Chapter 3 : How rights of way came into being

Scroll down for the supplement to Chapter 3.

Links and downloads referred to in the text of Chapter 3

Page

57,58 Letter of 14 July 2006 from Minister for Biodiversity, Landscape and Rural Affairs at Department for Environment, Food and Rural Affairs download [file BBE06]

58, 59 Letter of 20 September 2006 from Minister for Biodiversity, Landscape and Rural Affairs at Department for Environment, Food and Rural Affairs. download [file BBE07]

69 Advice Note 6: The Sunningwell judgment and the meaning of ‘as of right’ (Planning Inspectorate, 2000) download

69 Advice Note 12 : Wildlife and Countryside Act 1981 – vehicles and rights of way: Bakewell Management v Brandwood; Stevens v Secretary of State for the Environment (Planning Inspectorate, 1st revision, 2004) download

46, 69 Advice Note 15 : Breaks in user caused by foot and mouth disease (Planning Inspectorate, 4th revision, 2010) download

69 Part 6 of the Natural Environment and Rural Communities Act 2006 and Restricted Byways : A guide for local authorities, enforcement agencies, rights of way users and practitioners (Defra, 5th edition, May 2008) link

69 Practice Guidance Note 2: Deemed dedication of rights of way: section 31(6) of the Highways Act 1980 (Rights of Way Review Committee, revised December 2007) link

Supplement to the text of Chapter 3

Page

40 3.2 In Wild v Secretary of State for Environment, Food and Rural Affairs and Dorset CC (2009), the Court of Appeal (Scott Baker LJ, Moses LJ) held that the airing, in 1978, at an inquiry on the occasion of a special review of the definitive map, of objections, lodged in 1975, by ‘persons who could very well have been owners’ (per Scott Baker, L J) of land crossed by a way, to the showing of the way as a bridleway, constituted not only (a) something that brought the right to use the way into question (in the context of a claim, in the event unsuccessful, that use of the way prior to 1978 had resulted in the way being dedicated as public); but also (b) sufficient indication that the owners of the land (‘…whoever they may be,’ per Scott Baker, LJ) had not acquiesced in public use of the route to preclude an inference, from use of the way as of right for a period short of twenty years prior to the locking in 1998 of a gate across the way, of dedication at common law of the way as a public right of way on foot [i.e., notwithstanding that the expression of contrary intention had occurred, not during the period of user relied upon, but prior to its commencement.] (‘The state of mind of the users seems to me to be relevant to the status of the track.’ Per Scott Baker, LJ.) Decision of the High Court (Keith J) upholding the inspector’s confirmation of the order adding the way to the definitive map as a footpath, set aside. link to judgment

44 3.3.5 In Smith v Muller (2008), landowner A made a claim, based on long usage, to an easement (a private right of way) over B's land to a road on the far side. An enclosure award of 1798 required the boundary between A's and B's land to be fenced. B argued that the construction of an access through the fence would constitute an unlawful breach of the fencing requirement in the award, with the result that no presumption of dedication either under statute or at common law could have arisen. The court rejected the argument. The purpose of the requirement was to mark the ownership boundary and to retain cattle, purposes that would not be impeded by the existence of a gate in the fence. The enclosure award requirement of fencing was therefore no bar to the presumption of the dedication of the easement. A's claim succeeded. link to judgment

46 3.3.6 '...without interruption...' The Planning Inspectorate amended Advice Note 15 (see link above) in April 2010.

