Public rights over public spaces

Right of Way 34826038 sLaura Renaudon reports on a rights of way order decision concerning a definitive map modification application over a public park owned by Durham County Council.

Durham County Council has persuaded an Inspector not to confirm a public footpath order made over the City’s Wharton Park, which it owns and manages under the 1875 Public Health Act and the 1906 Open Spaces Act, because the ‘highway’ use is permitted by and indistinguishable from the public user under the relevant statutes. The case is a significant one in the current battleground about public rights over public spaces.

The park had been acquired by the Council’s predecessors in two tranches. The first acquisition was made under s. 164 of the Public Health Act 1875, permitting the provision of ‘public walks and pleasure grounds’. The conveyancing documents in the second acquisition were less clear, but the land was said to be acquired for the purpose of ‘an open space or burial ground’. The Council took the view that this could only sensibly refer to section 9 of the Open Spaces Act 1906.

The Council obtained planning permission and Lottery funding, and closed the park for refurbishment works in 2015. The works involved permanently closing off one of the entrance paths into the park (but retaining it as part of the ‘pleasure ground’). This promptly triggered an application to modify the Definitive Map on the basis of long public user of the paths ‘as of right’.

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The Council made an Order for the OSA part of the land in 2015. That there had been public user was not denied. Following Billson the Council considered that the ‘highways’ and ‘OSA’ users were potentially distinguishable and there was a reasonable allegation of a right of way.

The Inspector then proposed to modify the Order to include all of the paths the subject of the application, most of which were on land held under the 1875 Act as “public walks” (decision FPS/X1355/7/4 dated 7 October 2016). She said that the users were distinguishable on that part. On the OSA part, she was not satisfied that the land was actually held under the 1906 Act, but did not identify an alternative statutory basis.

The Council objected to the modified Order and an inquiry was held in July 2017. The Council argued:

  • Highway user was in principle permitted by and indistinguishable from the 1875 Act user of “public walks”. The Council could not be expected to discern the different purpose (not that there was one) of the users;
  • Highway user was also consistent with the 1906 Act use of public open space. The 1906 Act differs from the “air and exercise” purpose of the 1925 Law of Property Act considered by Sullivan J in Billson. There is no reason why enjoying a public open space cannot mean using it as a thoroughfare.
  • In any event the Council had no right to exclude the users unless they were in breach of the criminal law or any byelaws (Hall v Beckenham). If the users could not be excluded, they could not be trespassers using the land as of right.
  • The Inspector is obliged to decide the statutory purpose for which the land is held, because local authorities cannot own land without express statutory powers to do so. To say the land was not held under the 1906 Act is not enough; an alternative statute must be identified. In this case there was none.

As a result of hearing the evidence and submissions made to her at the inquiry, the Inspector has changed her mind and has declined to confirm the Order (decision FPS/X1355/7/4M dated 4 August 2017). She found that on the evidence the users were not distinguishable, and that the use of paths through the Park as thoroughfares is authorised by the statutory permissions to use the land. This is a significant advance in relation to the 1906 Act in particular, where several other inspectors have recorded public rights of way over Council-owned public open space on the basis of distinguishable user without permission. This Inspector has agreed that in principle that cannot be right.

Laura Renaudon is a solicitor at Durham County Council. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

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