Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
THE QUEEN ON THE APPLICATION OF MACINTOSH AND OTHERS
(CLAIMANT)
-v-
SECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRS
(DEFENDANT)
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MR STEPHEN SAUVIAN QC (instructed by DWF SOLICITORS) appeared on behalf of the CLAIMANT
MR JONATHAN KARAS QC (instructed by DEFRA) appeared on behalf of the DEFENDANT
J U D G M E N T
MR JUSTICE SULLIVAN:
Introduction
In this application for judicial review the claimants seek a quashing order in respect of a decision by an inspector appointed by the defendant refusing to confirm the Cheshire County Council (Definitive Map and Statement for the Borough Council of Congleton) (Downgrading of Bridleway No 31, Brereton to Footpath) Modification Order 2004 ("the Order") made by the interested party on 29 July 2004 under section 53(2)(iii) of the wildlife and Countryside Act 1981 ("the Act"). The inspector held an inquiry on 6 and 7 July 2005 and his decision letter is dated 30 September 2005.
The claimants live at Davenport Hall in Congleton in Cheshire. Travelling from east to west, Bridleway 31 Brereton runs from Bridleway 27 Brereton which runs in a north-south direction to the east of Davenport Hall, partly alongside and partly through Northwood on the claimant's land and then continues in a westerly direction until it joins Bridleway 5 Holmes Chapel to the west of Woodhouse Farm. The claimants sought a modification order under section 53 of the Act in respect of that part of Bridleway 31 on their own land, but the order made by the interested party proposed a downgrading of the whole length of Bridleway 31 to footpath status.
In his conclusions, the inspector said that he did not consider that the evidence in relation to the section of Brereton Bridleway No 31 between points A and C (on the claimants' land) could be distinguished from the route as a whole. That conclusion has not been challenged in these proceedings.
The interested party is the "surveying authority" for the purposes of the Act. Section 53(2) imposes a duty on the surveying authority to keep the definitive map and statement under continuous review, and to make modifications in response to the occurrence of any of the "events" listed in subsection (3). The list of "events" includes:
the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows -
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..."
The parties are agreed that the proper approach to the question whether a path should be downgraded is to be found in the Court of Appeal's decision in Trevelyan v Secretary of State for the Environment and Regions [2001] 1 WLR 1264. Although Trevelyan was concerned with an order proposing the deletion of a bridleway shown on the definitive map, it is common ground that the same approach should be applied to an order which proposes the downgrading of a bridleway to a footpath. The relevant paragraphs in the judgment of Lord Phillips MR, with whom Simon Brown and Longmore LJJ agreed, are as follows:
Where the Secretary of State or an inspector appointed by him has to consider whether a right of way that is marked on a definitive map in fact exists, he must start with an initial presumption that it does. If there were no evidence which 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 thus that such evidence existed. At the end of the day, when all the evidence has been considered, the standard of proof required to justify a finding that no right of way exists is no more than the balance of probabilities. But evidence of some substance must be put in the balance, if it is to outweigh the initial presumption that the right of way exists. Proof of a negative is seldom easy, and the more time that elapses, the more difficult will be the task of adducing the positive evidence that is necessary to establish that a right of way that has been marked on a definitive map has been marked there by mistake.
These considerations are reflected in guidance published by the Secretary of State for the Environment (Circular 18/90) and the Secretary of State for Wales (Circular 45/90) after the decision of the Court of Appeal in R v the Secretary of State for the Environment, Ex p Burrows [1991] 2 QB 354: 'in making an application for an order to delete or downgrade a right of way, it will be for those who contend that there is no right of way or that a right of way is of a lower status than that shown, to prove that the map is in error by the discovery of evidence, which when considered with all other relevant evidence clearly shows that a mistake was made when the right of way was first recorded ... Authorities will be aware of the need, as emphasised by the Court of Appeal, to maintain an authoritative map and statement of the highest attainable accuracy. The evidence needed to remove a public right from such an authoritative record, will need to be cogent. The procedures for identifying and recording public rights of way have, in successive legislation, been comprehensive and through. Whilst they do not preclude errors, particularly where recent research has covered previously unknown evidence, or where the review procedures have never been implemented, they will tend to suggest that it is unlikely that a large number of errors would have been perpetuated for up to 40 years, without being questioned earlier."