46 3.3.6 '...as of right…' R (Lewis) v Redcar and Cleveland Borough Council (2010). Area of land consisting of coastal sand dunes occupied for at least 80 years until 2002 in part by the greens and fairway of a golf course; application under Commons Act 2006, section 15 for the land to be registered as village green; open parts of land used for informal recreation; route used by walkers crossed fairway; walkers in practice of stopping before crossing fairway until a game in progress had gone through; golfers on occasions called warning to walkers that a game was going through; registration opposed on ground that since walkers had (it was claimed) 'deferred' to the landowner's use of the land, the use could not be as of right. Held, the fact that, in a claim based on long usage, users temporarily refrained from the use in order to accommodate the interests of the landowner did not preclude the use from being as of right. (Per Lord Walker, 'I have great difficulty in seeing how ... [the use by residents for recreation was not exercised as of right] simply because they normally showed civility towards members of the golf club who were out playing golf.') Council ordered to register the land as village green. Nature of rights exercisable on land becoming registered as village green vis a vis rights the exercise of which gave rise to the registration, considered. 'I see little danger, in normal circumstances, of registration of a green leading to a sudden diversification or intensification of use by local residents. The alleged asymmetry between use before and after registration will in most cases prove to be exaggerated.' (Per Lord Walker, para 47.) link to judgment

47 3.3.6 Without force “User by force is not confined to physical force. It includes use which is ‘contentious’. A landowner may render use contentious by, among other things, erecting prohibitory signs or notices in relation to the use in question.” Per His Honour Judge Waksman, R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust) v Oxfordshire CC (2010).

Although force is the clearest indication that use of a way was vi (and thus not as of right), force is not a necessary requirement. What is required is that the use should be shown to have been contentious, for example by the landowner showing that he had done all he reasonably could to prevent the use. For the meaning of vi, and of contentious, (in the context of the phrase 'as of right' in the Commons Act 1965, s 22(1)), see Betterment Properties (Weymouth) Ltd v Dorset CC and Taylor (2010). link to Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust judgment

link to Betterment Properties judgment

50 3.3.7 Where the right to use a way is brought into question on more than one occasion, use during the 20-year period ‘next before’ either bringing into question may suffice for the purposes of HA 1980 s 31. However where the two dates are more than 20 years apart, a contrary intention shown prior to the commencement of the second period does not operate to oust the statutory presumption that arises from the use during that period. Paterson v Secretary of State for the Environment, Food and Rural Affairs (2010). link to judgment

51 3.3.8 ‘..brought into question.’ How? In R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs (2007) Lord Scott said, ‘ … the bringing into question could, in my opinion, be done not only by the landowner but also by a member of the public or by the local authority. A member of the public might apply to the court for relief of some sort that would bring the right into question, or a prosecution brought by a local authority against a landowner e.g., allowing a stile to fall into disrepair, might, if the landowner disputed that there was any right of way, be similarly regarded’. link to judgment

52 3.3.9 In Paterson v Secretary of State for the Environment, Food and Rural Affairs (2010), Sales J held that an intention not to dedicate shown before the start of a 20-year period does not operate to oust the statutory presumption that arises from the use during that period. Sales J also said (para 33): “It should first be noted that section 31(1) does not require the tribunal of fact simply to be satisfied that there was no intention to dedicate. As I have said, there would seldom be any difficulty in satisfying such a requirement without any evidence at all. It requires ‘sufficient evidence’ that there was no such intention. In other words, the evidence must be inconsistent with an intention to dedicate. That seems to me to contemplate evidence of objective acts, existing and perceptible outside the landowner’s consciousness, rather than simply proof of state of mind. And once one introduces that element of objectivity … it is an easy step to say that, in the context, the objective acts must be perceptible by the relevant audience.” link to judgment

