Ernstbrunner v Manchester City Council & Anor [2009] EWHC 3293 (Admin)

[2009] EWHC 3293 (Admin)Case No CO/12348/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/12/2009
Before
THE HON. MR. JUSTICE LLOYD JONES
Between
Edgar ErnstbrunnerAppellantManchester City CouncilFirst RespondentJack MalesSecond Respondent
Mr. George Laurence QC and Ms. Ross Crail (instructed by Zermansky Solicitors) for Appellant. for The First Respondent did not appear and was not represented.Mr. Stephen Sauvain QC (instructed by Thompson & Cooke Solicitors) for Second RespondentHearing Hearing dates: 17 th, 18 th and 19 th November 2009
JudgmentThe Hon. Mr. Justice Lloyd Jones :
[1]This is an appeal by case stated from a decision of the Crown Court at Manchester (Mr. Recorder Pratt QC and Mrs. S. McGinn) dismissing an appeal against a decision of the Manchester Magistrates’ Court.[2]On 2nd November 2004 an information was preferred by the Appellant, Dr. Edgar Ernstbrunner, against Manchester City Council seeking an order under section 130B(2) Highways Act 1980 (“the 1980 Act”) requiring Manchester City Council to take action to secure the removal of a gate which, it was contended, obstructed a public footpath at Chamber Hall Farm, Manchester. That application was dismissed by the Manchester Magistrates’ Court on 2nd September 2005. Dr. Ernstbrunner appealed to the Crown Court. The appeal was by way of a rehearing and occupied five days in May and October 2006. The appeal was formally dismissed on the 26th February 2007 and judgment was given on the 12th March 2007.[3]The Appellant is a member and local representative of the Ramblers’ Association, a registered charity and company limited by guarantee, whose objects include working for and assisting in the provision and preservation of public footpaths and the prevention of their obstruction.[4]The First Respondent to this appeal is Manchester City Council, the highway authority for the City of Manchester and the surveying authority for the purposes of Part III of the Wildlife and Countryside Act 1981 (“the 1981 Act”).[5]The Second Respondent, Mr. Jack Males, is the owner of Chamber Hall Farm.

Sections 130A-130D of the Highways Act 1980

[6]Sections 130A–130D were introduced into the 1980 Act by section 63, Countryside and Rights of Way Act 2000 (“the 2000 Act”). These provisions provide members of the public with a means of compelling highway authorities to perform their duties under section 130 of the 1980 Act to assert and protect the rights of the public to use and enjoy highways within their respective areas, including in particular to prevent so far as possible the stopping up or obstruction of such highways (section 130(3)). A highway is defined in section 130A(2) as including a footpath and a bridleway. Section 130A applies to an obstruction of the highway if the obstruction is without lawful authority and, so far as relevant to the present case, the powers conferred by section 143 of the 1980 Act (i.e. power to remove structures from highways) are exercisable in respect of it. Section 143 empowers the highway authority to serve a notice on the persons responsible for the obstruction requiring its removal within a specified time. In the event of non compliance the authority may itself remove the structure or apply to the magistrates for a removal and disposal notice (section 149).[7]Section 130B provides in relevant part:
“130B Orders following notice under section 130A. (1) Where a notice under section 130A(1) above has been served on a highway authority in relation to any obstruction, the person who served it, if not satisfied that the obstruction has been removed, may apply to a magistrates’ court in accordance with section 130C below for an order under this section. (2) An order under this section is an order requiring the highway authority to take, within such reasonable period as may be fixed by the order, such steps as may be specified in the order for securing the removal of the obstruction. … (4) Subject to subsection (5) below, the court may make an order under this section if it is satisfied— (a) that the obstruction is one to which section 130A above applies or, in a case falling within subsection (4)(a)(ii) of that section, is one to which that section would apply but for the obstruction having become used for human habitation since service of the notice relating to it under subsection (1) of that section, (b) that the way obstructed is a highway within subsection (2) of that section, and (c) that the obstruction significantly interferes with the exercise of public rights of way over that way. (5) No order shall be made under this section if the highway authority satisfy the court— (a) that the fact that the way obstructed is a highway within section 130A(2) above is seriously disputed, (b) on any other grounds, that they have no duty under section 130(3) above to secure the removal of the obstruction, or (c) that, under arrangements which have been made by the authority, its removal will be secured within a reasonable time, having regard to the number and seriousness of obstructions in respect of which they have such a duty.” (1) Where a notice under section 130A(1) above has been served on a highway authority in relation to any obstruction, the person who served it, if not satisfied that the obstruction has been removed, may apply to a magistrates’ court in accordance with section 130C below for an order under this section. (2) An order under this section is an order requiring the highway authority to take, within such reasonable period as may be fixed by the order, such steps as may be specified in the order for securing the removal of the obstruction. … (4) Subject to subsection (5) below, the court may make an order under this section if it is satisfied— (a) that the obstruction is one to which section 130A above applies or, in a case falling within subsection (4)(a)(ii) of that section, is one to which that section would apply but for the obstruction having become used for human habitation since service of the notice relating to it under subsection (1) of that section, (b) that the way obstructed is a highway within subsection (2) of that section, and (c) that the obstruction significantly interferes with the exercise of public rights of way over that way. (5) No order shall be made under this section if the highway authority satisfy the court— (a) that the fact that the way obstructed is a highway within section 130A(2) above is seriously disputed, (b) on any other grounds, that they have no duty under section 130(3) above to secure the removal of the obstruction, or (c) that, under arrangements which have been made by the authority, its removal will be secured within a reasonable time, having regard to the number and seriousness of obstructions in respect of which they have such a duty.”
[8]Section 130C (6) provides:
“(6) On the hearing of the application any person who is, within the meaning of section 130A above, a person for the time being responsible for the obstruction to which the application relates has a right to be heard as respects the matters mentioned in section 130B(4) above.”
