordingly I reject Mr Applegarth's grounds 1 and 2.
Ground 4
23 It is convenient next to consider the question of exactly what rights Mr
Applegarth has in relation to the road.
24 It is common ground that the rights are those set out in the abstracted
Indenture dated 31 December 1888 relating to the sale by the then owners of
Boldon Hall of land known as Hall Farm which, it is also common ground,
included part at least of the road. I use the word sale for simplicity
although, being copyhold, the land was in fact surrendered to the Lord of the
Manor by the vendors and then re-granted by him to the purchasers. Nothing,
however, turns on this technicality.
25 It appears from the Abstract dated 8 April 1938, which is the only document
we have, that the sale of Hall Farm was expressed to be "excepting the rights
of way in over and along the same hereinafter expressed" and that the
conveyance was to contain the following covenant (I have added numbering for
ease of reference; the original text is continuous and unpunctuated):
"a covenant
[1] (a) by the purchaser for himself his heirs and assigns with Wright [he was
an encumbrancer] his heirs and assigns
(b) and also a separate covenant and agreement with Bamlett and Robinson [they
were the vendors] their heirs and assigns
[2] (a) That Wright his heirs and assigns
(b) and that Bamlett and Robinson their heirs and assigns
(c) and that his and their agents servants and workmen
(d) and that the owners and tenants and occupiers for the time being of the
lands and hereditaments both (i) of Bamlett and Robinson (ii) and of other
persons adjacent to and lying to the North of the said premises hereby
covenanted to be surrendered and between the points where the letters A and B
were placed on the said plan
(e) and that all persons to whom Wright Bamlett and Robinson or the heirs or
assigns of them or any of them might thereafter grant the like right and
privilege
[3] should and might have use and enjoy full and free liberty license and
authority at his and their will and pleasure whether by day or by night and for
all purposes whatsoever at all times thereafter to go and return pass and
repass with and without horses carts waggons and carriages of any description
laden or unladen and also to drive all manner of cattle and beasts whatsoever
in over and along [the] road."
26 Now Mr Applegarth's complaint (Ground 4 and Submissions 6, 7 and 8) is that
the Inspector (a) has misunderstood and ignored the benefits retained by the
owners of Boldon Hall - that is, as matters stand today, by Mr Applegarth
himself - by virtue of that covenant, and in particular has misunderstood and
ignored limb [2](e) of the covenant, and (b) has questioned the validity of the
covenant without any grounds for doing so and, in particular, without having
properly considered section 84 of the Law of Property Act 1925.
27 I am quite satisfied that there is no substance in either of these
complaints, which (and this is no criticism of a layman trying to grapple with
the complexities of nineteenth century copyhold conveyancing) are based on a
fundamental misunderstanding on Mr Applegarth's part of the nature of his
rights under the 1888 Indenture.
28 Were the question ever to arise I can see there might be interesting
questions as to whether Mr Applegarth's rights under the 1888 Indenture take
effect as easements and/or sound in covenant and also as to the precise effect
of a covenant such as that contained in limb [2](e). For present purposes,
however, nothing turns on such points. I am quite willing to assume, as did the
Inspector, that all of the rights purportedly granted to Mr Applegarth are
vested in him and, indeed, that all those rights remain in full and
undiminished force and effect. So far as I am aware, no-one has suggested the
contrary.
29 But despite Mr Applegarth's ingenious arguments to the contrary, three
things are in my judgment absolutely clear. First, that Mr Applegarth's rights
in relation to the road are private law rights. Secondly, that however
extensive the rights vested in him, and notwithstanding the very wide power
conferred on him by limb [2](e), none of these rights extends so far as to vest
in Mr Applegarth any part of the soil even of the surface of the road. In these
circumstances his reference to such cases as Mayor of Tunbridge Wells v
Baird [1896] AC 434 and Wiltshire County Council v Frazer
(1983) 82 LGR 313, 47 P&CR 69 is, I am afraid, misconceived - they are
simply beside the point. Thirdly, that however extensive the rights vested in
him, and notwithstanding the very wide power conferred on him by limb [2](e),
none of these rights extends so far as to remove from the owner of the soil of
the road the power to grant, if he so wishes, both private and
public rights of way over the road. I agree with Mr Bedford that, as a
matter of construction of the 1888 Indenture, there is no question of Mr
Applegarth having exclusive or exhaustive rights over the road. That being so,
there was no impediment to the owner of the road, whoever he was, subsequently
granting (whether expressly or by deemed dedication) a public right of
bridleway over the road.
