Kotarski and another v Secretary of State for Environment, Food and Rural Affairs

  Mr Justice Simon: Introduction 1.                  This is the hearing of an application brought by Mr and Mrs Kotarski, pursuant to paragraph 12 of Schedule 15 to the Wildlife and Countryside Rights of Way Act 1981 (‘the 1981 Act’). The Appellants seek to quash the decision of an Inspector, Mr Peter Millman, dated 30 January 2008. The Inspector had been appointed by the Secretary of State for the Environment, Food and Rural Affairs (‘the Secretary of State’) to hold a public inquiry to determine whether or not to confirm a footpath order made by the Devon County Council (‘the Council’). The Inspector’s decision was to confirm the order. 2.                  The order was the Devon County Council (Footpath No. 7 Woolfardisworthy) Definitive Map Modification Order 2007 (‘the Order’). The effect of the Order was to modify the Council’s Definitive Map, maintained by it pursuant to section 53 of the 1981 Act, so as to add a section of footpath (‘the Order Route’). Facts 3.                  The Order Route is a ‘spur’ leading from footpath 7. Footpath 7 was an existing footpath shown on the Map prior to the making of the Order. 4.                  The Order Route was (together with Footpath 7) already shown on the Definitive Statement maintained by the Council. The spur had been included in that Statement, or (more particularly) its predecessor, under the National Parks and Access to the Countryside Act 1949, in the 1950s, following a process described by the Inspector in his Order Decision at [4-13]. 5.                  The map and the statement are intended to be complimentary, the one providing detail to supplement the other. It follows that, either both the map and the statement should have shown a spur leading from footpath 7, or neither should have shown it. In fact the statement described the spur, but the map did not show it. There was therefore a difference between them which should not have existed; and it was this anomaly which led the Council (an Interested Party in these proceeding) to make the Order which was intended to resolve the anomaly. 6.                  Objections were made to the Order; and it was for this reason that the matter came before the Inspector, in accordance with the procedure laid down in Schedule 15 to the 1981 Act. 7.                  The Claimants appeared as objectors to the Order before the Inspector; and argued that the Order should not be made. They were supported by another objector, Mr Heywood. ­­The Statutory Background 8.                  The relevant statutory framework has been set out recently and conveniently in a decision of Pitchford J in the case of R (Norfolk County Council) v. Environment Secretary [2006] 1 WLR 1103 at [7-13]. In brief summary, ss.27-32 of the National Parks and Access to the Countryside Act 1949 (‘the 1949 Act’) required the Council to carry out and survey public rights of way, and to prepare a draft map showing footways ‘wherever in their opinion such a right of way subsisted, or is reasonably alleged to have subsisted, on the relevant date’. The Council was required to annexe a statement specifying ‘such particulars  … appearing to be reasonably alleged as to the position and width [of any public path] … as … is inexpedient to record on the statement.’ 9.                  On completion of the draft map and statement, it was to be available for inspection, so that representations or objections might be made. Following this consultation period, a provisional map and statement were to be prepared. The provisional map and statement were then subject to challenge at a Quarter Session hearing, before a definitive map and statement were prepared and published. By s.32(4) of the 1949 Act the definitive map and statement were to be conclusive as to the particulars contained. 10.              As Pitchford J noted in the Norfolk County Council case, the provisions of s.32(4) of the 1949 Act were re-enacted by s.56 of the 1981 Act. This reads (1)  A definitive map and statement shall be conclusive evidence as to the particulars contained therein to the following extent, namely – (a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover a right of way on foot, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than that right; 11.              This provision is to be read with s.53(2)(b) of the 1981, which provides for an obligation on a local authority to keep the definitive map and statement under review; and to, … make such modifications to the map and statements as appears to them to be requisite in the consequence of that event. 12.              The events described in s.53(3) are identified and included, (c) 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 in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path …   13.              