The grounds of challenge
The grounds of challenge in the claim form seeking permission to apply for judicial review contended that (1) the inspector had misapplied the test in section 53(3)(ii) as interpreted in Trevelyan; (2) failure to take account of all relevant considerations; and (3) on the evidence before him the inspector's decision not to confirm the order was unreasonable and perverse.
When granting permission to apply for judicial review, Richards LJ (exercising the powers of a High Court Judge) observed:
"Although the case boils down to whether the decision was Wednesbury unreasonable, on which the claimants have an uphill struggle, there is just enough in the detailed evidence to warrant the kind of scrutiny that can only be given at a substantive hearing."
In his skeleton argument on behalf of the claimants Mr Sauvain QC submitted that there were three issues: whether the inspector had failed to take into consideration all relevant matters in coming to his decision; whether he had failed to apply the correct legal test; whether his decision was unreasonable and perverse. I accept the submission by Mr Karas QC on behalf of the defendant that the observations of Richards LJ that this case "boils down to whether the decision was "Wednesbury unreasonable" was plainly correct.
The correct legal test
Having dealt with a number of preliminary issues the inspector identified the "main issues" in paragraphs 8-11 of the decision letter. In those paragraphs he set out, in a manner which has not been criticised by Mr Sauvain, the test contained in section 53(3)(c)(ii), the relevant advice in Department of the Environment Circulars 18/90 and 2/93, and the most relevant part of paragraph 38 of Lord Phillips' judgment in Trevelyan (see above). Having considered the evidence in great detail in paragraphs 12-65 of the decision letter, the inspector drew the threads together in a "summary" section of the decision letter between paragraphs 66-72. Paragraph 72 is in these terms:
"There are a number of ambiguities in relation to the available evidence, which has led to different views being expressed by the parties. However, I must have regard to the provisions of the 1981 Act and the guidance provided in Circulars 19/80 and 2/93 and the judgment in the Trevelyan case. On balance, I do not belief that there is cogent evidence to demonstrate the Brereton Bridle Way should be downgraded to footpath status."
Thus the inspector began and ended his consideration of the evidence with the correct legal test.
Mr Sauvain is entitled to submit, and did indeed submit, that applying that test the inspector's decision was perverse in the light of the evidence before him, but there can be no doubt whatsoever that the inspector asked himself the right question under the Act.
Failure to take account of relevant considerations
To say that the inspector considered the evidence in great detail does not do full justice to a most meticulous and comprehensive review of the evidence in paragraphs 12-65 of the decision letter. Although Mr Sauvain submitted in paragraph 31 of his skeleton argument that the inspector had failed to take account of "a number of relevant considerations both individually and in combination", I accept Mr Karas' submission that if one reads through the decision letter the inspector clearly did have regard to all of the matters identified by Mr Sauvain in that paragraph. It would unduly extend this judgment to set out all the very many passages in the decision letter. The relevant references are set out in Mr Karas' skeleton argument which for this purpose I gratefully adopt.
In reality, Mr Sauvain's criticisms are not that the inspector failed to consider any particular part of the evidence but that, having mentioned the evidence in paragraphs 12-65, he failed to attach appropriate weight to certain aspects of that evidence or failed to draw appropriate inferences from, or to reach appropriate conclusions in respect of, that evidence when drawing the threads together in the summary section of the decision letter in paragraph 66-72.
The "failure to take account of relevant considerations" submission is the "Wednesbury perversity" submission by another name: in view of the evidence about X (which the inspector did mention), the only reasonable inference (which the inspector failed to draw) was Y.
