February 2010
1. Quite apart from historic status, establishment of public vehicular rights can depend on prolonged use which gives rise to inferred dedication by the landowner. That inference can arise by statutory presumption under the 20 year rule (s31 Highways Act 1980) or under common law when the period of use may be less but the other tests are stricter. One test applying to both cases is whether the use was lawful, because dedication cannot be based on use which constitutes a criminal offence. Driving over common land is such an offence, but in the context of dedication, the House of Lords held in the Bakewell case in 2004 that where the landowner had the capacity to legalise the use, the inference could still arise. It was however made clear that if the use involved the offence of public nuisance it would not succeed. This is covered at section 3.4.2 of Rights of Way, A Guide to Law and Practice (Riddall & Trevelyan) 4th Edition (2007) – the “Blue Book”.
2. The majority of case law on nuisance relates to actions where harm to third parties has been occasioned based either on statutory offences and/or in combination with tortious acts under private law. Statutory offences will defeat dedication except in the Bakewell situation, although that case has been largely overridden by the NERC Act 2006 which has stopped dedication arising by use in motor vehicles unless such a claim falls within one of the exceptions. The torts of private nuisance and trespass do not in themselves defeat a claim for dedication.
3. Public nuisance however is an indictable common law offence (unaffected by Bakewell) and was recognised by an inspector as defeating BOAT claims in Derbyshire, ref FPS/U1050/7/40M and 44M, where there was considerable evidence of complaint. The issue has since arisen also in claims of dedication by motor vehicular use prior to 1930 which, if successful, gives rise to exemption from the NERC Act 2006 extinguishment provisions by way of s67(2)(e). That exception is based on the fact that driving on footpaths and bridleways was first outlawed by the Road Traffic Act 1930. Given that the Act did not apply in the 1920s and that it is difficult after a long passage of time to prove actual harm, this raises the question of whether it is necessary to prove actual nuisance to any identifiable person. GLPG believes that the answer is no – such evidence is unnecessary if the conduct is such that it would have been harmful to the general public.
4. The subject has arisen in the Lake District where competitive hill climbing on motorbikes in the 1920s has been claimed as generating dedication. It is however essential to the NERC Act exemption that public vehicular rights did not already exist, as if they did, then dedication cannot be attributed to motor use. To defeat the claim therefore it needs to be shown that the fell passes in question were in use historically by the public in carts. If that cannot be shown, then the secondary question is whether the degree of motorcycle use satisfies the common law tests of dedication. One of those tests is whether the use was known to and acquiesced in by the landowner, and “notoriety” can contribute to that test. The evidence of notoriety in the Lakes cases is so extensive that it amounts without question to potential public nuisance. It is at that point that the question of identified harm arises. The jury is out.
5. A detailed look at the legal authorities is attached as an appendix. It should be noted that public nuisance will not destroy rights already established, nor can it be used to defeat historic claims. It is only available where a claim is based on actual use, and that in turn is now limited to cases where dedication has been “called into question” by virtue of an application made before 20 January 2005. Motor vehicular use thereafter no longer counts.
[1] This paper is not to be taken as qualified legal advice but it has been written with the assistance of lawyers who have confirmed the views expressed.
The law as it stands is well set out in Archbold, although this leading authority does not address the question of necessarily identifying persons that have actually been affected.
Archbold – Criminal pleading, Evidence and Practice -2009
A – STATUTE – (1) General
31-33 A wide range of conduct which has in the past been the subject of prosecution at common law for the offence of public nuisance is now regulated by statute. [The text goes on to explain that statute is to be preferred where possible.]
B – COMMON LAW – (1) General
Introduction
31-40 Public nuisance is an offence at common law. A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects: 1 Hawk. c. 75; Wilkes v. Hungerford Market Co. (1835) 2 Bing.N.C. 281; Barber v. Penley [1893] 2 Ch. 447; Stephen’s Digest of the Criminal Law, 8th ed., 1900, p. 184. This definition was approved in R. v. Rimmington; R. v. Goldstein [2006] 1 A.C. 459, in which the House of Lords held that the definition was clear, precise, adequate and based on a rational and discernible principle so that it had the certainty and predictability necessary to meet the requirements of the common law and of Article 7 of the ECHR (ante, § 16—97) that the citizen should be able to foresee, if need be with appropriate advice, the consequences which a given course of action might entail.
