Council making modification order to add road as public right of way to definitive map – Claimant objecting – Inspector deciding not to confirm order – First inspector’s decision quashed – Second inspector deciding to confirm order – Claimant seeking to quash decision – Whether inspector erred in taking further factual evidence into account – Whether inspector erred in law – Wildlife and Countryside Act 1981 – Section 31 of Highways Act 1980 – Claim dismissed
The claimant (A) owned Boldon Hall. The principal access to his property was a strip of land (the road), over which A had vehicular rights of access. In 1952 Durham County Council prepared a definitive map and statement in accordance with the National Parks and Access to Countryside Act 1949. The road was not recorded on the map and statement as a public right of way. Following local government reorganisation, South Tyneside Metropolitan Borough Council (STMBC) became the relevant authority. STMBC made a modification order under section 53(2)(b) of the Wildlife and Countryside Act 1981, the effect of which, if confirmed by the Secretary of State, would be to add the road to the definitive map and statement and to show it as a public bridleway. A objected to the order.
An inspector decided not to confirm the order, and STMBC challenged his decision by way of judicial review. The court quashed the inspector’s decision, and the question of confirmation fell to be redetermined by the Secretary of State. The second inspector was satisfied that the requirements for deemed dedication of a highway under section 31(1) of the Highways Act 1980 were met, and there had been an “event” within section 53(3)(b) of the 1981 Act that justified the making of the modification order. In particular, he concluded that the public’s right to use the way had been brought into question by A’s actions in 1979, and that, over the next 20 years, there was public use of the way as a bridleway. Accordingly, he decided to confirm the order. A applied to quash the inspector’s decision pursuant to para 12 of Schedule 15 to the 1981 Act. The issues were whether the order made by STMBC was outside the powers of sections 53 and 54 of the Act or whether A’s interests had been “substantially prejudiced” by a failure to comply with the requirements of Schedule 15. A contended, inter alia, that the inspector had: (i) erred in considering additional factual representations obtained by STMBC, following the quashing of the first inspector’s decision. A understood that the inspector’s task was limited to revisiting the point of law upon which the first inspector had erred. He submitted that the inspector had disadvantaged him and had breached the principles of natural justice; (ii) failed to address the question that arose under section 31(1) of the 1980 Act of whether an unknown owner would have had the intention to dedicate the road to public use. He contended that the actions of the landowner alone could bring the public right of way into question; and (iii) failed to determine whether, for the purposes of section 31(2), a person other than the owner of the land could bring into question the right of the public to use the way. He contended that only the true owner’s acts could bring the right into question.
Held: The claim was dismissed.
1. The inspector’s obligation was to consider the merits of the modification order as a whole and to consider any evidence relating to it. He had no power under Schedule 15 to disregard any relevant material that had been brought to his attention. His obligation was in no way reduced or modified because STMBC solicited further evidence from the public: Marriott v Secretary of State for the Environment, Transport and the Regions [2001] JPL 559 applied. Further, the procedure adopted enabled A to comment upon all the evidence, and also met the essential requirements of fairness and natural justice.
2. Section 31(1) provided for a statutory presumption of dedication by the owner “unless there is sufficient evidence that there was no intention… to dedicate it”. The statute did not specify any particular person as having the burden of adducing evidence “sufficient” for that purpose. The statutory burden of rebutting the presumption lay upon whoever needed to rebut it. Often, it was the landowner, but, in the instant case, it was A, as he was the sole objector to the order. There was nothing in section 31(1) to exonerate a person in A’s position merely because the landowner could not be identified.
3. Section 31(2) placed no limit at all upon the circumstances in which the public’s right may “otherwise”, that is, otherwise than by an owner’s notice, be brought into question. There was no error of law in the inspector’s decision.
The claimant appeared in person; Michael Bedford (instructed by the Treasury Solicitor) appeared for the defendant.
Sarah Addenbrooke, barrister
