note to ed (Crown Office List) suggested sub heading Right of Way Parish Council applying to surveying authority for order adding alleged public highway to definitive map – County council making order – Inspector refusing to confirm order following pubic inquiry – County council applying for judicial review of inpector’s decision – Whether inspector erred in assessing evidence – Application allowed
In 1993 a challenge was made to use by the public of an alleged right of way over land in the parish of Cliffe. On March 4 1993 Cliffe Parish Council applied to North Yorkshire County Council (the applicants) for an order to be made, adding the path as a public highway to the definitive map. The path in question ran between certain land, including land said to be owned by Cliffe Parish Council. It was defined on all relevant maps, but its status had not been defined in any satisfactory way. The applicants duly followed the investigative and consultative procedures and, having been satisfied on the evidence that the road was at least a bridleway, determined to make the order. Following objections, a public inquiry was held in December 1996. The inspector refused to confirm the order. The applicants sought judicial review of the inspector’s decision taking issue with (I) the inspector’ s conclusion as to the question of land ownership in that he had accepted that he was not empowered to determine the ownership of the land. The inspector nevertheless relied upon a conclusion that the parish council held adjoining land which led him to view the use of the way as referable to an acquired private easement or right of access; (ii) his approach to the fact that the parish council had not previously sought the road to be a definitive right of way on the map; and (iii) his assessment of the evidence regarding the use of the way.
Held The application was allowed.
1. Although the inspector had erred in his conclusion as to the position of the respective parties’ ownership, there had been an assertion of an equitable private easement before him. It was therefore what people thought that mattered, not what the real position was. The issue was the extent to which he could have concluded those using the road were using it as members of the public.
2. Although the inspector had not misunderstood the evidence before him he had allowed the conclusion he had reached regarding the council to cloud his assessment of the evidence of those who used the road. As the inspector had concluded that the users who gave evidence were not exercising their rights as the public generally, but as parishioners, he needed to remind himself of the mere fact that a private right existed did not exclude the existence of a public right. However, he gave no proper reasons in addressing that issue, and was not entitled to reach the conclusions that he did based upon the material before him.
Edwin Simpson (instructed by Rees & Freres) appeared for the applicants; Michael Harington (instructed by North Yorkshire County Council) appeared for the second respondent; the Secretary of State did not appear and was not represented
Sarah Addenbrooke, barrister