Actus reus [the guilty action]
31-42 A public nuisance may be committed by an act or omission, as in Att.-Gen. v. Tod Heat1ey [1897] 1 Ch. 560 (allowing one’s land to accumulate rubbish, even though it is deposited there by others for whom the defendant was not responsible), and R. v. Watts (1703) 1 Salk. 357 (allowing a house near the highway to become ruinous).
Just how widely spread the effect of a nuisance must be for it to qualify as a public nuisance and to become the subject of a criminal prosecution or of a relator action by the Attorney-General was considered in Att.-Gen. v. P.Y.A. Quarries Ltd [1957] 2 Q.B. 169, CA. After considering the relevant authorities Romer L J. said (at p. 184):
“It is clear in my opinion that any nuisance is ‘public’ which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects. The sphere of the nuisance may be described generally as the `neighbourhood’; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary in my judgment to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue.”
Denning L.J. (at pp. 190-191) said:
“I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.”
…. [Nuisance cannot be legalised by long continuance]
…. [Public nuisance is contrasted with private nuisance. An offence may be indictable under both branches of law.]
Mens rea [the knowledge of unlawfulness]
31-43 The object with which the act or omission is done or made is immaterial if the probable result is to affect injuriously the public (R. v. Carlile (1834) 6 C. & P. 636; Barber v. Penley [1893] 2 Ch. 447); or any appreciable part of it (R. v. Lloyd (18(12) 4 Esp. 200). It is sufficient for the prosecution to show that the defendant knew or ought to have known, because the means of knowledge were available to him, that as a result of his action or omission a public nuisance would occur: R. v. Shorrock [1994] Q.B. 279, 98 Cr.App.R. 67, CA; R. v. Rimmington; R. v. Goldstein, ante (although, of course, he need have no knowledge of the legal label attaching to the circumstances constituting the nuisance).
The question of mens rea will depend on the nature of the offence and on an objective view as to whether nuisance would or should have been anticipated. This is without much doubt the case when motorcycles are ridden on bridleways or footpaths, taking into account noise, risk of confrontation, pollution, surface damage etc. As to actus reus, assessment of persons affected or likely to be affected very clearly embraces other users when highways are in question. The actuality of identified individual harm exists in the cases quoted but the need to show actual harm is not questioned in the context of dedication. The point was not raised in Bakewell Management Ltd v Brandwood (HL) [2004] UKHL 14 (where the question first arose in this context) and is clearly distinct from the matter of proof needed “for an injunction to issue” as noted above.
GLPG’s view is based on these reasons:
(i) Case law authorities are necessarily the consequence of proceedings being issued so there has been no cause to question the need for identified actual harm. Bakewell changed legal perceptions and the matter is untested in the field of dedication. In Lord Denning’s words “it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.”
(ii) A public nuisance is a crime against the public, not an individual. In the context of highway use, it is the nature of the conduct and the likelihood of causing nuisance that is in question. Being a crime against a community, it is not necessary to identify any particular individuals who have suffered. Indeed, it is inevitable that many of those suffering could never be identified.
(iii) Proving the offence does not depend on whether anyone has taken action as a consequence. The prosecution doesn’t make the crime; it is still a crime even if not prosecuted. Lack of proceedings (or even complaint) does not indicate lack of nuisance.
GLPG’s view is supported by both the Blue Book and the Planning Inspectorate guidance:
Blue Book (Rights of Way, A Guide to Law and Practice (Riddall & Trevelyan) 4th Edition (2007)
“13.1.2 Criminal law and civil law
A breach of the criminal law is primarily an offence against the state. In its origins the offence consisted of a breach of the King’s Peace: murder was not, and indeed still is not, a wrong against the person killed. The wrong is the failure to obey the sovereign’s command not to kill. ….
In civil law the action is by one person against another: a complainant (the term that replaced ‘plaintiff’ in 1999) sues a defendant.”
