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					                          Order Decision                                     The Planning Inspectorate
                                                                             4/11 Eagle Wing
                                                                             Temple Quay House
                           On papers on file.                                2 The Square
                                                                             Temple Quay
                                                                             Bristol BS1 6PN

                                                                               0117 372 6372
                          by Barney Grimshaw           BA DPA                email:enquiries@pins.gsi.

                          an Inspector appointed by the Secretary of State   Decision date:
                          for Environment, Food and Rural Affairs            28 June 2010

Order Ref: FPS/H3700/7/43

•   This Order is made under Section 53(2)(b) of the Wildlife and Countryside Act 1981 (the
    1981 Act) and is known as the Warwickshire County Council Definitive Map Modification
    Order, Parishes of Kingsbury and Nether Whitacre, Sheet SP 29 SW Order No. 3 2009
    Path No. T34x. It was sealed on 11 November 2009.
•   The Order proposes to record as a Restricted Byway the route presently shown on the
    Definitive Map and Statement as Bridleway T34x running from the C17 road (Foul End
    Lane), Kingsbury to the B4098 (Coventry Road), Nether Whitacre, as detailed on the
    Order Map and Schedule.
•   There was 1 objection outstanding when the Order was submitted to the Secretary of
    State for Environment Food and Rural Affairs for confirmation.

Summary of Decision: The Order is confirmed.

Preliminary Matters

1. This is the second order that has been made regarding the same route. An
   order made in September 2004 proposed that the route should be recorded as
   a Byway Open to All Traffic (BOAT) and was confirmed by another inspector in
   July 2008, after a public inquiry had been held and a number of modifications
   made. However the decision to confirm that order was subsequently challenged
   in the High Court and quashed with the consent of the Secretary of State for
   Environment Food and Rural Affairs (SSEFRA). As a result Warwickshire County
   Council, the Order Making Authority (OMA) has now made the current Order.

2. Strictly speaking, the sole objection to this Order was not duly made in that it
   was not addressed to the correct officer of the OMA. However, it was sent to
   another officer who was involved in the case and it is my view that it would be
   contrary to natural justice for it to be dismissed on this ground. I have
   therefore dealt with the objection as though it had been duly made.

The Main Issues

3. The requirement of Section 53(3)(c)(ii) of the Wildlife and Countryside Act
   1981 (the 1981 Act) is that the evidence discovered by the surveying
   authority, when considered with all other relevant evidence available, should
   show that a highway shown on the Definitive Map and Statement as a highway
   of a particular description (Bridleway, in this case) ought to be there shown as
   a highway of a different description (Restricted Byway, in this case).

4. As the only objection to this Order is made on the grounds that the route ought
   to be recorded as a Byway Open to All Traffic (BOAT) rather than as a
Order Decision FPS/H3700/7/43

     Restricted Byway, it is also necessary to have regard to the provisions of
     Section 67 of the Natural Environment and Rural Communities Act 2006 (the
     2006 Act) which extinguished rights of way for mechanically propelled vehicles
     (MPVs) subject to certain exceptions.


5. The decision to consent to the previous order being quashed was taken by
   SSEFRA in the light of a Court of Appeal decision in another case, the
   Winchester case1. This concerned the interpretation and application of the 2006
   Act. The sole objector appears to disagree both with this decision and that of
   the OMA to make the current Order in the form that it has. With this in mind,
   whilst I have considered all the available evidence in this case, I have
   concentrated in this decision on the only matters that are in dispute, which are
   related to the interpretation of the 2006 Act.

Documentary Evidence

6. I have reviewed all the evidence available and concur with conclusions reached
   previously. The evidence from the period 1787 to 1850, particularly that from
   inclosure documents, Quarter Sessions records and a number of commercial
   maps, indicates that the Order route was regarded as a public carriage road.
   Thereafter, the evidence is less clear cut but suggests that the route may have
   become less used as a vehicular route and came to be regarded as a bridleway.
   However, no record has been discovered of any formal extinguishment of
   vehicular rights and it is therefore my view that, as such rights appear to have
   been established over the route by the early 19th century, they are still in

The 2006 Act

7. In view of my previous conclusion, the main issue that remains concerns
   whether rights for MPVs were extinguished when the 2006 Act came into

8. This Act provides that existing public rights of way for mechanically propelled
   vehicles (MPVs) were extinguished if immediately before commencement they
   were over a way that was not formally recorded as carrying such rights.
   Commencement for this purpose took place on 2 May 2006 and this provision
   of the Act would therefore appear to apply to the Order route. However, there
   are a number of exceptions set out in the Act, one or more of which may apply
   in this case.