One of Mr Sauvain's principal criticisms of the decision letter was the submission that the inspector had compartmentalised his consideration of the evidence and had not at any stage stood back and looked at the evidence as a whole, and in particular considered whether any ambiguities in individual pieces of the evidence could be resolved in the light of other pieces of evidence that might, if they were considered in isolation, themselves be ambiguous or inconclusive.
I do not accept that criticism of the decision letter. In paragraph 12 the inspector explained that he proposed to consider the documentary evidence in the same way as the claimant's principal witness, Mr Gray, who had reviewed all of the relevant evidence relating to the highway status of the Bridleway in a detailed proof of evidence that he had submitted at the inquiry on behalf of the claimants. For the purposes of intelligible analysis, it was clearly necessary for the inspector to consider that evidence point by point. Having dealt with the evidence in that way in three phases - the documentary evidence prior to 1949, the period 1949 to 1971, and the period following the publication of the definitive map in 1971 - the inspector drew the threads together in a "summary" section and reached the conclusion in paragraph 72 that I have set out above. Whether that conclusion was perverse or not (as to which see below), there is no reason to suppose that, in concluding on balance that there was not cogent evidence to demonstrate that Bridleway 31 should be downgraded to footpath status, the inspector was not standing back and considering all the "available evidence" as a whole.
Apart from his "compartmentalisation" submission, Mr Sauvain relied upon two particular failures when asked to identify what considerations the inspector had failed to take into account.
On 10th December 1955 a Miss Gladys Matthews had completed a public way evidence form from a John Baston who claimed to have known the way for "well over 60 years" (he was then aged 67). In response to the question "Description of footpath: bridleway or carriageway", he had answered "footpath". Mr Sauvain submitted that the inspector had failed to take account of the fact that this was one of only two contemporaneous statements and this was evidence of reputation: viz, that at the "relevant date" for the purposes of the definitive map (1 November 1953) the way was a footpath, not bridleway. The existence of Mr Baston's statement had emerged when Miss Matthews was interviewed by a county council officer on 20 November 1984. Miss Matthews made a number of statements. On 20th November 1984 she told her interviewer "It was a bridle path with no stiles but with farm gates. It was nearer to Stockley Park Farm than at present". In a later statement she said that the path was "Part bridleway, part footpath", and in a subsequent letter and statement she said that it was a footpath and certainly not a bridleway.
It is clear that the inspector had regard to Mr Baston's statement. In paragraphs 30 and 40 of the decision letter he records the fact that the statement was obtained by Miss Matthews in 1984. Paragraph 40 of the decision letter continues thus:
"In his statement, John Baston states that he used on a regular basis for sixty years a route between Saltersford and Davenport. He described the route as a footpath and mentions that there were three stiles, two latch gates and several farm gates and he knew that many people used it. He also refers to the diversion of the route in the vicinity of a wood and in connection with the crossing of a stream. There is no map attached to the statement or description of the route he used to walk between Saltersford and Davenport. It cannot be confirmed whether John Baston's statement was submitted to the Authority in 1955."
The inspector returns to Mr Baston's statement in paragraph 49 of his decision letter:
"I accept that there is little available evidence from this period to support the inclusion of E/103 in the draft map. Objection to its non inclusion appears to have been lodged by the Committee; however, the relevant papers are not available. I do not agree that Gladys Matthews instigated the claim from route E2/103, although she may have supplied information in support of the claimed right of way. Following the hearing, thirty-three witness statements were submitted and none of these are available nor is there any record of which paths they involved. A further thirteen statements were submitted and three of these did relate to E2/103, although none of these witness statements are available. As the addition of this right of way would have likely to have been reliant upon there being some evidence of public use it is difficult to come to a conclusion without copies of the relevant evidence. A contemporary statement has been submitted from John Baston; however, it cannot be shown that his evidence form was available or considered during the process to determine objections to the draft definitive map. John Baston's use is entirely on foot, but such use would not be inconsistent with the path being a public bridleway."
