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Could the Inclosure (Consolidation) Act of 1801 still have an impact on your land?

Posted on 9th July, 2015

All local authorities are under an obligation to keep “definitive maps” and statements that record and describe the location and status of highways, including public footpaths and bridleways. This is conclusive evidence that the rights contained on that map exist. This definitive map is continuously reviewed and local authorities have an obligation to keep the map and statements up to date.

Under the Inclosure (Consolidation) Act 1801 portions of public land were transferred into private ownership.  At the same time it was necessary to give inclosure commissioners the ability to create rights of way for those who needed access over the land. Subsequent local inclosure acts incorporated the provisions of the 1801 Act where applicable.

The case (R(Andrews) v Secretary of State for Environment Food and Rural Affairs  and others [2015] EWCA Civ 669) involved a public bridleway created by an inclosure commissioner in 1841. The local authority refused to modify the definitive map on the basis that the Act did not allow the inclosure commissioners to create a public bridleway, only private rights. The claimant applied for judicial review of the local authority’s decision.

The high court dismissed the original application but the claimant has successfully appealed.

It is estimated that there could be as many as 1000 public footpaths and bridleways created this way that are not currently shown on the appropriate definitive map.  This case could lead to more rights of way being established.

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