Definitive map and statement - modification order redesignating footpath as bridleway and extending width of way - whether notice at entrance to way negativing intention to dedicate as highway - whether power to modify width - section 31 of Highways Act 1980 - sections 53(2)(c)(iii), 53(4) and 56(1)(e) of Wildlife and Countryside Act 1981 - claim dismissed

Burrows v Secretary of State for the Environment, Food and Rural Affairs; QBD Administrative Court; Mr Andrew Nicol QC, sitting as a deputy judge of the division; 23 January 2004

The claimant objected to a modification order, made by the local council pursuant to section 53(2)(b) of the Wildlife and Countryside Act 1981, proposing to amend the definitive map and statement to redesignate a lane from the status of a footpath to that of a bridleway.

The width of the way, identified in the statement as 6ft, was also to be widened to between 1.8m and 3m.

An inspector confirmed the order on two grounds: the lane had been a bridleway in 1953, the date on which the first definitive map had been prepared; and in any event, it had been enjoyed by the public on horseback, as of right and without interruption, for a period of 20 years from 1963 to 1983, thereby creating a prescriptive right of way under section 31 of the Highways Act 1980.

The inspector did not consider the latter conclusion to be affected by evidence that a notice reading 'Private Road - Access Only' had been erected in 1975 at the entrance to the lane.

He took the view that the notice had an informal and uncertain meaning, that the public would normally interpret the word 'road' as signifying a way for vehicles, and that the notice had not therefore called into question the public's right to traverse the lane on foot or on horseback.

Accordingly, he found that the notice did not negative the intention to dedicate as a highway for the purposes of section 31(3) of the 1980 Act.

The claimant challenged the inspector's decision under paragraph 12 of schedule 15 to the 1981 Act.

He contended that the inspector had erred in his approach to the notice, and further had had no power to alter the width of the way.

In relation to the latter point, he relied on: section 56(1)(e) of the 1981 Act, which provided that the particulars of width set out in the statement should be conclusive evidence as to the width at the relevant date; and section 53(4), under which modification orders were to include the 'addition' of particulars as to width, suggesting that they could not modify a width already set out in the statement.

The defendant maintained that modification to the width of the way was justified by section 53(2)(c)(iii) of the 1981 Act, which dealt with cases in which the discovery of evidence showed that 'particulars contained in the map and statement require modification'.

Tim Hirst (instructed by Chadwick Lawrence, Dewsbury) for the claimant; Timothy Morshead (instructed by the Treasury Solicitor) for the defendant.

Held: The claim was dismissed.

The inspector had not asked himself the wrong question when considering the notice.

In the absence of any evidence to the contrary, the intention of the person who had erected the notice was to be determined in accordance with the way in which members of the public would understand the notice in its context.

The inspector had been entitled to reach the conclusion he had on this issue.

The inspector had not exceeded his powers in modifying the width of the way.

Under section 56(1)(e) of the 1981 Act, the conclusive character of the definitive map and statement was not intended to preclude the duty of the local authority to modify them where one of the events in section 53(3) had occurred: see R v Secretary of State for the Environment, ex parte Simms [1990] 3 All ER 490.

The proviso in section 56(1)(e) was immaterial to the duty under section 53(3)(c)(iii) to modify particulars that were shown to be incorrect.

The term 'particulars' was sufficiently broad to include the width of the way as indicated on the statement accompanying the definitive map.

The claimant's construction of section 53(4) had been incorrect.

The purpose of that section was to extend the duty to make modifications, so as to make it clear that the duty included the addition of specified particulars, rather than to limit the duty, as contended by the claimant.