It is clear from this paragraph not merely that the inspector considered Mr Baston's statement, but that he recognised that it was a contemporaneous statement and that it should be considered in the context of such other contemporaneous material as might be available.
The complaint is, in reality, that the inspector did not attach sufficient weight to Mr Baston's statement that the way was a footpath. However, the weight to be given to any particular piece of evidence was for the inspector to decide and he was entitled to observe that an individual's use of a path on foot would not be inconsistent with the path being a bridleway. Mr Baston's evidence was submitted in written form for obvious reasons. He did not attend the inquiry and was not available to be questioned.
Secondly, Mr Sauvain submitted that the inspector had failed to take account of the fact that in 1971, when the definitive map was published, Brereton Parish Council had written to the county council saying that certain paths were not now used or were non-existent. In respect of Bridleway 31 the parish council said "Not bridleway, footpath only" (a similar entry appears in manuscript in the parish council's minutes at that time.)On 23 November 1971 the county council replied to the clerk to the parish council suggesting a meeting, but there is no evidence as to whether the meeting ever took place or, if it did, what the county council's response, if any, to the parish council's representation was.
The inspector dealt with this aspect of the evidence in paragraph 53 of the decision letter:
"Shortly after the definitive map was issued, two of the owners of the land crossed by Brereton Bridleway No. 31 disputed the existence of this way. Brereton Parish Council recommended a number of rights of way for closure including Bridleway No. 31. Subsequently, there was a significant number of correspondence to the Authority from people finding Brereton Bridleway No. 31 difficult to use or obstructed by various items."
While it is true that the parish council were not recommending to the county council that bridleway No. 31 should be closed, but instead were contending that it should be shown as a footpath rather than a Bridleway, the inspector in this part of the decision letter is summarising the documentary evidence following the publication of the definitive map. He clearly recognised that Brereton Parish Council (and others) were challenging the existence of a bridleway along the route of Bridle way 31. Whether the parish council was seeking closure on the basis that there was no bridleway, or the downgrading of the bridleway to footpath status on the basis that there was no bridleway; the underlying point: that following publication of the definitive map the existence of a bridleway was being disputed, remained the same. The fact that the parish council's recommendation was mentioned by the inspector is an illustration of the level of detail in the decision letter. The inspector specifically mentioned each and every document to which he was referred and which was relied upon by the claimants. Given the amount of documentary material, he can be forgiven an incomplete summary of the parish council's representation to the county council in 1971.
Moreover, when considering the significance of this relatively minor criticism of the accuracy of the decision letter, it is important to bear in mind the inspector's approach in paragraph 64 to the significance of the post-1971 documentation:
"In my view, the evidence submitted for the period after 1971 is generally of less relevance than that gathered before or during the definitive map process."
For these reasons I am satisfied that there is no force in the submission that the inspector failed to take into consideration material factors. This was a decision letter in which no stone was left unturned, and the only question is whether, having considered all of the evidence that emerged from beneath the stones, the inspector's conclusion in paragraph 72 can fairly be described as Wednesbury unreasonable or perverse.
Wednesbury unreasonableness
As Richards LJ observed when granting permission to apply for judicial review, in advancing the submission that the inspector's conclusion was Wednesbury unreasonable, "the claimants have an uphill struggle". The question is not whether another inspector would or might have concluded that there was cogent evidence to demonstrate that Bridleway 31 should be downgraded to footpath status, but whether any reasonable inspector would have so concluded.
Before looking in a little more detail at the evidence, there are two pieces of background information which suggests that this was not a case where there was room for only one reasonable view in the light of all the evidence. First, the interested party, as the order-making authority, adopted a neutral stance at the inquiry because the decision of the authority's Rights of Way Committee to make the order was contrary to the officer's recommendation (see paragraph 1 of the decision letter).