[9]Section 130A (7) defines “the persons for the time being responsible for an obstruction” as including “the owner and any other person who for the time being –(a) has possession or control of it, or(b) may be required to remove it.” History of the Proceedings.[10]On 20th May 2004 Dr. Ernstbrunner served on Manchester City Council (“the Council”) a section 130A(1) notice requesting that it secure the removal of a green metal gate across the route of Footpath 254, Manchester (“FP 254”) where it crosses Chamber Hall Farm. On 17th June 2004 the Council served a notice under section 130A(6) on Mr. Males informing him of that fact and stating its intention to serve a section 143 notice on him requiring removal of the disputed gate. A section 143 notice was served on 5th July 2004. The disputed gate was not removed. On 25th October 2004 Dr. Ernstbrunner served on the Council a section 130C(1) notice stating that he intended to apply to the magistrates’ court for an order under section 130B. On 2nd November 2004 Dr. Ernstbrunner laid his complaint.[11]At the hearing before the Deputy District Judge on 2nd September 2005 the Council was prepared to accede to an order that it secure removal of the gate. However Mr. Males, as owner of the land on which the gate was situated and the person who had installed it and wished to keep it there, exercised his rights under section 130C(6) of the 1980 Act to be heard on the matters mentioned in section 130B(4) and opposed the making of any order. He succeeded in establishing that the gate was not on the line of the footpath. On that basis the application was dismissed.[12]Dr. Ernstbrunner appealed to the Crown Court pursuant to section 317 (1), (3). There, Manchester City Council, which had previously adopted a neutral stance, finally supported the submission on behalf of Dr. Ernstbrunner that the disputed gate was located on a footpath and significantly obstructed it. However, it also contended that the court was precluded from making an order against it by section 130B(5)(c) because it had put it in place arrangements to secure the removal of the obstruction within a reasonable period of time. In the Crown Court the appeal was successfully resisted by Mr. Males as intervener. The appeal was dismissed on 26th February 2007 on the basis that the gate was not on the line of FP 254. The final judgment is dated 12th March 2007, it having been expanded to deal with the alternative submission on behalf of Mr. Males that the gate did not significantly obstruct the footpath.[13]Dr. Ernstbrunner now appeals to this court by way of case stated. An appeal lies to this court on a point of law only.[14]On the hearing of the appeal before me Manchester City Council has taken no part. However the appeal has once again been resisted by Mr. Males. Issue A: The route of Footpath 254.[15]The following questions have been posed for the opinion of this court. “In view of our findings of fact that the route of Footpath 254 as shown on the Definitive Map was intended to, and did in fact, show the Footpath diverging from the private road and following the line now marked by setts on the edge of Mr. Males’ property: 1. Were we precluded as a matter of law from coming to this finding of fact by reason of the description relating to Footpath 254 contained in the Definitive Statement? 2. Were we entitled as a matter of law to interpret the Definitive Statement as not being in conflict with the Map? 3. If we were not so entitled to interpret the Definitive Statement then how should any conflict be resolved in view of our above finding of fact?”[16]As the argument developed it became clear that the issues on Issue A fall into two main categories: first, a perversity challenge to certain findings of fact and, secondly, other alleged errors of law. Within the second category the central question for consideration is whether, having regard to the findings of fact it made, the Crown Court was precluded from coming to its conclusions as a result of the effect of the 1984 definitive statement. In addition, an alternative case was advanced on behalf of Dr. Ernstbrunner on the basis of the 1963 definitive statement.[17]There has been some dispute as to whether the questions posed were appropriate. In the event, I am satisfied that they are framed in a way which enables me to address the substance of the issues raised in argument. The definitive map legislation.[18]It is necessary to say something about the current and earlier legislation governing the status of definitive maps and statements.[19]Part IV of the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”) made provision for the recording, creation, maintenance and improvement of public paths and for securing access to open country. It required every County Council in England and Wales (referred to as a surveying authority) to prepare a draft map of its area showing such rights of way wherever in its opinion they subsisted or were reasonably alleged to have subsisted at the relevant date (i.e. such date not earlier than 6 months before the date on which the notice of the preparation of the draft map was published, as the authority might determine.) Section 27(4) required the authority to annex to the draft map “a statement specifying the relevant date and containing, as respects any public path or other way shown thereon in accordance with the foregoing provisions of this section, such particulars appearing to the authority to be reasonably alleged as to the position and width thereof, or as to any limitations or conditions affecting the public right of way thereover, as in the opinion of the authority it is expedient to record in the statement”.[20]The 1949 Act provided in section 29 for the draft map and statement to be advertised and provided for objections and determinations by the authority of such objections with a right of appeal to the Minister. The next stage was the preparation of a provisional map and statement under section 30 i.e. the draft map and statement modified to reflect the outcome of the objection procedure if any. Section 31 entitled the owner, lessee or occupier of the land over which there was, according to the provisional map and statement, a public right of way to apply to Quarter Sessions for various declarations in relation to the right of way shown on the provisional map and statement. The third and final stage was the preparation under section 32 of the definitive map and statement, being the provisional map and statement adjusted to reflect any declarations made under section 31. Paragraph 9 of the First Schedule to the 1949 Act made provision for the validity of the definitive map and statement to be challenged in the High Court.[21]Section 32(4) provided:
“(4) A definitive map and statement prepared under subsection (1) of this section shall be conclusive as to the particulars contained therein in accordance with the foregoing provisions of this section to the following extent, that is to say - (a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date specified in the statement a footpath as shown on the map; (c) where by virtue of the foregoing paragraphs of this subsection the map is conclusive evidence, as at any date, as to a public path, or road used as a public path, shown thereon, any particulars contained in the statement as to the position or width thereof shall be conclusive evidence as to the position or width thereof at the relevant date, and any particulars so contained as to limitations or conditions affecting the public right of way shall be conclusive evidence that at the said date the said right was subject to those limitations or conditions, but without prejudice to any question whether the right was subject to any other limitations or conditions at that date.” (a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date specified in the statement a footpath as shown on the map; (c) where by virtue of the foregoing paragraphs of this subsection the map is conclusive evidence, as at any date, as to a public path, or road used as a public path, shown thereon, any particulars contained in the statement as to the position or width thereof shall be conclusive evidence as to the position or width thereof at the relevant date, and any particulars so contained as to limitations or conditions affecting the public right of way shall be conclusive evidence that at the said date the said right was subject to those limitations or conditions, but without prejudice to any question whether the right was subject to any other limitations or conditions at that date.”
[22]Section 33 required the authority to review and revise the definitive map and statement at periodic intervals. Revised maps and statements were to be prepared in three stages corresponding to the stages of preparation of the original definitive map and statement and the provisions of sections 28 to 32 inclusive were to apply mutatis mutandis (section 34).[23]Amendments were made to Part IV of the 1949 Act by section 31 of and Schedule 3 to the Countryside Act 1968 (“the 1968 Act”).[24]Part IV of the 1949 Act and Schedule 3 to the 1968 Act were repealed by the Wildlife and Countryside Act 1981 (“the 1981 Act”) and replaced with sections 53-58 of and Schedules 14 and 15 to that Act. The system of periodic reviews of the definitive map and statement was abolished and a rolling review system was introduced in its place.[25]Section 53(2) of the 1981 Act required each surveying authority to make by order such modifications to the map and statement as appeared to it requisite in consequence of the occurrence of any of the events specified in section 53(3) as soon as reasonably practicable(a) after the commencement date (in the case of events which occurred before commencement) and(b) after they had occurred (in all other cases).[26]The events specified in section 53(3) included in sub paragraph (c):
“(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows— (i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, beinga right of way such that the land over which the right subsists is a public path, a restricted byway or, subject to section 54A, a byway open to all traffic; (ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or (iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.” (i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, beinga right of way such that the land over which the right subsists is a public path, a restricted byway or, subject to section 54A, a byway open to all traffic; (ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or (iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.”