That advice exposes the fact that criminal offences can be either passive, such as exceeding the speed limit, or active, affecting a third party. Either way, it is the nature of the conduct that constitutes the offence, not necessarily the fact of harm or the identity of the party harmed. Even if the victim of murder was never identified, it would be enough to show that the act of killing had been proved if that was possible without an identified victim. Public nuisance is an active crime but it is against a class of people, not an individual. Furthermore, it is not necessary for there to have been proceedings. An individual can of course seek a prosecution on the basis that he or she has suffered particular damage – often this is a nearby landowner and then it migrates into a civil action for private nuisance or trespass which is a separate matter. The second passage (above) from the Blue Book referring to 3rd party complaints underlines the fact that harm inter partes often belongs to civil law, although nuisance can lie in either branch.
The Planning Inspectorate
The subject is referred to in the Consistency Guidelines section 5 at http://www.planning-inspectorate.gov.uk/pins/appeals/rights_of_way/consistency_guidelines_10.htm
The relevant text (on the third page) is as follows:
5.45 A grant would not be lawful if, for example, it gave rise to a public nuisance. The granting of vehicular rights over an existing footpath might constitute a public nuisance to pedestrians using that path.
5.46 Whilst it is therefore possible for long use of bicycles on a footpath or bridleway (subject to paragraph 5.43 below[?]) to give rise to a claim for a BOAT, Inspectors will need to consider whether vehicular use of the way in question has given rise to or is likely to give rise to, a public nuisance i.e. if the use of bicycles has given rise to, or the use in the future of bicycles and/or any other vehicles on the way is likely to give rise to, a public nuisance, the claim for a BOAT must fail. The public nuisance issue is one to be determined by Inspectors by reference to the particular facts before them.
GLPG suggests that this advice is defective and would delete the words “in the future” in para 5.46 because that rests on speculation as to a crime that has not yet been committed. We would further qualify the advice by amending para 5.46 to read “…the claim for a BOAT relying on dedication must fail.” Those flaws apart, the advice rightly advises that conduct which by its nature is likely to cause harm to the public at large or a section thereof, if so found on the facts, amounts to public nuisance.
It is of course necessary to show that the conduct exceeded existing legal rights (ie was not rightful use) because the question to be answered is whether dedication of higher rights can be presumed. If the rights already existed, then the nuisance offence may be indictable, but it would not destroy a right which was already there. The pervading concept in law of rightful use lies in the phrase “a reasonable and usual mode of using a highway as such”, and the riding of motorbikes where only bridleway rights exist cannot on any view meet that test.
Competitive events
The pre-1930 claims mentioned above involved competitive hill climbs on motorbikes. GLPG is not aware of any law before 1930 against competitive events in which speed was not an element. Even now, some competitive events (eg navigation or average speed rallies) are legal but there is a limitation on trials (undefined) covered by s33 RTA 1988.
The notes that follow include reference to statutory offences on public highways which include ways subject to lower rights than vehicular, notably bridleways. If the way is subject to existing vehicular rights then the question of dedication does not arise. On private land the statutory provision may not apply but that does not of course preclude the commission of public nuisance.
In respect of speed, the Motor Car Act 1903 introduced a limit on public highways of 20mph and this remained in force until 1930. Whether or not that limit was exceeded (a statutory offence), racing on a public highway was held to be an abuse of rights in McKee v Malcolmson [1925] N Ir 120 (see RWLR Jan 1992 below). Speed events on public highways were expressly banned by the RAC in 1925 and their authority was clearly unchallenged. In summary, and quite apart from speed limits, racing on a highway before 1925 was an abuse of rights and after 1925 it was expressly illegal. Dedication cannot succeed based on illegality.
If a landowner granted consent for racing on private land, or if a public highway was officially closed for an event, then the activity itself may have been “warranted by law” but that does not exclude the offence of nuisance if that is the effect of the conduct within that legal warranty – see the Archbold 2009 definition above. Even the King could not license a public nuisance – see Archbold 1985 p63 below.
A finding of fact is therefore required as to whether the events in question involved speed, either racing against the clock or against other competitors. If maximum speed was a factor, and it was over a public highway (which includes bridleways), then the use was illegal which would have defeated presumed dedication. Whether or not racing was involved, GLPG submits that competitive hill climbing events, involving clusters of motorists striving to beat each other to the top and tearing up the surface in the process, would in any case have exacerbated the element of nuisance stemming simply from the use of such machines on an alleged bridleway.
