The Planning Court (Dove J) has dismissed a judicial review claim brought by the Ramblers’ Association in challenge to a PROW Inspector’s refusal to confirm a modification order to add a footpath to the Definitive Map and Statement, and to allow also for the closure of an ‘on the level’ railway crossing (Nottingham-Lincoln line) operated by Network Rail Infrastructure Limited.
The Court accepted the Interested Party’s position that deemed dedication of the footpath under section 31(1) Highways Act 1980 would be incompatible with key statutory duties governing railway safety and operational efficiency. The Court found that the date at which statutory incompatibility falls properly to be assessed for the purposes of section 31(1), is at the date at which the issue is concluded upon by the tribunal, and not at either the beginning or end of the claimed 20 years period. The Court found endorsement for this approach from the majority view of the House of Lords in British Transport Commission v Westmoreland County Council  AC 126. The Court held also that section 31(8) is to be viewed as operating in parallel with the common law as the origin for incompatibility to dedicate.
The Court further upheld the Inspector’s finding that the claimed public use, on the facts, amounted to trespass under section 55 British Transport Commission Act 1949. In light of this finding, the court concluded that it had been properly open to the inspector to further find that the public interest in ensuring railway safety outweighed any countervailing interest associated with section 31. Accordingly, dedication had been correctly precluded.