[27]A modification order may be made by an authority on its own initiative or in response to an application made to it by any person under section 53(5). Section 56(1) provides in relevant part:
“(1) A definitive map and statement shall be conclusive evidence as to the particulars contained therein to the following extent, namely— (a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover a right of way on foot, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than that right; … (e) where by virtue of the foregoing paragraphs the map is conclusive evidence, as at any date, as to a highway shown thereon, any particulars contained in the statement as to the position or width thereof shall be conclusive evidence as to the position or width thereof at that date, and any particulars so contained as to limitations or conditions affecting the public right of way shall be conclusive evidence that at the said date the said right was subject to those limitations or conditions, but without prejudice to any question whether the right was subject to any other limitations or conditions at that date.” (a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover a right of way on foot, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than that right; … (e) where by virtue of the foregoing paragraphs the map is conclusive evidence, as at any date, as to a highway shown thereon, any particulars contained in the statement as to the position or width thereof shall be conclusive evidence as to the position or width thereof at that date, and any particulars so contained as to limitations or conditions affecting the public right of way shall be conclusive evidence that at the said date the said right was subject to those limitations or conditions, but without prejudice to any question whether the right was subject to any other limitations or conditions at that date.”
[28]The relevant date is defined in section 56(2). If the way was shown on the map otherwise than in pursuance of a modification order made under section 53 it is the date specified in the statement as the relevant date for the purpose of the map.[29]Section 57 of the 1981 Act provides for the preparation from time to time by a surveying authority of consolidated maps and statements which incorporate the effects of separate modification orders into the definitive map and statement. It provides in relevant part:
“(3) Where, in the case of a definitive map and statement for any area which have been modified in accordance with the foregoing provisions of this Part, it appears to the surveying authority expedient to do so, they may prepare a copy of that map and statement as so modified; and where they do so, the map and statement so prepared, and not the map and statement so modified, shall be regarded for the purposes of the foregoing provisions of this Part,and for the purposes of section 57A(1), as the definitive map and statement for that area. (4) The statement prepared under subsection (3) shall specify, as the relevant date for the purposes of the map, such date, not being earlier than six months before the preparation of the map and statement, as the authority may determine.”
The 1963 and 1984 definitive maps and statements.[30]Footpath 254 was shown in the original definitive map and statement for the City of Manchester published under the 1949 Act in November 1963 with a relevant date sometime in the latter half of 1952. A copy of the 1963 definitive map is annexed to this judgment as Annex 1.[31]The 1963 definitive statement states in relation to Footpath 254: FOOTPATH NO DESCRIPTION FOOTPATH BRIDLEWAY WIDTH FROM TO 254 City boundary near to Styal Road, passing Chamber Hall in a westerly direction Big Wood From the City boundary to 438 yards along the private cartway, thence to termination footpath 25’ & 2’[32]The current definitive map and statement for the City of Manchester is not, however, the 1963 definitive map and statement but the 1984 definitive map and statement. The Crown Court found that this had been generated and came into being as a result of the exercise of the power in section 57(3) of the 1981 Act with a relevant date of the 21st February 1984.[33]It is a curious feature of the present case that while the new map and statement prepared under section 57(3) of the 1981 Act should under that subsection be a “copy” of the existing map and statement as modified, the 1984 map and statement are not a faithful reproduction of the 1963 map and statement.[34]The 1984 definitive map is annexed to this judgment as Annex 2.[35]The 1984 definitive statement states in relation to Footpath 254. Path No Page No Status Width metres Description Comments 254 12 Footpath 0.6- 7.6m From the City boundary near to Styal Road passing Chamber Hall in a westerly direction, to Big Wood From the City boundary for 400 metres, this footpath follows a private road[36]It was common ground before me that the particulars contained in the 1984 statement as to the position and width of footpath 254 are conclusive evidence as to its position and width as at the relevant date 21st February 1984.

The approach of the Crown Court

[37]The hearing before the Crown Court was by way of rehearing. For Dr. Ernstbrunner it was submitted that the route of Footpath 254 was the route of the private road which passed through the farmyard and which is now obstructed by the offending gate. For Mr. Males reliance was placed upon the fact that the line of the footpath as shown in the 1963 and 1984 definitive maps makes a distinctive diversion to the north (referred to as a “kink”) as it passes through the farmyard. It was submitted that this feature depicts a route along a line of setts now lying between a fence and a line of conifers and that this marks the true route of the footpath.[38]The Crown Court had the advantage of the evidence of three expert witnesses as to the interpretation of the definitive map and statement: Mr. Kilgour on behalf of Dr. Ernstbrunner, Mr. Lyon on behalf of Manchester City Council and Mr. Taylor on behalf of Mr. Males. The experts were questioned in relation to a northward kink in the line of the footpath depicted on both the 1963 and 1984 definitive maps with the kink appearing more clearly in the former. The Crown Court examined the evidence of these witnesses in detail in its judgment. It referred to the fact that Mr. Kilgour had conceded in cross examination that the line of the setts followed the same curvature as the broken line on the maps depicting the footpath. It also drew attention to the acceptance by Mr. Kilgour that the shape of the broken lines depicting the footpath on the 1984 definitive map tended to suggest that the map was drawn from west to east. Whereas Mr. Kilgour sought to explain the curve to the north travelling from east to west by the necessity of avoiding the farmhouse, he accepted that the same explanation would not appear to provide a reason for the curve to the north when travelling from west to east. He could not from his examination show a feature which would require the pathway to deviate at that point. Similarly Mr. Lyon was unable to provide any explanation for the noticeable northward curve in the line of the footpath at its more westerly point, a symbol on the map at that point which he had suggested was a structure having been shown to be no more than a bench mark. The Crown Court found the evidence of Mr. Taylor the most helpful. He agreed with the other experts that the route of the footpath appeared to lie within Mr. Males's land and stated that it was impossible to say with any certainty where the line of the path lay. However he expressed his view that the pronounced kink to the north in the line on the map together with his understanding that the line of conifers formed the boundary of Mr. Males's land suggested that the line along the setts formed the true definitive footpath. He considered that the kinks, compared to the relative straightness of the rest of the lines, suggested that the path moved away from Chamber Hall towards the northern boundary which would be in keeping with the suggestion that the true line of the path runs down the stone setts.