Wildlife and Countryside Act 1981 — Definitive map and statement of public highways — Modification order — Order adding footpath — Shortcomings in the evidence — Law of highway dedication — Whether decision of surveying authority flawed — Modification order quashed
The first applicant is the owner, and both applicants are in occupation, of land at Windmill Wood, Chale, Isle of Wight. When the first applicant purchased her interest in 1986, no public rights of way over the land were disclosed by the definitive map and statement. On February 29 1988 the defendant county council, exercising their powers under section 53(3)(c)(i) of the Wildlife and Countryside Act 1981, made a modification order defining a public footpath through the applicants’ land. The footpath was about 250 metres in length and was so marked on the plan as to fail to connect to an existing public footpath, C28, leaving a gap of 15 metres not defined as a public footpath.
The applicants moved for the judicial review of the defendants’ decision to make the order on a number of grounds. One ground related to the failure to show the footpath as connected to the existing footpath, C28. But the substantive ground was that the requirements of section 53(3)(c) of the 1981 Act had not been satisfied. This section provides that a surveying authority shall make a modification order following “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 …”.
The applicants contended that the officers of the defendants, in presenting their reports, had failed to show the shortcomings in the evidence of public use of the route and failed to explain the legal problems involved in establishing a deemed dedication of a way as a public highway by the landowner. The decision-making process was therefore flawed.
Held The modification order and the decision of the defendants were quashed.
1. The order could not be quashed by judicial review in respect of the gap of 15 metres; there are procedures in the 1981 Act to deal with this problem. However, as the order was quashed on the substantive ground, the omission of the 15 metres could be remedied.
2. Section 53(3) of the 1981 Act imposes a duty on surveying authorities to make a careful and informed decision as to whether the evidence “shows” that a right of way “subsists or is reasonably alleged to subsist”. Although there is a procedure for objections and a local inquiry, each case must be properly investigated. If there is any flaw in the decision-making procedure of a surveying authority to make an order, the order must be quashed.
There were errors in the advice given by the officers to the defendants as to the shortcomings of the evidence of public user. Their reports also failed to deal with the law as to the necessary presumption of dedication of the route as a public highway; the land had been held in trust for some years and mortgaged; both were matters that might interfere with a deemed dedication.
George Laurence (instructed by Atkins Wilson & Bell, of Guildford) appeared for the applicants; and Mark Lowe (instructed by Sharpe Pritchard) appeared for the defendants.