53 3.3.9 The House of Lords, in R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs (2007), reversed the decision of the Court of Appeal, thus overturning the decision of Dyson J in R v Secretary of State for the Environment, Transport and the Regions ex parte Dorset CC (1999) and rendering unsound the decision of Collins J in Norman and Bird v Secretary of State for Environment, Food and Rural Affairs (2006) and of the Court of Appeal (2007) in upholding Collins J’s decision: dictum of Lord Justice Denning in Fairey v Southampton CC (1956), (‘In my opinion a landowner cannot escape the effect of 20 years’ prescription by saying that, locked in his own mind, he had no intention to dedicate. … In order for there to be “sufficient evidence that there was no intention" to dedicate the way, there must be evidence of some overt acts on the part of the landowner such as to show the public at large – in this case the villagers – that he had no intention to dedicate’), approved. In R (Drain)) v Secretary of State for the Environment, Food and Rural Affairs (heard and reported with Godmanchester above), the House of Lords rejected the contention of the appellant that the contrary intention under section 31 must, to rebut the presumption of dedication, be shown to have existed throughout the twenty year period of use. link to judgment

55 3.3.9 Notices In Paterson v Secretary of State for the Environment, Food and Rural Affairs (2010), the court held that an inspector was entitled to find that signs in such terms as ‘Private’ or ‘Private, No tipping’ did not unambiguously provide sufficient evidence or notice that there was no intention that a path be dedicated to public use. “A sign saying only ‘Private’ could simply have been indicating that the land a short way further down the footpath (which was open fields) was private so that people should stick to the footpath. In that regard, the inspector was entitled to accept the submission …that virtually all rights of way are over private land so that a simple sign saying ‘Private’ does not clearly indicate that there is no public right of way along a marked footpath. Similarly, the inspector was entitled to conclude that a sign saying “Private, No Tipping” did not clearly indicate that there was no public right of way over the footpath (it might more naturally be taken to refer to what should not be done on the fields at the end of the path).” Per Sales J. link to judgment

56 3.3.9 and footnote 67. HA 1980 s 31A(1), which requires highway authorities to keep a register containing information relating to maps and statements deposited and declarations lodged with the authority under section 31(6), was brought into operation in England from 1 October 2007 : Countryside and Rights of Way Act 2000 (Commencement No. 13) Order 2007. The Dedicated Highways (Registers under Section 31A of the Highways Act 1980) (England) Regulations 2007, make provision for the information that is to be included in a register (regulation 3), the manner in which the register is to be kept (regulation 4), and the circumstances in which an entry may be removed (regulation 5).

Defra has issued guidance to authorities in England on the regulations. link to regulations download Defra guidance

56 3.3.10 An Inspector has held that section 56 of the Pastoral Measure 1985, under which no church or consecrated land can be sold, leased or otherwise disposed of otherwise than under powers conferred by the Measure did not preclude the presumption of the dedication of a right of way under HA 1980 s 31 over consecrated land. The reason was that presumed dedication under the section did not constitute the sale, lease or other disposition of the land. Since twenty years’ use of the way as of right over the consecrated land concerned had been shown, the order modifying the definitive map to add a footpath was confirmed. (A Pastoral Measure is a Measure of the General Synod of the Church of England confirmed by both Houses of Parliament...) Worcestershire County Council Order (Footpath 709, Alfrick) Definitive Map Modification Order 2006. PINS ref: FPS/E1855/715, order decision issued 14.12.2007. link to PINS archived website for decision

56 3.3.10 In Housden v Conservators of Wimbledon and Putney Commons (2008), the Court of Appeal held that section 35 of the Wimbledon and Putney Commons Act 1871, which prevented the Conservators from selling, leasing or in any manner disposing of any part of the common, did not prevent them lawfully granting an easement over the land [in exercise of the power conferred by section 8 to 'hold and to dispose of (by grant, demise or otherwise) land']. The Court (Mummery, L J) indicated, obiter, that if it had – if the Conservators had had no power to grant an easement - this lack of capacity would prevent the acquisition, from long usage, of an easement under section 2 of the Prescription Act 1832, notwithstanding that, under the section, where 40 years use had been shown, the claim was to be 'deemed absolute and indefeasible’ unless the use had been by consent in writing. link to judgment

58 3.3.12 In Whitworth v Secretary of State for Environment, Food and Rural Affairs (2010, CA) the Court of Appeal considered an appeal against a decision of the High Court (2010, HC) to uphold a decision by an Inspector to confirm, with modifications, a modification order. As confirmed, the order added the disputed way to the definitive map as a restricted byway. The Inspector had found that at some time in the past the way had acquired the status of bridleway but considered that in the relevant 20-year period between 1973 and 1993 use of the way by pedal cyclists meant that dedication as restricted byway could be presumed.