On the face of it there appears to be an inherent tension between s.53 which allows the making of changes to the definitive map and statement, and s.56 which treats the definitive map and statement as conclusive evidence. In R v. Secretary of State for the Environment, ex. p. Burrows and Simms [1991] 2 QB 354 at 385, Purchas LJ explained how the two provisions were to be reconciled. In short, s.56 applies generally, but not such as to inhibit a review under s.53. There is no difficulty in reconciling sections 53 and 56 of the Act 1981 once the comparatively restricted purpose of the legislation as a whole is understood, namely the preparation and maintenance of an authoritative record in the form of a definitive map and statement … Parliament never removed the duty to revise and keep the record up to date so that not only changes caused by supervening events … These should be taken into account in order to produce the most reliable evidence that can be achieved … See also Trevelyan v. Secretary of State for the Environment, Transport and the Regions [2001] 1WLR 1264 at [28].  The Order Decision 14.              The Inspector began by identifying the reason why the Order had been made: [1] The Order Route is currently recorded in the County Council’s Definitive Statement as a spur leading from Footpath 7, but is not shown on the Definitive Map. The County Council made the Order to add the route to the Map and thus correct what it argued was an ‘anomaly’. He then identified the main issue [3] To confirm the Order, I must be satisfied that the evidence shows on the balance of probabilities that public footpath rights exist on the Order Route. At [4] to [9] he set out how the draft, provisional and definitive maps and statements came to be made. At [11] he explained how it was that the spur was described in the definitive statement but was not depicted on the definitive map  … in contrast to the Parish survey which depicted the spur by a line on the map but initially failed to give it a description, it seems likely that when the Draft and Provisional Maps were published, and it is certain that when the Definitive Map was published, the spur was described but not depicted.  He then summarised his view of the facts: [13] I conclude from the evidence of the process that was carried out that in 1950 and in 1957 that the members of the Woolfardisworthy Parish Council believed the Order Route to be a public footpath. I conclude that the statutory procedures in sections 27 to 32 of the 1949 Act … were properly carried out in relation to the depiction of the Order Route on the County Council’s Definitive Map and Statement apart from the failure to show it on the Draft and subsequent maps. I conclude that the County Council intended the Order route to be shown on these Maps, and that its failure to do so was a drafting error rather than a deliberate exclusion. I conclude that interested persons had some opportunity to dispute the Order route’s inclusion in successive Statements, but that they did not do so. In [14] he set out his approach to evidence, The depiction of a route on a Definitive Map and in a Statement raises a presumption that it exists, which would require substantial evidence of an error to displace and lead to its removal. The failure to depict the Order route on the published Draft and Provisional Maps, however, must have made it somewhat less likely that a concerned person would have spotted that it was, in fact, included in the corresponding Statements. Although, therefore, I conclude that the inclusion of the Order route in the Parish survey and the Definitive Statement is strong evidence that it was a public right of way in 1950, I do not consider that a presumption, only rebuttable by ‘substantial’ evidence, has been raised. At [15] to [22] he described the evidence and set out the arguments for and against the existence of the public right of way in the 1950s and concluded. 23. In conclusion, the evidence in support of the existence of public footpath rights on the Order Route in the 1950s is of considerable strength – there are contemporary documents showing that it was agreed as a public footpath by the Parish Council, including a farmer who had lived near the route all his life, and no-one questioned its inclusion in the Draft, Provisional or Definitive Statements. Against this is the recollection of two local people that fifty years ago the route carried no public rights. I have no reason to doubt the sincerity of these two people, but I prefer the contemporary evidence. 24. There is ample evidence that since the 1950s, and more particularly since the 1980s, the Order Route has been considered private by its owners and by those people who have lived alongside it. ‘Private’ notices have certainly been in place since the 1980s. There is a little evidence of use by members of the public, but also evidence of permission having been granted to some. The County Council dismissed this later evidence as irrelevant. In my view it should be given some weight, as it supports the reputation of the route as having been solely private, but even taken together with the evidence of those whose memories of the route go back as far as the 1950s it does not outweigh the strong evidence that the Order route is a public footpath  The Arguments 15.              Mr Hodgkin (for the Claimants) advanced three main points in argument. First, the Inspector erred in law in treating the definitive statement as either important or relevant evidence in the absence of depiction on the definitive map: particularly so where the right of way was not shown on either the draft or provisional maps. Where there is a conflict between the map and the statement, the map must take precedence, see the Norfolk County Council case at [38]. Secondly, the reference to the existence of the public right of way in the definitive statement was no more than evidence of a belief as to the existence of a footpath and did not displace the presumption that there was no right of way (from its absence on the map) and certainly did not establish the existence of a public right of way. Thirdly, before the powers under s.53(3)(c) could be invoked there had to be ‘new evidence’ of the existence of a right of way which was not shown on the map.    16.              