“31(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it. (2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question …”
“(1) Any member of the public shall have, as a right of way, the right to ride a bicycle, [not being a mechanically propelled vehicle], on any bridleway, but in exercising that right cyclists shall give way to pedestrians and persons on horseback.”
“5.47 Use of bicycles in a public bridleway after3rd August 1968 (the date on which section 30 of the [1968 Act] came into force) cannot give rise to a claim or be used to support a claim for vehicular rights.”
“(1A) Subsection (1)— (a) is subject tosection 66 of the Natural Environment and Rural Communities Act 2006 (dedication by virtue of use for mechanically propelled vehicles no longer possible), but (b) applies in relation to the dedication of a restricted byway by virtue of use for non-mechanically propelled vehicles as it applies in relation to the dedication of any other description of highway which does not include a public right of way for mechanically propelled vehicles.” “(1A) Subsection (1)— (a) is subject tosection 66 of the Natural Environment and Rural Communities Act 2006 (dedication by virtue of use for mechanically propelled vehicles no longer possible), but (b) applies in relation to the dedication of a restricted byway by virtue of use for non-mechanically propelled vehicles as it applies in relation to the dedication of any other description of highway which does not include a public right of way for mechanically propelled vehicles.”
“9. Mrs Lockwood’s objection had been made on10 August 2007 . A number of requests had been made by the Council for advance disclosure of any documents or evidence which the objector sought to adduce in order for preparations to be made for the second inquiry. However, between31 January 2008 when Mrs Lockwood’s initial objection had been enlarged upon and22 August 2008 , when documents were submitted, there had been no indication of what evidence the objectors sought to put forward. The evidence relied upon by the objectors was presented two weeks before the second inquiry opened. 10. The production of the documents two weeks before the inquiry had not left sufficient time for consideration to be given to the scope for broadening the inquiry to include paragraph 7 matters. However, the documents did not contain any new evidence of substance (see below) that would have justified widening the scope of the inquiry. Furthermore, three other objections to the proposed modifications had been withdrawn. It may have been prejudicial to the interests of those individuals for a paragraph 8 inquiry to have transformed itself into something with a wider remit, as they would not have had the opportunity to participate. I note from the attendance list that none of these erstwhile objectors attended the inquiry. As the matters sought to be raised by the current freeholders had already been explored at the first inquiry both in oral and written evidence, they suffered no prejudice in the inquiry being confined to paragraph 8 matters. ”
“110. It is difficult to break down the oral and written user evidence into discrete parcels for use of the four routes under consideration, and much of the user evidence overlaps. With some exceptions, all of the witnesses had used all the routes at issue. In considering whether use has been as of right for the relevant 20-year period under consideration, I have dealt with the user evidence collectively for all of the routes at issue, with particular emphasis on individual routes where necessary. 111. An analysis of the user evidence indicates that use other than on foot had been made of AB by 26 people prior to 1994 and 49 had used BCD prior to 1993. BCD had been used on foot by 18 people, on horseback by 20 people, with a pedal cycle by 2 persons and with a pony and trap by one person. Five individuals considered their use had been with permission of the owners of High Hampsfield Farm. Thirty-one individuals had used BEFGH prior to 2003. Two individuals had driven the path with a pony and trap, 15 had ridden on horseback, 4 had walked or cycled, 9 had walked and one had driven the path in a motor car. Fourteen respondents had used DH with a motor car, with the earliest reported use arising in the 1960s. Extensive use of DH is reported by pedestrians, horse riders and cyclists in the 20 years prior to 2003. 112. The earliest use of AB on horseback was in the 1940s, with other users commencing their use in the 1950s and 1960s. The bulk of the user evidence relates to the period between 1974-1994; eight people had used the route for the whole of the 20 year period in question. 113. Eight individuals claimed to have ridden BCD throughout the 20 year period ending in 1993, with the earliest claimed use on horseback being in the 1950s. Use with a pony and trap on ABCD took place between 1976 and 1993 and on BEFGH between 1976 and 2002. Only one respondent claimed use of BCD on horseback for the whole of the 20-year period under consideration, although other users claimed use in excess of 20 years for periods which ended prior to 2003. 114. Cycle use of all routes had commenced for 2 users in 1969, with 2 other individuals having cycled the routes from the 1950s. 115. None of the respondents mentioned challenges being made to their use of BCD until 1993 and there is no mention of locked gates being present along ABCD until 1994, when several noted the locking and chaining of gates at A2 and B along with the provision of ladder stiles adjacent to the gates. Similarly, there are no recollections of signs on AB stating “No Horses” until after 1993. Nine of these individuals gave evidence in person at the inquiry.”
