Public footpath — Definitive map — Refusal of council to add public footpath to map — Secretary of State upholding decision — Test to be applied in deciding whether user established — Secretary of State applying wrong test — Matter referred for right question to be asked — Applications granted
B sought judicial review of a decision of the Secretary of State for the Environment refusing to direct Devon County Council to make an order modifying their definitive map by adding as a public footpath the highway in the parish of Dartmoor Forest. N sought judicial review of a refusal to direct Suffolk County Council to make an order modifying the definitive map by adding a byway open to all traffic to the county’s definitive map for the parish of Polstead. In each case the applicant relied on evidence of user by the public. By section 53 of the Wildlife and Countryside Act 1981 the council were required to maintain a definitive map of their area to show the various “byways open to all traffic”, “public paths” and “rights of way”. By section 53(2) the council were required to make modifications of that map as soon as reasonably practicable after “an occurrence”. Section 53(3)(c)(i) provided “(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 …”.
Held The applications to quash were granted.
1. The questions for the council and subsequently the Secretary of State were whether a claimant’s evidence, together with all the other evidence available, either showed: (a) that a right of way subsisted; or (b) that it was reasonable to allege that a right of way subsisted.
2. To answer either question involved some evaluation of the evidence and a judgment upon that evidence. For the first possibility to be answered in the affirmative, it was necessary to show that on a balance of probabilities, the right existed. That possibility did not apply here.
3. To answer the second possibility the question was whether a reasonable person could reasonably allege a right of way having considered all the relevant evidence available to the council.
4. The question was not whether it was reasonable for the claimant so to allege since the claimant was not to be judge of that. At this stage the local authority were to be the judge; at the later stage it was to be the Secretary of State.
5. If the evidence were merely that a claimant had on a limited number of occasions not been stopped when using the way an allegation that a right of way subsisted might well not be reasonable: see Poole v Huskinson (1843) 11 Meeson & Welsby 827; Moser v Ambleside Urban District Council (1924) 89 JPJ 59.
6. If however, as was probable here, there were to be conflicting evidence which could only be tested or evaluated by cross-examination an order would seem likely to be appropriate: see Moser (supra).
7. The evidence in these cases indicated that the Secretary of State had applied the wrong test. It was therefore necessary to quash his decisions and require him to ask the right question in proper exercise of his powers.
George Laurence QC (instructed by Godlove Pearlman, of Leeds) appeared for B and N; John Hobson (instructed by the Treasury Solicitor) appeared for the Secretary of State of Environment; the local authorities did not appear and were not represented.
