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

The natural grammatical meaning of section 10 of the Inclosure Consolidation Act 1801 is that “private” qualifies every item in its list, including bridleways and footways. The provision therefore authorises private, not public, bridleways and footpaths. Historical practice and contemporaneous interpretation did not establish a sufficiently consistent basis for departing from that meaning. An inclosure award cannot be protected from challenge by an ouster or conclusiveness provision where the commissioner acted wholly outside the statutory powers. A surveying authority and the Secretary of State must act on evidence showing that a claimed right of way was created ultra vires.

The claimant applied under the Wildlife and Countryside Act 1981 for modification of the definitive map to include two public bridleways described in an 1841 inclosure award made under the Crudwell Act 1816, which incorporated provisions of the Inclosure Consolidation Act 1801. Wiltshire County Council rejected the application. The Secretary of State’s inspector dismissed the claimant’s appeal, considering the Secretary of State bound by Andrews No. 1, in which Schiemann J had held that the 1801 Act did not empower commissioners to create public footpaths. The issues were whether section 10 permitted public bridleways, whether historical practice altered its construction, and whether the award was binding and conclusive despite any want of statutory power.

1. The claim was dismissed. The County Council was entitled to reject the application, and the Secretary of State was entitled to dismiss the appeal.

2. Section 10 of the Inclosure Consolidation Act 1801 must be read according to its natural grammatical meaning. The word “private” qualifies the whole list of matters beginning with roads, including bridleways and footways. The headings of sections 8 and 10, and their different provisions concerning maintenance, support the distinction between public rights of way under section 8 and private rights of way under section 10.

3. The argument based on section 11 did not justify reading words such as “public or private” into section 10. The 1801 Act was a general clauses Act and was not intended to be comprehensive. The possibility that its consequences might appear inconvenient or anomalous could not overcome the ordinary meaning of the statutory language.

4. The decision in Andrews No. 1 correctly accepted the same construction of section 10. At the least, its reasoning was a highly persuasive dictum, and there were no sufficient grounds for departing from it.

5. Evidence of pre-enactment practice and later inclosure awards did not establish the sufficiently consistent, informed and substantially undisputed practice required for contemporanea expositio to determine the meaning of section 10. The evidence instead showed significant variation, including local Acts which expressly provided for public bridleways, public footpaths and their stopping-up.

6. Section 35 did not prevent an ultra vires challenge. An act wholly outside the powers conferred by sections 8 and 10 was not something done pursuant to the purport and directions of the Acts and was not rendered immune from judicial challenge merely because no timely objection had been made. In any event, the conclusiveness of the award was directed principally to proprietors and persons interested in the allotments, not to the surveying authority or the Secretary of State.

The judgment itself was a first-instance judicial review decision. It records that the claimant’s application was rejected by Wiltshire County Council and that the Secretary of State’s inspector dismissed the subsequent appeal.