Carnwath LJ disagreed, agreeing with counsel for the applicant that use by pedal cyclists after 1968 would have been by virtue of the right conferred by CA 1968 s 30, and therefore that such use should be disregarded for the purposes of HA 1980 s 31. He further expressed the view that he would have reached the same conclusion even if there had not been the evidence of pre-existing bridleway rights, commenting: “One would then be considering the inference to be drawn from the actual use between 1973 and 1993. It is true that regular use by both horse-riders and cyclists over that period would be consistent with an assumed dedication as a restricted byway at the beginning of the period (had that concept then existed). But it is no less consistent with an assumed dedication as a bridleway, of which cyclists have been able to take advantage under the 1968 Act. Since section 30 [sic, but should it be section 31?) involves a statutory interference with private property rights, it is appropriate in my view, other things being equal, to infer the form of dedication by the owner which is least burdensome to him.” LLJ Tomlinson and Maurice Kay agreed.

The part of the order relating to the disputed way was quashed. link to CA judgment

65 3.4.7 In Campbell v Banks (2009) it was held that while the Wildlife and Countryside Act 1981 provides a statutory procedure by which the existence or non-existence of a public right of way may be established, the fact that this statutory procedure exists does not oust the inherent jurisdiction of the court to make a declaration as to whether a way is or is not public. For the court to exercise this jurisdiction, however, it is necessary for all parties affected (including, in particular, the owners of land crossed by the way) to be joined as parties to the action, so the parties may be before the court. link to judgment

69 Further Reading The Planning Inspectorate amended Advice Note 15 (see link above) in April 2010.

Chapter 3 : How rights of way came into being

Menu

Menu

Rights Of Way Book

Page
57,58	Letter of 14 July 2006 from Minister for Biodiversity, Landscape and Rural Affairs at Department for Environment, Food and Rural Affairs	download [file BBE06]
58, 59	Letter of 20 September 2006 from Minister for Biodiversity, Landscape and Rural Affairs at Department for Environment, Food and Rural Affairs.	download [file BBE07]
69	Advice Note 6: The Sunningwell judgment and the meaning of ‘as of right’ (Planning Inspectorate, 2000)	download
69	Advice Note 12 : Wildlife and Countryside Act 1981 – vehicles and rights of way: Bakewell Management v Brandwood; Stevens v Secretary of State for the Environment (Planning Inspectorate, 1st revision, 2004)	download
46, 69	Advice Note 15 : Breaks in user caused by foot and mouth disease (Planning Inspectorate, 4th revision, 2010)	download
69	Part 6 of the Natural Environment and Rural Communities Act 2006 and Restricted Byways : A guide for local authorities, enforcement agencies, rights of way users and practitioners (Defra, 5th edition, May 2008)	link
69	Practice Guidance Note 2: Deemed dedication of rights of way: section 31(6) of the Highways Act 1980 (Rights of Way Review Committee, revised December 2007)	link

