ROWDEN LANE
IN THE MATTER OF ROWDEN LANE, FORTUNE & OTHERS V WILTSHIRE COUNTY COUNCIL, CASE 6BS30497, APPEAL COURT JUDGEMENT OF LADY JUSTICE ARDEN, LORD JUSTICE LONGMORE AND LORD JUSTICE LEWISON DATED MARCH 2012.
This matter concerned the status of a short section of road on the edge of Chippenham in Wiltshire.
Following the granting of planning permission for 138 houses on land which abutted Rowden Lane, a resident of Rowden Lane, Mrs Fortune, objected to the County Council’s position with respect to the status of Rowden Lane. Whilst Wiltshire CC held that Rowden Lane was a public vehicular highway, Mrs Fortune claimed that the public rights over the road were limited to use on foot and on horseback i.e. that it was in fact a bridleway.
Gary Vaughan was instructed by Wiltshire County Council in 2006 to produce a preliminary report on the merits and pitfalls of the County Council’s evidence in this matter.
IN A PRELIMINARY REPORT DATED SEPTEMBER 2006 GARY VAUGHAN REPORTED THAT…
- There is a veritable raft of historical mapping which shows Rowden Lane as either a through route or, as in the case of the Finance map 1910, being in public ownership.
- The absence of historical challenges would suggest a general acceptance of implied public dedication.
- That the standing of Rowden Lane within the road hierarchy was in the past very much higher than its current standing.
- The continuation of Rowden Lane, Bridleway 5, cannot be a cul-de-sac and therefore by implication public highway rights must exist over the full length of Rowden Lane.
THE CONCLUDING ADVICE GIVEN TO WILTSHIRE COUNTY COUNCIL IN SEPTEMBER 2006 WAS THAT…
‘There is no doubt in my mind that Rowden Lane is an ancient road and that it has always been recorded as being of width suitable for wheeled traffic of the time. Its historical standing within the local road hierarchy was at least equal to other roads within the area which clearly warrant maintenance at public expense.’
Based upon this advice and the advice of others, Wiltshire County Council elected to defend the matter. The case was heard in the Bristol Crown Court before HH Judge McCahill QC.
The matter primarily turned at trial upon the historical significance of plans and maps dating back to as early as 1669. Evidence of user before the court dated back to the 16th Century. Both parties therefore relied heavily at trial on the evidence of expert historians, Prof. Williamson for the claimants and Mr Alan Harbour for the defendants.
In addition to the evidence of the expert historians, Gary Vaughan was instructed by the defendants, Wiltshire County Council, to provide an expert report which commented on expert surveyor matters, including the geomatic perspectives of the plans, maps, conveyance documents and aerial photographs.
THE EXPERT SURVEYOR REPORT OF GARY VAUGHAN DATED JANUARY 2008 REPORTED THAT…
- A sewer is laid beneath the verge of Rowden Lane.
- Public Utilities are located within the verge of Rowden Lane.
- All of the large scale plans show Rowden Lane to be of substantial width.
- All of the small scale plans depict Rowden Lane as a through route to Gypsy Lane.
- The width of Rowden Lane with its carriageway and verges was reasonably consistent along the disputed length at widths varying between 11.30m and 13.25m.
- That Rowden Lane had not been included in a conveyance of Rowden Farm dated 3rd October 1946.
- That Rowden Lane was excluded from the mapped extent of Rowden Estate on a plan attached to a conveyance dated 4th December 1919.
- There were no records of any wayleave agreements for services either along Rowden Lane or crossing Rowden Lane.
- The width of Rowden Lane had remained constant since 1886.
- There was no evidence of gate or impediment to public access depicted upon any of the historical Ordnance Survey Mapping.
- That in my experience of conveyance documents, it is often the case that legal practitioners adopt a ‘belt and braces’ approach with respect to rights of access. The description of private rights over a way do not necessarily mean that public rights do not exist.
- Upon reconciliation of all of the conveyance documentation, it is my opinion that the properties described therein do not include the disputed section of Rowden Lane.
IN REACHING HIS JUDGEMENT IN 2010 HH JUDGE MCCAHILL QC RELIED UPON FACTS WHICH INCLUDED…
- There are, and have been no obstructions or gates limiting or restricting access between Sections A and B of Rowden Lane.
- Utilities are found in sections A and B of Rowden Lane. There is no wayleave agreement permitting this, and the inference is that they were installed in the highway under statutory powers. Whilst these are not probative on their own of a public vehicular highway, they are entirely consistent with it.
- The 1910 Finance Act is strongly supportive of sections A and B as wholly untaxed public vehicular highway, as opposed to a private road subject to deduction for minor highway rights.
- The private conveyance documents, relating to transfers of property adjoining Rowden Lane, and in particular the absence of express grants of rights of way, are probably explicable on the basis that everybody had regarded the public as having full rights of way over Rowden Lane, as it was a public vehicular highway.
- There is a clear picture of Gypsy Lane and Rowden Lane forming a thoroughfare leading from and to the Bath Road.
- Rowden Lane has been shown on many maps to be of comparable status to the Bath Road.
- It’s width is greater than one would expect for a footpath or bridleway.
- It is unlikely that the council would have claimed CRB5 as a cul-de-sac way and it is likely that it regarded the enclosed sections A and B of Rowden Lane as having full public vehicular rights to the point where it connects with CRB5.
- Given the absence of private easements in favour of the properties fronting
- Rowden Lane, they and Rowden Farm would be landlocked if Rowden Lane were not a public vehicular highway. The fact that the parties did not include any part of the road in the conveyance, and also failed to stipulate for private access rights, renders it probable that everybody realised that the road had become a public vehicular highway.
IN DECIDING THEIR APPEAL DECISION IN 2012, LADY JUSTICE ARDEN, LORD JUSTICE LONGMORE AND LORD JUSTICE LEWISON CONCLUDED AMONGST OTHER POINTS THAT…
- …it is conceded that the disputed sections of Rowden Lane were part of a highway (albeit limited to use on foot and horseback). This concession necessarily entails an intention to dedicate. What Mr Laurance has to submit is that although there was an intention to dedicate, and although use by the public included use with vehicles, the intention was limited to use on foot and on horseback. Folkstone Corporation v Brockman says nothing about that situation.
- The consensus of opinion, therefore is that the fact that the road is uncoloured on a Finance Act map raises a strong possibility or points strongly towards the conclusion that the road in question was viewed as a public highway.
- The consistency of treatment of Rowden Lane and Gypsy Lane in commercially produced maps for well over a century showed, if nothing else, the reputation enjoyed by Rowden Lane. In our view the judge’s approach to ‘consistent depiction’ was fully justified.
- The important fact is that the soil of Rowden Lane never belonged to the owner of Rowden Farm and there is no evidence of any grant of a right of way. It is improbable in those circumstances that Rowden Lane was no more than a private carriageway serving Rowden Farm. The situation on the ground is quite unlike that described in Folkstone Corporation v Brockman.
- Even if some of these factual findings can be chipped away at the margins, in our judgement the judge was amply justified in concluding on the material before him that Rowden Lane was a vehicular highway.