Masters v Secretary of State for the Environment, Transport and the Regions

A byway open to all traffic is identified by the character of the highway, not by a requirement of current actual use. Under section 66(1) of the Wildlife and Countryside Act 1981, the public must have rights for vehicular and other traffic, but current vehicular use is unnecessary. Pedestrian and equestrian use may be exclusive. The definition must be read purposively with sections 53, 54 and 56, whose object is to preserve and record ways suitable for walkers and riders, including ways whose vehicular rights are rarely exercised. Section 53(3)(c)(iii) does not authorise deletion merely because use has ceased or no longer satisfies a proposed user test. Deletion requires evidence that no public right of way of any description exists.

The appellant challenged the Secretary of State’s refusal to delete route WN 16/11 from the definitive map and his confirmation of a modification order changing its recorded status from a road used as a public path to a byway open to all traffic. The route had little recent vehicular use, although historical documents supported vehicular rights.

Hooper J rejected the argument that section 66(1) required proof of current predominant pedestrian and equestrian use and upheld the administrative decisions: [2000] 2 All ER 788. The central issue before the Court of Appeal was whether current use, and a predominance of pedestrian and equestrian use over vehicular use, had to be established before the route could be recorded as a byway open to all traffic.

Appeal dismissed. Roch LJ delivered the judgment, with Tuckey LJ and Mance LJ agreeing. The court upheld Hooper J’s construction of section 66(1) of the Wildlife and Countryside Act 1981.

1. The statutory definition describes the type or character of a highway to be recorded. Read in its entirety and in its statutory context, it does not impose a current-use test. The public must have a right of way for vehicular and all other kinds of traffic, but current vehicular use is not required. The word “mainly” does not necessarily imply any vehicular use, since exclusive pedestrian and equestrian use may be the extreme form of mainly such use.
2. The court rejected the contrary approach in R v Wiltshire County Council ex parte Nettlecombe and Pelham (1998) J.P.L. 707 and departed from the current-use reasoning attributed to Buckland and others v Secretary of State for the Environment [2000] 3 All ER 205. The court relied on the statutory purpose identified in R v Secretary of State for the Environment ex parte Hood [1975] QB 891 and Suffolk County Council v Mason [1979] AC 705: definitive maps were intended to preserve and record public ways for walkers and riders, including full ways or cartways whose vehicular rights might rarely be exercised.
3. Section 54 required roads used as public paths to be reclassified according to the rights shown to exist. Where vehicular rights existed, section 54(3)(a) required classification as a byway open to all traffic. Section 56(1)(c) supported the conclusion that the definitive map was intended to provide conclusive evidence of the recorded rights.
4. Section 53(3)(c)(iii) did not permit deletion merely because current use had ceased or no longer satisfied the proposed user test. Its first limb applied where evidence showed that no public right of way of any description existed. Its second limb concerned particulars such as position, width and limitations, not deletion of the way itself. The common-law principle that a highway remains a highway reinforced that conclusion, subject to statutory extinguishment or variation.
5. Any later increase in vehicular use causing inconvenience could be addressed by a road traffic regulation order under section 54(7). The court therefore upheld the judgment below, dismissed the appeal, refused leave to appeal and ordered costs to follow the event.

1. Court of Appeal (Civil Division): dismissed the appeal, refused leave to appeal and ordered costs to follow the event.
2. Queen’s Bench Division, Crown Office: Hooper J rejected the proposed current-use test and upheld the Secretary of State’s decisions: [2000] 2 All ER 788.
3. Administrative decisions: Somerset County Council made a modification order changing the route’s recorded status to a byway open to all traffic. The Secretary of State dismissed the deletion appeal and confirmed the order.