On the right track? The discussion continues

Posted On October 8, 2015
October 08, 2015

Reader Anne Pearson continues the discussion about riding off track on the Common by replying to Chorleywood Parish Council’s last post.  She writes

November 2016
CHORLEYWOOD PARISH COUNCIL
BYELAWS IN RESPECT OF CHORLEYWOOD COMMON
ADVICE
Introduction
1.    We are asked to advise as to the legality of byelaws made by the Parish Council of Chorleywood (hereinafter referred to as “the Parish Council”) in reliance on section 1 of the Commons Act 1899 with respect to Chorleywood Common. We are asked to advise in particular as to the legality of byelaw 17(2) relating to horses. Byelaw 17(2) provides that “[w]here any part of the Common has, by notices placed in conspicuous positions on the Common, been set apart by the Council as an area where horse-riding is permitted, no person shall without the consent of the Council ride a horse on any other part of the Common”.
2.    The said byelaws were made by the Parish Council on 20 January 1995 and are said to have come into operation on 18 April 1995 (“the 1995 byelaws”)
Background
3.    Section 1(1) of the Commons Act 1899 (“the 1899 Act”) as amended by section 179(3) of the Local Government Act 1972 (“the 1972 Act”) provides that “[t]he Council of a district may make a scheme for the regulation and management of any common within their district with a view to the expenditure of money on the drainage, levelling and improvement of the common, and to the making of byelaws and regulations for the prevention of nuisances and the preservation of order on the common”. Section 2 of the 1899 Act sets out the procedure for making a scheme. Further provision was made by the Commons Regulations 1935 (“the 1935 Regulations”). With effect from 20 March 1982, the 1935 Regulations were revoked and replaced by the Commons (Schemes) Regulations 1982 (“the 1982 Regulations”). The Parish Council is not a district council for the purposes of the 1899 Act or otherwise.
4.    The 1935 Regulations were in force when Chorleywood Urban District Council (“the Urban District Council”), pursuant to section 1(1) of the 1899 Act, made a scheme for the regulation and management of Chorleywood Common. The scheme was made on 11 October 1954 and was approved by the Minister of Agriculture & Fisheries on 29 November 1954. The 1954 scheme authorised the Urban District Council (but not the Parish Council) “to make, revoke, and alter byelaws [for] prohibiting or regulating the riding, driving or breaking in of horses without lawful authority on any part of the Common”. The 1954 scheme remains in force.
5.    Pursuant to section 1 of the 1899 Act and the 1954 scheme byelaws were made by the Urban District Council which came into operation on 1 July 1958 and provided (inter alia) that “[n]o person shall without lawful authority ride or drive any horse on the Common except on the tracks approved by the [Urban District Council] and indicated by notice-boards set up in conspicuous positions on the Common”. The 1958 byelaws are no longer in force.
6.    With effect from 1 April 1974, Local Government outside Greater London was reorganised pursuant to the 1972 Act. In general the functions of the Urban District Council were transferred to the newly created Three Rivers District Council (“the Three Rivers District Council”) which became the district council for the purposes of the 1899 Act, the 1935 regulations and the 1954 scheme including in respect of the making of byelaws.
7.    On 5 December 1977, the Parish Council resolved to make byelaws “acting in discharge of the functions of the Three Rivers District Council pursuant to arrangements made under Section 101 of the Local Government Act 1972 in pursuance of [the 1954 scheme] made by the former Urban District Council of Chorleywood and approved by the Minister of Agriculture and Fisheries under Section 1(1) of the Commons Act 1899 with respect to Chorleywood Common.” The said byelaws were confirmed by the Home Secretary and came into operation on 1 March 1978. The 1978 byelaws were made by the Parish Council pursuant to delegated authority conferred on the Parish Council by the Three Rivers District Council. The 1978 byelaws are no longer in force.
8.    The most recent byelaws with respect to Chorleywood Common were made by the Parish Council on 20 January 1995 relying on section 1 of the 1899 Act. The 1995 byelaws are said to have come into operation on 18 April 1995. Although Chorleywood Common is defined in the 1995 byelaws by reference to the 1954 scheme no further reference is made in the 1995 byelaws to the 1954 scheme or to the 1982 Regulations. Nor is any reference made in the 1995 byelaws to the exercise by the Three Rivers District Council in favour of the Parish Council of any power of delegation conferred by section 101 of the 1972 Act.
Delegation
9.    The legislation, regulations and schemes relating to the regulation and management of Chorleywood Common all expressly confer functions on the Urban District Council or the Three Rivers District Council, including the function of making byelaws. No such functions are conferred on the Parish Council. It is therefore necessary to consider whether the Three Rivers District Council lawfully delegated to the Parish Council the discharge of the District Council’s function under section 1(1) of the 1899 Act in relation to the making of the 1995 byelaws.
10. Absent formal delegation authorising to the Parish Council to discharge the relevant function of the Three Rivers District Council under section 1(1) of the 1889 Act, the making of the 1995 byelaws by the Parish Council would be ultra vires (beyond the powers of) the Parish Council and accordingly the 1995 byelaws would be unlawful, invalid and unenforceable: for an example of a byelaw held to be ultra vires see Director of Public Prosecutions v Hutchinson [1990 [ 2 AC 783.]
11. Replies to enquiries made of the Parish Council and the Three Rivers District Council under the Freedom of Information Act 2000 have not resulted in the disclosure of any document which establishes that there was any relevant exercise of delegation by the Three Rivers District Council in favour of the Parish Council. It appears that the Parish Council had no delegated authority in relation to the making of the 1995 byelaws and accordingly the 1995 byelaws including byelaw 17(2) are ultra vires the Parish Council, invalid and unenforceable.
Sub-delegation
12. Assuming (but not accepting) that the Parish Council had delegated authority to make byelaws under section 1(1) of the 1899 Act, byelaw 17(2) of the 1995 byelaws is nevertheless ultra vires, invalid and unenforceable on account of sub-delegation.
13. The locations where the “setting apart” notices are placed are essential to the determination whether horse-riding is or is not permitted in any location and/or is to constitute a criminal offence. The decision as to those locations/placements must be taken by a resolution of the Parish Council, by a resolution of a committee or sub-committee of the Parish Council or by an officer of the Parish Council to whom formal delegated authority has been given. A decision made by an officer in the absence of formal delegation to him/her is ultra vires: see, for example, R v St Edmundsbury Borough Council ex p Walton, the Times, 5 May 1997. It appears that no decision has been taken under delegated authority determining the location/placement of the relevant notices with the consequence that there is no lawful authority for the location/setting apart of the relevant notices. Accordingly byelaw 17(2) of the 1995 byelaws is ultra vires Parish Council, invalid and unenforceable on this further ground: cf Allingham v Minister of Agriculture and Fisheries [1948 [ 1 All ER 780
Conclusion
14. For the reasons given above, the 1995 byelaw and byelaw 17(2) in particular are unlawful, invalid and unenforceable.
Tony Child
Browne Jacobson LLP