Mr Buley (for the Secretary of State) submitted that the Inspector did not make any error in his approach, which was fully consistent with well-established legal principles. The Inspector was entitled to treat the inclusion of the spur in the definitive statement as evidence which was strong, but not ‘only rebuttable by substantial evidence’. He had properly assessed the evidence which was deployed before him and concluded that the Order should be confirmed.  Discussion and Conclusion 17.              In the Norfolk County Council case, Pitchford J was faced with a similar issue to the issue raised in the present case: a conflict between the terms of a definitive map and its accompanying statement. In that case the right of way was depicted on a definitive map and described on the definitive statement, but the starting point described in the statement was 30 metres from the starting point shown on the map. The Inspector felt unable to resolve the conflict between the map and the statement, and refused to confirm the Council’s order modifying the map so as to conform to the statement. The first issue involved the proper application of the 1981 Act. At [38] and [75] Pitchford J, following the decision of the Court of Appeal in ex. p. Burrows and Simms, held that s.56 provided for a scheme of conclusive evidence unless and until there was a review under s.53.   18.              The second issue in the Norfolk County Council case was described at [5] ‘In the event of conflict what evidential weight, if any, should be accorded to by the … inspector to the map on the one hand and the statement on the other’. Pitchford J addressed this issue at [57-64]. It is convenient to refer to two passages in this part of the judgment. [57] I have already accepted Mr Morshead’s submission that, subject to modification, the definitive map must be regarded as authoritative. It does not, in my view, follow that there must be a presumption in favour of the map at the expense of the statement during the process of review … … [64] Where the map and statement conflict as to the position of a public right of way I can see no basis for the application of an evidential presumption in favour of one at the expense of the other. As Mr Laurence rightly observes, the fact-finder starts from the position that both the map and the statement were prepared following the correct procedures. Save perhaps in the case of demonstrably false particulars in the statement, the natural inference is that the surveying authority was at least attempting conscientiously to record the position of the footpath shown on the map What is required at review is, in my judgment, simply a consideration which (or which other) route, on a balance of probability, is correct, if any, in the light of all the relevant evidence, including the terms of the map and statement. The judgment being exercised in a case such as this is whether, under section 53(3)(c)(iii), any particulars in the map and statement require modification unless it emerges that either a new footpath should be added or the footpath shown on the map should be deleted altogether. It may, by an examination of the documents together and an inspection on the ground, be a straight forward task to identify the mistake or inaccuracy in the preparation of the documents. It would be inappropriate in such an exercise to impose what would be an artificial presumption in favour one document or the other simply because, until modification, it is treated as the primary document … 19.              As the Inspector noted at [14] of the Order Decision in the present case, if the definitive map and the definitive statement had both shown the right of way it would have given rise to a presumption of its existence. Since they did not, and were in conflict, the Inspector was entitled to decide the weight to be attached to the evidence. This he did in the remaining part of [14]. His view that this amounted to ‘strong evidence’ was a matter for him. He specifically did not approach the evidential question on the basis that the existence of the Order Route in the Parish Survey and the definitive statement raised a presumption which was only rebuttable by ‘substantial’ evidence. The Inspector’s approach does not demonstrate an error of law. On the contrary the fact that he attached such weight to the definitive statement as he saw fit was consistent with the approach set out in the Norfolk County Council case at [64]. 20.              So far as Mr Hodgkin’s second point is concerned, this too faces the difficulty that is contrary to the approach set out in the Norfolk County Council case. Notwithstanding a divergence between them, both the definitive map and the definitive statement are capable of being relevant evidence as to the existence or non-existence of the right of way in a review. This follows from the approach of the Court of Appeal in the Trevelyan case at [38]. 