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High Court Severs 1799 Inclosure Award to Affirm Public Bridleway

Hugh Flanagan
Horatio Waller

The ancient documents by which the inclosure process was undertaken continue to give rise to fresh debate, as is demonstrated from the judgment handed down today by Mrs Justice Lieven DBE in Craggs v SoS and Others [2020] EWHC 3346 (Admin). 
The Claimant, Mrs Craggs, made an application to the local highway authority for a definitive map modification order. One of her arguments was that the public were bestowed with rights of way along the route in question by the Shipham and Winscombe Inclosure Award 1799. 
In Buckland v Secretary of State for the Environment Transport and the Regions [2000] 1 WLR 1949 the High Court had found that the Award was ultra vires in purporting to create public carriage roads (in modern parlance - vehicular highways) as the statutory requirements for public carriage roads were not met. Those requirements were set out in a local act, and they included specifications as to width and repair, which were not met in relation to any of the routes set out in the Award. 
The Council, and subsequently an inspector, dismissed Mrs Craggs’ argument, on the basis that they were bound to follow the judgment in Buckland that the Award was ultra vires and capable of creating no public rights of way along the routes in question. In a judicial review claim, Mrs Craggs argued that the Award should be severed on public law principles on the basis that it created public bridle roads (in modern parlance – public bridleways) which the Award could have created across the routes.
Mrs Justice Lieven found in favour of the Claimant. In a detailed judgment, the Judge discusses the case-law on severance, the key cases being DPP v Hutchinson [1990] 2 AC 783 and Thames Water v Elmbridge Borough Council [1983] 1 QB 570. The Judge distilled the relevant principles from those cases as follows (see paragraph 23):

(a)   Firstly, the court must determine what are the ultra vires elements of the instrument in question;
(b)   In determining severability, the court must consider whether there is vires for the element which is being sought to be retained. The court must be careful not to, in effect, legislate for a new or different provision;
(c)    The court should then apply the test of textual severability, which will be met if the offending words can be disregarded and the text remain grammatical and coherent;
(d)   If textual severance is possible, then the court applies a test of substantial severability, which will be met if what remains is essentially unchanged in its legislative purpose, operation and effect;
(e)   However, if textual severance is not possible then the court can still sever the provision, but it must be satisfied that in upholding only part of the impugned provision, there is no change in the “substantial purpose and effect of the impugned provision”.
These tests were found to be satisfied in this case. The Judge found that the Award in purporting to create a public carriage road along the route was ultra vires but was intra vires in so far as it purported to create a public bridle road.  

A copy of the judgment can be accessed here.
Horatio Waller appeared for the Claimant, Mrs Craggs.
Hugh Flanagan appeared for the Defendant, the Secretary of State.