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Council wins challenge to decision that right of way was ‘byway open to all traffic’

Slough Borough Council has won a High Court challenge to an inspector’s decision that a right of way should be open as a ‘byway open to all traffic’ (BOAT).

The local authority had decided that a right of way along Blandford Road North (“BRN”) in Slough should be added as a bridleway, and made an order to that effect.

There were objections, notably that it should be shown as a BOAT.

An inspector appointed by the Secretary of State for Environment, Food and Rural Affairs subsequently held a public inquiry. His final decision was that the order should be confirmed with the modification showing the right of way as a BOAT, but not of the greater width he had initially proposed.

The inspector did not find that there had been a statutory dedication of the way for vehicular use since this required twenty years use of the way by the public as of right and without interruption before the right was brought into question. Nor did he find that there was a dedication based on the documentary evidence. He found instead that there had been a dedication at common law.

Slough challenged that decision under the relevant provisions of the Wildlife and Countryside Act 1981 on the conventional statutory challenge grounds that the decision was outside the powers of the Act or that procedural requirements had been breached to the prejudice of the council, in particular the duty to give reasons for the decision dealing with the principal issues.

Slough’s grounds of challenge fell into two groups:

  1. A series of challenges to the inspector's findings on common law dedication, many of which turned upon the significance of the evidence of cycle use, vehicular use before 1961 when its use by vehicles was blocked, and the way in which it was said that he had ignored the significance of that blocking for his assessment of whether there had been an earlier dedication for vehicular use at all.
  2. A challenge based on the effect of s67 of the Natural Environment and Rural Communities Act 2006 which, subject to a disputed exemption for highways maintainable at public expense shown in a list kept under s36 Highways Act 1980, extinguished the rights of users of bridleways by mechanically propelled vehicles. If so, the Definitive Map and Statement could not be modified to show such rights, even if up to that point Blandford Road North had been a BOAT.

In Slough Borough Council v Secretary of State for Environment Food And Rural Affairs [2018] EWHC 1963 Mr Justice Ouseley concluded that each ground succeeded.

He therefore quashed the inspector’s decision.

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