[39]The Crown Court also heard evidence from Mr. Michael Peter Matthews who was 62 years of age in March 2007 and who had known the property since he was a boy of 7. He was able to give clear evidence as to how the land looked in 1951, shortly after the passing of the 1949 Act and immediately prior to the definitive date of the 1963 map and statement, which is a date in the latter half of 1952. He described a partly cobbled footpath with three stiles running from a point just west of the present disputed gate and rejoining the private road at a point opposite the front of Chamber Hall Farm. Mr. Matthews stated that this footpath afforded a right of way around the principal dwelling house of Chamber Hall Farm. He remembered seeing members of the public using the pathway for this purpose. He had no recollection of seeing anybody apart from farm workers and members of the then owner's family using the farmyard as a means of access. His evidence was that the cobbled footpath lay beyond a well established hedge which he regarded as the boundary feature of Mr. Males's land. On the other side of the path there was a stock fence which was likely to have been situated where conifers now stand. He remembered seeing the conifers when they were young whips in the early to mid 1960s. All the parties placed reliance on the different parts of Mr. Matthews’s evidence. The Crown Court considered that he was plainly an honest and reliable witness who was singularly accurate in his recollections. The Court felt able to act with confidence on his evidence.[40]On the basis of this evidence the Crown Court made a finding of fact that the draughtsman of the 1963 definitive map deliberately drew the line with the kink in it. This curve demonstrated a deviation from the centre of the private road to a line on the edge of Mr. Males's land and which coincides with the row of setts. In its view, the curve or kink was too pronounced to be explained merely by the presence of the house when travelling from east to west and cannot be explained at the point west of the house when travelling west to east unless it was to demonstrate that the route follows the path along the row of setts.[41]The relevant findings are set out in the case stated as follows:
“[15] A blown up version of the 1963 map suggests a sharper northward curve near the entrance (point B on Mr. Taylor’s plan) to Mr. Males’s property Chamber Hall than does the 1984 map, the draftsman (in either case) intending to illustrate that (moving east to west) the line of the footpath moved sharply from that point towards the boundary of the land only to return at a more westerly point to the centre of the private road. (The private road is shown on photographs 7, 8 and 9). … [19] From not later than 1952 there was a pedestrian pathway (accessible by stiles at either end) whose surface consisted of stone setts (“the Pathway”). The Pathway left the private road immediately west of the gate (“the disputed gate”) of which complaint is made in these proceedings, and continuing in a broadly easterly direction as shown on the plan exhibited to Mr. Taylor’s report at PT2 (“Mr. Taylor’s plan”) and as described by him in his report (attached at Annex 4). [20] The disputed gate is shown on Mr.. Taylor’s plan (above and a little to the right of the word Pond on the plan) as straddling a roadway marked on the plan by broken pecked lines. [21] The disputed gate can be seen, in the distance, on photograph 7 and, much more clearly, on photographs 8 and 9 (bundle of photographs attached at Annex 6). [22] The pathway immediately adjoins, for some distance, the fence depicted on Mr. Taylor’s plan. [23] The fence is in the same position as the hedge which in 1952 ran immediately to the south of the Pathway and which was still in situ in 1996. [24] There is today a row of conifer trees (planted in the 1960s) which is shown on Mr. Taylor’s plan between the markers running from point E. In 1952 there was a stock proof fence running in approximately the same position. [25] The draughtsman of the 1963 definitive map deliberately drew the line with a kink in it. [26] As the remainder of the line of FP 254 marked on the definitive map is essentially straight the curve demonstrates a deviation from the centre of the private road to a line at the edge of Mr. Males's property and which coincides with the row of setts. [27] The curve or kink is too pronounced to be explained merely by the presence of the house when travelling from east to west and cannot be explained at the point west of the house when travelling west to east – unless it is to demonstrate that the route follows the path. The line of the setts follows the same curvature as the blown up sausages on the plans produced by Messrs Kilgour and Lyon. [28] There were stiles at points C, D and E on the plan used by Mr. Matthews (attached at Annex 7). [29] Some members of the public as early as 1952 used the Pathway. [30] Mr. Matthews had no recollection of seeing members of the public use the farmyard. [31] A member of the public who used the Pathway in preference to a route through the farmyard would not be inconvenienced thereby. [32] As recorded in paras 22 and 23 above, the fence which today bounds the Pathway on its southern side is in the same position as the hedge which used to be in that position (as described by Mr. Matthews). In the 1950s there was not merely a hedge to the south of the Pathway; there was also a stock fence to the north of it. [33] In the absence of an exact determination the surveyor of the original ordnance survey map on a balance of probabilities must have satisfied himself that the stock fence represented the boundary of Mr. Males’ land. [34] The surveyor plotting the line of the path on the 1984 definitive map intended to reproduce the same line as that which had been shown on the 1963 definitive map. [35A] The evidence of Mr. Taylor, in part contained within his Witness Statement and in part contained within the Land Registry Practice Guide 40 which he produced in evidence, indicates that all OS Maps have different levels of accuracy. This evidence was accepted by Mr. Kilgour and Mr. Lyons (the experts called on behalf of the Ramblers Association and the Manchester City Council) although neither had referred to these levels of accuracy in their witness statements. Accordingly it was implicit in our judgment that we found that the levels of tolerance are as set out in Mr. Taylor’s witness statement (Annex 4 to this Case) and in the extracts from the Land Registry Practice Guide 40 which are attached as Annex 14 to this Case.”
The reference to the blown up sausages is to the sections of broken line depicting the footpath on the 1984 definitive map which have this appearance on the enlarged map.

