Kind, R (on the application of) v Secretary of State for Environment, Food & Rural Affairs

Reclassification of a road used as a public path as a bridleway under Part III of Schedule 3 to the Countryside Act 1968 did not extinguish existing public vehicular rights. The statutory conclusive-evidence provision for bridleways remained subject to its proviso, which preserved questions concerning higher rights. Extinguishment of public rights cannot ordinarily be inferred unless the statute expressly provides for it or the intention is necessarily implied. The reference to extinguishment in paragraph 10(c) concerned the consideration of whether existing vehicular rights should be extinguished on reclassification, not an operative statutory extinguishment. A subsequent modification order under the Wildlife and Countryside Act 1981 could therefore proceed on evidence of pre-existing vehicular rights.

The claimant sought judicial review of an inspector’s refusal to confirm a rights of way modification order concerning Preshute 12 in Wiltshire. The route had originally been recorded as a road used as a public path and was later reclassified as a bridleway during an unfinished review under the Countryside Act 1968. Wiltshire County Council subsequently made an order under section 53 of the Wildlife and Countryside Act 1981 to record the route as a byway open to all traffic, relying on historical evidence of vehicular rights.

The inspector accepted that the historical evidence established long-standing public vehicular rights but refused confirmation on the basis that those rights had been extinguished by the earlier reclassification. The central questions were whether the 1968 reclassification extinguished the rights and, if so, whether the 1981 Act permitted their later recognition.

1. The claim succeeded. The inspector’s decision was quashed. The court granted a declaration and liberty to apply.
2. Under section 32(4) of the National Parks and Access to the Countryside Act 1949, an entry showing a bridleway was conclusive evidence of public rights on foot and horseback, but the proviso preserved questions concerning any other public right of way, including vehicular rights. The same position applied under section 56 of the Wildlife and Countryside Act 1981.
3. Paragraphs 9 and 10 of Schedule 3 to the Countryside Act 1968 had to be construed against that background. There was no express provision extinguishing vehicular rights on reclassification. The general principle against construing legislation as extinguishing existing public rights, the sidenote describing the amendments as procedural and minor, and the resulting anomalous distinction between different kinds of bridleway entries all militated against the proposed construction.
4. The reference in paragraph 10(c) to whether extinguishment of vehicular rights would cause undue hardship was a consideration in deciding the appropriate classification. It did not clearly or necessarily imply that reclassification itself extinguished those rights. The 1968 Act could not be treated as silently amending or repealing the proviso to section 32(4)(b) of the 1949 Act.
5. The court observed obiter that, even if extinguishment had occurred, it might have been temporary where reclassification resulted from failure to show vehicular rights and later evidence became available. Greater difficulty would arise where reclassification was based on unsuitability or absence of undue hardship.