Piddlehinton: Poisoned by Policy?

Piddlehinton: Poisoned by Policy?

On 24 September 2004, Jonathan Stuart of Friends of Dorset’s Rights of Way (FoDRoW) applied to Dorset County Council for a definitive map modification order to ‘upgrade’ various public bridleways to byways open to all traffic (BOAT). These were 4 Piddlehinton, 14 (part) and 5 Piddletrenthide, 11 Cheselbourne, and 3 (part) Piddlehinton. There were two applications, although Dorset County Council (reasonably) treated them as one.

Together these bridleways form an inverted Y, marked on the sketch map as lying between public roads at A, C & D. Leg B-D (shown in a lighter green) is the application leg that was rejected on appeal to the Secretary of State, and did not appear in the order. These are arbitrary letters and do not correspond to the order lettering.

The application was discussed in an officers’ report to committee of 30 November 2005, which recommended that an order be made to record the ways as BOATs. The committee declined this advice and rejected the applications by a letter of 23 November 2006. Mr Stuart appealed to the Secretary of State by the provisions of Schedule 14 of the Wildlife and Countryside Act 1981.

In her report to the Secretary of State of 22 July 2008, reference NATROW/C1245/529A/07/03 (this was before Inspectors determined appeals themselves), Inspector Heidi Cruickshank considered the primarily historical evidence of status, and also the potential effect of the Natural Environment and Rural Communities Act 2006.

Mrs Cruikshank’s recommendation was that the legs C-E-B, and A-E should have orders made to record restricted byway status, but that there was insufficient evidence for B-D. Dorset County Council made the order, and the Trail Riders Fellowship (picking up Mr Stuart’s baton) objected on the ground that, i) the correct status was BOAT, and not restricted byway, and, ii) that the order should be modified to include the route B-D (as rejected by Mrs Cruickshank).

The arguments were heard by Inspector Helen Slade at a public inquiry on 5 & 6 November 2014. The TRF presented a case largely in two heads:

  • Evidence and submission to show that all of A-E and C-E-B-D are historical public carriage roads, and,
  • The order should be modified to include leg B-D, which was refused in the Schedule 14 appeal decision.

In her interim decision letter of 2 December 2014 (FPS/C1245/7/36) Mrs Slade notes:

[16] “I was also requested to include in the modification the length of the route to the north of the Order route to Drakes Lane, which had formed part of one of the original applications. This part of the route lies outside the scope of the Order plan. It was Mr Kind’s view that failure to include the onward section would prevent any future modification of the DMS which to accurately reflect what the TRF believes to be the correct status of that part of the original application route.

[17] “I agreed to hear the evidence at the inquiry in relation to the whole of the application route on the basis that I would then be able to consider whether or not it was appropriate to make such a modification; bearing in mind that such modifications would require advertising, thus allowing a further statutory notice period for objections. I also made it clear to the other participants at the inquiry that they were at liberty to argue against such modifications.

[19] “To include the onward route as originally claimed by FoDRoW would require the addition to the Order of a map and a revised schedule, a draft of which was supplied by Mr Oickle at the inquiry. I have considered the situation carefully, and taken account of the arguments for and against such a modification. Whilst I understand the implications as expressed by Mr Kind, I consider that to make such a fundamental alteration to the Order would be an abuse of the process. It may be acceptable to add a map to an Order for clarification purposes (for example to clarify the location or some other aspect of a route) but to add a map for an additional length route which would extend significantly beyond the scope of the map attached to the Order as made would be a very substantial alteration.

[20] “My powers of modification are quite wide, but I must exercise those powers fairly and with discretion. In this case I have concluded that to modify the Order in the way requested would be too significant a change, and make the Order substantially different from the one I am considering. I have therefore declined to make any modification in respect of the additional claimed section of the route.”

In her consideration of the evidence and Mr Stuart’s application for B-D, Mrs Slade held that the application was ‘Winchester defective’ because one document, listed in the application, was not provided along with the application. The TRF argued that this was such a small defect that it did not engage s.67 of the NERC Act 2006.

So, in reaching her decision Mrs Slade found that the application for B-D was flawed, meaning that any right of way for mechanically propelled vehicles had been extinguished, but she did not go on to decide whether restricted byway rights subsist, before holding that B-D was outwith her powers of modification anyway. Given that the totality of the evidence before the Inspector for that leg made at the least a reasonable case for restricted byway status, this raises the question as to why Mrs Slade was willing to decide that BOAT rights could not exist, but was unwilling to decide if restricted byway rights do exist: the issue of the scope of order modification seems to apply to both statues equally?

The outcome of the interim decision letter was a proposed modification to the order ‑ this time to BOAT status for A-E (which was in the end confirmed) ‑ and the TRF objected again on the Winchester issue, and regarding the ‘lost link’, B-D, and a further public inquiry was held on 4 November 2015. In her final decision letter of 14 December 2015 (FPS/C1245/7/36M1) Mrs Slade does not budge as regards the modification of the order she says,

[25] “In coming to my conclusion that it was not appropriate to make such an extensive modification to the Order, my purpose was not to fetter any future attempt to modify the definitive map and statement, but to be fair, open and impartial. The draft schedule prepared most carefully by Mr Oickle amply demonstrates my difficulty. To modify the Order would require the addition of several pages to the Order schedule and three additional maps to cover the extended route. It would also affect at least one other landowner who has not been party to the legal process to date, and may include others (as yet unidentified).