The interested party called no evidence at the inquiry and played no part in these judicial review proceedings. The officers had concluded in their report to the committee that it was "difficult to argue that there is cogent evidence to show that an error was made in recording Bridleway 31, Brereton, as a bridleway rather than as a footpath." Having considered criticisms of their original report made in an opinion of Mr Sauvain the officers nevertheless adhered to that view.
Second, the application by the claimants was not the first application for a modification order to have been made under the Act. The decision letter in paragraph 54 records the fact that there had been two earlier applications by other landowners in 1985 and 1990, but that neither of these applications had led to the making of an order by the interested party. The papers before the court do not disclose the full extent of the information submitted to the interested party in 1985 and 1990, nor do they disclose the interested party's reasons for not acceding to the applications, but it is a reasonable inference that the situation was not regarded as clear-cut on whatever information was then available.
At the inquiry in July 2005, detailed evidence was placed before the inspector as to the process by which Bridleway 31 came to be concluded in the definitive map. It is unnecessary to rehearse that evidence, because that would simply be to repeat the very detailed and (subject to the one minor error in paragraph 53 of the decision letter mentioned above) accurate account in the decision letter.
In a nutshell, Bridleway 31 was not included by the county council in the original draft definitive map. The Cheshire Rights of Way Joint Committee (a body which represented various rights of way groups) objected and sought the addition of a bridleway (referred to as E2/103) that eventually became Bridleway 5 Holmes Chapel, and Bridleway 31, Brereton. The county council consulted the two parish councils, referring to the "alleged footpaths" omitted from the draft map. The parish council's responses referred either to a "footpath" or to a "right of way on foot".
On 29 November 1960 Mr Todd, a county council officer, held an inquiry into a large number of objections to the original draft map. No statements were submitted at the inquiry in respect of what became Bridleway 31, but subsequent to the inquiry three statements relating to the bridleway were submitted to the county council. Unfortunately the contents of those statements are unknown and indeed it is not even known whether they were considered by the county council. As a result of the hearing, Bridleway 31 (and Bridleway 5) were added to the map which then proceeded without objection through the statutory procedures before finally emerging as the definitive map in 1971.
The "new evidence" comprised principally the statements of Mr Baston and Miss Matthews, the landowners' statements in 1992, records of parish minutes of Holmes Chapel Parish Council in 1921 (which referred to a "footpath" along the first section of Bridleway 31 to Woodhouse Farm), an analysis of historical maps which did not show any physical indication of a track along the route of Bridleway 31 and the evidence of Dr Marsden, a highly qualified equestrian consultant that, not merely was the route in its present condition unsuitable and unsafe for horses, whether ridden or led, but that, largely because of a steep bank in Northwood there was no physical evidence that anyone had ever, or could ever, have ridden along the path.
Mr Sauvain submitted that there was no question of "balancing" the evidence for and against footpath status. All of the evidence pointed one way: to footpath status, or was, at worst, ambiguous. There was simply no evidence of use of the path as a bridleway.
When considering the force of the last point, it is important to remember that it was not for the interested party to show that the way was a bridleway; it was for the claimants to persuade the inspector, on the balance of probability, that it was not (see Trevelyan above).
In paragraphs 20-28 of his skeleton argument, Mr Sauvain criticised the inspector's consideration of various aspects of the evidence. I do not propose to rehearse the detail because in each case (as mentioned above) the evidence is considered in the decision letter, and the true complaint is that the inspector "failed to consider the implication" of a particular finding or "failed to indicate what weight" he gave, for example, to a statement by one of the parish councils that there was a right of way on foot over the path, or to the descriptions of the route by the clerk to the Brereton Parish Council and Mr Baston in 1955, who both referred to the existence of stiles along the routes etc. Mr Sauvain also complained that the inspector "dismissed" the evidence of Mr Baston and Miss Matthews and did not accept Dr Marsden's evidence.