30 It follows that there is no substance in and I accordingly reject Mr
Applegarth's ground 4.
Grounds 5 and 6
31 I propose to consider next grounds 5 and 6, for they both relate to the
proper approach which the Inspector had to adopt if he was correctly to apply
section 31 of the 1980 Act and avoid falling into the same error as Sir Norman.
Section 31 provides so far as material as follows:
"(1) 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 unless there is sufficient evidence that there was
no intention during that period to dedicate it.
(2) The period of 20 years referred to in subsection (1) above is to be
calculated retrospectively from the date when the right of the public to use
the way is brought into question, whether by a notice such as is mentioned in
subsection (3) below or otherwise.
(3) Where the owner of the land over which any such way as aforesaid passes
-
(a) has erected in such manner as to be visible to persons using the way a
notice inconsistent with the dedication of the way as a highway, and
(b) has maintained the notice after the 1st January 1934, or any
later date on which it was erected,
the notice, in the absence of proof of a contrary intention, is sufficient
evidence to negative the intention to dedicate the way as a highway.
(7) For the purposes of the foregoing provisions of this section "owner", in
relation to any land, means a person who is for the time being entitled to
dispose of the fee simple in the land."
32 For the purpose of this part of his submissions Mr Applegarth accepts, and
indeed relies upon the fact, that he is not the owner of the road within the
meaning of section 31(7). In making that assertion he is, on any footing, quite
plainly correct for, whatever the merit of his arguments in relation to ground
4, and even taking the most expansive view of his rights in relation to the
road, Mr Applegarth does not claim the right to dispose of the fee simple in
the road.
33 What Mr Applegarth says is first (Ground 5 and Submissions 4 and 5) that
the Inspector has failed to address the question, which arises under section
31(1), of whether or not an unknown owner would have had the intention to
dedicate the road to the public use and, secondly (Ground 6 and Submission 9),
that the Inspector has failed to determine whether, for the purposes of section
31(2), a person other than the owner of the land in fee simple can bring the
right of the public to use the way into question. In relation to the first of
these complaints Mr Applegarth submits that the Inspector erred in law in his
application to a case where, as Mr Applegarth would have it, the owner of the
land is unknown, and whose intentions therefore cannot be investigated, of the
decision of the Court of Appeal in Ward and Ward v Durham County Council
(1994) 70 P&CR 585, a case he says which concerned a known owner who could
be questioned with respect to his intentions towards dedication.
34 The points arise because, as Mr Bedford points out, the Inspector in
paragraph 6.26 of his decision letter found Mr Applegarth to be "the only
person who is claimed to have taken any action during the relevant period that
would indicate an intention not to dedicate". As Mr Applegarth puts the point
(Submission 9) the Inspector erred in law by concluding, in paragraph 6.4 of
the decision letter, that by exercising his private rights to give or deny
permission to use the road as conferred on him by the covenant, he had brought
the public's right to use the road into question. According to Mr Applegarth
the 1980 Act makes it clear that it is the actions of the landowner in fee
simple, and no-one else, which bring a public right of way into question.
35 Section 31(1) provides for a statutory presumption of dedication by the
owner ("the way is deemed to have been dedicated as a highway") upon proof of
user of the appropriate quality for at least 20 years
"unless there is sufficient evidence that there was no intention during
that period to dedicate it (my emphasis)".
It will be noted that the statute does not specify any particular person as
having the burden of adducing evidence "sufficient" for that purpose. That, I
have no doubt, was quite deliberate. The statutory burden of rebutting the
statutory presumption in my judgment lies, as Mr Bedford submitted, on whoever
in the particular case needs to rebut the presumption for his case to prevail.
