Whitworth & Ors v Secretary of State for Environment, Food & Rural Affairs

Where cycling on a way is already permitted because the way is a bridleway, the landowner’s acquiescence in cycling cannot support deemed dedication of the more extensive rights associated with a restricted byway. The cyclist’s understanding of the legal position is immaterial. The relevant question is what the use, viewed from the landowner’s perspective, implies about dedication.

Even without an established bridleway, use consistent with both bridleway and restricted-byway status should ordinarily support the form of dedication least burdensome to the landowner. Earlier use may reinforce sufficient use during the statutory 20-year period, but cannot fill a deficiency in qualifying use during that period.

The appellants owned a farm crossed by route BCD. An inspector confirmed a public path modification order designating that route as a restricted byway. He found historic bridleway rights and deemed dedication from public use between 1973 and 1993, relying for vehicular rights upon cycling and use by one pony and trap.

Langstaff J dismissed the appellants’ statutory application to quash the relevant part of the order. On appeal, the principal issue was whether cycling could support restricted-byway rights when cyclists had enjoyed a statutory right to use bridleways since 1968. The appellants also challenged the sufficiency of the user evidence and the inspector’s treatment of the historical material.

1. Appeal allowed. Use by cyclists during the relevant 20-year period could not support deemed dedication of restricted-byway rights. The order was quashed so far as it affected route BCD.

2. Section 31 of the Highways Act 1980 requires use as of right for 20 years from which dedication at the beginning of that period may be inferred. The underlying principle is the landowner’s acquiescence in open use of the kind expected from a person rightfully entitled to use the way. Section 31(1A)(b) permits reliance upon use by non-mechanically propelled vehicles, but does not determine the category of highway thereby dedicated.

3. The inspector had found that the route already possessed bridleway status before the relevant period. Cycling on a bridleway was permitted by section 30(1) of the Countryside Act 1968, and the owner had no power to prevent it. Viewed from the owner’s perspective, acquiescence in cycling therefore implied no dedication beyond bridleway rights. Whether the cyclists understood the legal basis of their use was immaterial.

4. The result would have been the same without the finding of a pre-existing bridleway. Combined use by riders and cyclists was consistent with either bridleway or restricted-byway dedication. Because section 30 interfered with private property rights, the form of dedication least burdensome to the owner should be inferred where other considerations were equal.

5. Evidence of cycling in the 1950s could not cure the absence of sufficient qualifying vehicular use during 1973–1993. Rowley v Secretary of State [2002] EWHC 1040 established only that earlier use could reinforce a finding that use within the statutory period was itself sufficient. Once cycling was disregarded, the sole evidence of vehicular use was a pony and trap used for less than 20 years. Restricted-byway status therefore lacked a lawful evidential basis.

6. The challenge to the inspector’s historical analysis failed. The assessment involved factual inferences from maps, plans and other disparate materials. A challenge required proof of irrationality and consideration of the evidence as a whole; selected doubts about individual documents were insufficient.

7. The successful ground entitled the appellants to a remedy. On the parties’ agreed position, the court could not substitute bridleway status and was constrained to quash the provisions concerning route BCD, notwithstanding the disproportionate prospect of a fresh statutory process.

1. Court of Appeal (Civil Division): The appeal was allowed on the cycling ground. The provisions of the 2005 Order affecting route BCD were quashed: [2010] EWCA Civ 1468.
2. High Court, Administrative Court: Langstaff J dismissed the statutory application to quash the relevant part of the 2005 Order on 4 March 2010. No citation is stated in the judgment.
3. Planning inspector: Following inquiries in 2007 and 2008, the inspector confirmed the order as modified, designating route BCD as a restricted byway.