Challenge to findings of fact on grounds of perversity

[42]The Appellant seeks to challenge certain findings of the Crown Court on the ground that, on the evidence, they were not reasonably open to it. As the argument developed during the course of the hearing, it became clear that the challenge is to the following findings.(1) The Ordnance Survey draughtsman who drew the maps on which the 1963 and 1984 definitive maps were based was, in drawing the boundary feature to the north of Chamber Hall Farm, depicting the stock fence as opposed to the hedge.(2) The surveyor drawing up the 1963 and 1984 definitive maps and statements took that boundary feature as indicating the stock fence as opposed to the hedge.(3) The surveyor drawing up the 1963 and 1984 definitive maps and statements was intending to show the footpath as passing along the line of the setts.[43]In order to appreciate the significance of the first two findings, it is necessary to refer to the fact that the definitive maps show the footpath passing to the south of a boundary feature. It was common ground between the parties that the footpath is on the land of Chamber Hall Farm. If the boundary line shown on the definitive map is the hedge to which Mr. Matthews referred in his evidence, which is now replaced in part by a fence, then the broken line depicting the footpath to the south of it cannot depict the route along the setts. If, on the other hand, the boundary feature on the definitive map is the stock fence, which is now replaced by a line of conifers, then the broken line could be the line of the setts.[44]The Crown Court dealt with this at paragraph 50 of its judgment. It stated that it had taken account of the submission that the experts’ opinions and the evidence of Mr. Matthews was to the effect that the line of setts fell outside Mr. Males's property and therefore could not be the line depicted on the definitive map which shows the footpath as falling inside the boundary of Mr. Males's land. However they rejected this submission for the following reasons. First, having regard to the tolerances of accuracy on the OS map and the proximity of the fence (and before that the hedge), the line of setts and the line of conifers, the line of the boundary could not be taken to be so accurate as to determine this issue. Secondly, there did not appear to them to have been any determination of the exact boundary. Thirdly in the 1950s there were two potential boundary features – the hedge and the stock fence. The Crown Court considered that it may well be in the absence of an exact determination the surveyor of the original map satisfied himself that the stock fence represented the boundary of Mr. Males's land.[45]In the case stated the Crown Court made a finding of fact that in the absence of an exact determination the surveyor of the original Ordnance Survey map on a balance of probabilities must have satisfied himself that the stock fence represented the boundary of Mr. Males's land. (para. 33)[46]In the course of his submissions before me, Mr. Stephen Sauvain QC, who appeared for Mr. Males, drew my attention to the evidence of Mr. Taylor, which was accepted by the Crown Court, that there is inevitably a margin of accuracy in the depiction of features on maps. His evidence was that on a map of the scale of the 1984 definitive map the mapping of 99% of the points on the map can be expected to be within 8.8 metres of their true position. In the present case Mr. Taylor’s evidence was that the band between the stock fence and the hedge was 2.4 metres. To my mind, this establishes that the boundary feature on the map could depict either the stock fence or the hedge. However, it is not a reason for preferring one over the other.[47]In support of these two findings Mr. Sauvain also relied on the evidence of Mr. Matthews that the stock fence was there in 1951 and that the present line of conifers is in the same position as the former stock fence. However, in themselves, these matters do not take the Respondent’s case much further. Once again, the evidence is equally consistent with the boundary feature depicting the stock fence or the hedge. Moreover, against this must be set the evidence of Mr. Matthews that he regarded the hedge as the boundary of Chamber Hall Farm, although it is fair to point out that we are here concerned with Mr. Matthews’s boyhood recollections (he was about 7 years of age in 1951) and he was not questioned as to the basis of this belief.[48]However, in my judgement, it is not possible to examine this issue entirely in isolation from the issue relating to the line of the footpath and the third finding of the Crown Court set out above which is also challenged on this appeal.[49]The 1984 definitive map shows the footpath running immediately south of a boundary feature. At that point the path is shown to make a distinctive and abrupt diversion to the north. The evidence on the ground is of a line of setts to the south of the conifers (which according to Mr. Matthews are on the line of the former stock fence) and to the north of a fence (which according to Mr. Matthews partly replaced the hedge). Moreover, the line of setts follows the same distinctive diversion to the north as is depicted in the line of the footpath in the map. There is in existence a footpath in approximately the position of the footpath depicted on the map running south of the boundary feature. That existing footpath coincides exactly with the reading of the map contended for by Mr. Sauvain. Moreover, there is evidence that it was there in 1951. All this is, to my mind, compelling evidence that the boundary feature on the map depicts the stock fence and that the surveyor drawing up the definitive map and statement was intending to depict the footpath passing along the line of setts and to the south of the stock fence.[50]Against this must be set the submission of Mr. George Laurence QC, for Dr. Ernstbrunner, that the line depicting the footpath on the definitive map in fact follows the private road which passes through the farmyard at the furthest extremity from the farmhouse, to the south of the hedge and following the shape of the hedge. (I note in passing that the Appellant says that such a reading would still lead to the conclusion that the offending gate obstructs the footpath because on the Appellant’s case the width of the footpath at this point is 25 feet.) However, it is necessary to consider what evidence there is to support the view that the private road curved to the north of the farmyard, following the line of the hedge in this way. Mr. Laurence says that the 1963 definitive statement indicates that the footpath ran along the private cartway for 438 yards at a width of 25 feet (a matter to which I shall return) and asks why one should not assume that it would follow the line of the hedge. However, to my mind, there is no evidence that the road followed the curve of the hedge and it is not possible to make such an assumption. Moreover, while I am told that not all of the maps which were before the Crown Court are before me, the evidence of the maps I have seen supports the contrary view. The Land Registry plan (produced after 1953) shows a track within the boundary features, crossing the farmyard directly in a west – east line and not following the northern boundary feature. Similarly, the map produced by Mr. Kilgour indicates the private road travelling east from the position where the offending gate now stands and not following the line of the northern boundary feature. As Mr. Sauvain put it, the strong likelihood is, therefore, that the surveyor who depicted the footpath on the definitive map was drawing what he saw and that that is what could then be seen and can still be seen, namely the footpath following the line of the setts.[51]For these reasons I consider that there was clearly evidence on which the Crown Court was entitled to conclude, on the balance of probabilities, that the boundary feature on the map was intended to be and was taken by the surveyor drawing up the definitive map to be the stock fence (now a line of conifers) and that the surveyor drawing up the definitive map and statement intended to depict the footpath passing along the line of the setts.

The effect of the definitive statement

[52]If the Crown Court was entitled to conclude that the route of the Footpath 254 as shown on the 1984 definitive map was intended to and did in fact show the footpath diverging from the private road and following the line now marked by setts on the edge of Mr. Males’s property, the question arises whether it was nevertheless precluded as a matter of law from coming to this finding of fact by reason of the description of Footpath 254 in the 1984 definitive statement.[53]The relevant parts of section 56(1), Wildlife and Countryside Act 1981 are set out at paragraph 27 above. What effect is to be given to the definitive map and the definitive statement respectively in circumstances where arguably they are in conflict? Before the Crown Court and before me both parties agreed that the correct approach is that set out by Pitchford J. in R (Norfolk County Council) v Secretary of State for the Environment Food and Rural Affairs [2006] 1 WLR 1103. I respectfully agree and adopt that approach which may be summarised as follows:(1) “… [T]he correct approach to interpretation of the definitive map and statement must be a practical one. They should be examined together with a view to resolving the question whether they are truly in conflict or the statement can properly be read as describing the position of the right of way. If they are in conflict, then the map must take precedence since the discretionary particulars depend for their existence on the conclusiveness of the obligatory map. Unless the statement can properly be interpreted as describing the same footpath as that shown on the map, then the statement cannot be regarded as conclusive evidence of the position of the footpath shown on the map. The question whether the statement does describe the position of a footpath shown on the map is, I accept, a matter of fact and degree. That the statement purports, by reference to the same footpath designation number, to specify the position of a footpath similarly designated on the map is some but, in my view, inconclusive evidence that it in fact does so.” (paragraph 38.)