In my judgment, the inspector dealt with each of these matters and in each case he reached a conclusion that was reasonably open to him. That is not to say that another inspector might not have reached a different conclusion. But it cannot be said that this inspector's response to the various pieces of evidence, viewed individually or as a whole, was outside the range of responses reasonably open to him. Thus, in respect of the Holmes Chapel Parish Council minutes, he accurately summarised the effect in paragraph 26:
"A number of extracts from the minutes of Holmes Chapel Parish Council has been quoted. On looking at the 1909 and 1938 Ordnance Survey plans there does not appear to have been any change in the parish boundary in the vicinity of Woodhouse Farm and I have expressed doubts about the significance of the records of an adjoining Parish Council. Mr Gray confirmed that Holmes Chapel Parish Council would not have had responsibility for highway matters in the area. However, of greater significance is the ambiguity that can be attached to these records and on balance I am unable to conclude that the references to a footpath, public footpath or right of way in the minutes apply to the line of Brereton Bridleway No. 31 that is included on the definitive map, beyond Woodhouse Farm."
In paragraph 66 the inspector said this:
"There is some evidence to indicate the physical existence of a route running in a south easterly direction from Woodhouse Farm and past Stockery Park Farm to link with the A54 Road. The Holmes Chapel Parish Council minutes do contain references to a footpath, public footpath and right way and some indicate that a route ran to 'Stockery'. There are also references to a right of way in the vicinity of Woodhouse Farm. In my view, the minutes indicate that the Parish Council may have believed a right of way on foot existed along Holmes Chapel Bridleway No. 5 and the initial section of Brereton Bridleway No. 31, as far as Woodhouse Farm. After Woodhouse Farm, it is less clear where the route would have continued; however, I have seen no evidence to demonstrate that it followed the same or similar line to the current line of Brereton Bridleway No. 31."
In respect of the parish council's references to footpath, or right of way on foot, in the correspondence, the inspector said in paragraph 34:
"Brereton Parish Council's response to the consultation was to say that they needed to walk the paths before replying. Later, the authority wrote to Brereton Parish Council to ask whether the Parish Council 'consider that the public have a right of way on foot over the paths'. I note that this correspondence dealt with other claimed routes and not just E2/103. It is Mr Gray's view that as the original consultation related to a bridleway, this question could only relate to whether a right of way existed solely on foot. The Parish Council replied that the 'public had a right of way on foot over the paths marked E/101, E/102 and E2/103', and it also confirmed that due to a lack of use nearly all trace of the original paths had disappeared."
In the summary section of the decision letter the inspector returned to this topic in these terms in paragraph 70:
"The responses by the two Parish Councils in 1955 to the Authority's consultation letter do refer to Brereton Bridleway No. 31 as a footpath. This may have been due to the Parish Councils believing it to be a footpath or it could have been based upon the terminology used by the Authority, which referred to all of the proposed routes as footpaths. The Authority did later ask Brereton Parish Council to confirm that a right of way existed over the claimed paths. There is no evidence to suggest that either Parish Council were invited to attend the hearing. In addition, there is no evidence that any of the relevant landowners supplied any information in relation to the claimed route."
It is clear from the contemporaneous documents that it was open to the inspector to conclude that the surveying authority did refer on occasion to all of the proposed routes as "footpaths", irrespective of whether footpaths or bridleways were being claimed.
In respect of the evidence relating to stiles, the inspector referred in paragraph 28 of his decision letter to the original representations from the joint committee which had said that the route was "defined by stiles". He continued in paragraph 36 and 37:
These features are significant in the context of E2/103 as the report from the hearing described the route as being defined by stiles. A number of features are mentioned on the two plans and some of these are obscured to some degree by ink smudges. In relation to Brereton Bridleway No. 31, the features on the two plans are virtually the same. If Mr Gray's interpretation of the abbreviated terms is correct, the main difference is the depiction of a field gate (FG) at Woodhouse Farm that is only marked on the field plan. I note that Brereton Parish Council's 1955 survey mentions the existence of a field gate near Woodhouse Farm. On both plans, there is a stile (S) marked adjacent to a bridle or hunting gate (BG) at point H and two bridle or hunting gates located near to points B and C. In addition, there was a reference to the remains of a stile between points A and B. In contrast, the Parish Council referred to the existence of a stile in ruins and wired against cattle and two field gates. The stile appears to have been located on the western section of Brereton Bridleway No. 31 and could have been in the vicinity of point H. At two points on the field plan, there are possible references to barbed wire (BW) on or near to the line of Brereton Bridleway No. 31.
