Ernstbrunner v Manchester City Council & Anor

A definitive map and its accompanying statement must be read together. The map is the primary document, but the statement may provide conclusive particulars where it clearly describes the same right of way. General or incomplete wording in the statement does not necessarily conflict with a more precise route shown on the map. Where genuine conflict exists, the map prevails.

In an application under section 130B of the Highways Act 1980, a gate may constitute significant interference even if it is sometimes unlocked. If a gate across a right of way is locked for a substantial part of the time, the statutory threshold is ordinarily satisfied.

The appellant appealed by case stated from the Crown Court at Manchester, which had dismissed his appeal against the Manchester Magistrates’ Court. He sought an order requiring Manchester City Council to secure removal of a gate alleged to obstruct Footpath 254 under section 130B of the Highways Act 1980.

The Crown Court found that the footpath followed a line of setts rather than the adjoining private road. It also considered, on an alternative and hypothetical basis, whether the gate significantly interfered with the right of way. The principal issues were whether the definitive statement prevented the Crown Court’s factual finding and, alternatively, whether the gate satisfied the statutory threshold.

1. Issue A. The appeal on the route of Footpath 254 failed. The Crown Court was entitled, on the evidence, to find that the distinctive kink on the definitive map showed the footpath following the line of setts. That finding was supported by the physical features, historical evidence and the absence of another tenable explanation for the mapped diversion.
2. The approach in R (Norfolk County Council) v Secretary of State for the Environment Food and Rural Affairs [2006] 1 WLR 1103 was adopted. The map and statement must be examined together. The map is the primary and source document. If the documents are irreconcilable, the map prevails, but whether they are truly in conflict is a question of fact and degree. A degree of tolerance is permissible.
3. The 1984 statement was incomplete and used general language. Its description that the footpath followed a private road was capable of describing the route shown on the map, notwithstanding the diversion along the setts. The omission of that diversion, and of stiles or possible gates, did not create an inconsistency. The 1963 statement could be considered in construing the 1984 statement, but its reference to widths of 25 feet and 2 feet was not necessarily inconsistent with different widths along different parts of the route.
4. The case was distinguishable from LE Walwin and Partners Limited v West Sussex County Council [1975] 3 All E.R. 604, where an unequivocal statement extended the bridleway beyond the point apparently shown on the map.
5. The alternative argument based on the superseded 1963 statement also failed. Definitive maps and statements are evidential, not creative, of highway rights. Once superseded, the 1963 documents ceased to be conclusive, although they could remain evidence. In any event, the evidence did not establish the claimed 25-foot route.
6. Issue B. The questions concerning significant interference did not arise because the route issue was decisive. Nevertheless, if the gate had obstructed the true route, arrangements made by the Council to secure its removal within a reasonable time would have engaged section 130B(5)(c). The judge further observed that a gate locked for a substantial part of the time would have constituted significant interference under section 130B(4)(c), even if sometimes unlocked. The appeal was dismissed.

1. High Court (Administrative Court): Appeal by case stated from the Crown Court at Manchester. The appeal was dismissed and the Crown Court’s decision was upheld on the route issue.
2. Crown Court at Manchester: Dismissed the appellant’s appeal from the Manchester Magistrates’ Court, finding that the gate was not on the line of Footpath 254. Judgment was given on 12 March 2007.
3. Manchester Magistrates’ Court: Dismissed the application for an order under section 130B of the Highways Act 1980 on 2 September 2005.