(2) The question whether the statement describes the position of the footpath marked on the map need not require the precision of a slide rule. (paragraph 41.)(3) “For the purposes of section 56 of the Wildlife and Countryside Act 1981 the definitive map is the primary and source document. If the accompanying statement cannot be read as supplying particulars of the position of the footpath shown on the map then the position as shown on the map prevails over the position described on the statement. It is conclusive evidence unless and until review under section 53(2). As the absence of authority in this fertile area of litigation demonstrates, the number of occasions when a statement cannot be regarded as compatible with the map will be rare. The question whether they are in irreconcilable conflict is a matter of fact and degree. In reaching a conclusion whether the statement can be reconciled with the map, a degree of tolerance is permissible, depending on the relative particularity and apparent accuracy with which each document is drawn. Extrinsic evidence is not relevant to this exercise save for a comparison between documents and the situation on the ground at or about the “relevant date”.” (paragraph 73)[54]It is important to emphasise that in the passages referred to above Pitchford J. was considering the approach to the issue of whether the definitive map and the definitive statement relate to the same footpath. In the present case, both before the Crown Court and before me, it was common ground that the definitive map and the definitive statement both related to the same footpath. Although there were arguably inconsistencies between the two there was not such a fundamental conflict as to lead to the conclusion that they related to different footpaths.[55]Where, as here, it is established that the statement can properly be interpreted as describing the same footpath as drawn on the map, then the statement can be regarded as conclusive evidence of the position of the footpath shown on the map. As Pitchford J. observed in the Norfolk case, (at paragraphs 37 and 40) the purpose of the discretionary particulars is to provide detail and clarity to the position of the right of way shown on the map. There is a statutory duty to prepare a map and a discretion as to what particulars if any, are included in the statement. Accordingly, the fact that the discretion was exercised itself demonstrates the importance which the surveying authority attached to those particulars. However, it is also important to emphasise that the statement and the map are not independent documents and they are required to be read together. (LE Walwin and Partners Limited v West Sussex County Council [1975] 3 All E.R. 604 per Plowman V–C at p. 608J).[56]In this case the definitive map and statement produced in 1963 (with a relevant date in 1952) made under Part IV of the National Parks and Access to the Countryside Act 1949 were replaced in 1984 by a definitive statement and map (with a relevant date of 21st February 1984) made under the Wildlife and Countryside Act 1981. Clearly there can only be one definitive map and statement at any given time. It was common ground before me that the 1984 map and statement are definitive. It was also agreed that the 1984 definitive map and statement were prepared pursuant to section 57(3) of the 1981 Act.[57]The parties agreed that the draughtsman of the 1984 definitive statement was trying to record the same information as on the 1963 statement and that therefore it was permissible to refer to the 1963 statement in construing the 1984 statement. The draughtsman has in fact made a number of changes in the particulars recorded in the 1984 statement. There seems to have been an attempt to standardize language. For example, whereas the 1963 statement appears to have used the expressions “along the private cartway” and “over the private cartway” interchangeably in relation to various footpaths, the 1984 statement uses the expression “follows a private road”. Measurements have been converted from imperial to metric. Beyond this there seems to be no clear reason for the changes in the details recorded. Furthermore, it is curious that the 1984 statement includes no reference to the fact that the section of Footpath 254 to the west of the area with which we are principally concerned had since the mid 1950s been obstructed by the construction of a housing estate on Pasture Field Road.[58]In considering whether the particulars of the 1984 definitive statement are inconsistent with the information disclosed by the definitive map in such a way as to preclude, as a matter of law, the conclusion of the Crown Court as to the route of the footpath, I bear in mind that the draughtsman had a discretion as to what to include in the statement. In this case, the particulars provided of Footpath 254 are far from comprehensive and lack detail. A striking demonstration of this is the omission of any reference to the fact that the private road passes through the farmyard of Chamber Hall Farm. The position on the ground seems to have been two defined sections of private road to the east and west of the farmyard respectively with an undefined area in between. Similarly, the draughtsman had power under section 56(1)(e) to include details of limitations affecting the right of way. There is some evidence that there may have been a gate or gates along the route of this footpath. The Crown Court made a finding of fact (Case Stated, paragraph 35) on the basis of historical map evidence that, while there was no gate in the position of the disputed gate in the period 1932 to 1952, there may have been a gate at various times in different locations on this section of the private road. Furthermore, there were photographs before the Crown Court dating from the mid 1990s which show the presence of a wooden gate in approximately the same position as the metal gate with which we are concerned. Mr. Laurence accepted that you would expect a right to a gate to be mentioned in the definitive statement if it was a limitation on the right of way. These matters provide strong support for the view that the draughtsman of the definitive statement was highly selective in the information which he provided.[59]In these circumstances I consider that the failure to record in the definitive statement any reference to stiles along the line of the setts is not inconsistent with the Crown Court’s conclusion on the basis of the map that the draughtsman intended to depict the footpath as following that line. More fundamentally, it is not possible to attach any significance to the failure of the draughtsman to record that the footpath followed the line of the setts in this section. He has failed to describe or define in any way the position of the footpath as it crosses the farmyard. A definitive statement is conclusive evidence of the matters it positively states. However, it is possible for a definitive statement to omit information and therefore not to be comprehensive in describing the full route. In my judgement that is what has occurred here. Accordingly the failure of the definitive statement to make any reference to the footpath following the line of the setts is not an inconsistency with the Crown Court’s reading of the map so as to preclude it.[60]This lack of particularity in the definitive statement also informs the construction of the particulars which the statement does provide.[61]As we have seen the 1984 definitive statement includes the following entry in the “comments” column in relation to footpath 254:
“From the City boundary for 400 metres, this footpath follows a private road.”
It was common ground that in construing this statement it is permissible to have regard to the 1963 definitive statement which includes the following comment:
“From the City boundary to 438 yards along the private cartway, thence to termination footpath.”
[62]The section of 400 metres described in the 1984 definitive statement includes the entire section of the footpath with which we are concerned. Mr. Laurence submits that this description is inconsistent with the Crown Court’s conclusion that the map depicts the footpath passing along the line of setts and precludes that finding.[63]The Crown Court approached the matter in this way. It studied the definitive statements of 1963 and 1984. It observed that whilst it was the intention of Parliament that the statement should clarify the map features where there was potential for ambiguity, it was equally apparent that the particulars were, to say the least, concise and appeared to provide an overall rather than a precise, detailed description of the way. Furthermore it observed that there was a danger in scrutinizing the language of the particulars as if they appeared in a statute. It considered that further evidence that the statement did not provide full particulars was to be found in the “kink” itself. That kink required an explanation but none was forthcoming in the statement. It concluded:
“57 Given the apparent “looseness” of the language and the lack of detail, we are satisfied that the route as we find it to be, broadly speaking “follows” a private road. It certainly, with little deviation, permits a pedestrian route from the stated starting point to the stated termination point. It follows alongside the private road where the road adjoins the dwelling house of the farm. It certainly involves the encroachment into what would otherwise be private land. It is, after all, worth remembering that the furthest point of distance between the two routes contended for is in the same order as the length of the penalty area on a football pitch.”
