Respondent ordering deletion of bridleway from definitive map – Applicant challenging order – Approach to be adopted when considering whether right of way to be deleted from definitive map – Whether inspector wrongly approaching matter – Section 53 of Wildlife and Countryside Act 1981 – Application dismissed
In 1973 Lancashire County Council published a definitive map, which included a right of way for those on foot or horseback, identified as bridleway 8. In 1985 the owners of land over which part of the bridleway ran applied to the council, under section 53(5) of the Wildlife and Countryside Act 1981, for an order deleting bridleway 8 from the definitive map on the ground that it had never been a right of way.
The issue was considered by the council, by the Secretary of State and, finally, by an inspector following an inquiry. Under Schedule 15 to the 1981 Act, the inspector directed himself that the evidence required to remove a public right of way from a definitive map had to be clear and cogent and had to demonstrate that a mistake had been made in the original claim. He concluded that, on the balance of the evidence, there had been no right of way of any description, and proposed to confirm an order that bridleway 8 be deleted from the map.
The applicant, on behalf of the Ramblers Association, appealed against the inspector’s order, principally on the ground that the inspector had approached the matter wrongly. It was submitted that the inspector had attached no weight at all to the fact that bridleway 8 had been entered on the definitive map, when he should have treated that fact as highly material evidence of the existence of a right of way. The judge held that the inclusion of the right of way on the definitive map was obviously some evidence of its existence, but that the weight to be given to that evidence would depend upon an assessment of any evidence showing that its inclusion was the result of the inquiry, of consultation, or of the mere ipse dixit of the person drawing the relevant part of the map. He concluded that, in the instant case, there was nothing to suggest that any significant probative material existed at the relevant time to support the existence of bridleway 8. The applicant appealed.
Held: The appeal was dismissed.
1. The approach of the judge to the weight to be given to the definitive map, followed in R v National Assembly for Wales, ex parte Robinson (2000) 80 P&CR 348, had been wrong in principle. Where the Secretary of State or an inspector had to consider whether a right of way marked on a definitive map existed, he had to start with an initial presumption that it did. If there was no evidence that made it reasonably arguable that such a right of way existed, it should not have been marked on the map. In the absence of evidence to the contrary, it should be assumed that the proper procedures were followed and that such evidence existed. The standard of proof required to justify a finding that no right of way existed was no more than a balance of probabilities. But evidence of some substance had to be put in the balance if it were to outweigh the initial presumption that the right of way existed. Proof of a negative was seldom easy, and the more time that elapsed, the more difficult it would be to adduce the positive evidence that was necessary to establish that a right of way had been marked on a definitive map by mistake. Those considerations were reflected in guidance published by the Secretary of State for Environment (Circular 18/90) and the Secretary of State for Wales (Circular 45/90) after the decision of R v Secretary of State for the Environment, ex parte Simms [1991] 2 QB 354.
2. The inspector had directed himself that clear and cogent evidence was necessary to remove a public right of way from the definitive map, and that it had to be demonstrated that a mistake had been made. That was necessarily, albeit implicitly, a recognition of the evidential effect of the definitive map. His finding that a right of way had not existed was a finding of fact that, unless demonstrated to be perverse, manifestly satisfied the test required to justify a finding that the bridleway had been marked on the definitive map in error. It had not been demonstrated to be perverse, and, therefore, the appeal was dismissed.
George Laurence QC and Rhodri Price Lewis (instructed by Brooke North, of Leeds) appeared for the applicant; John Hobson QC (instructed by the Treasury Solicitor) appeared for the respondent.
Thomas Elliott, barrister
