Inclosure Consolidation Act 1801

A Court of Appeal case is leaving landowners very worried that hundreds of new public rights of way may be created as a consequence of ancient legislation dating back more than 200 years.

The appeal turns on the interpretation of the Inclosure Consolidation Act 1801 and whether the enclosure commissioner was empowered to create public bridleways, as opposed to private bridleways in the Wiltshire parish of Crudwell.

Enclosure was the process by which traditional communal arable farming in open fields was abolished and land was enclosed for the use of a single owner, the idea being that the land would be farmed more efficiently, thereby increasing production. 

For Crudwell the enclosure commissioner made the enclosure award in 1841 when he was purported to make one 15-foot wide a public "bridle road" and one 10-foot wide public "bridle path" across some arable land which is now owned by a farmer called Jonathan Blanch.

John Andrews, a local footpath secretary with the Ramblers Association, has tried for 22 years to reopen these two bridleways in Crudwell after finding them marked on the original enclosure map. Wiltshire Council refused to restore them to the official modern map of rights of way and a Government inspector upheld this decision.

However in the appeal, the Master of the Rolls, Lord Dyson, decided that they had both been wrong and that the two paths were legally rights of way. 

Lord Dyson commented: “There are believed to be between 500 and 1,000 cases in England and Wales where public footpaths and bridleways set out and appointed by commissioners are not currently recorded in the relevant definitive maps,”

Mr Andrews of the Ramblers Association was delighted by the ruling but Mr Blanch, the farmer described it as “dire”.

However, not only Mr Blanch will be concerned about the consequences of this ruling. There will be many unsuspecting landowners out there who may be vulnerable to similar claims being made on their land for public rights of way that may not have been used in living memory.

You have to question whether the law has struck the correct balance between the rights of the landowner and those of the wider public.  

James Stephen MRICS FAAV
Partner
Rural Practice Chartered Surveyor, Wells
T: 01749 683381
E: james.stephen@carterjonas.co.uk