[28] “I maintain my view that making such a major and significant alteration to this Order so as to include a substantial additional length of route would be an abuse of the detailed processes set out in the 1981 Act, and would involve practical and administrative alterations and additions that take it outside the scope of a mere modification.”

The TRF took the decision to the High Court on the two central limbs: whether or not the application for B-D was ‘Winchester compliant’; and that the Inspector should have exercised her discretion to modify the order accordingly. Central to the modification issue was (said the TRF) the view of Lord Phillips in Trevelyan v. Secretary of State for the Environment [2001] 1 WLR 1264, CA, at [23],

“In my judgment, the scheme of the procedure under Schedule 15 is that if, in the course of the inquiry, facts come to light which persuade the inspector that the definitive map should depart from the proposed order he should modify it accordingly, subject to any consequent representations and objections leading to a further inquiry. To fetter his power to do this by a test which requires evaluation of the modification to see whether the inspector can truly be said to be confirming the original order would be undesirable in principle and difficult in practice.”

This view of Lord Phillips was developed by the TRF though Counsel’s submissions: The power to propose modifications is of wide ambit and is not limited to circumstances which could be said to be confirming the order; adding the northern extension would be well within the scope of the inspector’s powers (it is precisely within the circumstances anticipated by paragraph 8(1)(a) Schedule 15 WCA 1981, which expressly envisages a modification ‘to affect land not affected by the order’ and paragraph 8(1)(b) Schedule 15 WCA 1981, which expressly envisages a modification to ‘show any way not so shown’). While the power is discretionary, there is a positive obligation on an inspector to propose a modification where ‘in the course of the inquiry, facts come to light which persuade the inspector that the definitive map should depart from the proposed order’.

Counsel for the Secretary of State submitted, simply, that modification of an order falls entirely within an Inspector’s discretion, is challengeable only on public law grounds and, anyway, Mrs Slade’s decision was not irrational.

In his judgment of 12 August 2016 ([2016] EWHC 2083 (Admin)), HH Judge Gilbart finds against the TRF on the Winchester issue, and on the second limb, order modification, says,

[44] “That leaves Ground 2. I was at first very attracted by the idea that the Inspector had not had an open mind about her ability to propose a modification, but I am persuaded by Mr Moffett’s arguments that her decision is only open to challenge on standard public law grounds. None of her reasons could be said to be unreasonable, and she has considered all relevant issues.

[45] “In any event, she was the second Inspector to conclude that the evidence justifying the route from E to K was insufficient to support the existence of vehicular rights.”

With respect to HH Judge Gilbart, that is not what the second Inspector, Mrs Slade, concluded. Mrs Slade looked at the Winchester compliance of the application for ‘E to K’ (which is B-D on the sketch map above) and concluded that MPV rights had been extinguished. Mrs Slade also considered whether she should modify the order to bring that leg within the scope of the order, and decided not to. Nowhere did Mrs Slade determine on the evidence before her whether restricted byway rights subsist on that northern leg of the application route. Mrs Slade said in her interim decision letter:

[17] “I agreed to hear the evidence at the inquiry in relation to the whole of the application route on the basis that I would then be able to consider whether or not it was appropriate to make such a modification; bearing in mind that such modifications would require advertising, thus allowing a further statutory notice period for objections. I also made it clear to the other participants at the inquiry that they were at liberty to argue against such modifications.

[24] “I must therefore examine the provisions of the Natural Environment and Rural Communities Act 2006 (‘the NERC Act’) to determine whether or not it affects the application or the outcome of the Order.”

So, again with respect to the Judge, it looks from the judgment as though he has decided the ‘modify the order’ issue on the belief that Mrs Slade had concluded that there were no rights higher than the extant recorded bridleway on the northern leg (B-D on the sketch map), and so the second ground of the TRF’s application was arguably not properly decided.

Mrs Slade was rightly aware that it was within her powers to consider whether restricted byway rights over the in-order routes subsist where NERCA had stripped away MPV rights, and so if the order could have been and should have been modified as the TRF argued, then the issue of restricted byway rights was valid to be determined.

And this works the other way around too: if the question of restricted byway rights on B-D had been determined (the evidence had been thoroughly aired at the inquiry), and if the Inspector had found that these rights do subsist, then that would have driven ‑ or at least have been material to ‑ the question of whether the order should have been modified accordingly.

The problem with Mrs Slade’s refusal to modify the order is this: the evidence for public rights on the northern leg B-D has been ‘discovered’ by the surveying authority and rejected (as was the whole application(s), against officer recommendation), and again rejected by the Secretary of State on appeal. The TRF’s view was that Mrs Slade had the opportunity to hear and determine the evidence for public vehicular rights on all legs of the applications routes, and she did hear this, but determined the evidential issue only as regards the order route part of the application routes. The evidence was substantially similar all through; certainly a cohesive whole as regards a long historical through route.

By declining to modify the order, Mrs Slade barred herself from determining the claim for restricted byway status for B-D, thereby preventing that evidence from being determined again, other than after a further application on the back of ‘new evidence’ ‑ if there is any, ‑ and Mr Stuart and the local TRF researchers did a pretty thorough job of finding what there is to be found.

Simply, this whole case leaves something to be desired. And before readers look at the Ordnance Survey map for Piddlehinton and head out to try the BOATs thereabout, a word of caution: the representation of BOATs on the map does not appear to accord with Mrs Slade’s modified and confirmed order.

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