Carter Jonas
Carter Jonas

More worry over rights of way

A recent Court of Appeal case is leaving landowners very worried about the possibility that hundreds of new public rights of way may be created as a consequence of ancient legislation dating back to the early 19th Century.

The appeal turns on the interpretation of the Inclosure Consolidation Act 1801 ("the 1801 Act") and whether the “enclosure commissioner” was empowered to create public bridleways, as opposed to private bridleways, in the Wiltshire Parish of Crudwell.

“Enclosure” was the process by which traditional communal arable farming in open fields was abolished and land was enclosed and put to the use of a single owner, the idea being that the land would be farmed more efficiently, thereby increasing production.

In this instance, the enclosure commissioner made the enclosure award in respect of the Parish of Crudwell in 1841 where he was purported to make one 15 foot wide public "bridle road" and one 10 foot wide public "bridle path" across some arable land which is now owned by a farmer called Mr Blanch.

John Andrews, who is an area footpath secretary with the Ramblers Association, has tried for 22 years to reopen these two bridleways in Crudwell after finding them marked on the original enclosure map. Wiltshire County Council initially refused to restore them to the official modern map of rights of way and a Government inspector later upheld this decision. However in the recent appeal, the Master of the Rolls, Lord Dyson, decided that both had been wrong and that the two paths were legally rights of way.

Lord Dyson commented, “We have been told there are believed to be between 500 and 1,000 cases in England and Wales where public footpaths and bridleways set out and appointed by commissioners are not currently recorded in the relevant definitive maps.” John Andrews, of the Ramblers Association, was clearly delighted by the ruling but Mr Blanch, the farmer described the ruling as “dire”.

However, it is not just Mr Blanch who will be concerned about the consequences of this ruling; there will be many unsuspecting landowners out there who may be vulnerable to similar claims being made on their land for public rights of way that in reality may not have been used in living memory.

Another Appeal Court case over rights of way across a block of land sold to two different parties also gives cause for concern.

The claimants alleged that they had right of way over bridleways on the land, vital to the livery business they had established. But the defendant, who ran a well known shoot from his land, was concerned about the impact on his business. He said any use on horseback must be restricted to the private use that existed at the time of the sale and he was successful in the lower court.

But the Court of Appeal found an implied grant of a right of way because there had been continuous use of the tracks before the land was divided to be sold. The moral of the story is that whether you are buying or selling land, rights of way should be ascertained prior to exchange of contract. Discovering unknown rights of way could place a severe restriction on future use or development of the land, thus affecting its value and the owner’s own ability to exploit the asset.

James Stephen

James Stephen

Partner

James is a partner who heads up Carter Jonas’ South West rural operation, managing the teams in the four offices of Marlborough, Bath, Taunton and Truro.  He primarily works out of the Taun...

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