Often, and as in Ward and Ward, that will be the landowner, but exactly
the same burden also lies on any other person seeking in the particular case to
rebut the presumption. In the present case that person was Mr Applegarth for he
was the sole objector to the modification order.
36 There is nothing, either in section 31(1) itself or in anything said in
Ward and Ward, to exonerate the person in Mr Applegarth's position from
the burden of meeting and rebutting the statutory presumption merely because
the owner of the land cannot be identified. Indeed there are very obvious
reasons why the fact that the owner cannot be identified should not of itself
make any difference. Otherwise the statutory presumption which Parliament has
thought it appropriate to enact would be rendered valueless in every case - and
there must be many such cases - where the owner of some track or minor road
cannot be identified.
37 The effect of section 31(1) in my judgment was to throw upon Mr Applegarth
the burden of establishing that the owner - whoever he was - had not
intended to dedicate the road as a public highway. It was for Mr Applegarth to
establish that negative proposition if he could. Since the only action
identified by Mr Applegarth which was capable of showing an absence of the
necessary intention to dedicate was correctly found by the Inspector to have
been Mr Applegarth's own act, it follows that if Mr Applegarth was to be able
to rebut the statutory presumption he had to be able to show that
he was the owner of the road - and that, of course, he could not.
Contrary to Mr Applegarth's submission, the Inspector was not required to
address the question of whether or not an unknown owner could intend to
dedicate. This question, as Mr Bedford correctly submits, would have arisen
only if there was some evidential basis - and there was none - for attributing
to the unknown owner, rather than to Mr Applegarth himself, the actions he
relied on as negativing the intention to dedicate. Putting the point shortly,
the error in Mr Applegarth's approach is that it assumes that the burden lies
on someone to prove that the owner did intend to dedicate (a task which is
obviously problematic if the owner cannot be identified) whereas the burden, as
I have said, lay on Mr Applegarth to disprove that intention.
38 I can detect no error of law or error of reasoning in the Inspector's
approach. It follows that there is no substance in and I accordingly reject Mr
Applegarth's ground 5.
39 Mr Applegarth's related assertion is that only the true owner's acts can
bring the right of the public into question for the purposes of section 31(2).
I agree with Mr Bedford that there is simply no warrant for this contention.
40 It will be noted that section 31(2) places no limit at all on the
circumstances in which the public's right may "otherwise", that is, otherwise
than by an owner's notice under section 31(3), be brought into question.
Whilst, as Mr Bedford accepts, the words must be read in their context (a
context which includes the remainder of section 31(2)), there is, in my
judgment, absolutely no warrant for construing these very wide words - "or
otherwise" - as meaning anything other than what they say or, in particular, as
being limited to acts or things done by the owner.
41 Whether someone or something has "brought into question" the "right of the
public to use the way" is, as it seems to me, a question of fact and degree in
every case. There can be no doubt but that in the present case Mr Applegarth
did - and, it would seem, quite intentionally - bring the public's rights into
question. He did so by setting up his own rights, as he understood them, under
the 1888 Indenture. In my judgment the Inspector was plainly justified in
coming to his conclusion that by his own acts, albeit they were not the acts of
the owner, Mr Applegarth had, in 1979, "brought into question" the "right of
the public to use" the road. I can detect no error in the Inspector's
approach.
42 I should add two things. In the first place it seems to me that any other
view of section 31(2) would involve consequences that Parliament can never have
intended. Parliament cannot have intended that section 31(2) should not be
brought into play, for example, if a way is deliberately and totally obstructed
by the tenant under a long lease whose landlord, being entitled only to a
peppercorn rent, has long since lost all interest in the way, or by concerned
inhabitants infuriated by the fact that what is in truth only a footpath is
being used by motor-bike riders. Secondly, I should make clear that there is
nothing in Fairey v Southampton County Council [1956] 2 QB 439, to which
he drew my attention, which lends any support to Mr Applegarth's contentions.
That was a case in which the person who had brought the way into question was
in fact the landowner, so not surprisingly the judgments were expressed in a
way which reflected that factual context. But there is nothing in the case to
suggest that only the landowner can bring the right into question.
