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

Challenges to public path modification orders under the Wildlife and Countryside Act 1981 are reviewed on ordinary judicial review principles. The High Court must not retry the evidence or substitute its own evaluation of maps, witness accounts or other historical material for that of the inspector.

For statutory dedication under section 31 of the Highways Act 1980, qualifying use by different users may be aggregated where it continues for the required period. Use by bicycles may contribute to establishing restricted byway rights. Its legal significance depends on the whole context, including pre-1968 use and whether users were exercising rights limited to a bridleway.

Cumbria County Council made a public path modification order identifying routes near High Hampsfield Farm as public rights of way. Following an inquiry, the Secretary of State’s inspector modified the proposed byway open to all traffic to a restricted byway and confirmed the order.

The landowners challenged the confirmed order under Schedule 15 to the Wildlife and Countryside Act 1981. They argued that the inspector had misunderstood historical maps and lacked sufficient evidence of twenty years’ use by non-mechanically propelled vehicles. The central issues were the scope of the High Court’s review and whether the evidence could establish restricted byway rights.

1. Disposition. The claim was dismissed. The inspector’s order was within the powers conferred by the Wildlife and Countryside Act 1981. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment. Permission to appeal was refused, although the time for seeking permission was extended.
2. The statutory challenge was analogous to judicial review. Applying Wild v Secretary of State for the Environment, Food & Rural Affairs and Dorset County Council [2010] EWCA Civ 1406, Ashbridge Investments v Ministry for Housing and Local Government [1965] 1 WLR 1320 and Reid v Secretary of State for Scotland [1999] 2 AC 512, the court could intervene for legal error, absence of evidence, irrationality, reliance on irrelevant matters or failure to consider relevant matters. It could not form its own preferred view of the evidence.
3. Maps were not to be construed as though they were contracts, deeds or statutes. Their meaning depended on their purpose, scale, topography and historical context. The inspector was entitled to evaluate the maps alongside the other evidence and his inspection of the locality. A private road identified in an inclosure award was not thereby permanently incapable of acquiring public status through subsequent public use.
4. Under section 31 of the Highways Act 1980, it was unnecessary for one individual user to establish the whole twenty-year period. Overlapping qualifying use by different users could be aggregated, provided the use was as of right, without force, secrecy or permission, and continued for the statutory period.
5. The relevant statutory category was use by a vehicle within the genus of non-mechanically propelled vehicles. Use by a pony and trap could therefore be considered together with bicycle use. Bicycle use was not necessarily confined to establishing bridleway rights. Its significance had to be assessed in context, including evidence of bicycle use before the Countryside Act 1968 came into force and the character of the route.
6. A precise day and month for the date on which a right was called into question was not invariably required where the evidence was necessarily general and established qualifying use for more than twenty years. The inspector had adopted a period sufficiently favourable to the claimants, and his conclusion was open to him.

1. Inspector’s inquiry: The inspector first confirmed the order subject to modification, replacing the proposed byway open to all traffic with a restricted byway. Following a further inquiry, he confirmed the modified order on 10 October 2008.
2. High Court (Administrative Court): The challenge to the confirmed order was dismissed. Permission to appeal was refused.