Burrows v Secretary of State for Environment Food and Rural Affairs

Under Highways Act 1980 section 31, the effectiveness of a notice against the acquisition of prescriptive highway rights depends on its meaning in its physical context and on whether it was erected by, or with the authority of, the fee-simple owner. An easement-holder is not an owner for this purpose. A notice need not be maintained throughout the whole 20-year period; substantial maintenance during that period may interrupt the period of user.

Under Wildlife and Countryside Act 1981 section 53, a modification order requires newly discovered evidence. The authority cannot merely re-examine the evidence previously considered. The statutory duty to modify is not excluded by the conclusive effect of section 56, and particulars such as the width of a way may be corrected.

The claimant owned land adjoining Howley Mill Lane, Leeds, which was recorded on the definitive map as a footpath. Leeds City Council made a modification order redesignating it as a bridleway and altering the recorded width. Following an inquiry, the Inspector confirmed the order.

The claimant challenged the order under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981. The issues were whether a private-road notice prevented acquisition of bridleway rights by 20 years’ user, whether the Inspector could revisit the historical designation without newly discovered evidence, and whether the recorded width could be modified.

1. The application was dismissed. The Inspector’s conclusion that the notice did not prevent acquisition of a bridleway by 20 years’ user was not irrational. Whether the notice adequately expressed the landowner’s intention was a question of fact. Its meaning had to be assessed in context, including the adjacent footpath sign and the evidence of how users understood it. The distinction between the owner’s intention and the public’s understanding was not sharp, since intention could naturally be inferred from the likely understanding of the notice in context.

2. The Inspector had not found that the notice was erected by the owner of the land over which the way passed, or by someone authorised by that owner. Under section 31(7) of the Highways Act 1980, owner meant a person entitled to dispose of the fee simple. A person with only an easement therefore could not rely on the provision.

3. Although unnecessary to the result, the court rejected the submission that a notice had to be maintained until the end of the 20-year period. Section 31(3) did not prescribe a period. Erection and maintenance for a substantial time during the relevant period could demonstrate an intention not to dedicate and interrupt the period of public user.

4. The Inspector could not justify correction of the historical designation under section 53(3)(c) merely by re-examining evidence considered when the definitive map was prepared. There had to be some newly discovered evidence which, considered with the earlier evidence, justified modification. The failure to raise the point at the inquiry did not cure the jurisdictional defect. This did not affect the order because the later acquisition of rights by 20 years’ user was an independent basis for designation as a bridleway.

5. The conclusive effect of section 56 of the Wildlife and Countryside Act 1981 did not prevent the statutory duty under section 53 from operating. The term particulars included the width of a way. Section 53(4) made clear that the power to modify included alteration of an existing recorded width, and was not confined to adding a width where none had previously been recorded.

6. The claimant was ordered to pay the defendant’s costs, summarily assessed at £5,700. Permission to appeal was refused.

First-instance judicial review application under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981. The application was dismissed by the High Court (Administrative Court). Permission to appeal was refused.