 

Anne Pearson

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 August 2015

Lovely picture on the front cover of your July issue.  I hope the owner of the horse didn’t get any abuse from anyone for not being on the track that CPC insist horses are kept to.

As you will be aware there are differing views about where horses are permitted to be on the common.  Chorleywood Common is an Urban Common and as such horse riders have a lawful right to open access, however CPC claim that they have created lawful byelaws to restrict horse riders to a track.

Horse riders would not be unreasonable and ride on the Cricket Pitch or the Golf Course, however it is often not safe to ride where CPC would like us to ride as the track often has walkers, loose dogs (who are not horse friendly), pushchairs and cyclists on it.  The track seems to be the most popular place to be.

Recently when we were riding on the track we came across a family picnic on the track.  All the children had balloons and as we approached, one child got up and ran towards us waving a balloon.  Luckily our horses coped with this situation well, many wouldn’t.

As well as picnics it is not uncommon to come across kites flying and games of football, rounders etc on the track.  It is not unreasonable for any of these activities to take place on the common, and similarly it is not unreasonable for riders to choose to ride on a quieter part of the common, away from activities.

CPC claim that if horse riders deviate from the track they are putting children and dogs at risk.  This couldn’t be further from the truth.  There are times when the track is so busy, it is safer for horse riders to take a different route.

CPC  have decided to host annual carving events involving chainsaws, and treasure hunts on one section of the track.  There is also to be a sawmill adjacent to one section of the track.

Their most recent Open Spaces meeting agenda shows that they intend to host “parkrun events” every Saturday morning and they “propose setting a course for the event that follows the existing bridle path around Chorleywood Common”.  They expect up to 80 runners to attend every Saturday.

Obviously when such events take place, common sense dictates that horse riders will have to take a different route.

It is not lawful to punish someone for a crime that they haven’t committed.  It follows that if there is not a valid law in place you should not be able to accuse someone of breaking it.  This is a form of abuse and there are laws against that.  Currently there are no valid byelaws restricting riders to any part of the Chorleywood Common and section 193 of the Law of Property Act 1925 allows Horse Riders open access.

It is interesting that Harpenden Common, which also has a track and is also an Urban Common with open access rights, the byelaws state that “No person shall ride a horse except (a) on a designated route for riding or (b) in the exercise of a lawful right”, which means you can ride everywhere, and this is accepted by all.

Best Wishes, Anne Pearson

 

Main Photo © James McHugh

4 Comments

  1. Chorleywood Parish Council   19/08/2015 11:26 am / Reply

    Chorleywood Parish Council is concerned to set the record straight with regard to the Byelaws governing the Common.

