Cumbria County Council has successfully defended in the High Court [Roxlena Ltd, R (On the Application Of) v Cumbria County Council], its decision to make a definitive map modification order (DMMO) for paths in Hayton Woods, east of Carlisle, in response to an application previously made by local people on the basis of long use as of right. The challenge was brought by the landowner, Roxlena Ltd, a company registered in the British Virgin Islands.
The application paths had been used for a 20-year period which spanned the foot-and-mouth disease outbreak in 2001–02 (with which Cumbria was exceptionally afflicted). Both the claimant and the council accepted that the decision of the county council early in 2001 to prohibit the use of public paths in its area did not exclude use of the application paths, which were not rights of way at that time. But they also accepted that use of the application paths ceased for a while, and Roxlena said the council should have investigated the intermission in use before deciding whether to make the order. The council relied on the Planning Inspectorate’s Rights of Way Advice Note no.15, which concludes that, ‘it does not seem that the temporary cessation of use of ways solely because of the implementation of measures under the Foot-and-Mouth Disease Order 1983 could be classified as an “interruption”’. The judge, Kerr J, did not agree: he said: ‘Use or non-use is a question of fact; the cause of any non-use is not the issue.’ However, he found that there was ‘plenty of evidence’ on which the council could rely to conclude that, overall, the existence of the application paths was ‘reasonably alleged’ for the purposes of s.53(3)(c)(i) of the Wildlife and Countryside Act 1981 — the test for whether to make a DMMO.
The decision of the court in Roxlena is not binding, because the judge did not need to opine on the government guidance in order to decide the case. And the Planning Inspectorate has already responded to an enquiry about the case† to say that it does not intend to take any action and does not intend to amend Advice Note no.15.
The society is concerned about the ramifications of the Roxlena judgment, which has implications for nearly all DMMOs where use took place spanning the 2001–02 outbreak of foot-and-mouth disease, and in some cases, the smaller outbreak in 2007. There are two separate effects associated with the 2001–02 outbreak: local authority prohibition of use of public paths during the early stages in spring 2001, and the ‘voluntary’ cessation of use of paths, and recreational use of the countryside generally, at that time. In Roxlena, the judge appears to say that, regardless of whether an intermission of use of a path is caused by the first or second effect, it is a question of fact whether the intermission is sufficient to call into question whether a right of way can have become established through long use.
The society believes that these questions raised in Roxlena — but dealt with by the judge in three lines which are obiter (i.e. not essential to the judgment and not binding) — require further thought and analysis. We are disappointed therefore that the Planning Inspectorate has decided, after conferring with the Department for Environment, Food and Rural Affairs, to take no action. It must update Advice Note no.15 to review the arguments in Roxlena, explain why it has apparently concluded that the court in Roxlena was wrong, and justify maintaining its present policy. Otherwise, surveying authorities, the parties in future DMMO cases, and the inspector, will not know where they, or the government, stand. Indeed, in due course, the DMMO for Hayton Woods will now (subject to any appeal) be referred to an inspector — yet the inspector can hardly ignore the inevitable submissions from Roxlena, and the dicta from the judge, and rely on the unamended Advice Note no.15. We do not think that the answer is for the government to stick its head in the sand, and do nothing.
† Letter from Planning Inspectorate to Alan Kind, dated 8 December (PINS ref:1-79-01).