A High Court judge has had to consult legislation dating back to the 18th century in a dispute over a bridle road in Somerset.
Local resident Venetia Craggs challenged the decision of planning inspector, Susan Doran - appointed by the Secretary of State for the Environment, Food and Rural Affairs - to dismiss her appeal against Somerset County Council’s decision not to make an order under s.53(2) of the Wildlife and Countryside Act 1981 to upgrade a route known as Callow Drove to a bridleway.
When she dismissed the original appeal Ms Doran said Ordnance Survey maps were consistent in showing the route as a footpath, and in the 1950s a parish survey indicated a bridleway but it was subsequently recorded as a footpath without challenge.
Ms Doran said: "I find the evidence does not support the contention the appeal route should be upgraded to a higher status.”
Somerset said the circumstances of legislation in the 18th century meant it lacked the power to make a designation as a bridleway.
In Craggs v Secretary of State for the Environment  EWHC 3346 (Admin) Mrs Justice Lieven said the issue was whether the Shipham and Winscombe Inclosure Award of 1799 was effective to create a public bridle road - now known as a public bridleway - over the route.
She said this turned on whether any such purported creation was within the powers of the Shipham and Winscombe Local Act 1797 and if so “whether that intra vires element is capable of being severed from the unlawful parts of the award”.
Late 18th century enclosure awards of previously communal fields extinguished rights of way over land and these would then be re-granted in most cases as rights of way, both private and public.
There was a clear intent to give the public unfettered rights to use the roads which had been described in the award as “private” and to place the maintenance liability on the owners and occupiers of the land rather than on the parish.
Lieven J found that the creation of a public bridle road along the route was intra vires.
The judge turned to whether the award’s text could be split to preserve the intra vires public bridle road whilst accepting the conclusion in the 2000 Buckland case that any public carriage road would be ultra vires.
She said the substantial purpose of the 18th century enclosure commissioners had been not to create public carriage roads of 40 foot with maintenance falling on the parish but to allow the public to use the route on horseback and so the creation of public bridle roads along the routes was permitted.