43 I can detect no error of law or error of reasoning in the Inspector's
approach. It follows that there is no substance in and I accordingly reject Mr
Applegarth's ground 6.
Ground 7
44 Mr Applegarth complains that in a case where the Inspector had to consider
user during the twenty year period extending back from 1979, he had incorrectly
applied the provisions of the Highway Act 1980 when he should have been
applying the provisions of the Highways Act 1959. I can take this matter very
shortly. In the first place the decision under challenge was, as I have said,
contained in the Inspector's decision letter dated 24 November 2000. At that
date the operative statute was the 1980 Act, the 1959 Act having long since
been repealed in its entirety. Secondly, and in any event, it is apparent both
from section 31(3)(b) and from Fairey, that the 1980 Act, which is a
consolidating statute, is at least for this purpose retrospective back to 1934.
Thirdly, the relevant provisions of the 1980 Act are in the same terms as the
corresponding provisions of the 1959 Act.
45 There is no substance in and I accordingly reject Mr Applegarth's ground 7.
Ground 3
46 I can also take this matter very briefly. Mr Applegarth complains (Ground 3
and Submission 3) that the Inspector drew conclusions about the ownership of
the road which were perverse in the light of the documentary evidence and
unsustainable in law. As Mr Applegarth would have it (Submission 3) the
Inspector should properly have declared that there is no known owner of the
road.
47 In the light of the conclusions to which I have come in relation to Grounds
4, 5 and 6, exploration of this issue is, as Mr Bedford correctly submitted, of
forensic rather than substantive value. The Inspector's conclusion as to the
identity of the likely owners of the road was properly not a determining factor
in his overall decision. Even if he erred (and I do not accept that he did) any
such error can have had no effect on the decision.
48 The point is well put, if I may say so, by Mr Bedford in paragraph 4.3 of
his skeleton argument. The Inspector, in my judgment correctly, concluded that
the identity of the owner of the road would only be a "key matter" if its owner
were the owner of Boldon Hall - that is, Mr Applegarth - because, as he put it
in paragraph 6.26 of his decision letter, Mr Applegarth "is the only person who
is claimed to have taken any action during the relevant period that would
indicate an intention not to dedicate." Having then correctly concluded that he
saw "no significant grounds for believing that he is the owner" - a conclusion
which, as I have said is not challenged in any way by Mr Applegarth, indeed
quite the reverse - the Inspector arrived at his final conclusion that "there
is not sufficient evidence that during the relevant period, the owner of the
land over which the claimed bridleway passes did not wish to dedicate the
land". This conclusion, given the legal framework which, as I have said, the
Inspector had correctly applied, stands independent of his conclusion on the
identity of the likely owners.
49 In disposing of the matter in this way I should make it absolutely clear
that there is, in my judgment, no basis for Mr Applegarth's complaint that the
Inspector arrived at a conclusion on the question of ownership that was
perverse in the light of all the evidence he had available to him. There is no
need for me to go into the matter. I content myself with saying that in
paragraph 4.2 of his skeleton argument Mr Bedford has helpfully summarised how
the Inspector put the point and that in paragraphs 4.12-4.15 of his skeleton
argument he has set out convincingly why it is that the Inspector's decision is
one that he was entitled to come to.
50 There is no substance in and I accordingly reject Mr Applegarth's ground 3.
Additional ground
51 In his final ground of challenge to the Inspector's decision Mr Applegarth
makes two linked submissions. The first (Submission 10 and Issue 7) is that
under section 53 of the 1981 Act STMBC had no statutory authority to modify an
extract from the Definitive Map and Statement for old County Durham
which had been prepared by another local authority, that is by DCC. I cannot
accept this.
52 Section 53(1)(a) of the 1981 Act defines the definitive map and statement
for "any area" as being:
"the latest revised map and statement prepared in definitive form for that area
under section 33 of the 1949 Act."
There is no statutory definition of the word "area" but it seems to me to mean
exactly what it says. In particular, it is, as Mr Bedford says, clear from the
definition of "surveying authority" in section 66(1) of the 1981 Act that for
the purposes of Part III of the 1981 Act an "area" is not necessarily
co-extensive with the administrative area of the "surveying authority" or,
indeed, with the administrative area of any current local authority.
