Court of Appeal rejects challenge to decision by county to change status of track to bridleway

The Court of Appeal has rejected a legal challenge to a decision by a county council to modify its Definitive Map and Statement so that a track was changed from a footpath to bridleway.

The change, made by Surrey County Council in response to requests by cycling groups, meant the track between Byfleet and Wisley could be used by cyclists and horse riders, as had in practice been the case for many years.

Objections were received, including from the appellants, and by paragraph 7 of Schedule 15 to the Wildlife and Countryside Act 1981 Surrey’s designation had to be sent to the Secretary of State, who appointed an inspector to conduct a local public inquiry.

He found that there had been dedication as a bridleway at common law.

The two appellants, who are local residents, unsuccessfully argued that the use of the track as a bridleway constituted a public nuisance as pedestrians would be in danger from horses.

Their first application to overturn the inspector’s decision was heard in the Planning Court, which rejected all grounds of challenge.

They then went to the Court of Appeal over the inspector’s finding that the route’s re-designation as a bridleway would not constitute a public nuisance.

In Garland & Anor v Secretary of State for Environment, Food And Rural Affairs [2021] EWCA Civ 1098 Sir Patrick Elias noted that a landowner could not authorise something which would amount to a public nuisance, such as was claimed about horses in particular at a point where the path is in an underpass below the M25.

He said: “The critical point relied upon was the height of the subway, which is some 2.3 metres (although higher at the ends of the subway), coupled with the fact that it is 41 metres long. It was said that the character of the route was intrinsically dangerous to pedestrians.”

The appellants argued that the underpass made it impossible to safely ride a horse.

But evidence from Daniel Williams, Surrey’s countryside access officer, said any rider would have to take care but could ride safely, or could dismount and lead the horse if necessary.

Sir Patrick said the grounds of appeal were that the inspector: applied the wrong test when determining whether permitting horses to use the underpass constituted a public nuisance; failed to take into account material factors; gave too much weight to Mr Williams’ evidence; and gave inadequate reasons. It was also argued that in any event, in the light of the evidence adduced, no reasonable inspector could have found that there was no public nuisance when horses were being ridden or led in that section of the route which passed under the motorway.

On the first ground, Sir Patrick said the complaint was that the Inspector asked himself whether the dedication of the track as a bridleway gave rise to a public nuisance whereas he ought to have gone on to ask whether it was likely to give rise to a public nuisance.

It was submitted that in asking that question, the Inspector ought to have had regard to the likely increase in the use by horses once the track has the status of a bridleway.

The Court of Appeal judge said: “I do not accept that the inspector was entitled, far less obliged, to speculate about future use and to consider whether that might give rise to a public nuisance.

“If during the period of use which justifies the inference of dedication it cannot be said that the likelihood of a public nuisance is intrinsic in the character of the highway, there would in my view be no basis for concluding that the landowner was not authorised to dedicate the land to such use because of what the future might bring.”

He rejected all the other grounds, including a contention that the inspector’s decision was perverse.

“In my view this is unsustainable, essentially for reasons already given,” the judge said.

“There was no evidence of any actual harm to pedestrians and an officer with considerable experience of rights of way considered that horses could safely use the subway without undue risk to pedestrians.”

Mark Smulian