Leicestershire County Council, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs

J U D G M E N T

1. MR JUSTICE COLLINS: This case was listed before me as a renewed application for permission by the claimants, Leicestershire County Council, to seek judicial review of a refusal by an inspector appointed on behalf of the Secretary of State to confirm an order made by Leicestershire County Council proposing to modify the definitive map and statement for a particular area in Leicestershire. The effect of this was to transfer part of a public footpath, numbered B19, currently shown as running through the curtilage of Glebe Cottage, Main Street, Shangton, to pass through the curtilage of Manor Cottage, Main Street, Shangton. Permission was refused on paper by Cooke J on 2nd December 2002.

2. It seemed to me, since I had before me counsel on both sides, and since it was accepted that no further evidence needed to be considered beyond that which was in the papers before me, and since the matter could be, and indeed was, fully argued, that the sensible course to adopt was to grant permission, to abridge all steps that normally would have to be taken thereafter, and to treat this as the hearing of the substantive application for judicial review. Neither counsel opposed that course of action and in those circumstances that is what I propose to do.

3. Mr Richards on behalf of the County Council submits that there is an issue here under the relevant provisions of the Wildlife and Countryside Act 1981 which has not been the subject of any specific judicial decision and it would be helpful for his clients, and indeed more generally, if the court gave some guidance on the proper approach to the problem that has arisen in this case.

4. The situation briefly is this. The footpath in question, B19, runs along a route, which is not in any way disputed, to the back of two properties, one known as Manor Cottage, which is to the west, the other Glebe Cottage, which is to the east, the path running approximately north/south. When it reaches the point at roughly the boundary of those two properties, the map at present shows it to run along a route, which on the papers is described as A to B to C, through the curtilage of Glebe Cottage. That, as I understand it, was certainly shown as the route in 1951 and has been so shown since. The alternative is what is described as the route from A to D, which runs to the west of A to B to C through the curtilage of Manor Cottage.

5. An application was, I think, made to the County Council by or on behalf of the present occupant of Glebe Cottage, who maintained that the map was incorrect and that the correct route should be that through his neighbour's curtilage, namely the route A to D which I have indicated. The County Council accepted those contentions and was minded to amend the map accordingly. In order to achieve that, it was necessary to obtain the consent of the Secretary of State and so it was that the matter was put to a public inquiry and an inspector's report followed that inquiry.

6. The relevant provisions which govern the approach are contained in section 53 of the Wildlife and Countryside Act 1981, which is in Part III of that Act. Part III is headed "Public Rights of Way", and section 53 is the first section in that Part, under the subheading "Ascertainment of Public Rights of Way".

7. It is to be noted, before I come to section 53, that section 56 of the Act sets out the effect of the definitive map and statement and states that:

"(1) A definitive map and statement shall be conclusive evidence as to the particulars contained therein to the following extent, namely--

(a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover a right of way on foot, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than that right."

Accordingly, as is obvious, it is very important that the definitive map be accurate and thus section 53 sets out a duty to keep the definitive map under continuous review. It also extends to a statement.

8. As I understand it, in this particular case there is no statement, but in some cases a statement is needed, where, for example, it may not be entirely clear on the ground precisely where the right of way goes because the map may be too small a scale to indicate precisely. Thus, one would have in a statement, for example, an indication, if such was appropriate, that the route ran from a particular point defined perhaps by some landmark to another point so defined, so that there could be no quarrel about precisely where the public were entitled to walk and no problems would arise regarding, for example, allegations of trespass. That, I am told, is the usual purpose of a statement. As I say, in the context of this particular case there is no such statement.

9. Section 53(2) sets out the following provisions:

"As regards every definitive map and statement, the surveying authority shall--

(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in subsection (3); and

(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event."

Thus, there is a duty, as the section sidenote indicates, to keep the map and the statement under continuous review, to take into account the occurrence of any of the relevant events and to see whether as a result there is a need to modify the map or the statement or both.

10. The events are defined in subsection (3) as follows:

"(a) the coming into operation of any enactment or instrument ... "

I need cite no further because that is not relevant to this particular dispute; nor is (b). The one that matters is (c), which reads:

"(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows--

(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies;

(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or

(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification."

Then subsection (4) reads:

"(4) The modifications which may be made by an order under subsection (2) shall include the addition to the statement of particulars as to--

(a) the position and width of any public path or byway open to all traffic which is or is to be shown on the map; and

(b) any limitations or conditions affecting the public right of way thereover."