9. Section 67(3)(a) of the Act states that public rights to use MPVs would not be
   extinguished if an application for an order to modify the Definitive Map to
   record them was made before the ‘relevant date’. The ‘relevant date’ for this
   purpose in England was 20 January 2005. Section 67(6) further states that
   such an application must be made in accordance with criteria set out in
   Schedule 14 to the 1981 Act.

  R (on the application of the Warden and Fellows of Winchester College and Humphrey Feeds Ltd) v Hampshire CC
and SSEFRA [2008], EWCA Civ 431.

Order Decision FPS/H3700/7/43

10. Paragraph 1 of that Schedule states that “An application shall be made in the
    prescribed form2 and shall be accompanied by-

        (a)      a map drawn to the prescribed scale and showing the way or ways to
                 which the application relates; and

        (b)      copies of any documentary evidence (including statements of
                 witnesses) which the applicant wishes to adduce in support of the

     Paragraph 2 then states that, subject to some alternative provisions in cases
     where the owners or occupiers of land cannot reasonably be ascertained, “the
     applicant shall serve a notice stating that the application has been made on
     every owner and occupier of any land to which the application relates.”

11. In this case applications to upgrade the Order route from bridleway to BOAT
    were made both in 1993 and in 2004. I have not seen a copy of the 1993
    application but doubt has been expressed regarding its validity as there is no
    evidence that notice was served on all owners and occupiers of affected land at
    that time. In the absence of such evidence that this application was made in
    accordance with the criteria set out in Schedule 14 of the 1981 Act, I cannot
    accept that this application was sufficient to trigger the exception set out in
    Section 67(3)(a) of the 2006 Act.

12. I have seen a copy of the 2004 application and, although this was accompanied
    by a map and copies of some of the documents which the occupant wished to
    rely upon, it was not accompanied by copies of all the documents the applicant
    wished to adduce. The recent judgement in the Winchester case has indicated
    that when considering possible exceptions to the provisions of the 2006 Act, a
    literal interpretation of the wording is appropriate and therefore it is my view
    that the 2004 application cannot be regarded as sufficient to have triggered the
    exception set out in Section 67(3)(a) of the 2006 Act.

13. Section 67(3)(b) of the 2006 Act states that public rights to use MPVs would
    not be extinguished if the surveying authority had made a determination under
    paragraph 3 of Schedule 14 to the 1981 Act of “such an application” for an
    order to modify the Definitive Map before the date of commencement, 2 May
    2006. In this case the 1993 application had been determined in September
    2004 by the decision of the OMA to make an order. However, the reference in
    Section 67(3)(b) to “such an application” indicates that this provision only
    relates to applications made for the purposes of Section 67(3)(a) of the Act
    which, as already stated, must be fully compliant with the requirements of
    Schedule 14 of the 1981 Act. In other words, an application that would have
    failed to trigger an exception under Section 67(3)(a) cannot trigger one under
    Section 67(3)(b) and, accordingly the exception set out in Section 67(3)(b)
    does not apply in this case.

14. There is no suggestion that any of the other exceptions set out in Sections
    67(2) or (3) of the 2006 Act would prevent the extinguishment of MPV rights in
    this case.

  The prescribed form is as set out in Schedule 7 to the Wildlife and Countryside (Definitive Maps and Statements)
Regulations 1993.

Order Decision FPS/H3700/7/43

15. It is therefore my view that although public vehicular rights had been
    established over the Order route by the early 19th century, public rights of way
    for MPVs were extinguished when the 2006 Act came into operation. It is
    accordingly appropriate that the route should now be recorded as a Restricted

Other Matters

16. The only objection made to the Order, on behalf of the Trail Riders Fellowship
    (TRF) was made on the grounds that both the decision to quash the previous
    order and the judgement in the Winchester case might be subject to fresh legal
    challenge in the Supreme Court. With this in mind it is suggested that the
    current Order should not be confirmed. However, in my view it would be
    inappropriate to seek to anticipate a possible alternative future judgement and
    the Order must be determined in accordance with the guidance already
    available, which is what I have sought to do.

17. The objection also referred to the fact that the TRF was not consulted on the
    High Court challenge made to the confirmation of the previous order and was
    not therefore able to present a defence to that challenge. Although it is true
    that the TRF was not formally consulted, correspondence indicates that they
    were aware of the proceedings and there was a process available to them
    whereby they could have joined in the action as an interested party. In any
    event, there is no suggestion that proper procedures were not followed in
    respect of the challenge and therefore no reason not to proceed with the
    determination of the current Order.


18. In the light of the evidence available, I conclude that the Order should be

Formal Decision

19. I confirm the Order.

Barney Grimshaw