Footpath – Application to modify map – County council and Secretary of State for Wales refusing – Conflicting evidence of user – High Court quashing Secretary of State’s decision – Whether public inquiry should have been ordered – Whether reasonable to allege right of way existed – Appeal dismissed
In 1983 Llyn Madoc,Trevor, Clywd, was acquired by the present owners. In 1992 the applicant applied to Clywd County Council for an order under the Wildlife and Countryside Act 1981 modifying the definitive map and statement to show a public footpath running across pasture at Lynn Madoc to the River Dee. The county council refused to make the order. The applicant appealed to the Secretary of State for Wales who received evidence from the applicant which included over 100 statements showing user of the path by the public without obstruction for periods ranging from 1912 up to 1986, and a statement from the previous owners to the effect that access had been strictly controlled from 1900 until 1983.
The Secretary of State accepted the statement of the previous owners and decided that there had been no intention to dedicate under section 31 of the Highways Act 1980. The applicant sought judicial review of the Secretary of State’s decision. The judge, quashing the decision, concluded that although the Secretary of State had not acted irrationally in accepting the owner’s statement as satisfying the proviso of section 31(1) of the Highways Act 1980, nevertheless he had acted unfairly in operating the statutory procedure, without due regard to the particular facts of the case, strictly in the manner envisaged by parliament. The Secretary of State appealed and the applicant sought to uphold the judge’s decision on the basis that the Secretary of State had failed to take into account the evidence contradicting the owners’ statement, and that his decision that a public right of way was not reasonably alleged to subsist was, on the material before him, perverse.
Held The appeal was dismissed.
1. The judge’s conclusion that the Secretary of State could have supplemented the statutory procedure by holding a public inquiry was inconsistent with that procedure. There was nothing intrinsically unfair about resolving at a preliminary stage an issue whether a right of way existed provided that interested parties were fully informed and had an opportunity to present their case and comment upon others.
2.The failure of the Secretary of State to conclude that there was no right of way contradicted his finding that the actions of the previous owners had been such as to demonstrate clearly that they had not intended to dedicate it as a public right of way. On the material available to him, it was not unreasonable to reach the conclusion that the evidence submitted in support of the application made under section 53(5)of the 1981 Act was not such as to indicate that a right of way was reasonably alleged to subsist: dicta of Owen J in R v Secretary of State for the Environment, ex parte Bagshaw and Norton (1994) 68 P&CR 402 at pp407-409 approved.
John Hobson (instructed by the Treasury Solicitor) appeared for the appellant; George Laurence QC and Edwin Simpson (instructed by Brooke North, of Leeds) appeared for the respondent.