Page
40	3.2 In Wild v Secretary of State for Environment, Food and Rural Affairs and Dorset CC (2009), the Court of Appeal (Scott Baker LJ, Moses LJ) held that the airing, in 1978, at an inquiry on the occasion of a special review of the definitive map, of objections, lodged in 1975, by ‘persons who could very well have been owners’ (per Scott Baker, L J) of land crossed by a way, to the showing of the way as a bridleway, constituted not only (a) something that brought the right to use the way into question (in the context of a claim, in the event unsuccessful, that use of the way prior to 1978 had resulted in the way being dedicated as public); but also (b) sufficient indication that the owners of the land (‘…whoever they may be,’ per Scott Baker, LJ) had not acquiesced in public use of the route to preclude an inference, from use of the way as of right for a period short of twenty years prior to the locking in 1998 of a gate across the way, of dedication at common law of the way as a public right of way on foot [i.e., notwithstanding that the expression of contrary intention had occurred, not during the period of user relied upon, but prior to its commencement.] (‘The state of mind of the users seems to me to be relevant to the status of the track.’ Per Scott Baker, LJ.) Decision of the High Court (Keith J) upholding the inspector’s confirmation of the order adding the way to the definitive map as a footpath, set aside.	link to judgment
44	3.3.5 In Smith v Muller (2008), landowner A made a claim, based on long usage, to an easement (a private right of way) over B's land to a road on the far side. An enclosure award of 1798 required the boundary between A's and B's land to be fenced. B argued that the construction of an access through the fence would constitute an unlawful breach of the fencing requirement in the award, with the result that no presumption of dedication either under statute or at common law could have arisen. The court rejected the argument. The purpose of the requirement was to mark the ownership boundary and to retain cattle, purposes that would not be impeded by the existence of a gate in the fence. The enclosure award requirement of fencing was therefore no bar to the presumption of the dedication of the easement. A's claim succeeded.	link to judgment
46	3.3.6 '...without interruption...' The Planning Inspectorate amended Advice Note 15 (see link above) in April 2010.
46	3.3.6 '...as of right…' R (Lewis) v Redcar and Cleveland Borough Council (2010). Area of land consisting of coastal sand dunes occupied for at least 80 years until 2002 in part by the greens and fairway of a golf course; application under Commons Act 2006, section 15 for the land to be registered as village green; open parts of land used for informal recreation; route used by walkers crossed fairway; walkers in practice of stopping before crossing fairway until a game in progress had gone through; golfers on occasions called warning to walkers that a game was going through; registration opposed on ground that since walkers had (it was claimed) 'deferred' to the landowner's use of the land, the use could not be as of right. Held, the fact that, in a claim based on long usage, users temporarily refrained from the use in order to accommodate the interests of the landowner did not preclude the use from being as of right. (Per Lord Walker, 'I have great difficulty in seeing how ... [the use by residents for recreation was not exercised as of right] simply because they normally showed civility towards members of the golf club who were out playing golf.') Council ordered to register the land as village green. Nature of rights exercisable on land becoming registered as village green vis a vis rights the exercise of which gave rise to the registration, considered. 'I see little danger, in normal circumstances, of registration of a green leading to a sudden diversification or intensification of use by local residents. The alleged asymmetry between use before and after registration will in most cases prove to be exaggerated.' (Per Lord Walker, para 47.)	link to judgment
47	3.3.6 Without force “User by force is not confined to physical force. It includes use which is ‘contentious’. A landowner may render use contentious by, among other things, erecting prohibitory signs or notices in relation to the use in question.” Per His Honour Judge Waksman, R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust) v Oxfordshire CC (2010). Although force is the clearest indication that use of a way was vi (and thus not as of right), force is not a necessary requirement. What is required is that the use should be shown to have been contentious, for example by the landowner showing that he had done all he reasonably could to prevent the use. For the meaning of vi, and of contentious, (in the context of the phrase 'as of right' in the Commons Act 1965, s 22(1)), see Betterment Properties (Weymouth) Ltd v Dorset CC and Taylor (2010).	link to Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust judgment link to Betterment Properties judgment