    A number of comments on this website have challenged the legality of Byelaws which set out rules for what is, and is not permissible, on Chorleywood Common. In particular, the Parish Council recently sought a Barrister’s opinion which confirmed that the Byelaws governing the Common are entirely legal and valid. These Byelaws are there to protect the Common from a range of misuses, including erecting structures on the land, lighting fires, riding bicycles or motorised vehicles, camping, metal detecting, flying model aircraft, and making unnecessary noise or disturbance. However, the Byelaw which seems to have been exercising a number of your letter-writers is the one concerned with horse-riding(para.17.2). The Parish Council can confirm that the Byelaw governing horse-riding is enforceable. In effect, Horse-riders are only allowed to use the ‘permissive horse track’ and are not allowed to ride freely anywhere on the Common.

    The Common is frequented by a wide range of users and the Parish Council is particularly concerned to ensure that everyone can enjoy it in a safe manner. Horse-riders complain that some people use the ‘permissive horse track’ without due care and attention to horses, and that dogs unaccustomed to horses can get agitated and ‘spook’ horses causing a danger to riders. Similarly, walkers who use the horse track complain that horses churn up the ground making it muddy and uneven. Clearly, walkers, who can walk anywhere on the Common, should use the horse track with particular caution, or should consider walking elsewhere. Horse-riders, can ONLY use the horse track and have no choice!

    However, the main reason for having Byelaws is to protect the Common from misuse. The Byelaws have, over recent months, been particularly instrumental in removing travellers’ caravans and vehicles from the Common. Since the beginning of this year Chorleywood has seen three separate occasions when traveller caravans entered the Common illegally, with a view, presumably, of setting up camp. The Byelaws, which prohibit caravans from using the Common, were used to obtain court orders for their speedy removal. Clearly Byelaws are important to ensure that our Common, which has a special status under the law, is protected and that all users can enjoy it in safety. A copy of the Byelaws is available on the Parish website.

  2. Anne Pearson   23/09/2015 9:16 am / Reply

    CPC’s barrister’s advice was that Article 4 (14) of the Local Authorities Etc (England) (Property etc Further provisions) order 1974 SI 406 gives CPC the power to amend or evoke existing byelaws by creating new byelaws.

    This power only applies if the Act used does not specifically state that only a District Council may make byelaws under the Act.

    CPC’s byelaws are made under Section 1 of the 1899 Commons Act which specifically states that the byelaws must be made by a District Council.

    When making byelaws under the 1899 Commons Act, CPC should act in discharge of the functions of TRDC pursuant to the arrangements made under Section 101 of the Local Government Act 1972. This was done when the 1978 byelaws were made, but was not done when the 1995 byelaws were made and this is why the current byelaws are invalid and therefore riders rights to open access on Chorleywood Common (granted by the 1925 Law of Property Act) stand.

  3. Anne Pearson   01/12/2016 9:07 am / Reply

    Further to previous correspondence, Counsel’s advice confirms that “the 1995 byelaws including byelaw 17(2) are invalid and unenforceable”.

    Chorleywood Parish Council had asked The British Horse Society (BHS) to give assistance/advice regarding signage on the Common.

    The BHS advised that it would be inappropriate to comment on CPC’s proposals since Counsel was reviewing riders’ claims for access on the Common.

    Once Counsel’s advice was received, the BHS wrote to CPC advising the following :

    The British Horse Society has sought advice as to the legality of byelaw 17(2) relating to horses.

    Byelaw 17(2) provides that “[w]here any part of the Common has, by notices placed in conspicuous positions on the Common, been set apart by the Council as an area where horse-riding is permitted, no person shall without the consent of the Council ride a horse on any other part of the Common”.

    These byelaws were made by the Parish Council on 20 January 1995 and are said to have come into operation on 18 April 1995.

    Section 1(1) of the Commons Act 1899 as amended by section 179(3) of the Local Government Act 1972 provides that “[t]he Council of a district may make a scheme for the regulation and management of any common within their district with a view to the expenditure of money on the drainage, levelling and improvement of the common, and to the making of byelaws and regulations for the prevention of nuisances and the preservation of order on the common”.

    Section 2 of the 1899 Act sets out the procedure for making a scheme. Further provision was made by the Commons Regulations 1935. With effect from 20 March 1982, the 1935 Regulations were revoked and replaced by the Commons (Schemes) Regulations 1982. The Parish Council is not a district council for the purposes of the 1899 Act or otherwise.

    The 1935 Regulations were in force when Chorleywood Urban District Council, pursuant to section 1(1) of the 1899 Act, made a scheme for the regulation and management of Chorleywood Common. The scheme was made on 11 October 1954 and was approved by the Minister of Agriculture & Fisheries on 29 November 1954. The 1954 scheme authorised the Urban District Council (but not the Parish Council) “to make, revoke, and alter byelaws [for] prohibiting or regulating the riding, driving or breaking in of horses without lawful authority on any part of the Common”. The 1954 scheme remains in force.