Cambridge Law Journal
A useful article is by J R Spencer in the March 1989 Cambridge Law Journal, entitled “Public Nuisance – A Critical Examination”. This can be seen at http://www.nuisancelaw.com/sites/default/files/uploads/Cambridge%20Law%20Journal_0.pdf
The article is wide ranging, covering the history of the law, the distinction between private and public nuisance, the technicalities of actions and the matter of damages. Useful passages (page numbers given) are:
(55) Archbold’s Criminal Pleading and Practice 1985 is quoted. This is superseded by the later extracts above.
(61) Reference is made to “threatened the public good”
(62) Reference is made to “damaging to the public welfare”
(63) “Thus we have the expression ‘public nuisance’ used more or less to describe the power of the [courts] to punish any behaviour, whether previously criminal or not, which is felt to be harmful to the public.” Even the King could not permit “a nuisance on the highway”, in spite of the power to pardon the offence retrospectively.
(65) William Hawkins’ definitions include “abuse of highways”.
(65/66) “The definition of common nuisance which [Hawkins] fabricated to cover all this is “an offence against the publick, either by doing a thing which tends to the annoyance of all the King’s subjects, or by neglecting to do a thing which the common good requires” … “This definition .. appears in almost every book on tort or criminal law today.” ” The article goes on to discuss at length the processes of action to bring about remedy and enforcement.
(75) “Most of the litigation on the subject involves the defendants whose acts have obstructed or endangered the highway”
(76/77) Most public nuisance offences are now enshrined in a range of legislation, including the Highways Act 1980 “which turns into a specific offence almost every conceivable method of obstructing a highway, or damaging or endangering it” [to which must of course be added the Criminal Damage Act 1971 and Road Traffic Act 1988].
(77) “As a result, almost all prosecutions for public nuisance in recent years seems to have taken place in one of two situations: first, where the defendant’s behaviour amounted to a statutory offence, typically punishable with a small penalty and the prosecutor wanted a bigger or extra stick to beat him with, and secondly, where the defendant’s behaviour was not obviously criminal at all and the prosecution could think of nothing else to charge him with. An example is ….where members of the CND who had a public protest in which many people sat down in the street. Under the Highways Act 1959 obstructing the highway was then a punishable offence … but they were prosecuted for incitement to commit a public nuisance at common law….. [The particular offence of assembly has been overtaken by the House of Lords judgment in DPP v Jones referred to below]. Examples of the second type of case include intimidating behaviour on the public highway.
(78) “Some people may think it is good that evil-doers can always be convicted of something when they have discovered a way of being naughty without apparently breaking the criminal law. Indeed this “flexibility” of the common law is sometimes said to be one of its advantages.”
(81) “To put the matter another way, the plaintiff can always ask for an injunction to prevent a threatened harm where a claim for damages would succeed if the threat materialised.”
Rights of Way Law Review
A number of articles refer to the subject of public nuisance, albeit most of these are in the context of trespass, obstruction and other cases where an action for damages or other such remedy lay. Useful passages as to responsibility to the general public include:
4(2) Nov 1996 pages 7-8
“The judge said [in R v Mathias [1861] 2 F&F 574] that a nuisance to a highway was “that which prevents the convenient use of the way by passengers.
….the definition of nuisance from Pratt and Mackenzie’s Law of Highways (18th ed):“Nuisance may be defined, with reference to highways, as any wrongful act or omission upon or near the highway whereby the public are prevented from freely, safely, and conveniently passing along the highway”.”
4(2) Feb 2002 pages 17-18
“A case note
Public nuisance in relation to rights of way has acquired a sharper focus after the Court of Appeal’s decision in Wandsworth London Borough Council v. Railtrack plc [2001] 1 WLR 368, upholding Gibbs J. ‘s decision at first instance. Feral pigeons roosting on the underside of the Balham High Road railway bridge have for some years fouled the highway beneath it, in particular the footway. ….. as the Court of Appeal held, Railtrack plc. are… liable as owners of the bridge. The scale of the problem is not `de minimis’; therefore it amounts to a nuisance. It is a public nuisance because it affects the public right of way ….