“Mr Roscoe had been resident in Hampsfield since 1969 had used both ABCD and ABEFGH “countless” times on foot and by pedal cycle. Although he had not seen horses using BC, he had seen them on other parts of the claimed routes, and I heard direct evidence from five individuals of their personal use of these routes on horseback. The effect of the combined written submissions of Mr Cottam (the late owner of High Farm), Mr Repton (the former owner of High Hampsfield Farm) and Mr Vaughan (the former owner of Springbank) was that there had been equestrian use of ABCD, BEFGH and DH in the past. Mr Cottam’s evidence was that the use he had seen was limited and infrequent. 120. In evidence given to the Council, Mr Repton acknowledged that the route over what had been his property (BCD and BE) had been used by horse riders and by pony and trap during his father’s ownership of the farm and that such use had continued whist he was the owner. Mr Repton did not state what degree of frequency of use he had observed, but the written evidence of Mr Cottam, Mr Repton and Mr Vaughan lends support to the claims of use of the path and demonstrates that although use of the paths had been limited it nonetheless took place. 121. The frequency of use of those individuals who appeared at the inquiry was of use on horseback of approximately once every two weeks although there were some variations whereby the use of individual witnesses had increased to 2 or 3 times a week depending on weather conditions or the location of stabling for horses. Those individuals whose evidence was of cycling or walking the routes at issue had been on a more frequent basis of up to 2 or 3 times a week. Mr Clegg had driven his pony and trap over the order routes on a fortnightly basis. A number of the witnesses stated that use of these routes was as part of a much longer ride in the area and the routes had been incorporated into circular rides to exercise and train horses for endurance events.”
“127. The evidence forms submitted as part of the application and generated by the Council’s investigation, together with the oral evidence given at the inquiry demonstrates that use on horseback has been made of all the Order routes during the 20 year periods under consideration. I conclude that the nature and extent of the use in a rural area is sufficient to raise the presumption of dedication of a public bridleway over ABCD, BEFGH and DH.”
“130. Mr Repton provided conflicting evidence as to whether any use of BCD or BE was as of right or with permission. In the written submissions a number of witnesses, including Mr Roscoe, considered that use of CB had been with the permission of Mr Repton who was a friend and neighbour. In telephone correspondence with the Council in February 2007 Mr Repton stated that he had never been asked for permission to use the route and had not given such permission. This contrasts with a statement he had provided to the objectors in November 2005 that he had occasionally given permission to friends and neighbours to walk or ride through the farm and onto the Fell. Mr Repton did not appear at the inquiry. 131. Mr Roscoe stated that when he had been a new resident in the area Mr Repton had suggested that he use DCB as a short cut out onto the Fell; the apparent invitation to use a route through the farmyard does not strike me as the giving of permission. The evidence form which Mr Repton completed in December 1993 and his correspondence with the Council in 2003 shows that he had known of public use of this route both on horseback and with pony traps during his father’s ownership of the property between 1944 and 1986. In addition, in a witness evidence form completed in January 1994, Mr Repton’s sister stated that as a child (i.e. during her father’s ownership of the property) it had been her “duty to open gate onto fell for riders”. 132. In my view, taking into account all the submissions made by Mr Repton, I conclude that he understood that use of BCD was well established and had occurred since at least his father’s ownership and occupation of the property. In these circumstances, it is unlikely that Mr Repton would feel he needed to give permission to use the path, knowing as he did that general use by the public had been long established by the time he became the owner in 1986. To my mind, such evidence is consistent with dedication at common law of a route.”
