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

Section 10 of the Inclosure Consolidation Act 1801 empowered enclosure commissioners to set out and appoint public bridleways and footpaths, as well as private ones. The provision had to be read purposively in the context of a general clauses statute intended to standardise enclosure legislation and produce a definitive award. Pre-enactment practice, the statutory scheme and the relationship between sections 8, 10, 11 and 35 supported that construction. The word “private” did not necessarily qualify every item in section 10’s list. An earlier decision proceeding on an agreed but erroneous construction was wrongly decided. The appeal was allowed.

The appellant challenged the refusal to amend the definitive map for Wiltshire to record two public bridleways across land in Crudwell. The routes had been included in an 1841 enclosure award made under a local Act which incorporated the Inclosure Consolidation Act 1801.

The Council rejected the application, relying on R v Secretary of State for the Environment, ex p Andrews (the Andrews No 1 decision). The Secretary of State’s Inspector dismissed the appellant’s appeal, and Foskett J dismissed the judicial review claim in [2014] EWHC 1435 (Admin). The central issue was whether section 10 authorised commissioners to create public, rather than only private, bridleways and footpaths.

1. Appeal allowed. The Commissioner had power to award and appoint the two public bridleways, so the Inspector was wrong to dismiss the appeal against the Council’s refusal.
2. The Inclosure Consolidation Act 1801 was a general clauses Act. It was intended to consolidate provisions usually found in local enclosure Acts and reduce the complexity and expense of future legislation. Its language was imprecise by modern standards, making a purposive interpretation particularly appropriate.
3. Pre-enactment practice strongly supported the conclusion that section 10 included public bridleways and footpaths. Public routes were important in the period, and the Act already dealt separately with public carriage roads and private bridleways and footpaths. It would be anomalous to omit public bridleways and footpaths without explanation.
4. The wider statutory scheme pointed to the same result. Section 35 contemplated an award and map that would provide a definitive record of the new allotments and rights affecting them. Section 8 authorised the diversion and stopping-up of existing public routes; that power made little practical sense without a corresponding power to create replacement or new public routes.
5. The word “private” in section 10 could be read as qualifying “Roads” alone, leaving the remaining listed features, including bridleways and footways, public or private. Sections 11 and 35 reinforced that reading. The grammatical argument for limiting the whole list to private features had force in isolation but was not decisive in the context of the statute as a whole.
6. R v Secretary of State for the Environment, ex p Andrews (1996) 71 P & CR 1 was wrongly decided because Schiemann J had proceeded on an agreed construction that section 10 covered only private bridleways and footpaths. Harber v Rand and Logan v Burton provided little assistance. The remaining issues, including contemporary exposition, the conclusiveness of the award and delay, were unnecessary to decide.

• Court of Appeal (Civil Division): Appeal allowed from the dismissal of the judicial review claim.
• High Court of Justice, Queen’s Bench Division (Administrative Court): Foskett J dismissed the claim in [2014] EWHC 1435 (Admin).
• Secretary of State’s Inspector: Appeal against the Council’s refusal was dismissed.
• Wiltshire County Council: Application to modify the definitive map was rejected under the Wildlife and Countryside Act 1981.