Right of way – Definitive map – Footpath – Local authority proposing modification of definitive map and statement to show route as byway open to all traffic (BOAT) – Inspector appointed by defendant secretary of state modifying order showing right of way as footpath – Claimant applying to quash decision – Whether inspector erring in law – Application dismissed
The claimant applied under paragraph 12 of schedule 15 to the Wildlife and Countryside Act 1981 to quash a definitive map modification order made by an inspector appointed by the first defendant secretary of state after a public inquiry in January 2020. The second defendant local authority had proposed a modification of the definitive map and statement for the area by recording a byway open to all traffic (BOAT) from the B1340 public road south of Bamburgh, via Greenhill and Fowberry, to the U2018 public road at Shoreston Hall.
The inspector, a fellow of the Institute of Public Rights of Way, made three order decisions. She determined that the part of the order route between Greenhill and Fowberry should be modified to show a footpath only. The claimant argued that that modification was wrong as a matter of public law, and that the whole of the order route should have been determined as a BOAT.
The claimant contended that the inspector: (i) made a mistake in concluding that a 1951 highway authority map did not show a physical feature between Greenhill and Fowberry; (ii) did not accord proper weight to pre-1931 maps showing such a feature or to the description of the order route as “cross-roads” in a commercial map published in 1827-8 (the Greenwood map); and (iii) misdirected herself in law as to the improbability of two vehicular cul-de-sacs leading to Greenhill and Fowberry respectively if the route was a footpath only.
Held: The application was dismissed.
(1) Section 53(2) of the 1981 Act set out the duty on local authorities to keep the definitive map and statement of rights of way prepared under the National Parks and Access to the Countryside Act 1949 under continuous review and make such modifications as were requisite in response to events.
In a challenge such as the present, the court was not concerned with the merits but confined itself to whether the order was flawed as a matter of public law. That was particularly important here where the inspector was dealing with historical evidence. Particular principles applied where, as here, a mistake of fact was alleged. There must have been a mistake as to an existing fact, including the availability of evidence on a particular matter. The fact or evidence must have been established as uncontentious and objectively verifiable. The appellant (or his advisers) must not have been responsible for the mistake which must have played a material (not necessarily decisive) part in the tribunal’s reasoning: Whitworth v Secretary of State for Environment Food and Rural Affairs [2010] EWCA Civ 1468 and E v Secretary of State for the Home Department [2014] EWCA Civ 49 considered.
(2) Decision letters had to be read fairly, as a whole, without excessive legalism or criticism. The parties realistically accepted that all three order decisions should be read together. Courts had to respect the expertise of specialist planning inspectors and start at least from the presumption that they would have understood the policy framework correctly. That also applied to inspectors considering rights of ways: Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] EGLR 27, Clarke Homes Ltd v Secretary of State for Environment [2017] PTSR 1081 and Open Spaces Society v Secretary of State for Environment Food and Rural Affairs [2022] EWHC 3044 (Admin); [2022] PLSCS 194 considered.
The courts had acknowledged that the term “cross-roads” might be evidence of public roads, as it suggested a thoroughfare between two places. The term in old maps did not have its modern meaning of a point at which two roads crossed, but included a highway running between, and joining, regional centres. Guidance given to inspectors on the point showed that inspectors would need to take into account that the meaning of the term might vary depending on the road pattern/markings in each map: Trafford v St Faith’s Rural District Council (1910) 74 JP 297, Hollins v Oldham [1995] (C94/0206, unreported) and Fortune v Wiltshire Council [2012] EWHC Civ 334 considered.
(3) It was possible that a public way might end in a cul-de-sac, but it was improbable that part only of a continuous thoroughfare should be a public highway. There was no rule of law compelling a conclusion that a country cul-de-sac could never be a highway. As a matter of common sense, the public did not claim to use a path as of right unless there was some point in their doing so, and to walk down a country cul-de-sac merely to walk back again was pointless. However, if there was some attraction at the far end which might cause the public to wish to use the road, that might be sufficient to justify the conclusion that a public highway was created: Roberts v Webster (1967) 66 LGR 298; 205 Estates Gazette 103 considered.
(4) Section 32 of the Highways Act 1980 provided that a court or other tribunal, before determining whether a way had or had not been dedicated as a highway, should take into consideration any map, plan or history of the locality or other relevant document which was tendered in evidence, and give such weight thereto as the court or tribunal considered justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it had been kept and from which it was produced.
In the present case, such weight was a matter for the experienced inspector. It was not appropriate for the court to attempt to review her balancing exercising. She had reached a conclusion she was entitled to come to on the evidence.
The process of the assessment of historical maps in any given case was intricate and case-specific, drawing inferences of fact from disparate material. Such inferences might vary from case to case, depending on the evidence and the material. There was no justification for the court to interfere with any of the inspector’s modifications to the order as confirmed by her.
Paul Wilmshurst (instructed by DMH Stallard LLP) appeared for the claimant; Ned Westaway (instructed by the Government Legal Department) appeared for the first defendant. The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
