Council making order reclassifying roads used as public paths as byways open to all traffic – At inquiry inspector proposing modification of two roads to bridleways – Inquiry into inspector’s proposed modifications – Inspector considering new evidence regarding order as a whole – Further modifications – Order confirmed – Claimant seeking to quash order – Whether inspector having power to reconsider order as a whole – Whether final decision flawed – Schedule 15 para 8(2)(b) to Wildlife and Countryside Act 1981 – Claim allowed
In December 1989 Hampshire County Council made the Hampshire (Basingstoke and Deane Borough No 13) (Parish of Candovers) Public Path Reclassification Order 1989. The effect of the order was to reclassify nine roads used as public paths (RUPPs) as byways open to all traffic (BOATs). It was opposed and in 1995 a local inquiry was held under Schedule 15 para 7 to the Wildlife and Countryside Act 1981. In a decision letter of February 1996, the inspector decided that the order should be confirmed, subject to modifications to RUPPs 1 and 20, namely that they be classified as bridleways.
Objections were made, and in 1997 an inquiry was held under Schedule 15 para 8(2)(b) to the Act into the inspector’s proposed modifications. At the inquiry, a statutory objector produced a substantial amount of evidence relevant to the question of whether any part of the order should be confirmed. Having considered the new evidence, the inspector decided that the order should be confirmed, subject to modifications to RUPPs 16 and 21. A further inquiry was held in 1999 and the order was confirmed with modifications. The order, as confirmed, reclassified RUPP 16 as a bridleway and the remaining RUPPs as BOATS.
The claimant applied to quash the order under Schedule 15 para 12 to the 1981 Act on the grounds, inter alia, that: (i) the modification order was not within the powers conferred by section 54 of the Act; and (ii) the requirements of Schedule 15 were not complied with. The claimant submitted that the inspector did not have power to reconsider the order as a whole and that he was limited to considering the proposed modifications to RUPPs 1 and 20. It followed, in the claimant’s submission, that the 1999 inquiry should not have been held at all and that the inspector’s decision of March 2000 was also flawed.
Held: The claim was allowed.
The purpose of the 1997 inquiry was to consider objections or representations regarding the inspector’s proposed modifications to the order. It was not to consider those other parts of the order that had not been proposed to be modified. The flow of new evidence following a para 7 inquiry was a real practical problem for the inspectorate and section 53 of the Act did not provide a satisfactory solution. However, that did not mean that a para 8(2)(b) inquiry was the proper forum to consider such new evidence. There was no need to expand the scope of the para 8 inquiry to allow an inspector to consider new evidence regarding objections that were unrelated to his proposals to modify. The inspector at the 1997 inquiry had no power to reopen the 1995 inquiry. It followed that the inspector at the 1999 inquiry had no jurisdiction to conduct an inquiry into those proposed modifications.
George Lawrence QC (instructed by Wilsons, of Salisbury) appeared for the claimant; Michael Bedford (instructed by the Treasury Solicitor) appeared for the defendant.
Sarah Addenbrooke, barrister
