The Council had, under section 53 of the 1981, Act modified its definitive map to add five footpaths including that under appeal. An inspector had refused to confirm three of the footpaths, including the one in dispute, and in accordance with his decision the Secretary of State had confirmed the order subject to that modification. The Council applied under Schedule 15 to quash the order. It failed at first instance.
Held: The appeal succeeded. the inspector had failed to give sufficient reasons to enable the Court to determine whether or not his decision was right in law.
Use of a pathway for recreational walking is capable of founding a case of deemed dedication of a highway unless the use merely ancillary to other recreational activities such as sunbathing, fishing or swimming.
Sir Nicholas Browne-Wilkinson V-C said: ‘It follows in my judgment (and the Secretary of State does not dissent) that there has been a failure to comply with the requirements of Schedule 15 to the Act of 1981 since there has been a failure to conduct a proper local inquiry. That failure has substantially prejudiced the interests of the county council. Accordingly under paragraph 12 of schedule 15 we have power to quash the order. In my judgment the order should be so quashed in this case for the reasons that I have given.
Normally I would reach that conclusion with considerable regret, given the time expense and trouble that has already been expended on this case in seeking to establish whether a public right of way exists. However, in this case my regret is tempered by the fact that I suspect that hitherto the matter may have been approached on the wrong basis. It may be helpful to the parties, if they are going to re-consider what should happen in the future, if I explain the doubts which I have.’
. . And: ‘I have only dealt with the matter at such length in the hope that may help resolve for the future the nature of the rights around this lake rather than give rise to yet further litigation such as that with which we have been dealing.
For myself I would allow the appeal and quash the order made and confirmed by the Minister, leaving it open for the matter to be started afresh.’
Judges:
Sir Nicholas Browne-Wilkinson V-C
Citations:
Times 15-Dec-1989, (1990) PandCR 275
Statutes:
Wildlife and Countryside Act 1981 53
Jurisdiction:
England and Wales
Cited by:
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Cited – Jones v Welsh Assembly Government Admn 15-Dec-2008
The County Council had made an order under section 53, establishing a footpath over the claimant’s land. The land owner now appealed. The court had previously quashed the inspector’s decision on the basis that he had not allowed for the interruption . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 26 July 2022; Ref: scu.192186