Confirming a Right of Way

Case featured in Times law –  Summary

Secretary of State v…….         judgement 22 June 2004.

When a council made an order modifying a definitive map to include a right of way and that order was opposed,the secretary of state for food and Rural Affairs could confirm the order only if she was satisfied on the balance of probabilities that the right subsisted.The Judge when quashing the order made by the council in 2000,confirmed by the secretary of state’s inspector to modify the councils definitive map to include a parish lane as a byway open to all traffic.The council made an order under section 53[3][c][1] of the Wild life and Countryside Act 1981 modifying its definitive map to include the parish lane as a byway open to all traffic.The inspector confirmed the councils order,in doing so applied the standard that he was satisfied that such a byway could be reasonably alleged to subsist.

The claimants who owned the land applied to quash the councils order on the ground that the inspector applied too low a standard of proof when making the decision whether a byway open to all traffic subsisted.The judge made the point that modification to the definitive map by an authority consequent on any of the events listed in section 53[3][c] had to proceed in two stages, the order stage and the confirmation stage.The order stage came with in section 53[5] and Schedule 14 and the confirmation stage came with in section 53[6[ and Schedule15.The matter was accepted that when the authority was to make or not to make the order within paragraph3[1][b] of Schedule 14 it was empowered to make the order even if it was not,on the material before it,able to conclude that the right of way subsisted.

The issue was whether such an order came to be confirmed under section 53[6] and Schedule 15, the secretary of state, in the exercise of the discretion conferred on him by paragraph 7[3] of Schedule15,could confirm that order even if satisfied only that the allegation of subsistence of the way was reasonable;or he had to be on balance of probabilities that the way subsisted. The issue was determined in favour of the claimants.There could be no doubt in the National Park and Access to the Country side Act 1949 section 31 procedure at quarter sessions would be subject to a civil standard of proof.The Judge had formed the opinion that the determinations by the surveying authority and the minister under section 29 would be subject to the same burden.It could be assumed that the legislature intended to copy the pattern of the 1949 Act in the 1981 Act so as to subject the issue of proof of the existence and extent of the public rights of way to the civil burden of proof.

Contrary intention that it was sufficient to establish a right  having consequences of a serious nature for owners of land and other users by a mere finding that it was reasonable to allege that such a right subsists was counter.There would be surprise if rights in property of such importance were being determined in the course of a statutory procedure applying a lower burden of proof than would be applicable were the existence of those same rights to be determined in the court of ordinary litigation in the civil courts.

A line on a map

After National Parks and Access to the Countryside Act 1949 Part IV the County Council was required to ascertain and survey all the then existing highways which were public paths in a prescribed manner. (These highways were those already repairable “by the inhabitants at large”) A line on a map and a detailed statement was to be made to provide evidence of the ground area of those highways. When the process was finished the details were to become “definitive”.

The 1980 Act does not provide for a “negative intention”. This seems a nonsense statement. The sub-section 31(6) applies to the depositing of the owners admission of certain existing highways and it does not provide denials. Sorry! The law does not provide the opportunity to prove a negative. The article also says NB any declaration is only effective where no public right of way exists at the time or could be established on the basis of user evidence. This is not very clear to me.

A path has never been used by the public at large for more than 20 years. Also there is no list of Streets of publicly maintainable highways at the Council. The most important point is that if the path was properly surveyed and put on the Map and Statement using the 1949 Act it had to be listed as “publicly maintainable”. It was firstly confirmed in the 1949 Act to be “repairable” by the public and then in 1959 it had to be listed as publicly maintainable. You cannot have items on the Definitive Map and Statement which are not publicly maintainable. This is a mistake every council makes.

A public inquiry is no answer as the inspector has no powers to decide the existance of a highway. It is a legal matter even if the Council tries to make him do it. It would be against the law. A highway is a legal fact and it CAN NOT be argued. It either exists or does not.

It is for the person who wishes to prove the existence of a highway to ask a Judge in Court to confirm the land has been dedicated to the public. If he is not sure he is unable to show the highway exists. He cannot “decide” he must be sure. In law there is no provision to prove a negative when owner holds there is nothing there!

The onus of proof.

In Attorney-General V Watford Rural District Council (1912) Lord Justice Parker stated that once a way is shown to be a public highway, the onus lies on a highway authority to prove that a way is not publicly maintainable, not on some other party to prove that it is.

In a nutshell, by furtively marking lines on public maps and then, in the absence of any legal justification, holding them to be highways (that is without proper and accurate surveys and without any reliable evidence that the public at large has ever used the alleged highways – as was required by lay) Councils have acted unlawfully. Because by doing so:

(a) A highway is effectively created on privately owned land,
(b)The council is thus said to acquire a fee simple determinable in the surface of that land and
(c) The owner of the original land is divested of his ownership and property rights.

It is in effect an expression without payment of compensation.

In terms of the legislation, Councils do not have the authority to effectively expropriate land and therefore the actions are ultra vires and void ab initio.

Extracts from 1995 Public Access Booklet -contributes below

The status of highways

A “highway” is a defined route over which the public has a right of access. Public highways are customarily divided into two categories: “public rights of way” and “public roads”. Public footpaths and motorways are both highways in law; the difference lies in the ways in which each can be used.

Problems with definitive maps and statements.

The duty of highway authorities to survey and record rights of way dates only from 1949. The quality of the information used to produce the initial maps varied considerably, because some surveys were much more thorough than others. A further problem was that landowners were nor directly notified of the recording of rights of way over their land (although they were able to inspect and object to complicated draft maps). In some areas the whole process of producing the initial definitive map took many years. The regular reviews which were also required were then often inadequate or not carried out. Definitive maps and statements may be incomplete or inaccurate for several reasons.

Parish Notes of incomplete path surveys

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