Those are the only statutory provisions which I think I need read.

11. In the context of this case there was never any dispute that a public right of way -- in this case a footpath -- existed between point A and the main road, which runs to the south of the properties in question. The only issue which the inspector had to determine was essentially which was the correct route to be shown on the map. He recognised in those circumstances that he had to consider both whether, in accordance with section 53(3)(c)(i), a right of way not shown subsisted, or was reasonably alleged to subsist, and also, in accordance with section 53(3)(c)(iii), whether there was no public right of way over land shown on the map.

12. This case is, as I understand it, unusual in that respect because normally what will be in issue is whether a right of way exists at all. Here, as I say, the only question is what is the correct route. Is it that shown on the map or is it that which runs through the adjoining property?

13. The inspector heard the usual sort of evidence, namely from long-term inhabitants, as to what the position was in 1949 and thereafter. He sets out the evidence in his determination, having stated in paragraph 13 that he concurred with the Council's submission that at the heart of his decision should be the true line of the footpath in 1949, which was the base date for the 1952 map. As I understand it, there is no dispute at the bar that the inspector was correct to approach it in that way.

14. He sets out the evidence of maps. He notes that the Ordinance Survey map shows that the footpath is not recorded before 1886 and unfortunately the map at that time showed the footpath coming to an abrupt halt at the northern boundary of Manor Cottage. It was the same in 1904 and 1925 but in 1960 the Ordinance Survey map showed that the path crossed the northern boundary of Manor Cottage and continued past the western side of some outbuildings, which would be consistent with the modification that the County Council were seeking to adopt.

15. There was then evidence of witnesses as to user. The effect of that evidence, putting it broadly, was that there was more support for use of the Manor Cottage route. However, the bulk of that evidence related to those who had used the path going north to south.

16. The inspector notes that it was highly improbable that the footpath actually finished at the northern boundary of Manor Cottage. That seems to me to be a matter of common sense because it would serve no practical purpose unless it went through to the road. He drew the inference from that -- and again it seems to me an inference that was inevitably to be drawn -- that those responsible for the Ordinance Survey maps were not confident of the precise route after the northern boundary of Manor Cottage.

17. Thus, the inspector felt that he was not assisted by the Ordinance Survey maps but he did attach weight to the user evidence that it went through Manor Cottage.

18. He then continues to assess the evidence. He observes in paragraph 35 that, save for the definitive map and the documents on which it was based, historic map and user evidence were of little help in establishing the existence or otherwise of a public footpath through Glebe Cottage. However, he considered that the Glebe Cottage route would have appeared more inviting to those wishing to go north from the street than would the route through Manor Cottage. The Glebe Cottage route followed a clear track leading past a cowshed and a pigsty through primarily agricultural land and towards a gate, and this would have compared, he said, very favourably with the path through Manor Cottage, which led through a small pedestrian gate into an otherwise clearly private residential curtilage.

19. What particularly impressed the inspector was the submission made by the representative of the owner of Manor Cottage that the author of the 1951 parish survey map and statement was the chairman of the local parish meeting and he would have been likely to have had sound knowledge of where footpath B19 met Main Street. He did not therefore feel the need to record it in writing, but marked his plan as showing it passing through Glebe Cottage. That the inspector regarded as a significant piece of evidence.

20. The inspector then directed himself as to the correct approach that he should adopt. He relied on a decision which had been put before him, R v the Secretary of State for the Environment ex parte Norton and Bagshaw [1994] 68 P & C.R. 402, a decision of Owen J. In that case Owen J was considering, among other things, the correct approach to section 53(3)(c)(i), and what he said about it, at the bottom of page 407 of the report, was this:

"It is necessary to give some meaning to all the words used. Accordingly, there must be a difference between showing 'that a right of way which is not shown in the map and statement subsists' and showing that a right of way which is not shown in the map and statement 'is reasonably alleged to subsist'. Accordingly the questions for the council and subsequently for the Secretary of State were: does the evidence produced by the claimant together with all the other evidence available show that either--

(a) a right of way subsists? (I shall call this test 'A'), or

(b) it is reasonable to allege that a right of way subsists? (I shall call this test 'B').

To answer either question must involve some evaluation of the evidence and a judgment upon that evidence. For the first of those possibilities to be answered in the affirmative, it will be necessary to show that on a balance of probabilities the right does exist. For the second possibility to be shown it will be necessary to show that a reasonable person, having considered all the relevant evidence available, could reasonably allege a right of way to subsist."