50	3.3.7 Where the right to use a way is brought into question on more than one occasion, use during the 20-year period ‘next before’ either bringing into question may suffice for the purposes of HA 1980 s 31. However where the two dates are more than 20 years apart, a contrary intention shown prior to the commencement of the second period does not operate to oust the statutory presumption that arises from the use during that period. Paterson v Secretary of State for the Environment, Food and Rural Affairs (2010).	link to judgment
51	3.3.8 ‘..brought into question.’ How? In R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs (2007) Lord Scott said, ‘ … the bringing into question could, in my opinion, be done not only by the landowner but also by a member of the public or by the local authority. A member of the public might apply to the court for relief of some sort that would bring the right into question, or a prosecution brought by a local authority against a landowner e.g., allowing a stile to fall into disrepair, might, if the landowner disputed that there was any right of way, be similarly regarded’.	link to judgment
52	3.3.9 In Paterson v Secretary of State for the Environment, Food and Rural Affairs (2010), Sales J held that an intention not to dedicate shown before the start of a 20-year period does not operate to oust the statutory presumption that arises from the use during that period. Sales J also said (para 33): “It should first be noted that section 31(1) does not require the tribunal of fact simply to be satisfied that there was no intention to dedicate. As I have said, there would seldom be any difficulty in satisfying such a requirement without any evidence at all. It requires ‘sufficient evidence’ that there was no such intention. In other words, the evidence must be inconsistent with an intention to dedicate. That seems to me to contemplate evidence of objective acts, existing and perceptible outside the landowner’s consciousness, rather than simply proof of state of mind. And once one introduces that element of objectivity … it is an easy step to say that, in the context, the objective acts must be perceptible by the relevant audience.”	link to judgment
53	3.3.9 The House of Lords, in R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs (2007), reversed the decision of the Court of Appeal, thus overturning the decision of Dyson J in R v Secretary of State for the Environment, Transport and the Regions ex parte Dorset CC (1999) and rendering unsound the decision of Collins J in Norman and Bird v Secretary of State for Environment, Food and Rural Affairs (2006) and of the Court of Appeal (2007) in upholding Collins J’s decision: dictum of Lord Justice Denning in Fairey v Southampton CC (1956), (‘In my opinion a landowner cannot escape the effect of 20 years’ prescription by saying that, locked in his own mind, he had no intention to dedicate. … In order for there to be “sufficient evidence that there was no intention" to dedicate the way, there must be evidence of some overt acts on the part of the landowner such as to show the public at large – in this case the villagers – that he had no intention to dedicate’), approved. In R (Drain)) v Secretary of State for the Environment, Food and Rural Affairs (heard and reported with Godmanchester above), the House of Lords rejected the contention of the appellant that the contrary intention under section 31 must, to rebut the presumption of dedication, be shown to have existed throughout the twenty year period of use.	link to judgment
55	3.3.9 Notices In Paterson v Secretary of State for the Environment, Food and Rural Affairs (2010), the court held that an inspector was entitled to find that signs in such terms as ‘Private’ or ‘Private, No tipping’ did not unambiguously provide sufficient evidence or notice that there was no intention that a path be dedicated to public use. “A sign saying only ‘Private’ could simply have been indicating that the land a short way further down the footpath (which was open fields) was private so that people should stick to the footpath. In that regard, the inspector was entitled to accept the submission …that virtually all rights of way are over private land so that a simple sign saying ‘Private’ does not clearly indicate that there is no public right of way along a marked footpath. Similarly, the inspector was entitled to conclude that a sign saying “Private, No Tipping” did not clearly indicate that there was no public right of way over the footpath (it might more naturally be taken to refer to what should not be done on the fields at the end of the path).” Per Sales J.	link to judgment