[64]The Crown Court added that it believed that its interpretation of the content of the statement accorded with the position on the ground, with usage as described by Mr. Matthews and with common sense.[65]I am in total agreement with the Crown Court in its construction of this entry in the 1984 definitive statement. In my judgement, the draughtsman was here intending to provide a general description of the path. Given the lack of detail in the description and the lack of precision in the language he used, I consider that on its true reading the description is consistent with the findings as to what is depicted on the map. Considering this description in the definitive statement and the definitive map together, as one must, I consider there is nothing to preclude the finding of the Crown Court.[66]Mr. Laurence advances a further argument on the basis of the description of the width of the footpath. The 1984 definitive statement describes the width as “0.6 – 7.6m”. Mr. Laurence submits that this must be read in the light of the statement as to width in the 1963 definitive statement which the 1984 definitive statement is intended to “copy”. The 1963 definitive statement records the width as “25’ & 2’”. Mr. Laurence submits that when this is read in conjunction with the description of the footpath in the preceding column it shows that the draughtsman intended to describe a private cartway 25 feet in width extending for 438 yards followed by a footpath 2 feet in width. He submits that this description is totally inconsistent with a footpath running along the line of the setts.[67]The Crown Court dealt with this point very briefly, simply observing that the 1984 definitive statement provides conclusive evidence that the width of the footpath ranges from 0.6 metres to 7.6 metres and that there is nothing in its finding in relation to the map which is inconsistent or in conflict with that evidence. However the Crown Court failed to address Mr. Laurence’s argument based on the 1963 definitive statement.[68]Considered in isolation the 1984 statement is consistent with the Crown Court’s reading of the map. It describes a range of widths. The evidence was that the distance between the stock fence and the hedge was 2.4 metres. The fact that the footpath along the line of the setts cannot be 7.6 metres in width is not inconsistent with the description of width in the 1984 definitive statement.[69]I accept Mr. Laurence’s submission that the use of an ampersand in the 1963 definitive statement could be read as indicating not a range of widths but different widths in different sections. Furthermore I accept his submission that the 1963 entry could be read as describing a footpath 25 feet in width in its first section and 2 feet in width in its second section. However, I consider it could also be read as meaning that the footpath is in parts 25 feet wide and in parts 2 feet wide. Therefore, I have come to the view that there is no necessary inconsistency between these particulars and the Crown Court’s interpretation of the map because this description is capable of referring to different parts of the route some 25 feet in width and some 2 feet in width respectively.[70]Accordingly, I have come to the view that the statements in the definitive statement are not sufficiently unequivocal to support the conclusion that they are inconsistent with the Crown Court’s findings as to what is depicted on the map so as to prevail over them. To my mind the present case is to be distinguished from Walwin. There the definitive map appeared to show a bridleway stopping at a point where it met a footpath. However the definitive statement described the bridleway as running “to the foreshore” i.e. beyond the point at which the bridleway met the footpath. Plowman V-C held that the bridleway extended to the foreshore. This is a clear example of a situation in which an unequivocal statement in a definitive statement has to prevail over an apparent inconsistency in the definitive map. For the reasons set out above I consider that that is not the situation in the present case.[71]My conclusions on this part of the case may therefore be summarised as follows.(1) The Crown Court made a finding, clearly open to it on the evidence that the draughtsman intended to depict on the definitive map the route of the footpath following the line of setts.(2) That is a finding relating to a highly distinctive and unusual feature on the map for which there is no other tenable explanation.(3) Having regard to the permissible extrinsic evidence of how the map relates to the position on the ground, its reading of the map coincides exactly with the physical features which were demonstrated by evidence to have been there in 1951.(4) In the light of the way in which the draughtsman exercised his discretion as to what to include in the definitive statement, no significance can be attached to his failure to describe this section of the footpath in the definitive statement.(5) Reading the definitive map and the definitive statement together, as one must, and bearing in mind the lack of particularity in the definitive statement, the details in the definitive statement on their true construction, even when interpreted in the light of the 1963 definitive statement, are not inconsistent with the finding of the Crown Court as to the route depicted on the map.

The Appellant’s alternative argument

[72]Both below and before me, Mr. Laurence on behalf of the Appellant advances an alternative case, should he be unsuccessful in demonstrating an inconsistency between the statement and the map which precludes the conclusion of the Crown Court. The argument is founded on the 1963 definitive statement and can be summarised as follows. It is accepted that the 1963 statement is no longer definitive. (See section 57(3)). However the 1963 statement still has evidential effect and provides evidence of a highway 25 feet wide running a distance of 438 yards from the City boundary. Mr. Laurence submits that the highway rights over the full length with a width of 25 feet will remain until they are legally stopped or extinguished even though the 1963 map and statement are no longer definitive. He submits that in this way he can establish the existence of a footpath 25 foot in width in the location of the offending gate.[73]A definitive map and statement do not create highway rights. In the absence of express statutory powers, a highway can only be created by dedication to the public use and acceptance of that dedication by or on behalf of the public. Section 32(4) of the 1949 Act and section 56 of the 1981 Act are evidential in character. They provide that a definitive map and statement shall be conclusive evidence of certain matters including the existence of a footpath, its position and width and any limitations or conditions. Once the 1963 map and statement were replaced by the 1984 map and statement they ceased to be definitive and ceased to be conclusive evidence. However, I would accept that they can be taken to provide some evidence of the existence, position and width of the right of way which they describe.[74]Nevertheless, I am unable to accept this alternative submission. First, it rests on the premise that the 1963 definitive statement is evidence that the width of Footpath 254 is 25 feet in the vicinity of the offending gate. For the reasons set out above I do not accept that that is the case.[75]Secondly, in any event, even if the 1963 statement were some evidence of that proposition, it would have to be considered in the context of all the other evidence which includes an alternative route consistent with the 1963 map and which is itself conclusively established by the 1984 definitive map and statement, the evidence on the ground of the existence of that route, the evidence of Mr. Matthews as to the user of that route and the absence of any other evidence of public use for the route contended for. In these circumstances, I can see no reasonable possibility of the Appellant establishing the footpath for which he contends. Accordingly the alternative case also fails. Conclusion on Issue A.[76]Accordingly I would answer the questions on Issue A as follows.(1) The Crown Court was not precluded as a matter of law from coming to its finding of fact that the route of Footpath 254 as shown on the definitive map was intended to and did in fact show the footpath diverging from the private road and following the line now marked by setts on the edge of Mr. Males’s property, by reason of the description relating to the Footpath 254 contained in the definitive statement.(2) The Crown Court was entitled as a matter of law to interpret the definitive statement as not being in conflict with the map.(3) Question 3 does not arise. Issue B: Significant interference with a right of way.[77]The questions on which the opinion of this court is sought are as follows:
“4. If we were not entitled to find that the route of Footpath 254 followed the line of the setts rather than the private road at the point where the metal gate had been constructed did we nonetheless have a discretion under section 130B(4) of the Highways Act 1980 not to make an Order? 5. If so, was our alternative decision that we would have exercised that discretion so as to decline to make an Order one which, in all the circumstances, we were entitled in law to make?”