21. The inspector then sets out Test A and Test B in the terms of the section. When considering Test A, he says to establish whether a right of way exists on the balance of probabilities would require clear evidence in favour of the applicant and no credible evidence to the contrary. Mr Richards has submitted that that is an incorrect approach to a finding on the balance of probabilities. There may be credible evidence to the contrary, but that would not necessarily prevent a finding that on the balance of probabilities the existence of the right of way was made out. I suppose it must be obvious that, if there is credible evidence to the contrary, it would need clearer evidence to establish on the balance of probabilities that the right of way existed. But, as it seems to me, it is perhaps unsafe and unnecessary for inspectors, as it was for this inspector, to analyse or to use other words to indicate what is the test on the balance of probabilities. All it requires is that the inspector or the council is persuaded that it is more probable than not on the evidence -- and on all the evidence -- that the right of way exists. If so, it will be established in conformity with the Act.

22. The inspector then sets out Test B, which he explains thus:

"If there is a conflict of credible evidence, and no incontrovertible evidence that a way cannot reasonably be alleged to subsist, then the answer must be that it is reasonable to allege that one does exist."

That has not been criticised as a proper approach. Indeed, as Owen J made clear, the question is whether a reasonable person could reasonably allege a right of way, having considered all the relevant evidence, and the council and the Secretary of State in turn must be judges of that. It is perfectly obvious that the evidence necessary to establish Test B will be less than that necessary to establish Test A.

23. Mr Morshead has submitted -- and, as I understand it, Mr Richards does not dissent from this, although he does not positively put it forward -- that the reason for the lesser test in section 53(3)(c)(i) is a recognition by Parliament that, if it can be shown that it is reasonable to allege that a right of way subsists, then it ought to be put down in the public interest on the map, and then it will be for the relevant landowner or whoever to bring forward a case to show that that was wrong and that the map therefore shows a right of way which it should not show. The burden upon the individual to establish that is that set out in section 53(3)(c)(iii).

24. The circular which is published by the Department under the Act makes it clear that the evidence to establish that a public right of way should be removed from an authoritative record will need to be cogent, and indeed that is consistent with what is set out in section 56 as to the effect of a right of way shown on the definitive map.

25. The inspector then considers the tests under section 53(3)(c)(i). On Test A in paragraph 47 he says this:

"The evidence in support of the Manor Cottage route, however, looks at the situation only from the point of view of people walking southwards from the open countryside into Main Street. When considered the other way round, I believe the Glebe Cottage route would have been the more inviting choice. To that should also be added what I consider can reasonably be assumed to have been in the mind of the author of the 1951 Parish Survey Plan and Statement, namely that he knew where the Main Street end of the footpath was, and showed it on his plan accordingly; it therefore did not need also to be recorded verbally.

Taken together, these factors lead me to the conclusion that although there is indeed evidence in favour of the applicant, that evidence is not clear cut because there is likewise credible evidence to the contrary. The Order therefore fails Test A."

Whether or not the language used was wholly satisfactory, it seems to me to be absolutely clear from what the inspector has there said that he took the view that the weight of the evidence was such that he was not persuaded that the right of way over Manor Cottage existed. Indeed, he would not have referred to the Parish Survey Plan and Statement of 1951 and the point about Glebe Cottage being more inviting from Main Street unless he had formed the view that that was the more probable route. But he then went on to consider Test B. He made the point that there was evidence in support of Manor Cottage, in particular a substantial body of user evidence, and in those circumstances he was persuaded that Test B was satisfied because the footpath was reasonably alleged to subsist over Manor Cottage.

26. Mr Richards submits that, in the light of those findings, he was in effect obliged to find in favour of the County Council because the test under (i) had been fulfilled and therefore the only proper course to adopt would be to allow the application because it was shown that the map ought to have the footpath through the curtilage of Manor Cottage. However, the inspector went on, properly in my view, to consider (iii) and made the point there that cogent evidence was needed to remove a footpath and that there was not sufficient evidence to persuade him that it ought to be removed. Mr Richards submits that that is a perverse finding and that he could not properly have found in favour of the applicant on (i) and against the applicant on (iii).

27. As I have indicated, it is perhaps unusual for section 53 to come into play where there is no dispute that a right of way exists but there is a dispute as to precisely the route of that right of way. In those circumstances it is not possible to look at (i) and (iii) in isolation because there has to be a balance drawn between the existence of the definitive map and the route shown on it which would thus have to be removed, and the evidence to support the placing on the map of, in effect, a new right of way.

