Parker & Ors v Nottinghamshire County Council & Anor

A highway created under statutory powers does not require public use or acceptance unless the statute makes that a condition. Where legislation authorises a road to be set out and made, substantial compliance with its requirements is ordinarily necessary, although public adoption of an unfinished road may establish a highway. A private haling path created under navigation legislation does not necessarily extinguish or contradict an existing public highway, particularly where the navigation company could use the public route. The width of a public path may be specified numerically, by reference to physical features, or by reference to a plan. A plan-based description may satisfy the statutory requirement where the route can be identified practically on the ground.

The claimants owned land beside the River Trent. Nottinghamshire County Council made a definitive map modification order under section 53 of the Wildlife and Countryside Act 1981, adding a restricted byway across the claimants’ garden. Following a public inquiry, the Secretary of State confirmed the order.

The claimants sought to quash the order under paragraph 12 of Schedule 15. They argued that historical enclosure legislation had not created a highway, that a private haling path under the Trent Navigation Act 1783 was inconsistent with a public right of way, and that the order failed adequately to specify the route’s width.

1. The claim was dismissed. The modification order was within the statutory powers and had been properly made.
2. Statutory powers may create a highway without public use or acceptance where the statute expressly creates it. Where legislation merely authorises a highway to be set out or made, the statutory requirements must be substantially satisfied, subject to the possibility that public use may establish dedication and acceptance of an unfinished road. The principles stated in R v Lyon, (1825) 5 Dow and Ry KB 497, R v Leake Inhabitants, (1833) 5 B & Ad 469, Cubitt v Lady Maxse, [1873] LR 8 C.P. 704, and Buckland et ors v Secretary of State for the Environment, [2000] 1 WLR 1949, were applied or explained.
3. The 1771 Inclosure Act and 1773 Award provided for the route to be a public highway. Evidence of pre-existing roads meant that further physical works were not necessary where they were not necessary or convenient under the Act.
4. The Trent Navigation Act 1783 created powers and duties concerning haling paths but contained no provision extinguishing public highway rights. Private rights granted to landowners were not inconsistent with public rights where an existing public highway could be used by the Navigation Company.
5. The description of the route’s width complied with section 53(4)(a). Width could be identified by reference to old enclosures, the river and the order plan. Absolute numerical precision was unnecessary where the affected land could be identified on the ground.

First-instance judicial review proceedings in the Administrative Court. The claimants’ application to quash the confirmed modification order was dismissed.