Turner & Anor, R (on the application of) v Minister for Environment Sustainability & Housing, One of the Welsh Ministers & Anor

Permission having been granted on the 21^st October 2008 by Mr. Neil Garnham sitting as a deputy judge of the High Court, the Claimants apply to challenge by way of judicial review the decision of the Defendant dated 14^th April 2008 to refuse to confirm the Denbighshire County Council (Public Footpaths Nos. 1 and 17 in the Communities of Cyffilliog and Efenechtyd) Definitive Map Modification Order 2006 (“the order”). The order proposes to delete from the definitive map and statement two routes recorded as public footpaths. The Claimants own land over which the footpaths pass.

Part 3 of the Wildlife and Countryside Act 1981 provides for the ascertainment of public rights of way. Section 53 imposes on the relevant surveying authority a duty to keep a definitive map and statement under continuous review.

The Interested Party, the Council, is the relevant surveying authority for the Definitive Map. The Defendant is the Welsh Minister having responsibility for certain matters arising under these statutory provisions for Denbighshire.

On 25 November 2003 the Claimants applied to the Council pursuant to sub-section 53(5) and Schedule 14 of the 1981 Act for a modification order deleting FP 1 and FP 17 from the Definitive Map. Following an initial refusal by the Council to make the order and an appeal pursuant to paragraph 4 of Schedule 14, an inspector appointed by the National Assembly for Wales ("the First Inspector") recommended in a report dated 12 May 2006 that the appeal be allowed. His recommendation was accepted by the National Assembly for Wales and the Council was directed to make the Order.

The Order was made by the Council on 12 September 2006. Because of outstanding objections to the Order, the Council submitted it for confirmation to the Defendant, as required by paragraph 7 of Schedule 15 to the 1981 Act.

A public local inquiry ("the Inquiry") was held at the Rugby Club in Ruthin on 30 October 2007 and 11,12 and 13 March 2008 by an inspector ("the Inspector") appointed by the Defendant pursuant to paragraph 10 of Schedule 15 to the 1981 Act to decide whether or not to confirm the Order. The Inspector decided not to confirm the Order. Her decision was embodied in a decision letter dated 14 April 2008 ("the Decision Letter").

The application is to review that decision on 3 grounds namely (1) that she applied the wrong test in considering whether the evidence was or was not sufficient to require the deletion of FP1 and FP17 from the Definitive Map; (2) that she took account of irrelevant considerations and/or failed to take account of relevant considerations in her evaluation of the evidence; and (3) on the basis of a correct interpretation of the law and of the evidence before her, she reached a decision which no reasonable Inspector could have reached.

The relevant parts of section 53 of the 1981 Act state as follows:

“(2)

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.

(3)

The events referred to in subsection (2) are as follows-…

(c)

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

(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.”

At the inquiry the routes in issue were considered against the background of an analysis of the historical maps, of the evidence of the original parish investigation and reporting of the routes and their public nature, and of the limited evidence of local inhabitants. For the supporters of the order, the Claimants, most detailed evidence was given by Dr. Yolande Hodson, an expert map historian, whose lengthy report (at 84 and following pages in the first bundle) was supplemented by oral evidence at the trial in which she maintained her expert opinion that a mistake had been made in including the 2 footpaths, FP1 and 17 in the definitive map.

There is no dispute between the parties to this application that the Inspector correctly identified the main issues she had to decide and the law and approach she should follow. She sets out those matters from paragraph 5 onwards in the decision letter:

“ The Order is made under Section 53(2) of the Wildlife and Countryside Act 1981 (the 1981 Act) relying on the occurrence of events specified in Section 53(3)(c)(iii). The main issue is therefore whether the evidence discovered by the order-making authority, Denbighshire County Council, when considered with all other relevant available evidence, is sufficient to show that, on the balance of probability, there is no public right of way over Footpath No 1 or Footpath No 17 in the Communities of Cyffylliog and Efenechtyd as they appear in the definitive map and statement.

6.

When considering cases where deletion of a way from the definitive map and statement is proposed by an order, paragraph 7 of Welsh Office Circular 45/90 advises that "The evidence needed to remove a public right of way from such an authoritative record (the definitive map and statement) will need to be cogent."

7.

Circular 5/93 Annex B paragraph 13 further advises that "in the case of deletions, the conclusive evidential effect of definitive maps and statements means that the evidence must show that no right of way existed as at the relevant date of the definitive map on which the way was first shown. If the evidence does not support this, consideration should also be given to whether the way has acquired such rights in the intervening period."

8.

The rights of way at issue were recorded on the first definitive map and statement with a relevant date of 30 June 1954. The central question is therefore whether or not they were included in error at that time.

9.

If the evidence does show, on a balance of probability, that they were mistakenly recorded, it may be possible that public rights of way have come into existence along the same routes through deemed dedication since 1954 such that they are now correctly shown as public footpaths on the current definitive map and statement. If appropriate, I will consider this possibility.

10.

Both supporters and objectors drew to my attention the very relevant case of Trevelyan v SSETR (unreported) 23 February 2001 The Times Law Reports (the Trevelyan case). Of particular relevance is the following statement of Lord Phillips (at paragraph 38): "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 assumption 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 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 into the balance if it is to outweigh the initial presumption that the right of way exists."

11.

The Order routes are now recorded on the definitive map as footpaths and, according to the advice of Lord Phillips in the Trevelyan case, that fact requires me to put a significant amount of weight in favour of that status into the balance at the outset. Although the presumption that the definitive map is correct is a rebuttable one, clear and cogent evidence is needed to demonstrate a mistake was made, in this case in the 1950s.

12.