28. As I have already indicated, section 53(3)(c)(i) is usually in play when there is a question as to whether a right of way exists at all, ie when there is no question of any alternative route, merely a battle as to whether the right exists. Likewise, section 53(3)(c)(iii) is normally in issue when there is a battle as to whether the right of way shown on a map should be there at all and it is apparently unusual for the battle to be about alternative routes. If it is, however, it seems to me quite clear that the alternative Test B under section 53(3)(c)(i) is the less important. Indeed, it may well be that it is of no importance because what the inspector is having to do is to decide which is the correct route. If he is in doubt and if he is not persuaded that there is sufficient evidence to show that the correct route is other than that shown on the map, then what is shown on the map must stay because it is in the interests of everyone that the map is to be treated as definitive and if the map has been so treated for some time, then it is obvious that it is desirable that it should stay in place. Hence the circular indicating that cogent evidence is needed to remove a right of way shown on the map. It would be difficult to imagine that a finding that is less than that the alternative exists on the balance of probabilities would be sufficiently cogent evidence to change what is on the map. It would be strange indeed if merely to find that it was reasonable to allege that the alternative existed was in a given case sufficient to remove what is shown on the map. I am not saying it is impossible -- it is dangerous to rule out any possibility -- but I would be surprised, I am bound to say, if in any given case that amounted to sufficiently cogent evidence to remove the route shown on the map.

29. As I say, where you have a situation such as you have here, it seems to me that the issue really is that in reality section 53(3)(c)(iii) will be likely to be the starting point, and it is only if there is sufficient evidence to show that that was wrong -- which would normally no doubt be satisfied by a finding that on the balance of probabilities the alternative was right -- that a change should take place. The presumption is against change, rather than the other way around.

30. It seems to that the inspector's approach, albeit perhaps expressed in a way which was somewhat over-complicated, was correct and that there is no reason in the circumstances of this case why what was shown on the map should be changed.

31. I should deal with one other subsidiary matter. The inspector took the view that the applicants had adopted the wrong procedure, that they should not have used section 53(3)(c)(iii), but should have used section 53(4) because the question concerned the correct route of a right of way, as opposed to the existence of a right of way.

32. In my view, the inspector was wrong to take that view. Subsection (4) is limited to additions to the statement of particulars, so far as position and width or limitations of conditions are concerned. What is under consideration here is not any addition to the statement of particulars, but a modification to the map itself and an indication on that map of a different route for the right of way. Accordingly, as it seems to me, the claimants were correct to do as they did and to use section 53(3). They had to consider not only subsection (3)(c)(iii) but also subsection (3)(c)(i), and indeed that is what has occurred.

33. Thus, the inspector was in my view wrong to take the view that the order was procedurally flawed. However, that makes no difference because he clearly determined the matter on the basis of section 53(3) and his views were not in any way determinative or material to the decision which he reached. That, therefore, does not form and cannot form any basis for a successful challenge to the decision.

34. As it is, in my judgment, for the reasons that I have given, the inspector was correct to reach the conclusion that he did because the evidence to which he refers and the findings of fact that he reached were open to him and the result of them was as he indicated. Indeed, there has been no suggestion that there was any perversity or that there could be any challenge to the findings of fact that the inspector made.

35. Accordingly, this application must be dismissed.

36. I think perhaps I put it slightly differently from the argument that 53(3)(c)(iii) was the guiding light. As I was giving judgment, it seemed to me that that was the right approach, but I hope that is helpful.

37. MR RICHARDS: My Lord, that is fine but the piece of advice that says that, if you have something on the map and you have an alternative, then start with it, with (c)(iii), is pretty sound practical advice.

38. MR JUSTICE COLLINS: Exactly. Well, when I actually gave judgment, that seemed to be the right answer, but I will try and tidy up the judgment to make that clearer. This is the other trouble with ex tempore judgments; they tend to be rather longer than prepared ones.

39. MR MORSHEAD: My Lord, I am grateful. I do not know whether this is a point that your Lordship would want to look at, but I think I recorded your Lordship as recording a submission from my learned friend about what Parliament had intended. I did not recognise my learned friend as having made that submission.

40. MR JUSTICE COLLINS: Did I get that wrong?

41. MR RICHARDS: I thought you did.

42. MR JUSTICE COLLINS: In that case I am sorry that I have put it in the wrong mouth. I will make that clear.

43. MR MORSHEAD: My Lord, I am grateful for your Lordship's judgment. Would your Lordship say application dismissed? Indeed, I have also an application for costs to make. Schedules have been exchanged --

44. MR JUSTICE COLLINS: In principle, Mr Richards, I do not think you can resist an order for costs, can you?

45. MR RICHARDS: Not now we have come to the substantive hearing. Had we been at the permission hearing, I might have had something to say.

