The High Court decision in Trail Riders Fellowship v Secretary of State for the Environment, Food And Rural Affairs [2017] EWHC 1866 has clarified the legal purpose and evidential value of the List of Streets for highways maintainable at public expense as statutorily maintained by a local highway authority for an area. Importantly, it should not be treated as conclusive evidence of the highways listed thereon (although not irrelevant) nor regarded with any precision.
The case concerned a statutory review of the decision of an inspector to confirm an order to modify the definitive map and statement for public rights of way in Hertfordshire. The definitive map and statement (DMS) is a record of all recorded public footpaths, bridleways, restricted byways and byways open to all traffic within the requisite area. It is required to be maintained, and kept under review, by the local highway authority pursuant to section 53 of the Wildlife and Countryside Act 1981 (“the 1981 Act”).
Importantly, section 56 of the 1981 Act provides that any of the aforesaid public rights of way recorded on the definitive map is conclusive evidence of the existence of such public right of way.
The facts
The modification order confirmed by the inspector concerned a through road, historically known as Oakridge Lane, added to the DMS as a public ‘byway open to all traffic’ (i.e. including public motor vehicular use) but for a small section in the middle as a public ‘restricted byway’ (i.e. excluding public motor vehicular use). The result being that no public motor vehicular users could travel the full length of the road.
The reason for this oddity in the order arose from the operation of section 67 of the Natural Environment and Rural Communities Act 2006 (“NERC Act”) which extinguished from 2 May 2006 any existing public motor vehicular rights as at such date not recorded on the DMS. This statutory extinguishment was subject to a number of exceptions. One exception, and which was relevant to the present case, is section 67(2)(b) which excludes extinguishment of public motor vehicular rights which:
“immediately before commencement…[were] not shown in a definitive map and statement but [were] shown in a list required to be kept under section 36(6) of the Highways Act 1980 (list of highways maintainable at public expense)”.
In this case Oakridge Lane was shown on the List of Streets for Hertfordshire as at 2 May 2006. The local highway authority maintained at such time, for the purposes of satisfying its duty under section 36(6), both a written list and a GIS layer map.
The problem was that the GIS layer map showed Oakridge Lane as following a slightly altered route to that for which the inspector found to have historically existed. The local highway authority described this discrepancy as an error on the GIS layer map. Nonetheless, the inspector concluded that the s67(2)(b) exception did not apply for such parts of the ‘true’ line of Oakridge Lane not evident on the GIS layer mapped List of Streets. Accordingly, for such parts the public motor vehicular rights were extinguished and the resultant effect being that the middle of the route was only recorded as a restricted byway.
The decision
The Court in finding the inspector made an error of law and quashing the modification order found as follows:
- the List of Streets need not be limited to a descriptive list and may include accompanying mapping. The details on such mapping (i.e. the GIS layer map in this case) are not irrelevant and should not be wholly disregarded when determining whether a way is shown on the statutory ‘List of Streets’. It will be a factual decision on the balance of probabilities;
- the List of Streets is not conclusive evidence of a highway maintainable at public expense unlike the operation of section 56 of the 1981 for ways recorded on the definitive map; and
- the purpose of the List of Streets is to identify and record highways maintainable at public expense. As such, it should not be interpreted with any cartographic accuracy or precision including its alignment and width.
Lesson: the s67(2)(b) exception to public motor vehicular rights extinguishment elevated the importance of the List of Streets in highway law. However, such importance does not mean that it evidentially carries any higher precision or conclusiveness then for which such list was originally intended. When assessing whether a road is on the List of Streets such list should be assessed within the purpose and limitations of its existence against the factual matrix of the case so as to determine whether a road so identified on a list is the physical road in question.