Although it cannot be clarified whether the field or neater plans were represented at the hearing, they provide information in relation to the structures in place during this period. The line now recorded as Brereton Bridleway No. 31 was defined on these plans by reference to certain structures; however, some of these were bridle or hunting gates. Mr Gray says that a hunting gate would not necessarily have been provided for public equestrian use; however, in the absence of any specific evidence on these particular structures, I cannot conclude that these would not have been useable by equestrians. The references to stiles involve one at point H that is adjacent to a bridle or hunting gate and the other is described as the remains of a stile. Therefore, it is likely that in both instances equestrian access would have been possible. In relation to a field gate near Woodhouse Farm, this would not necessarily have prevented access and Mr Gray refers to the statement of the landowner, Mr Ford, who says that there was a field gate in this location but it was kept open. The alleged barbed wire is not shown on the neater plan and there is no explanation why this was the case. If there had been barbed wire across a section of Brereton Bridleway No. 31, it would have obstructed access for all types of user. Although I view these plans as a useful source of information, I share Mr Gray's reservation about the absence of a date for the undertaking of the survey."
The inspector concluded in respect of this issue in paragraphs 50 and 68:
There is evidence that route E2/103 was surveyed by the Authority and plans have been submitted from this period to indicate certain features along the route. Despite the reference in the description of the route as being defined by stiles, there is an indication that there were structures in place that could permit equestrian access. I note that Brereton Parish Council refers to the steepness of the slope but there is no reference to this preventing equestrian use at that time.
The route was described as being defined by stiles, which could preclude use by equestrians. In this instance, there is a conflict between this description and the evidence from the field and neater plans, which indicate the presence of gates. Although there is no date for these plans, it is not disputed that the survey was carried out by an officer from the Authority. There is no evidence to suggest that the Authority considered the line of the proposed route to be difficult or not possible to use. In 1955, Brereton Parish Council undertook a survey of the claimed route and they differ in their description of the type of gates that were described and they do mention the steepness of the slope in the vicinity of North Wood. However, there is no indication that the route could not be used either due to the structures that were in place or the steepness of the slope. Nor did the Parish Council refer to public use of an alternative route. Brereton Parish Council did state that the route was little used and that parts had been washed away by the river. It would be for the Authority to determine whether the whole of Brereton Bridle Way No. 31 is available to use or if any of the land it crosses has been eroded by the River Dane."
Thus the inspector clearly recognised that stiles could preclude use by equestrians, and addressed himself to the question whether in this particular case they did so. His conclusions may be unwelcome to the claimants but they cannot be said to be perverse.
I have dealt with the inspector's approach to Mr Baston's evidence above. In respect of the landowners' statements, the inspector said in paragraph 61:
"In 1992, the three affected landowners each submitted a rights of way evidence statement and these all stated that they consider it to be a footpath. An additional form was submitted by Mr Massey in support of his use of Brereton Bridleway No. 31, between Pinfold Rough and North Wood, on foot for a period of 45 years."
Having said that in his view the evidence submitted for the period after 1971 was generally of less relevance than that gathered before or during the definitive map process, the inspector continued in paragraph 64:
"There has been some evidence of use, some of which is not relevant to Brereton Bridleway No. 31 or does not relate to the period prior to the publication of the definitive map. There is written evidence from Mr Massey of his use of a route between Pinfold Rough and North Wood on foot since 1947. Although there are statements to indicate that this route was never a bridleway, these were likely to have been based upon a relatively recent observation of Brereton Bridleway No. 31."
