Kotarski and another v Secretary of State for Environment, Food and Rural Affairs
Public footpath – Section 53 of Wildlife and Countryside Act 1981 – Modification of definitive map and statement – Map modified to show footpath – Footpath recorded in definitive statement since 1950s but omitted from map – Whether inspector entitled to treat definitive statement as strong evidence of footpath – Whether contrary presumption raised by absence of footpath from map – Claim dismissed
The claimants objected to an order made by the local county council, under section 53 of the Wildlife and Countryside Act 1981, by which they modified the definitive map for the area by adding a section of footpath. The section in question formed a spur leading from another footpath. The spur had been recorded in the definitive statement since that document was first prepared in the 1950s, under the predecessor legislation to the 1981 Act, but had been omitted from the definitive map. The council’s order was made for the stated purpose of correcting that “anomaly”.
In January 2008, following a public inquiry, the defendant’s inspector confirmed the order. In his decision, the inspector found that: (i) the spur had been shown on a parish survey predating the definitive map and statement; (ii) its inclusion in that survey and subsequently in the definitive statement were strong evidence that it was a public right of way in the 1950s; and (iii) contrary assertions from a few local residents did not outweigh that evidence. He considered that the omission of the spur from the map was a drafting error rather than a deliberate exclusion.
Public footpath – Section 53 of Wildlife and Countryside Act 1981 – Modification of definitive map and statement – Map modified to show footpath – Footpath recorded in definitive statement since 1950s but omitted from map – Whether inspector entitled to treat definitive statement as strong evidence of footpath – Whether contrary presumption raised by absence of footpath from map – Claim dismissedThe claimants objected to an order made by the local county council, under section 53 of the Wildlife and Countryside Act 1981, by which they modified the definitive map for the area by adding a section of footpath. The section in question formed a spur leading from another footpath. The spur had been recorded in the definitive statement since that document was first prepared in the 1950s, under the predecessor legislation to the 1981 Act, but had been omitted from the definitive map. The council’s order was made for the stated purpose of correcting that “anomaly”.In January 2008, following a public inquiry, the defendant’s inspector confirmed the order. In his decision, the inspector found that: (i) the spur had been shown on a parish survey predating the definitive map and statement; (ii) its inclusion in that survey and subsequently in the definitive statement were strong evidence that it was a public right of way in the 1950s; and (iii) contrary assertions from a few local residents did not outweigh that evidence. He considered that the omission of the spur from the map was a drafting error rather than a deliberate exclusion.The claimants brought proceedings, under para 12 of Schedule 15 to the 1981, Act to quash the inspector’s decision. They contended that the inspector had erred in law in treating the definitive statement as either important or relevant evidence regarding the spur because: (i) in the event of conflict between the definitive map and the definitive statement, the map had to take precedence; (ii) the reference to the spur in the definitive statement was evidence only of a belief that a footpath existed and did not displace the presumption against the existence of a right of way raised by its absence from the map; and (iii) the powers under section 53(3)(c) could not be invoked unless new evidence was adduced of the existence of a right of way that was not shown on the map, whereas the evidence relied on by the inspector had been available when the definitive map was drawn up.Held: The claim was dismissed. A presumption as to the existence of a footpath arose only where it was shown on the definitive map and the definitive statement. Where it did not, and the map and the statement were in conflict, the inspector was entitled to decide the weight to be attached to the evidence. Notwithstanding any divergence between them, both map and statement could, on a review, be relevant evidence as to the existence of the right of way: R (on the application of Norfolk County Council) v Secretary of State for the Environment [2005] EWHC 119 (Admin); [2006] 1 WLR 1103 applied. The inspector had been entitled to attach such weight to the definitive statement as he saw fit and to conclude that the existence of the spur in the parish survey and the definitive statement amounted to strong evidence of the right of way.Further, the precondition for the exercise of the statutory power of review was the discovery of evidence showing that the particulars contained in the map and statement required modification. The discovery of a divergence between the two was such evidence; it was unnecessary for it to be characterised as “new evidence”. It was sufficient that the council had recently discovered the “drafting error”. A power to render the map and statement consistent where they were found to be inconsistent was important, maintaining an authoritative map and statement of the highest attainable accuracy: Burrows v Secretary of State for Environment, Food and Rural Affairs [2004] EWHC 132 (Admin); [2004] NPC 8 considered; R v Secretary of State for the Environment, ex parte Burrows [1991] 2 QB 354 and Mayhew v Secretary of State for the Environment (1993) 65 P&CR 344 applied.Harry Hodgkin (instructed by Bazeley Barnes & Bazeley, of Bideford) appeared for the claimants; Timothy Buley (instructed by the legal department of Defra) appeared for the defendant; Devon County Council, the interested party, did not appear and were not represented.Sally Dobson, barrister