    Pursuant to section 1 of the 1899 Act and the 1954 scheme byelaws were made by the Urban District Council which came into operation on 1 July 1958 and provided (inter alia) that “[n]o person shall without lawful authority ride or drive any horse on the Common except on the tracks approved by the [Urban District Council] and indicated by notice-boards set up in conspicuous positions on the Common”. The 1958 byelaws are no longer in force.

    With effect from 1 April 1974, Local Government outside Greater London was reorganised pursuant to the 1972 Act. In general the functions of the Urban District Council were transferred to the newly created Three Rivers District Council which became the district council for the purposes of the 1899 Act, the 1935 regulations and the 1954 scheme including in respect of the making of byelaws.

    On 5 December 1977, the Parish Council resolved to make byelaws “acting in discharge of the functions of the Three Rivers District Council pursuant to arrangements made under Section 101 of the Local Government Act 1972 in pursuance of [the 1954 scheme] made by the former Urban District Council of Chorleywood and approved by the Minister of Agriculture and Fisheries under Section 1(1) of the Commons Act 1899 with respect to Chorleywood Common.” The said byelaws were confirmed by the Home Secretary and came into operation on 1 March 1978.

    The 1978 byelaws were made by the Parish Council pursuant to delegated authority conferred on the Parish Council by the Three Rivers District Council. The 1978 byelaws are no longer in force.

    The most recent byelaws with respect to Chorleywood Common were made by the Parish Council on 20 January 1995 relying on section 1 of the 1899 Act. The 1995 byelaws are said to have come into operation on 18 April 1995. Although Chorleywood Common is defined in the 1995 byelaws by reference to the 1954 scheme no further reference is made in the 1995 byelaws to the 1954 scheme or to the 1982 Regulations. Nor is any reference made in the 1995 byelaws to the exercise by the Three Rivers District Council in favour of the Parish Council of any power of delegation conferred by section 101 of the 1972 Act.

    The legislation, regulations and schemes relating to the regulation and management of Chorleywood Common all expressly confer functions on the Urban District Council or the Three Rivers District Council, including the function of making byelaws. No such functions are conferred on the Parish Council.

    Absent formal delegation authorising to the Parish Council to discharge the relevant function of the Three Rivers District Council under section 1(1) of the 1899 Act, the making of the 1995 byelaws by the Parish Council would be ultra vires the Parish Council and accordingly the 1995 byelaws would be unlawful, invalid and unenforceable.

    Replies to enquiries made of the Parish Council and the Three Rivers District Council under the Freedom of Information Act 2000 have not resulted in the disclosure of any document which establishes that there was any relevant exercise of delegation by the Three Rivers District Council in favour of the Parish Council. It appears that the Parish Council had no delegated authority in relation to the making of the 1995 byelaws and accordingly the 1995 byelaws including byelaw 17(2) are ultra vires the Parish Council, invalid and unenforceable.

    Mrs Merritt acknowledged receipt in May, and confirmed that she would advise Councillors and “would be in touch in the near future to discuss further”.

    Since then there has been no further response from CPC, and surprisingly no mention of this matter has been made at the last three Open Spaces meetings, although signage is reported to be something to be given priority.

    The current signs regarding the “invalid and unenforceable” byelaws, together with all the unlawful signs relating to the horse track obviously should be removed.

    Horse riders can and will continue to ride within their rights, with open access as permitted by s193 LPA 1925, however CPC are being negligent by retaining signs which are unlawful and misinform the public. This is a breach of duty and contravenes human rights.

    Anne Pearson

  4. Kim Hatfield   21/12/2016 5:09 pm / Reply

    I read with interest Mr Tony Child’s opinion regarding Chorleywood Parish Council’s invalid and unenforceable byelaws. The British Horse Society have been extremely generous with their information and are clearly willing to assist CPC. I note from CPC’s Open Spaces reports that they initially approached BHS regarding assistance with signage on the common. CPC now appear to be acting in a rude and ignorant manner by ignoring the BHS, meantime since it is not only the byelaw regarding horse riding that is invalid and unenforceable, but all of their byelaws therefore they will not be able to rely on them next time the common is invaded by travellers. I also note from their Open Spaces report that the TRDC legal team will no longer assist next time travellers set up camp on the common. Parish Councils have few duties but many powers. If they elect to use their powers, they should get it right. It seems to me that far too much time and energy is spent trying to graze cattle on the common, and speaking as a regular dog walker who raised the alarm and helped round the cows up the last time they escaped (herding them away from shepherds bridge car park) it appears that the cattle fencing and the byelaws are equally useless and cannot be relied upon.

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