R (on the application of Norfolk County Council) v Secretary of State for Environment, Food and Rural Affairs

Public footpath — Conflicting position of footpath on definitive map and statement — Order modifying definitive map — Inspector refusing to confirm order — Whether definitive map or statement taking precedence — Claim allowed The claimants were the surveying authority for Norfolk. The definitive map and statement for the county included a public footpath (FP12). Its southern junction was with Back Lane. The position on the ground at which FP12 met the lane was as depicted in the definitive map; at the western edge of the grounds of Brambourne House to the north. However, the definitive statement described the junction as being some 30 metres to the east. The owners of Brambourne House asked the claimants to modify the definitive map so that it conformed with the statement. The claimants made a modification order under section 53(2)(b) of the Wildlife and Countryside Act 1981. Following objections to the order, the inspector held a public local inquiry under section 53 of and Schedule 15 to the 1981 Act and refused to confirm the order. The claimants applied for judicial review of that decision contending that, as a matter of law, the statement should have been given precedence over the map; alternatively, that the inspector, when judging the evidence before her, had wrongly failed to accord evidential weight to the statement. The four issues for decision were: (i) whether as a matter of law, where there was a conflict, the definitive map or its accompanying statement should prevail; (ii) whether, and if so what, evidential weight should be accorded to the map and the statement; (iii) whether the inspector had erred in her approach to the question of whether the claimant’s order should be confirmed; and (iv) if the inspector had erred, whether her decision should be disturbed. Held: The claim was allowed. A practical approach was required to the interpretation of the definitive map and statement. They had to be examined together to determine whether they were truly in conflict or the statement could properly be read as describing the position of the right of way. If they were in conflict, the map had to take precedence and was authoritative, since the discretionary particulars depended for their existence upon the conclusiveness of the obligatory map. However, it did not follow that there was a presumption in favour of the map at the expense of the statement during the process of review. It was necessary to consider the statutory provisions under which modification was achieved. In the usual case, the inspector would commence with the evidential presumption that the map was correct, but the fact that the map and statement were in conflict tended to demonstrate that an error had occurred in the preparation of either or possibly both of them. In such circumstances, the factual assumption of regularity in the preparation of the map as opposed to the statement could not be justified. What was required at review was simply a consideration of which route, on the balance of probabilities, was correct in the light of all the relevant evidence, including the terms of the map and statement: Trevelyan v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 266; [2001] 2 PLR 45 considered. On the facts of the present case, the application of the evidential presumption in favour of the position shown on the map was not warranted. Had the inspector approached the issues untroubled by such a presumption, she might have concluded that the order modification was correct. Accordingly, her decision had to be quashed. George Laurence QC and Ross Crail (instructed by Norfolk County Council) appeared for the claimant; Scott Lyness (instructed by DEFRA) appeared for the defendant. Eileen O’Grady, barrister