The law’s delay

A blow was struck for justice in mid February, when the supreme court held that the doctrine of joint enterprise had been wrongly applied for 30 years.  No longer can members of a group be so readily charged for murder when it cannot be proved which person inflicted the fatal blow: now judges must look at each defendant’s case separately.  And so it should be.

Similarly, after a long wait we have seen the courts rectify unfortunate interpretations of the law for paths and spaces, and uphold public rights.  In 1999 the house of lords put right a wrong in the law for claiming public paths and village greens which had persisted for 70 years.  In 2015, after 22 years, the court of appeal righted a misinterpretation of the Inclosure Act 1801 which was thwarting path claims for the definitive map.

The ‘belief virus’
The first case relates to the meaning of ‘as of right’ in claims for public paths and village greens, and the extermination of what the late John Riddall called the ‘belief virus’.  In order to record a path you have to show at least 20 years use of a particular route without challenge or permission.  To claim a village green you must demonstrate such use for informal recreation over a piece of land.  For many years the courts held that users had to believe they had the right to use the path or the land, something which John Riddall considered made the whole thing a nonsense.

Poulshott Wiltshire web

Poulshot village green, Wiltshire. Photo: Graham Bathe

In an article in The Conveyancer and Property Lawyer (‘A False Trail’, May/June 1997) John wrote how the mischief of the virus began in 1929 with a chance remark by Tomlin J, in his judgment in Hue v Whitely1, when he referred to user as of right as being that ‘by people believing themselves to be exercising a public right to pass from one highway to another’.

Homer nodded
John held that if the judge had thought about it ‘he would have been only too glad to rephrase his observation … not merely did he conjure his notion out of thin air, but he failed to give any explanation for his reason for adopting a meaning of the words so at odds with the law established in cases of the highest authority down the centuries.  Seldom has Homer nodded so deeply’.  Unfortunately Tomlin’s words were used in the case of Jones v Bates2 in 1938 by Farwell J and subsequently picked up by others, in the courts and in inspectors’ decisions.  The myth ossified into law.

John set out in his article five arguments why he considered it was such a nonsense to require users to believe they had a right to use a route in order to add it to the definitive map.  He gave the graphic example of children pushing through a hedge and cutting across a field as a short cut to the bus-stop.  The hole in the hedge got larger and soon many people were taking this route.  After 20 years the landowner erected a notice telling people to keep out, triggering a claim by local people to add the path to the definitive map.  The early users would have known they were trespassing even if the later ones believed they had a right, so it would not be possible to show a full 20 years of use by people believing they had a right.

Sunningwell web

Sunningwell village green

John’s arguments were aired in a case which went all the way to the house of lords 3 about the registration of land at Sunningwell, Oxfordshire, as a village green.  The Diocese of Oxford, which owned the green, obtained planning permission to build houses there to maximise its income.  If local people could register the green, they would not only secure their rights of recreation there but would protect the land from development.

Lord Hoffmann endorsed John Riddall’s argument.  He too dismissed Tomlin J’s words as ‘a casual aside’ and said that subsequent judges had got it wrong.  He had been ‘greatly assisted by John Riddall’s article.  The green was registered and saved from development.  Justice was done at last.

Inclosure Act
The second case was taken by the Ramblers to the Court of Appeal last year.  In 1993, John Andrew, the Ramblers’ Suffolk area footpath secretary, lost a path claim in the high court when Mr Justice Schiemann ruled that section 10 of the Inclosure Act 1801 empowered the inclosure commissioners to create only private rights of way.  John and the Ramblers had to wait nearly 20 years for a suitable case in order to challenge this decision.

Such a case occurred at Crudwell, near Malmesbury in Wiltshire, where John (by now living in Scotland) claimed two bridleways on the grounds that the routes were set out as a 15-foot-wide public ‘bridle road’ and a ten-foot-wide public ‘bridle path’ in the Crudwell Inclosure Award 1841 which was executed subject to the 1801 Inclosure Act.  The appeal court judges, after meticulous examination of the act and the evidence, held that section 10 of the 1801 act authorised an inclosure commissioner to set out and appoint public bridleways and footpaths in an award.

web footpath signThis means that rights-of-way researchers can in future rely on the local inclosure acts and awards which incorporate the 1801 act.  It is impossible to say how many routes have become claimable as a result of this judgment but it is clearly important in the run-up to the definitive map closure on 1 January 2026 to claims based purely on historical evidence.

And so, just as joint enterprise has been clarified and reinterpreted after too long a wait, the law of public paths and village greens has also been re-presented in the public interest.

Unfortunately much good can be undone by government intervention: the Growth and Infrastructure Act 2013 has severely undermined the opportunity to claim village greens.  However the Deregulation Act 2015, once implemented, should speed up the process for claiming public paths—and, thanks to John Andrews and the Ramblers, the Andrews judgment will be a great help.


1 Hue v Whitely [1929] 1 Ch 440
2 Jones v Bates [1938] 2 All ER 237
3 R v Oxfordshire County Council ex parte Sunningwell Parish Council (HL) [1999] UKHL 28,      [2000] 1 AC335.
4 The Queen (on the application of John David Andrews) v Secretary of State for Environment, Food and Rural Affairs, court of appeal [2015] EWCA Civ 669.




About campaignerkate

I am the general secretary of the Open Spaces Society and I campaign for public access, paths and open spaces in town and country.
This entry was posted in Access, green spaces, Growth and Infrastructure Act, Public paths, Ramblers, town and village greens. Bookmark the permalink.

1 Response to The law’s delay

  1. beckydeans says:

    Printing this out for my parish council meeting. I’m hoping we can find a way to save some of Codnor Common, though much has been lost.

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