21.              Mr Hodgkin’s third point raises a question about the meaning of the expression ‘discovery by the authority of evidence’. He referred to a decision of Mr Andrew Nicol QC (as he then was) sitting as Deputy High Court Judge in Burrows v. Secretary of State for Environment Food and Rural Affairs [2004] EWHC 132 (admin). In that case Mr Nicol QC  set out what in his view was required before the powers in s.53(3)(c)(iii) could be invoked. [26] … It is plain that the section intends that a definitive map can be corrected, but the correction … is dependent on the ‘discovery of evidence’. An Inquiry cannot simply re-examine the same evidence that had previously been considered when the definitive map was drawn up. The new evidence has to be considered in the context of the evidence previously given, but there must be some new evidence which in combination with the previous evidence justifies a modification. 22.              Mr Hodgkin submitted that there had been no ‘new evidence’ in the present case, since the evidence had been available when the definitive map had been drawn up. 23.              I do not understand the passage I have cited from the judgment of Mr Nicol QC to suggest a different test to that specified in s.53(3)(c). 24.              The precondition for the exercise of the statutory power of review is the discovery of evidence which (when considered with all other relevant evidence) shows that particulars contained in the map and statement require modification. The discovery that there is a divergence between the two is plainly the discovery of such evidence, and it is unnecessary that it should be characterised as ‘new evidence.’ It is sufficient that there was the discovery of what the Inspector described as ‘a drafting error’, which was itself the result of what the Court of Appeal in ex. p. Burrows and Simms characterised as ‘recent research.’ 25.              I note that this approach is consistent with (a) the general approach of the Court of Appeal in ex. p. Burrows and Simms referred to in paragraphs 13 above and ‘the importance of maintaining an authoritative map and statement of the highest attainable accuracy’; (b) a generally beneficial purpose that there should be powers to make definitive maps and statements consistent when they are found to be inconsistent; and (c) the decision of Potts J in Mayhew v. Secretary of State for the Environment (1993) 65 P & CR 344 at 352-3, in which he specifically rejected the argument that the s.53(3)(c) modifications should be restricted to cases where ‘new evidence’ had been discovered. 26.              In my view it is sufficient in the present case that the Council had recently discovered that there was a divergence between the definitive statement and the definitive map to bring the case within s.53(3)(c)(iii). An additional point which was raised at the hearing 27.              In the course of the hearing an issue arose as to the width of the footpath as described in the Order. It was argued for the Claimants that the Inspector had failed to consider whether there was any evidence to support the statement, The width of the path varies between 4 and 8 metres as defined by the boundaries of the land. There was evidence that the footpath was ‘no more than a cart’s width’; and in any event 3 metres at some points. 28.              In addendum to his written argument dated 30 April 2010, Mr Hodgkin submitted that the Inspector’s failure to consider this point and the width of the path generally meant that the Order must be quashed, since it could not be remitted to the Inspector for reconsideration. I am satisfied that the Court has no power to modify the Order, see the full analysis of the Court’s powers by HH Judge Vosper QC (sitting as Deputy High Court Judge) in Jones v.  Welsh Assembly Government [2008] EWHC (Admin) 3515. 29.              Mr Buley in a written argument in response submitted that the point was taken very much too late. It is not accepted that the Claimants took the point at the site visit as they contend they did; but even if they had, it was not open to them to have done so at that point, see Taylor and Sons (Farms) v. Secretary of State for the Environment Transport and the Regions [2002] PCLCR 11 at [42]. In any event, any error as to the width of the path should not result in quashing the Order in its entirety, not least because there is no error in the Order Route shown on the definitive map. 30.              I have concluded that the matter was not raised properly before the Inspector as it should have been, see for example (in a slightly different context) the observation of Pill LJ in Francis v. First Secretary of State and another [2008] EWCA Civ 890 at [28]. If it had been, it would have been addressed in the Order Decision which was both clear and comprehensive. 31.              Although I am troubled that the width of the path may be too broadly described, the County Council has indicated that it is willing to reconsider the matter now that it has been raised, and will give favourable consideration to a further modification to correct any error. In my view that is a proper response to a matter of genuine concern to the Claimants, and is the appropriate way to deal with the issue. 32.               It follows that the appeal must be dismissed.