Reinstatement of long-lost bridleways
The outcome of Andrews (No 2) (R(Andrews) v SSEFRA  EWCA Civ 669) has amended the interpretation of the General Inclosure Act 1801, potentially opening the floodgates for long-lost bridleways to be reinstated.
In 1993 Andrews sought confirmation that a public bridleway measuring 10ft wide had been created by the Crudwell Inclosure Award. ‘Inclosure’ is the historic act of freeing land from all rights which obstruct cultivation by vesting in it some person as absolute owner. The local act was silent on the establishment of public bridleways and so Commissioners turned to the model clauses of the General Inclosure Act. Section 8 made no provision for public highways less than 30 feet wide and section 10 covered only private bridleways. Public bridleways therefore had to be a minimum of 30ft wide and bridleways created under section 10 were still considered private.
Section 10 allocated a different power to the commissioners which was to set out: –
‘private Roads, Bridleways, Footways …‘
Andrews (No 2) focused on whether section 10 enabled Commissioners to create public bridleways. The Court of Appeal’s decision was influenced by: –
- The practice of Commissioners as public bridleways were being marked on the definitive map;
- The importance of bridleways at time of inclosure;
- The absurdity of Commissioners being able to set private but not public bridleways; and
- The fact that Section 8 already made provision for public roads and so the distinction of ‘private‘ in section 10 is attached to ‘Roads‘ but not the words that followed.
The interpretation of section 10 was subsequently altered, enabling the Commissioners to create ‘private Roads and private or public bridleways’.
Andrews (No2) confirmed that public highways could be less than 30ft in width and that any awards of public bridleways were valid exercises of the section 10 power.
As a result the Ramblers Association predict the discovery of 500 to 1,000 lost public bridleways which were created legally under the General Act.
The circumstances in which the decision could apply are limited as the relevant local act must have incorporated the wording of the General Act. If the routes were never set out then they may not be identifiable. If they were set out, they may have been lawfully stopped up, therefore preventing reinstatement. It is still to be seen if any will be found in East Anglia but the risk remains that long-lost bridleways could be rediscovered and reinstated with little to no consideration given to the effect on the land owner.
Katy Moss is a solicitor in the Property department at Barker Gotelee Solicitors in Suffolk.
(A version of this article appeared in the East Anglian Daily Times on 22nd April 2017.)