Craggs v Secretary of State for the Environment

An enclosure award may validly create a public bridle road even where the enabling Act separately regulates public carriage roads and imposes conditions on their width and maintenance. The invalid creation of a public carriage road does not necessarily invalidate an associated public bridle road. Where textual severance is impossible, substantial severance may still be available if the retained provision has vires and its substantial purpose and effect remain unchanged. The court must avoid rewriting the instrument or creating a new legal arrangement, but may preserve the lawful public right where that reflects the instrument’s broader purpose.

The claimant challenged an inspector’s dismissal of her appeal against Somerset County Council’s refusal to make an order under section 53(2) of the Wildlife and Countryside Act 1981. The application sought modification of the definitive map and statement to record rights over Callow Drove.

The central issue was whether the Shipham and Winscombe Inclosure Award 1799 validly created a public bridle road over the route. That required consideration of whether the commissioners had power under the Shipham and Winscombe Local Act 1797 to create such a right, and whether any lawful bridle-road element could be severed from an unlawful public carriage-road element.

1. Claim allowed in substance. The court held that the commissioners had power under the Shipham and Winscombe Local Act 1797 to create public bridle roads separately from public carriage roads. The statutory width and maintenance conditions applicable to public carriage roads did not apply to public bridle roads.
2. Buckland v Secretary of State for the Environment, Transport and the Regions [2000] 1 WLR 1949 was confined to the creation of a public carriage road. Its reasoning on vires turned on the statutory criteria for that type of road and did not determine the alternative question whether a public bridle road could be created.
3. The Award’s express provision for public use showed that the commissioners intended the routes to be available to the public, despite their inclusion under the heading of private roads and ways. A purposive construction therefore preserved the intra vires creation of a public bridle road, while the purported public carriage-road element remained ultra vires.
4. Applying the severability principles derived principally from DPP v Hutchinson [1990] 2 AC 783, textual severance was not possible because removing references to carts and carriages would also remove or alter private rights. Substantial severance was nevertheless possible. The retained public bridle-road right preserved the substantial purpose and effect of allowing public use of the route without imposing the statutory regime for public carriage roads.
5. The court therefore concluded that the Award was ultra vires insofar as it purported to create a public carriage road, but intra vires insofar as it created a public bridle road.

• Inspector: dismissed the claimant’s appeal against Somerset County Council’s decision.
• High Court (Administrative Court): allowed the judicial review challenge in substance and held that a public bridle road could be preserved notwithstanding the invalid public carriage-road element.