Rights of way would themselves be useless if they could not be enforced when threatened. Such threats, in English law at least, ultimately come down to one basic threat, which the common law terms `nuisance’. This technical term emerged at the same time as the common law itself, being derived from late Latin `nocentia‘, via the medieval Latin `nocumentum‘ which was used in pleadings in the King’s courts to describe nuisance. The verb `nocere‘ (classical Latin) and `nuire‘ (French) mean `to harm’….But the common law used `nuisance’ to mean not direct but indirect harm i.e. conduct not inherently wrong….
…
Public and private nuisance
[Like Archbold, public and private nuisance are contrasted before commenting:] Individual members of the public, like the visitor mentioned above, are inconvenienced; but it is to the general public collectively that the public right belongs.”
4(3) Jan 1992 pages 1-5
“The common law on the right to use
…
In Hickman v. Maisey [1900] 1 QB 752 a nuisance was committed when the defendant walked to and fro on a 15 yard stretch of highway taking notes on the performance of racehorses in training. The court accepted that a reasonable extension must be given to the use of a highway, but Collins L J observed that “the primary purpose of the dedication must always be kept in view. …The right of the public to pass and repass on a highway is subject to all those reasonable extensions which may from time to time be recognised as necessary to its existence in accordance with the enlarged notions of people in a country becoming more populous and highly civilised, but they must be such as are not inconsistent with the maintenance of the paramount idea that the right of the public is that of passage.”
…
Racing
All forms of racing on highways amount to an abuse of a right of way at common law – See McKee v Malcolmson [1925] N Ir 120.
…
Damage to the highway
…. Further, any damage beyond the lawful level to secure passage amounts to the offence of criminal damage.
…
(iii) Nuisance
Actions for nuisance may arise where some-one so misuses the right of passage as to interfere with the use or enjoyment of an adjoining landowner or with the highway authority’s occupation of its land.”
4(3) July 1994 page 19
[Note: the Harrison case below was about trespass, but the following quotes refer to the limit of rights.] “The starting point for any examination of this area is, of course, the seminal case of Harrison v. Duke of Rutland [1893] 1 Q.B. 142 ….The crucial question concerned the uses of the highway which should be regarded as coming within the concept of dedication to the public. At common law a highway is a strip of privately owned land dedicated to the use of the public for passing and repassing. But Lord Esher M.R. was satisfied that things went further than that. He warned, in the context of considering the earlier case of R. v. Pratt, that: “Construed too strictly, it might imply that the public could do absolutely nothing but pass or repass on the highway, and that to do anything else whatever upon it would be a trespass… Highways are, no doubt, dedicated prima facie for the purpose of passage; but things are done upon them by everybody which are recognised as being rightly done, and as constituting a reasonable and usual mode of using a highway as such.” ”
4(3) Sept 1999 pages 42-44
“Judgments in the Jones case – [DPP v Jones [1999] 2 WLR 625]
[Note: this case was about the right of assembly, but the following quotes refer to the limit of rights.]
…
Lord Irvine
Lord Irvine summarised his views as follows: “I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass
…
Lord Hutton
Lord Hutton considered correct the statement in Halsbury’s Laws of England “The right of the public is a right to pass along a highway for the purpose of legitimate travel, not to be on it, except so far as the public’s presence is attributable to a reasonable and proper user of the highway as such”.
4(3) March 2000 page 47
[referring also to DDP v Jones; per Lord Hutton]
“…the test of reasonableness would be strictly applied where narrow highways across private land are concerned, for example, narrow footpaths or bridle paths, where even a small gathering would be likely to create an obstruction or a nuisance.”
End Note
In conclusion it is pointed out that it was the public nuisance from certain motorcycling activities that brought about restrictions. Competitive events led to a ban on speed events on public highways in 1925. The use of motorbikes on bridleways led to the introduction in the 1930 Road Traffic Act of the offence of driving on footpaths and bridleways – now s34 RTA 1988. This is confirmed in a letter from the Ministry of Transport in May 1930 a copy of which is attached below.