“27. Finally, Mrs Lockwood submits that if ABCD was a public bridleway on the basis of the documentary evidence, then any use by pedal cycles since 1968 would have been lawful undersection 30 (1) of the Countryside Act 1968 and was not as of right. It was submitted that I should have rejected all evidence of use with pedal cycles during the relevant periods under consideration as being irrelevant to the possible acquisition of Restricted Byway rights. In my view, where both documentary and user evidence are presented, the requirements of Section 31 of the 1980 Act are such that the user evidence is to be considered separately and independently from any historic evidence adduced in relation to the same route. Whilst as assessment of the documentary and user evidence are linked by Section 53 of the 1981 Act, the assessments of the documentary and the user evidence are separate and discrete matters and the conclusions reached upon the documentary evidence are not relevant to any subsequent consideration of the user evidence. I do not accept that the evidence of use by pedal cycles should have been disregarded having reached the conclusion that, on a balance of probabilities, the documentary evidence showed ABCD to be a bridleway.”
“60. Mr Elleray observes that the Inspector himself recognised that the use of a pony and trap began in 1976. The only non-mechanically propelled vehicle to which he referred in support of his conclusion that there was a restricted byway here was a bicycle. But use of a bicycle was (see section 30) entirely consistent with the right of way being as a bridleway. In the absence of any other evidence, if the evidence before an Inspector is of use since 1968 of a bicycle along a track, is it open to the Inspector to conclude that that use indicates that the track is one in which there are restricted byway rights or is the most that he can say that that track, otherwise used by horses, is a bridleway? 61. The answer which is given to this conundrum by Mr Coppell QC is that, on the wording of section 30, a cyclist has a right over what is recognised to be a bridleway. The section confers a right over a bridleway; it does not help to establish whether the right of the way is a bridleway or a restricted byway. And he argues that if, therefore, the bridleway had not been designated as such, then there is no right of way upon which section 30 could bite.”
“67. What is relevant for a decision under section 31 of the Highways Act is whether or not the way in question has been used by anything which fits within the genus of non-mechanically propelled vehicle. It is something which fits that description, rather than a specific vehicle, which has to be looked at. Thus, it seems to me open to add use for a number of years by a pony and trap to use by another form of non-mechanically propelled vehicle, such as a bicycle or cart, or whatever may be. 68. Secondly, it seems to me that questions of this sort have to be answered in context. Where there is no evidence that those who used bicycles did so because they were exercising rights which they thought they had over what they understood to be a bridleway only, and were thus exercising those rights by reference to the 1968 Act, the general context must then be looked at. Here, there was evidence which the Inspector accepted which showed that before the Countryside Act came into effect, the route he was considering from B-C-D had been ridden by those on bicycles. That was either in breach of the law, or it was because they were exercising what they considered to be a right to cycle over the fell on that path. If that right immediately prior to the enactment of the Countryside Act would have been capable of establishing what would then have been a byway open to all traffic, continuation of use by that and other non-mechanically propelled vehicles after the coming into force of the Act would, it seems to me, be entirely capable of supporting a conclusion that the rights over a byway were not restricted to those of a bridleway. 69. I therefore consider that, in effect, the guidance which the Planning Inspectorate have given is broadly correct in its thrust. This is not a case in which the use of bicycles has been purely since 1968, and has to be viewed in isolation; there is a context. Part of that context includes a sense of the nature of the track; which, from the pictures before me and the descriptions, has been broad enough to invite use by wheeled traffic, even if the conclusion of the Inspector, as a result of his analysis of the Finance Act of 1910 and its impact, was that it was not a public carriageway at that time.”