53 The "area" with which the Inspector was here concerned was therefore the
area within which Boldon Hall lies. It is apparent from the history as I have
already summarised it that the "the latest revised map and statement prepared
in definitive form for that area under section 33 of the 1949 Act" within the
meaning of section 53(1)(a) of the 1981 Act was at all material times the
Definitive Map and Statement prepared by DCC in 1952, as reviewed by DCC in
1957, 1962 and 1967.
54 It is clear from section 66(1) that the duties to be performed by each
"surveying authority" are necessarily to be performed within its administrative
area. It follows, as it seems to me, that where, as in the present case, the
relevant Definitive Map and Statement, as a result of altered local authority
boundaries, has come to embrace parts of the administrative areas of two or
more "surveying authorities", the reference in section 53(2) to "the surveying
authority" has to be read as a reference to whichever of the authorities is the
"surveying authority" for the "area" which includes the particular land in
question. In the present case that authority was at the material time STMBC.
Correctly understood there is nothing in the legislation to prevent STMBC doing
exactly what it has done. On the contrary, as I read the 1981 Act it plainly
covers (no doubt along with a variety of other situations) the very situation
with which STMBC was here faced in 1995.
55 I can see absolutely nothing in the legislation to support Mr Applegarth's
contention. On the contrary. Not merely does Mr Applegarth's construction of
the legislation have no basis in the relevant statutory provisions, it would
mean that there is now no longer any local authority in existence with power to
amend the Definitive Map and Statement prepared by DCC. That simply cannot be
right. In my judgment it is not.
56 Mr Applegarth has directed my attention to paragraph 7 of Annex A to the
Department of the Environment's Circular 1/83. This provides an explanation of
section 53(1) which, as Mr Applegarth correctly points out, does not extend to
include the point here under consideration. It is enough for me to say that I
do not read the Circular as purporting to provide a comprehensive explanation
of the operation of section 53(1) or as contradicting in any way the
conclusions to which I have come.
57 Mr Applegarth's other submission is that in fact section 53 of the 1981 Act
was not in force at all in relation to the area in which Boldon Hall lies at
the relevant time, that is when STMBC purported to make the modification order
in 1995. He bases this argument on article 4 of The Wildlife and Countryside
Act 1981 (Commencement No 6) Order 1983, which provides that
"Where any review under section 33 of the National Parks and Access to the
Countryside Act 1949 is not completed before [28 February 1983], sections 53
and 54 of the 1981 Act shall not come into force in relation to the area to
which the review relates until either -
(a) the review is completed, or
(b) the review is abandoned in pursuance of a direction given by the
Secretary of State under section 55(1) of the 1981 Act."
58 Mr Applegarth relies upon the fact that, as he asserts, the limited special
review being undertaken by DCC in 1974 was never completed. The short answer to
this point, which was raised for the first time on the morning of the hearing,
is that there is absolutely nothing to show either that the limited special
review, even assuming that it has any relevance at all, in any way related to
the area in which Boldon Hall lies or, if it did, that it had not been
completed by the relevant successor authority to DCC long before 1983.
59 There is no substance in and I accordingly reject Mr Applegarth's
additional and final grounds of challenge to the Inspector's decision.
Conclusion
60 In my judgment, and for the reasons I have given, each of Mr Applegarth's
challenges to the Inspector's decision fails. Having considered the whole of
the material he has put before me I am satisfied that there is no basis for
asserting either (i) that the modification order made by STMBC on 10 August
1995 was not within the powers of sections 53 and 54 of the 1981 Act or (ii)
that Mr Applegarth's interests have been prejudiced, let alone "substantially
prejudiced", by any failure to comply with the requirements of Schedule 15. I
can detect no error of law or error of reasoning in the Inspector's approach.
Mr Applegarth has failed to persuade me that there is any basis upon which I
could properly quash the modification order. His application must accordingly
be dismissed.
© 2001 Crown Copyright
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