Right of way – Definitive map and statement – Evidence – Application made to modify definitive map to include rights of way over appellant’s land – Application relying on written evidence submitted with earlier application – Respondent local authority authorising making of statutory order – High Court dismissing application for judicial review – Appellant appealing – Whether sufficient evidence to justify making order – Whether respondent failing to discharge duty to investigate – Whether “discovery” of evidence – Whether sufficient evidence to justify making order for bridleway – Appeal dismissed
An application was made to the respondent surveying authority under section 53(2) of the Wildlife and Countryside Act 1981 for an order modifying the definitive map and statement by adding a network of footpaths identified in “User Evidence Forms” (UEFs) supplied and “shown on the attached map” in respect of land at Hayton Woods in Cumbria owned by the appellant and the interested party. Evidence of 20 years’ continuous use was provided under section 3(1) of the Highways Act 1980. The application lapsed because the applicant died. A second application was made under section 53(5) of the 1981 Act in the same terms as the first application with the addition of a claimed bridleway.
A planning officer’s report in March 2016 recommended that the respondent should make an order under section 53(3)(c)(i) of the 1981 Act, on the ground that there was sufficient evidence that the rights of way in question could reasonably be alleged to have subsisted for more than 20 years. However, the argument that control measures introduced in 2001 during the foot and mouth outbreak caused a sufficient interruption to the claimed user period was rejected. In December 2016, a second report was produced, recommending an order regarding the bridleway only as there was conflicting evidence of use of the footpaths and the alignment of the routes was difficult to assess.
The respondent’s Development Control and Regulation Committee authorised the making of a statutory order which, subject to confirmation, would add to the definitive map and statement of public rights of way both the footpaths and the bridleway. The appellant’s application for judicial review was dismissed by the High Court: [2017] EWHC 2651 (Admin); [2017] PLSCS 219.
The appellant appealed. The issues were (i) whether there was sufficient evidence to justify making the order for the footpaths; (ii) whether the respondent failed to discharge its duty to investigate; (iii) whether there was a “discovery” of evidence within section 53(3)(c); and (iv) whether there was sufficient evidence to justify the order for the bridleway.
Held: The appeal was dismissed.
(1) A surveying authority had to make a judgment on the best evidence it had. The respondent’s committee was entitled to take the view that the evidence of the alignment and width of the footpaths was sufficient. The court’s role was to consider whether the respondent could lawfully make the order. The test was a public law standard of review. There was no basis for concluding that the committee misunderstood the relevant statutory provisions. The committee could lawfully decide to take a different course from that recommended to it in the officer’s report. The crucial question was whether it was at least reasonable to allege that the right of way subsisted. There were two alternatives under section 53(3)(c)(i): either that the right of way subsisted or that it was reasonably alleged to subsist. If the surveying authority were obliged to apply the balance of probabilities test to the allegation of a right of way subsisting, that distinction would be eroded or removed which could not have been what Parliament intended by including the second alternative. The statutory purpose was that orders might be made where the relevant allegation was reasonable, but not otherwise. The committee did not make any error of fact, nor did it overlook any relevant material available to it, and its impression of the evidence fell within the range of reasonable judgment. The judge’s conclusion to that effect was unimpeachable. This was a classic matter of judgment for the committee members. It was not unreasonable for them to conclude that, in its totality, the evidence they had received of the location and alignment of the claimed footpaths, whether or not it would ultimately be enough to satisfy an inspector, was nevertheless sufficient to justify the making of the order.
(2) At the order-making stage of the statutory process, the respondent had to consider whether a right of way might reasonably be alleged to subsist. In that context, a surveying authority’s duty to “investigate” under para 3(1)(a) of Schedule 14 to the 1981 Act did not constrain it to investigate a particular matter in greater depth and detail than it reasonably judged to be necessary in the circumstances. It was not obliged to tackle every actual or potential conflict of evidence that an inspector would have to resolve in due course. In this case, the respondent was not required to go behind the UEFs supplied. The evidence provided could reasonably be taken at face value at the order-making stage.
(3) Section 53(2) referred to the occurrence of any of the “events” specified in section 53(3). The potentially relevant event in this case was the event described in section 53(3)(c), “the discovery … of evidence which (when considered with all other relevant evidence available to them) shows …” any of the matters referred to in subsection (c)(i), (ii) and (iii). There was no obstacle in the statutory provisions to the surveying authority taking into account previously discovered but unconsidered material in discharging its free-standing duty under section 53(2)(b), which was a continuous duty. In discharging it, the surveying authority was not debarred from considering evidence not previously considered, though submitted with an application never determined. Nor did it have to await a further application adducing that evidence again, together with evidence not submitted before.
(4) There was sufficient evidence to justify extending the bridleway on the definitive map and statement. The crucial question was whether the allegation of the claimed route was reasonable. That was deliberately not a high test. The fact that the allegation was based on primary documents rather than user evidence as such did not bear on the principle. A reasonable allegation could properly be based on documentary material alone. If the evidence were to be wholly documentary it might be possible, satisfactorily or reliably, to evaluate that evidence without any necessity for a hearing.
George Laurence QC and Claire Staddon (instructed by Underwood Vinecombe LLP, of Derby) appeared for the appellant; Alan Evans (instructed by Cumbria County Council) appeared for the respondent; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Roxlena Ltd) v Cumbria County Council