I accept that the inspector could have attached more weight to Mr Massey's statement and could have concluded that, given his knowledge of the route for a long period of years, it was cogent evidence as to its use as a footpath in the 1950s. But, as I have said, Mr Massey was not called as a witness. The inspector had to form a view as to what he should make of the statement, and he was entitled to respond in the manner set out in the final sentence of paragraph 64. That response cannot be described as perverse.
Given the inconsistencies in the various statements of Miss Matthews, the inspector was entitled to say in the final sentence of paragraph 71 of the decision letter:
"A number of statements have been made by Gladys Matthews and I do not dispute her longstanding knowledge of the area. However, inconsistencies have been identified in her statements and therefore, this affects the weight I can attach to her evidence."
Finally, in respect of Dr Marsden's evidence, the inspector said in paragraph 42 of the decision letter:
"Although it is not possible to ascertain the exact type of gates that were in place or whether any of the gates were locked at the time, there is no evidence of any problems being identified by the surveyor in relation to access for equestrians. Dr Marsden stated that she doubts whether the section through North Wood could ever have been used by horse riders due to the steepness of the slope, the hazards of the large trees and the boggy ground. The survey by Brereton Parish Council in 1955 also mentions the steepness of the slope in this area. However, if it had not been possible for equestrians to use any section of this route, the likelihood is that this would have been raised by the Authority's surveyor at that time."
The inspector was not bound to accept Dr Marsden's evidence. It was not unreasonable for him to express the view that if the route had been impassable for horses in the 1950s then the issue would have been raised by the unknown officer from the surveying authority who conducted the survey and made notes on the map showing the route in or about 1955.
It is important to return to paragraph 72 of the decision letter. The inspector was not saying that there was no evidence to support footpath status. Of course there was some evidence, but there undoubtedly were a number of "ambiguities in relation to the available evidence", and the inspector was entitled to conclude that the evidence that was available was not cogent evidence to demonstrate that Bridleway 31 should be downgraded.
For these reasons the perversity challenge must also be rejected and it follows that the application for judicial review must be refused.
MR KARAS: In those circumstance, I would first ask for a formal order to that effect. Secondly, I would ask for the claimants to pay the Secretary of State's costs. We have not produced a summary statement of costs because the case was listed for a day-and-a-half. So I would ask for detailed assessments, if not agreed.
MR JUSTICE SULLIVAN: Yes. In fact there has not been any discussion about sums, has there?
MR KARAS: We have not produced a --
MR JUSTICE SULLIVAN: You have not even produced one.
MR KARAS: We have not produced one, though my learned friend has.
MR JUSTICE SULLIVAN: Yes.
MR SAUVAIN: We were unable, my Lord, to discuss it. I cannot resist that application. I do, however, my Lord, ask for permission to appeal. Whilst this is clearly a case which, on its face, might look as though it simply is circumstances involving the individual case, it does, in my respectful submission, raise a very important issue as to the level of evidence that is required in order to satisfy the cogency test which was approved by Trevelyan and which has been (inaudible). My Lord, it really goes to the point as to where, in a case where there is undoubtedly some clear evidence, as I think your Lordship has accepted, of reputation as a footpath, whether that evidence where the inspector has not expressly looked at that evidence to see whether it could resolve the ambiguity that your Lordship has also referred to, whether that failure does not of itself render the inspector's decision perverse and unreasonable.
MR JUSTICE SULLIVAN: Thank you. I do not need to trouble you, Mr Karas.
The application for judicial review is refused, the claimants are to pay the Secretary of State's costs, such costs to go for detailed assessment unless otherwise agreed. Permission to appeal to the Court of Appeal is refused. I am satisfied that there is no real prospect of success. This case turns entirely on its own facts. It does not raise any wider issue of principle which would justify the grant of permission. The very short point is that the claimants cannot surmount the very high perversity hurdle that is set by Wednesbury.
For those reasons I refuse permission.