Bid to save lost ways in Court of Appeal

Ramblers will be in the Court of Appeal this month as, once again, we ask judges to reconsider and then overturn the court ruling in the 1993 ‘Andrews’ case which concerns paths described in Inclosure Acts.  The history of this complex case stretches back over many years but it is of increasing importance as we research lost ways in the years running up to the 2026 cut-off date.

John Andrews was for many years Ramblers Area Footpath Secretary for Suffolk who painstakingly researched and applied for many rights of way to be added to the ‘definitive map’ (the official record of public rights of way). Much of the evidence he used relied on Inclosure Act evidence. The 1993 ruling said that the Inclosure Commissioners did not, under the 1801 Inclosure Act, have the power to set out (either preserve or create) footpaths and bridleways. This means that hundreds of such paths set out and appointed in the first half of the 19th century (when much common land was being enclosed for the first time) cannot be recognised as public rights of way, nor recorded on definitive maps for public use.

It was the view of many experts in this complicated area of the law that the 1993 case was decided wrongly and since 2001 we have been running a research project with a view to building up evidence to support the contention that the 1993 ruling was wrong. In February 2014, our new case was heard in the High Court. This rested on trying to get a path added to the definitive map in Wiltshire. Unfortunately we lost the case, but the judge, Mr Justice Foskett, delivered a long and detailed analysis of the arguments presented by both sides, including a helpful historical perspective on inclosure in general. However, we were given leave to take the case forward to the Court of Appeal, and that’s why we’ll back in court this month.
The case is important because local authorities deciding whether to proceed with applications to add paths to definitive maps have no choice but to reject those which rely on inclosure award evidence of the type dismissed by the 1993 court ruling. The 2026 cut-off date for recording rights of way which rely on historic evidence to prove their existence is getting ever-closer and if we can get this interpretation of the law changed then the way will be opened for paths presently in this ‘limbo’ to be claimed over the next ten years.

Gabriel Newfield

While it would be wonderful if the Court of Appeal decided that pre-Inclosure evidence was admissible and conclusive, surely there is another possibility that could be useful if declared by the Court? This is that, although not conclusive, such evidence was admissible and had persuasive evidential value. The strength of that evidential value would depend on factors such as the exact terms of submissions to the Commissioners (including the terms in which pre-Inclusure customary use had been claimed), what the relevant landowners had argued at the time, and the wording of the Commissioners findings,

Richard Holmes

Could you please let me have details of which paths in Crudwell this Court of Appeal applies to. OS Grid references of either end of the path(s) would be helpful so I can locate on the map.