Public rights of way — Byway open to all traffic (BOAT) — Inclusion of way on council’s definitive map — Extent of public right over way — Whether inspector applying correct standard of proof for existence of BOAT — Claim allowed
The claimants applied to quash an order made by the local council and confirmed by the defendant’s inspector, modifying the council’s definitive map of public rights of way pursuant to section 53 of the Wildlife and Countryside Act 1981. The modification was to include in the map as a byway open to all traffic (BOAT), a way over land which, in the past, had formed part of an estate. The claimants had an interest in the extent of the rights over the way, and although the claimants did not object to the inclusion of the way on the definitive map as footpath or bridleway, they objected to its designation as a BOAT, which would subject the way to motorised vehicular traffic.
Section 53 of the 1981 Act placed a duty on the council, as surveying authority, to modify the definitive map by an order under subsection (2) in consequence of the occurrence of any of the events specified in subsection (3). The present case concerned an event specified in subsection (3)(c)(i), namely the discovery by the authority “of evidence which (when considered with all other relevant evidence available to them) shows (i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist…”.
The claimants contended, inter alia, that the inspector had applied too low a standard of proof for the existence of a BOAT, namely, that the council was able to establish facts from which the existence of such a way could “reasonably be alleged to subsist”, as opposed to the normal civil burden of proof that such a way subsisted on the balance of probabilities.
Held: Claim allowed.
As there was no express statutory guidance as to the burden of proof applicable on confirmation of an order under section 53(3)(c)(i), it was reasonable to assume that the legislature intended to subject the issue of proof of the existence and extent of public rights of way to the ordinary civil burden of proof, ie the balance of probabilities. It would be anomalous if a test of reasonable allegation was sufficient for the purposes of subsection (c)(i), when the civil burden of proof was required to obtain an order varying the permitted user of a way under (c)(ii) and in removing a way under (c)(iii).
The court rejected the argument that a lesser test applied in section 53(3)(c)(i) as a recognition by Parliament that, if it was reasonably alleged that a right of way subsisted, it ought to be put down in the public interest on the map, leaving an interested party to show that that was wrong, applying the burden of proof set out in section 53(3)(c)(iii): R (on the application of Leicestershire County Council) v Secretary of State for Environment Food and Rural Affairs [2003] EWHC 171 not followed.
An applicant under section 53(3)(c)(iii) had to produce “cogent” evidence to justify an order. If all that a proponent had to do to obtain confirmation of an order modifying the map, so as to include a new right of way, was to satisfy a test of reasonable allegation, that placed upon his opponent the unjust burden of proof of establishing that no right of way existed to at least the standard of the balance of probabilities.
George Laurence QC and Ross Crail (instructed by William Sturges & Co) appeared for the claimants; Timothy Morshead (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
