In a decision which represents a landmark victory for private landowners – and a serious blow to open countryside campaigners – the High Court has ruled that 19th Century officials who purported to create public rights of way under an 1801 Act of Parliament had no power to do so.

The Court noted that the legal issues raised by the case were, on the face of it, ‘arcane’ and would make an ideal subject for an academic debate. However, the status of between 500 and 1,000 paths and tracks crossing private land around England and Wales depended on the outcome of what the Court acknowledged was a ‘test case’.

The matter centred on the correct interpretation of the Inclosure Consolidation Act 1801, which provided a means of putting land that had previously been public into private ownership in a bid to boost agricultural productivity during times of war. Numerous commissioners were appointed to delineate suitable byways across the country.

With the backing of the Ramblers Association, a campaigner argued that a track crossing farmland in Wiltshire had been created as a public right of way by a commissioner’s ‘inclosure award’ in 1841. On that basis, it was submitted that the track should be shown as a public bridleway on the area’s definitive map. Those arguments failed to persuade the relevant local authority or a government inspector who presided over a public inquiry.

In dismissing the campaigner’s challenge to those decisions, the Court ruled that, on a true interpretation of the Act, commissioners only had power to create private, rather than public, rights of way. Insofar as the commissioner had, in this instance, purported to delineate a public right of way, he had had no power to do so.

The Court also rejected the campaigner’s arguments that the commissioner’s decision, even if invalidly made, was immune from challenge for technical legal reasons and by the passage of time or by long-established practice.


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