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New Court of Appeal Judgment on Public Nuisance and the Dedication of Rights of Way

Ned Westaway

The Court of Appeal has dismissed the appeal in Garland and Salaman v SSEFRA [2021] EWCA Civ 1098 (judgment available here), a challenge to a decision to ‘upgrade’ a footpath to a bridleway by way of a definitive map modification order under s.53 of the Wildlife and Countryside Act 1981.

The appeal was pursued on the issue of public nuisance alone – namely that because the order route passes through an underpass that is at its lowest point 2.3m, it is unsafe for use by horse riders and would be a nuisance to pedestrians.  On established authority, if use of a way amounts to a public nuisance, a landowner has no capacity to dedicate the route, so the modification order would have had to be refused.  Sir Patrick Elias (delivering a judgment with which Bean and Stuart-Smith LJJ agreed) reviewed the authorities and noted that while conduct that endangers other users of the highway may be a public nuisance, “[t]he fact that cyclists or riders may without the exercise of due care be a danger to themselves, however, is not a ground for finding public nuisance”.

Sir Patrick Elias rejected the Appellants’ argument that the possibility of future nuisance was the correct test in the following terms (at paras.33-34):

“The question is whether the landowner has the authority to dedicate the land as a bridleway; and he does not have that authority if the dedication will give rise to a public nuisance.  There need not be evidence that there actually has been any specific accident or incident (although the lack of such evidence is likely to be very relevant particularly where there has been extensive use); the authorities such as Sheringham and Hereford and Worcester clearly show that the character of the route itself may be such as to justify the inference that it is obvious that the route is potentially dangerous to a section of the public. 

However, 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 …”

As far as the inspector’s reasoning was concerned, the Court of Appeal applied the well-known dictum of Lord Brown of Eaton under Heywood in South Bucks DC v Porter [2004] 1 WLR 1953 at para.36.  The inspector in this case could have said more, but on the facts he was entitled to address the matter briefly, indicating that there was “a lack of evidence to substantiate the objectors’ claim that the designation of the route as a bridleway will constitute a nuisance for pedestrians.”

Ned Westaway, instructed by the Government Legal Department, acted for the Respondent.