[78]In the light of my conclusions on Issue A, these questions do not arise. However, in deference to the arguments of counsel, I propose to deal with them briefly.[79]The judgment of the Crown Court in its original form did not address Issue B at all, but ended after the first sentence of paragraph 60. The Crown Court was not minded in the circumstances to rule on Mr. Sauvain’s alternative submission that even were they to find that the gate had been erected on the line of the footpath they should nevertheless dismiss the appeal because the obstruction was not a significant obstruction as required by section 130B(4)(c). However, Mr. Laurence specifically asked the Crown Court to incorporate in its judgment a statement of what its approach would have been to the alternative submission had they reached a different conclusion as to the true position of the footpath. Accordingly the Crown Court then added the remainder of paragraph 60 and paragraphs 61 – 74 to its judgment, as it put it “with some hesitation”.[80]The Crown Court made the following findings of fact in relation to Issue B: [35] There was no gate in the position of the disputed gate in the period 1932 to 1952. The historical map evidence did, however, indicate that there may have been a gate at various times in different locations on this section of the private road. Photographs dating from the mid 1990s were submitted to the Court showing the existence of a wooden gate in approximately the same position as the present metal gate. These are attached as Annex 15. [36] Assuming its true route did not deviate to follow the Pathway, the dedication of a right of way over what became FP 254, was not subject to any limitation such as permitted the erection, in the position of the disputed gate, of a gate across it. [37] When unopened the disputed gate constitutes a structure which obstructs public passage. [38] At different times the disputed gate has been locked and unlocked. For example Dr. Ernstbrunner gave undisputed evidence that he had found the gate locked on about 20 separate dates in October, November and December 2004; Mr. Fisher for Manchester City Council gave evidence of having found the gate unlocked on three different dates in 2004 (18 August, 9 September and 16 November) and two in 2005 (24 January and 1 September). [39] Although its posts may also obstruct some small part of the private road, when closed the disputed gate did (and does) not significantly obstruct passage along FP 254 except when locked.”[81]Before me, both parties agreed that there is a short answer to the questions posed under Issue B. Section 130B empowers the Magistrates’ Court to require the highway authority to take, within such reasonable period as may be fixed by the order, such steps as may be specified in the order for securing the removal of the obstruction. No order shall be made if the highway authority satisfies the court of any of the matters in section 130B(5). These include the situation in which arrangements have been made by the authority to secure its removal within a reasonable time, having regard to the number and seriousness of the obstructions in respect of which they have such a duty (section 130B(5)(c)). Subject to this, the Magistrates’ Court has the power to make an order under section 130B if it is satisfied of the matters in section 130B(4), one of which is that the obstruction significantly interferes with the exercise of public rights of way (section 130B (4) (c)).[82]If the Crown Court had found that the offending gate obstructed the true route of Footpath 254, the precondition to the arrangements which Manchester City Council had set in place to remove the gate would have been satisfied. In these circumstances the Crown Court could not have made an order under section 130B. Section 130B(5)(c) would have prohibited it because arrangements would have been made by the authority which would have secured the removal of the obstruction within a reasonable time.[83]Nevertheless, I wish to say something about the reasoning of the Crown Court.[84]The Crown Court did not hear any argument in relation to the exercise of discretion. The argument before it was addressed to the issue whether there was a significant interference within section 130B(4)(c). This was a jurisdictional question which had to be answered in the affirmative before there could be any discretion to exercise. The judgment of the Crown Court makes clear that it conflated these two questions. Nevertheless, argues Mr. Sauvain, the reasoning of the Crown Court remains valid if transposed into the context of the jurisdictional issue and, as its conclusions were reasonably open to it on the facts, should not be disturbed. On the other hand, Ms. Crail, in the course of her very clear and helpful submissions on this point for the Appellant, argues that the Crown Court would have been bound to conclude that the offending gate was a significant interference with the right of way.[85]Mr. Sauvain had argued before the Crown Court that if the right of way followed the course for which the Appellant contended it had always been subject to the presence of a gate in the vicinity of the offending gate. Mr. Laurence had submitted that on the evidence of the Ordnance Survey map any such gate was at a significantly different location from the offending gate and that there was no authority for the proposition that a gate in position X, subject to which a footpath passing through it is dedicated, may subsequently be re-erected in position Y. Moreover, Mr. Laurence argued that it was simply not open to the Crown Court to find as a fact that there was such a limitation on a dedication based on long user since it would have had to find that the disputed gate was in situ at the beginning of the period of proven user (i.e. 1932, 20 years before the relevant date of the 1963 definitive map) and there was no evidence whatsoever of this. The Crown Court accepted Mr. Laurence’s submissions as correct in law and fact on this point and there is no cross appeal to this court.[86]However, the Crown Court went on to conclude that, while a locked gate is an obstacle which significantly interferes with the exercise of a public right of way, it was not persuaded that the same could be said in respect of an unlocked gate. In its view, whether the requirement of significant interference could be made out may ultimately depend on the particular circumstances. It observed that an unlocked but closed gate straddling the pavement in Deansgate in the centre of Manchester would undoubtedly represent a significant interference for pedestrians, but a pedestrian walking in the vicinity of farmland and a dwelling house may well expect to encounter such an obstruction. The Crown Court considered therefore that the question turned on whether the gate was locked or unlocked. It found that at different times it had been locked and unlocked and concluded that in the circumstances they would not have exercised their discretion to make an order under section 130B. The Crown Court added that, plainly, the locking of the gate may have given rise to proceedings under section 137 of the Act.[87]Ms. Crail drew my attention to a number of authorities, some of considerable antiquity, which established that an unlocked gate constitutes an obstruction to the highway: James v Hayward (1630) Cro. Car. 184;Bateman v Burge (1834) 6 C. & P. 391;Durham County Council v Scott [1991] JPL 362. However, as Mr. Sauvain points out, the question here is not whether an unlocked gate constitutes an obstruction to the highway but whether it constitutes a significant interference with a right of way so as to give rise to the power under section 130B. The scheme of the legislation suggests that something more than an obstruction must be established.[88]I can see some force in the Crown Court’s view that whether an unlocked gate constitutes a significant interference with a right of way may depend on the particular circumstances. It may be possible to envisage circumstances in which an unlocked gate may not constitute a significant interference within section 130B(4)(c). However, that clearly was not the situation in the present case. The Crown Court found that, at different times, the offending gate had been locked and unlocked. Dr. Ernstbrunner gave undisputed evidence that he had found the gate locked on about twenty separate dates in October, November and December 2004. Mr. Fisher for Manchester City Council gave evidence of having found the gate unlocked on five dates in August, September and November 2004 and January and September 2005 respectively. If it were necessary for me to decide this issue I would accept the submission of Ms. Crail that once it was established that the gate across the right of way was locked for a substantial part of the time, the Crown Court would have been bound to conclude that it constituted a significant interference and that the precondition for making an order under section 130B(4)(c) was satisfied. As she put it, this is not negated by the fact that from time to time the gate might be found unlocked or even open.[89]Finally, I should observe, without deciding the point, that the availability of an alternative remedy against the landowner in the form of a prosecution under section 137 of the 1980 Act is not necessarily a valid reason for refusing to exercise the power to make an order under section 130B.[90]Accordingly I answer Questions 4 and 5 as follows:
“4 and 5. These questions do not arise.”

Cited in 1 later judgment