“3. Paragraph 12(1) of Schedule 15 to theWildlife and Countryside Act 1981 provides that if any person is aggrieved by an order which has taken effect and desires to question its validity on the ground, inter alia, that it is not within the powers of section 53, he may within 42 days from the date of publication of the notice under paragraph 11 of Schedule 15 make an application to the High Court under paragraph 12. Paragraph 12(2) provides that on any such application the High Court may, if satisfied, inter alia, that the order is not within those powers, “quash the order, or any provision of the order, either generally or insofar as it affects the interests of the applicant”. 4. ByCPR Rule 52.10 (1), in relation to an appeal, the appeal court has all the powers of the lower court, i.e. for the purposes of the present case, the Court of Appeal also has the power to “quash the order, or any provision of the order, either generally or insofar as it affects the interests of the applicant”. 5. If, therefore, the Court is minded to uphold the present appeal, it may make an order quashing part of the modification order, namely that part concerning the route between points B, C and D on the plan appended to the modification order. The relevant provisions of the modification order are those set out in Part 1 of the Schedule to the modification order under the headings “Description of restricted byway 506027, Broughton East, to be added” and Description of existing footpath 506024, Broughton East, to be amended to restricted byway”, together with the corresponding provisions of Part 2 of the Schedule concerning path numbers 506027 and 506024. 6. If the abovementioned parts of the modification order were to be quashed, it would be open to the [County Council] to make a new order with respect to route BCD. Any such new order would require to be made in accordance with the provisions of Schedule 15 to the 1981 Act. 7. In particular, the [County Council] would be required to comply with the publicity requirements contained in paragraph 3 of Schedule 15; the order would be required to be submitted to the Secretary of State, pursuant to paragraph 7(1), for confirmation by him in the event that any representation or objection duly made is not withdrawn; and, pursuant to paragraph 7(2) (subject to paragraph 7(2A)), the Secretary of State would be required to cause a local inquiry to be held or to afford any person by whom a representation or objection had been duly made and not withdrawn an opportunity of being heard by a person appointed by the Secretary of State for the purpose… 8. The question of whether an inquiry or a hearing would be held with respect to the order would, therefore, depend upon whether or not any representations or objections were duly made with respect to the order and not withdrawn, and upon the nature of those objections. 9. As the [Secretary of State] understands the matter, the [County Council} has indicated that if the modification order dealing with route were to be quashed (in whole or in part), then it would make a new order describing the relevant routes as bridleways. This would permit them to be used by equestrians and cyclists. Presumably the Appellants would object to such an order. 10. The procedure at an inquiry ordered to be held pursuant to paragraph 7(2)(a) of Schedule 15 to the 1981 Act is governed by Parts 1, 2, 4 and 6 of theRights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 (“the 2007 Rules”), while that governing hearings ordered to be held pursuant to paragraph 7(2)(b) is governed by Parts 1, 2, 3 and 6 of the 2007 Rules. 11. Rule 9(1) of the 2007 Rules provides that, except as is otherwise provided in those Rules, the inspector shall determine the procedure at the hearing. Rule 9(7) provides that the Inspector may at any stage refuse to permit the giving or production of evidence or the presentation of any matter which he considers to be irrelevant or repetitious. Rules 21(1) and 21(7) make similar provision with respect to Inquiries. 12. Notwithstanding the broad discretion conferred on Inspectors by the 2007 Rules as to the procedure to be followed at hearings and inquiries held pursuant to the provisions of paragraph 7 of Schedule 15 to the 1981 Act, there is, in the [Secretary of State’s] submission, no scope for an Inspector holding a hearing or inquiry into a new order made with respect to route BCD to seek to truncate the process by reference to the evidence adduced at the previous inquiry. This is the case, moreover, irrespective of whether the same Inspector were to be appointed to hear the proceedings, or a different one. 13. The main reason for the above submission is that the statutory process for dealing with objections and representations must be complied with. This in turn would require objections and/or representations made with respect to the order to be considered afresh. Different objections and/or representations might well be made to those considered at the original Inquiries; different witnesses might well be called; the parties might well be represented by different Counsel (if they are represented at all); and the hearing or inquiry might well take place before a different audience. All of these considerations lead inevitably to the conclusion that the entire proceedings must be conducted de novo. 14. Further, as the Secretary of State submitted at the hearing before the Court, evidence in cases such as the present one must be viewed as a whole, and a global view taken, by way of an exercise of informed judgement, as to the conclusion concerning the status of the way in question, which it supports. It would, therefore, in her respectful submission, be unrealistic and impracticable for an Inspector at a new hearing/inquiry to take some parts of the relevant evidence as given (on the basis that it was established at the previous Inquiry), and also to permit new evidence to be adduced, and then to seek to put the two parts of the whole together in order to form a view. Rather, the Inspector would and would be required to approach the matter on the basis that all, or at least most, of the evidence must be considered afresh, in the context of the new proceedings.”