The Case for Hampshire County Council – PART 152

By 11 April 2011, I had received an opinion from my barrister. There were several points that he seemed quite optimistic about, along with quite a few questions as well.

He demonstrated that the Inspector had applied the incorrect legal test in assessing the adequacy of bridleway use for the relevant 20-year period under section 31 of the Highways Act 1980.

The Inspector ruled that the question of the status of the land crossed by the claimed bridleway (i.e., as common land or otherwise) was irrelevant to the acquisition of linear bridleway rights. On the other hand, I maintained that use by horse riders was more likely if it were common land, as there would be nothing to prevent access; therefore, the tracks would be more likely to be used by the public. This, in turn, impacts the probability of claimed public users.

Interestingly, he points out that there is nothing inherently contrary to the scheme of the legislation in having land recorded in the Land Section of the register without any rights of common recorded in the Rights Section of the register.

Even more extraordinary, he says, was that only two of the forty-one claims were valid regarding the Eastern part of the Common; these claims were based on the devolution of title rather than on prescription or lost modern grant. The CCC addressed this entirely in accordance with the Rights Section of the register, without mentioning anything concerning the Land Section.

He goes on to note that the landowner went on to appeal against the High Court at the Court of Appeal. Those proceedings were eventually compromised by a Consent Order dated 24 May 1978, but he is wary of commenting on it in detail because he has not seen the third of five pages of that Order, nor has he seen the Order made by the High Court dated 24 March 1977.

Next time: to be continued

All 'TCHCC' Parts so far