46. MR JUSTICE COLLINS: You might have done. However, I do not think you would have got very far even then.

47. MR RICHARDS: No. As a matter of principle that there should be an award, no, I do not. I do have one comment on the schedule.

48. MR JUSTICE COLLINS: I am afraid I have not seen it.

49. MR MORSHEAD: My Lord, I think the copy your Lordship has just been handed may have a typing error. If, on the second page, it produces a grand total of less than £4,005 --

50. MR JUSTICE COLLINS: No, £4,005.75 is the grand total.

51. MR MORSHEAD: My Lord, as your Lordship sees, the figures, as is usual in these cases, are not exorbitant.

52. MR JUSTICE COLLINS: I am out of date.

53. MR MORSHEAD: I am asked to make the obvious point, your Lordship, which is that in fact, as matters these days are charged on a hourly basis --

54. MR JUSTICE COLLINS: The Treasury solicitor's hourly rate is certainly less than the commercial rate, I think, in London.

55. MR MORSHEAD: My Lord, it is also the case that some more time has been spent here today than had been expected at the time the schedule was put together. My Lord, we do not seek to ask for a higher amount than that but, when your Lordship comes to consider submissions from my learned friend about reducing that amount, I would ask your Lordship to have that fact in mind.

56. MR JUSTICE COLLINS: Yes. Have you done a schedule in case you won?

57. MR RICHARDS: Yes, my Lord. Well, we did, but I never expected to present one if we had won on permission, but those instructing me did exchange one when the one from the Treasury winged its way in. Your Lordship will no doubt want to know what it said.

58. MR JUSTICE COLLINS: I do not know whether I should ask this but it always seems to me to be relevant: if one side is quarrelling about the other side's amount, particularly when they are public authorities, both of them, it is perhaps not irrelevant to consider what the counterclaim would have been.

59. MR RICHARDS: 6,395.

60. MR JUSTICE COLLINS: I appreciate, of course, that applicants are going to spend more time.

61. MR RICHARDS: Yes. My Lord, it would have been 6,395. The only two comments I have: in the Treasury Solicitor's, seven and a half hours on documents by the higher fee earner; and it was the higher of the two fee earners who attended today, rather than the lower. Those are the only two queries that I could possibly attack this schedule on.

62. MR JUSTICE COLLINS: It is really difficult, that one. If the higher fee earner does not attend, you often find that something crops up and it is very much -- it is a very difficult judgment sometimes, is it not?

63. MR RICHARDS: Yes, my Lord, save that this was going to be a permission hearing.

64. MR JUSTICE COLLINS: No. It has turned into this and I think that it was perfectly foreseeable that one way or another it would dispose of the whole thing because it is obviously not sensible to do otherwise when the whole argument can be dealt with and disposed of. Whether I granted permission or not, it would still have been definitive.

65. MR RICHARDS: Very well. I will just see if there is anything else. Thank you, my Lord.

66. MR JUSTICE COLLINS: I do not know, Mr Morshead, can you help on the seven and a half hours of work done on documents?

67. MR MORSHEAD: My Lord, may I make two points as to that? First of all, your Lordship will not have seen my learned friend's schedule, but it is said that 23.37 hours was spent by a leading executive at £124.40 per hour. The other point, if I may make it, my Lord, is that your Lordship is right to say that it was expected that there was a real possibility that we would find a way -- and that is reflected in our time estimate, which was half a day, as distinct from the other side, which was half an hour. My Lord, working from that premise, in my submission our costs schedule clearly cannot be characterised as including anything that it should not include.

68. MR JUSTICE COLLINS: Perhaps I have past experience of the Treasury Solicitor and I know that the costs are not normally on the highest of sides, and the same applies to the local authorities on the whole.

69. No. I think, Mr Richards, it is very difficult to do other than take a rather broad brush approach to these. I know a definitive assessment simply adds to costs one way or the other, but it seems to me that this is frankly a not unreasonable amount and I am prepared to make an order in that amount. So costs in the sum of 4,005.74.

70. Well, thank you both for your assistance.

71. MR RICHARDS: There are no further application, my Lord.

72. MR JUSTICE COLLINS: All right. Thank you.