56	3.3.9 and footnote 67. HA 1980 s 31A(1), which requires highway authorities to keep a register containing information relating to maps and statements deposited and declarations lodged with the authority under section 31(6), was brought into operation in England from 1 October 2007 : Countryside and Rights of Way Act 2000 (Commencement No. 13) Order 2007. The Dedicated Highways (Registers under Section 31A of the Highways Act 1980) (England) Regulations 2007, make provision for the information that is to be included in a register (regulation 3), the manner in which the register is to be kept (regulation 4), and the circumstances in which an entry may be removed (regulation 5). Defra has issued guidance to authorities in England on the regulations.	link to regulations download Defra guidance
56	3.3.10 An Inspector has held that section 56 of the Pastoral Measure 1985, under which no church or consecrated land can be sold, leased or otherwise disposed of otherwise than under powers conferred by the Measure did not preclude the presumption of the dedication of a right of way under HA 1980 s 31 over consecrated land. The reason was that presumed dedication under the section did not constitute the sale, lease or other disposition of the land. Since twenty years’ use of the way as of right over the consecrated land concerned had been shown, the order modifying the definitive map to add a footpath was confirmed. (A Pastoral Measure is a Measure of the General Synod of the Church of England confirmed by both Houses of Parliament...) Worcestershire County Council Order (Footpath 709, Alfrick) Definitive Map Modification Order 2006. PINS ref: FPS/E1855/715, order decision issued 14.12.2007.	link to PINS archived website for decision
56	3.3.10 In Housden v Conservators of Wimbledon and Putney Commons (2008), the Court of Appeal held that section 35 of the Wimbledon and Putney Commons Act 1871, which prevented the Conservators from selling, leasing or in any manner disposing of any part of the common, did not prevent them lawfully granting an easement over the land [in exercise of the power conferred by section 8 to 'hold and to dispose of (by grant, demise or otherwise) land']. The Court (Mummery, L J) indicated, obiter, that if it had – if the Conservators had had no power to grant an easement - this lack of capacity would prevent the acquisition, from long usage, of an easement under section 2 of the Prescription Act 1832, notwithstanding that, under the section, where 40 years use had been shown, the claim was to be 'deemed absolute and indefeasible’ unless the use had been by consent in writing.	link to judgment
58	3.3.12 In Whitworth v Secretary of State for Environment, Food and Rural Affairs (2010, CA) the Court of Appeal considered an appeal against a decision of the High Court (2010, HC) to uphold a decision by an Inspector to confirm, with modifications, a modification order. As confirmed, the order added the disputed way to the definitive map as a restricted byway. The Inspector had found that at some time in the past the way had acquired the status of bridleway but considered that in the relevant 20-year period between 1973 and 1993 use of the way by pedal cyclists meant that dedication as restricted byway could be presumed. Carnwath LJ disagreed, agreeing with counsel for the applicant that use by pedal cyclists after 1968 would have been by virtue of the right conferred by CA 1968 s 30, and therefore that such use should be disregarded for the purposes of HA 1980 s 31. He further expressed the view that he would have reached the same conclusion even if there had not been the evidence of pre-existing bridleway rights, commenting: “One would then be considering the inference to be drawn from the actual use between 1973 and 1993. It is true that regular use by both horse-riders and cyclists over that period would be consistent with an assumed dedication as a restricted byway at the beginning of the period (had that concept then existed). But it is no less consistent with an assumed dedication as a bridleway, of which cyclists have been able to take advantage under the 1968 Act. Since section 30 [sic, but should it be section 31?) involves a statutory interference with private property rights, it is appropriate in my view, other things being equal, to infer the form of dedication by the owner which is least burdensome to him.” LLJ Tomlinson and Maurice Kay agreed. The part of the order relating to the disputed way was quashed.	link to CA judgment
65	3.4.7 In Campbell v Banks (2009) it was held that while the Wildlife and Countryside Act 1981 provides a statutory procedure by which the existence or non-existence of a public right of way may be established, the fact that this statutory procedure exists does not oust the inherent jurisdiction of the court to make a declaration as to whether a way is or is not public. For the court to exercise this jurisdiction, however, it is necessary for all parties affected (including, in particular, the owners of land crossed by the way) to be joined as parties to the action, so the parties may be before the court.	link to judgment
69	Further Reading The Planning Inspectorate amended Advice Note 15 (see link above) in April 2010.