11.10 Powers are available to the Secretary of State for Defence under the Defence Act 1842 and Defence Act 1860 to permanently stop up or divert public footpaths, public bridleways or Restricted Byways.^{Footnote 1} There is no opportunity to object to such a closure or diversion, although any such action taken under the 1842 Act requires the Secretary of State to provide an alternative path or way; under the 1860 Act, the provision of an alternative path is optional. These nineteenth century statutes remain in force (as evidenced by their amendment by subsequent legislation), and have been used to stop up or divert public rights of way in the vicinity of military airfields and communications sites in the 1980s and 1990s^{Footnote 2}.

Section 13 of the Military Lands Act 1892 allows application to be made to the Magistrates Court for the closure or diversion of a footpath (but not a bridleway) which crosses or runs inconveniently or dangerously near to any land leased by the military under the Act. Before making an Order, the Court must be satisfied that a convenient new path will be provided for public use.

Section 8 of the Land Powers (Defence Act) 1958 allows the Secretary of State to permanently stop up or divert any highway where the land is to be used for the purposes of an installation provided or to be provided for defence purposes, or used by a manufacturer of aircraft wholly or mainly for the manufacture of aircraft used for defence purposes, and the Secretary of State is satisfied that, for the land to be used effectively without danger to the public, it is necessary that the highway must be stopped up or diverted.

Temporary Closures of Rights of Way

The Land Powers (Defence Act) also provides for the temporary closure or diversion of rights of way for the limited purposes outlined in paragraph 3 above.

Provision was made for the temporary closures of highways during the First World War under the Defence of the Realm (Acquisition of Land) Act 1916. Orders made under Section 6 of that Act could not remain in force for more than 12 months following the end of the War, unless the consent of the Railway and Canal Commission was obtained. Under the Treaty of Versailles, the First World War ended on 28 June 1919. Unless an Order made under the 1916 Act had been extended in operation, the latest date upon which it could have any effect would be 28 June 1920.

The Emergency Powers (Defence) Act 1939 was intended to only operate for one year, but continued in force throughout the whole of the Second World War, and until 24 February 1946. The Act provided for the making of Defence (General) Regulations for a wide variety of topics, including the temporary stopping up of highways; in addition, the regulations permitted County Agricultural Executive Committees to authorise the ploughing of rights of way, subject to their eventual restoration and the provision of diversions.

On the expiry of the powers to make new Defence Regulations in February 1946, those existing Regulations that had been made continued in force for a time, but the Land Powers (Defence) Act 1958 brought to an end by 31 December 1958 any temporary wartime authority for the closure of a right of way. If a site crossed by a right of way that had been temporarily stopped up was to retained by the Ministry of Defence, and the permanent closure of the path was required, such closure had to be initiated by 31 December 1960 under a procedure whereby the Secretary of State made a closure Order which was required to be advertised and to which there was the possibility of objection.

Practical considerations

Unless extended by due process, any temporary closures of rights of way made under emergency powers during the First or Second World Wars would have ceased to have effect on 28 June 1920 or 31 December 1958 as appropriate.

In individual cases, there may be some local belief and reputation that wartime closures had a permanent effect; this is not the case with regard to closures under the 1916 Act or the regulations made under the 1939 Act. Similarly, the general authority to close and plough up rights of way ceased to have effect when the enabling regulations were repealed. Only in those cases where further legal action was taken could the temporary wartime closures become permanent.

The requirement for action to be taken under the 1916 or 1939 Acts to close a route provides evidence of the existence of public rights prior to that closure, and the Orders made normally deal authoritatively with the previous status of the right of way in question. Such Orders can therefore be a very useful and persuasive source of evidence in connection with the existence and nature of public rights.

1, Amendments made by the Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006

2, Molesworth airfield (1985); Menwith Hill (1985); RAF Upper Heyford (1990) and RAF Lakenheath (1999)

(February 2009)

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