Definitive map — Classification of highways — Evidence that classification or existence of public highways wrong — Whether definitive map conclusive — Whether evidence can justify a downgrading or removal from definitive map — Landowners’ appeals allowed
In both these appeals the respective highway authorities had refused to make orders under section 53 of the Wildlife and Countryside Act 1981 upon applications by the respective applicants for judicial review that certain public bridleways should not have been recorded in the definitive map as such or at all. In one case the applicant asserted that evidence showed that the highway should be reclassified as a public footpath from a public bridleway; in the other that the evidence was that the public bridleways in question had never been used even as public footpaths.
In each case the applicants had sought to appeal to the Secretary of State for the Environment, and the Secretary of State, relying on Rubinstein v Secretary of State for the Environment (1987) 57 P & CR 111, dismissed or refused to hear the appeals. The Secretary of State had concluded that the decision in the Rubinstein case precluded the making of orders under section 53 of the 1981 Act to delete or down grade public highways on the definitive map by virtue of the provisions of section 53(3)(c)(ii) and (iii).
Held The appeals were allowed.
The National Parks and Access to the Countryside Act 1949 made provision for definitive maps and statements of public bridleways and public footpaths that were to be conclusive “as to the particulars contained therein”; the Act also made provision for the periodic review of those documents. Defects were recognised in that legislation that were met in the Countryside Act 1968 and the Wildlife and Countryside Act 1981.
Section 56 of the 1981 Act, in re-enacting the earlier provisions, stated that “A definitive map and statement shall be conclusive evidence as to the particulars contained therein…”. However, that section is not pre-eminent nor does it limit the provisions of section 53(2) as to the continuous review of maps and statements and their modification following events specified in section 53(3). The events in section 53(3)(c) included downgrading and deletion of public highways. The Rubinstein decision was decided per incuriam and was wrong and the Secretary of State should entertain appeals directed to the reclassification or deletion of highways if evidence is available showing that their classification or inclusion in the definitive documents was wrong.
Peter Birts (instructed by Boyle & Ormerod in association with Kidd Rapinet, of Aylesbury) appeared for the first appellant; George Laurence (instructed by Sharpe Pritchard, for Straw & Pearce, of Loughborough) appeared for the second appellants; and Duncan Ouseley (instructed by the Treasury Solicitor) appeared for the respondent Secretary of State for the Environment in each appeal.
