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


Reference:
[2006] QB 113

Date:
27th June 2005

Court:
High Court

Comment:

 

A highway in Wiltshire had originally been shown on the definitive map for the county as a road used as a public path. It was reclassified as a bridleway under paragraph 9 of schedule 3 to the Countryside Act 1968 by the County Council, acting on the suggestion of the Parish Meeting which had reported that it was not used by vehicular traffic and its surface was unsuitable for such use. In 2003 the County Council, having discovered strong historical evidence of the existence of vehicular rights over the way, made an order modifying the definitive map to show it as a byway open to all traffic under section 53(3)(c)(ii) of the Wildlife and Countryside Act 1981. The defendant’s inspector refused to confirm the order, on the basis that the reclassification had extinguished the pre-existing public vehicular rights over the route. That proposition of law was challenged by the claimant in this judicial review action.

 

Held:
The claim succeeded. The reclassification as a bridleway pursuant to schedule 3 to the Countryside Act 1968 of a way shown on the definitive map as a road used as a public path did not have the effect of extinguishing any public vehicular right of way existing over the way at the date of reclassification.

This decision confirmed as correct the understanding (generally shared prior to Defra’s circulation in spring 2004 of advice to the contrary effect) that any public vehicular right over a way shown on the definitive map as a road used as a public path would have survived its reclassification as a bridleway under schedule 3 to the Countryside Act 1968.

Associated Members:

Practice Areas:

© New Square Chambers Ltd