Landowners shocked by unique public rights of way ruling

Landowners all over the country will be concerned by a Court of Appeal decision in a test case which involved delving back into legal and social history and paved the way for an explosion in the number of public bridleways and footpaths.

Between 500 and 1,000 cases hinged on the outcome of a lone rambler’s fight to open up two bridleways in a Cotswolds village. The matter turned on the actions of an early 19th Century land commissioner whose job it was to survey the area.

He was one of many commissioners engaged around the country in enclosing large fields in common use and dividing them into smaller plots of privately owned land with a view to improving agricultural output. He had set out and appointed two bridleways which, in more modern times, did not appear on the area's ‘definitive map’ which was supposed to show all public rights of way.

The rambler applied to the local authority to have the bridleways delineated on the map, but it refused his request and its decision was later upheld following a public inquiry before a government inspector. His challenge to the latter decision was subsequently dismissed by a judge.

In allowing the rambler’s appeal, the Court found for the first time that the Inclosure Consolidation Act 1801 had granted commissioners power to create new public bridleways and footpaths. Although the Parliamentary draftsmen of the day were not as accurate and consistent as their modern counterparts, the intention of the Act was clear enough from the social and legislative background.

The Court ruled that the inspector’s understanding of the law was mistaken and directed a reconsideration of the rambler’s case. It observed that there were believed to be between 500 and 1,000 cases in England and Wales where public footpaths and bridleways set out and appointed by commissioners were not currently recorded on definitive maps.

Contact: Yildiz Betez