The objectors relied on advice in Circular 45/90 which states the onus is on those who contend a mistake was made on the definitive map to produce evidence of some substance to support their claim; it is not for the objectors to prove that the definitive map is right. In response, the supporters argued that evidence of some substance had indeed been brought forward to indicate a mistake was made when the paths were first recorded.

13.

In analysing the evidence in this case I am acutely aware of Lord Phillips' observation in the Trevelyan case (continuing paragraph 38) that ''''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." Further (at paragraph 33) he quotes Lord Denning MR in the 1975 case of R v SSE, ex parte Hood QB 891, 899-900: "The definitive map in 1952 was based on evidence then available, including, no doubt, the evidence of the oldest inhabitants then living. Such evidence might well have been lost or forgotten by 1975”. I consider this even more true in 2008. However I have approached the evidence in the case before me with an open mind, bearing in mind the statutory guidance and relevant case-law set out above.”

A major issue here is whether in fact, though identifying the correct standard of proof and approach to the issue, she actually applied that standard and took that approach. In considering that issue I remind myself of the cautionary words of Lord Justice Pill in The First Secretary of State – v- Hammersnatch Properties Ltd. [2005] EWCA Civ 1360 at paragraphs 32 to 33 in a planning context:

“The judge has in my judgment entered the arena of planning merits and has thereby exceeded his powers. In R v Secretary State for the Home Dept ex parte Hindley [1998] QB 751, [1998] 2 WLR 505, Lord Bingham CJ stated, at p 777A:

“The threshold of irrationality for purposes of judicial review is a high one. This is because responsibility for making the relevant decision rests with another party and not with the court. It is not enough that [the court] might, if the responsibility for making the relevant decision rested with [it], make a decision different from that of the appointed decision-maker. To justify intervention by the court, the decision under challenge must fall outside the bounds of any decision open to a reasonable decision-maker.”

The same test is appropriate upon an application under s 288 of the 1990 Act.

[33] Planning judgments are for planning authorities and not the courts. In my judgment, the decision of the Secretary of State cannot be impugned.”

Turning to the grounds the first issue is whether the Inspector not only stated the correct legal test but correctly applied it. Trevelyan's case indicates that there is a presumption that the right of way exists from its inclusion on the definitive map. The claimants submit that it is not entirely clear in the Inspector's reasons whether she ultimately took the view that the evidence presented on behalf of the supporters of the order was not substantial enough to be considered at all or whether the Inspector concluded that the supporters’ evidence had passed the initial hurdle and overcome the Trevelyan presumption but that that evidence did not establish on a balance of probabilities that a mistake had been made in including the rights of way in the definitive map.

In the event that she concluded that the evidence was insufficiently substantial to pass the first hurdle, Mr. Simpson, on behalf of the Claimants, submits that that finding was irrational and Wednesbury unreasonable and, if the latter, she applied too high a standard of proof, rather than simply determining the matter on a balance of probabilities.

The analysis of the phrasing of the decision letter in the Statement of Facts and Grounds (SFG) and in the skeleton argument of the Claimants seems to me to invite the court to subject the decision letter "to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute." (Per Mr Justice Forbes in Seddon Properties Ltd and James Crosby and Sons Ltd –v- Secretary of State for the Environment and another [1978] 2 EGLR 148).

It is correct that the Inspector noted that the original survey forms upon which the draft definitive map was prepared in the parish in which the foot paths were, lacked the type of details that would explain what evidence the parish council received or obtained to establish that public rights of way existed. Nevertheless she notes at paragraph 26

It was open to the Inspector to conclude that the absence of the details on the forms did not strengthen the presumption but that the presumption nevertheless remained.

At paragraph 13 of the skeleton argument Mr Simpson for the claimants selects extracts from the decision letter and argues that the Inspector consistently set the bar too high. However, considering the detailed and careful analysis of the evidence in the decision letter, I take the view that these selections do scant justice to the overall approach of the Inspector. While perhaps the Inspector could have used more felicitous phrasing, the passages selected indicate to me not that the inspector had forgotten the correct approach and standard but was from time to time weighing the evidence. Moreover, from the context of the phrase "no reasonable likelihood", of which Mr Simpson makes specific complaint, I am satisfied that Mr Williams, for the Defendant, is correct in submitting that this appears merely to be a response to the way that the argument was put at the inquiry.

At paragraph 86 the Inspector summarises her findings:

“Having examined each item of correspondence and each statement relating to this period, I reached the conclusion that, on balance, there is no evidence of sufficient substance to show that footpaths 1 and /or 17 could not have been in existence at the relevant date of the definitive map in 1954. I therefore do not accept the evidence shows that a mistake was made when the definitive map was first compiled recording footpaths 1 and 17 as public footpaths." (my stress)

In my judgment, the summary indicates, first, that the Inspector had appropriately applied the presumption, looked to see whether there was evidence of substance which clearly indicated that the foot paths could not have existed when parish inquiries were made, an appropriate evidential step towards considering whether a mistake could have been made, and then on a balance of probabilities, reaching a conclusion that it had not been established that a mistake had been made. When one links that with the correct exposition of the law at the outset of her reasons no fair assessment of her decision letter could conclude that she had not correctly applied the correct legal test.

I now turn to the contention that the Inspector failed to take account of relevant considerations and/or took account of irrelevant ones in her consideration of Dr Hodson's evidence.

I should first indicate that while there is no doubt that Dr Hodson was indeed an expert in the interpretation of historical maps , she actually goes beyond her expertise in drawing conclusions from other evidence that was before the Inspector. While, no doubt, the Inspector would have listened to Dr Hodson's views on conclusions to be drawn from the wider evidence, the inspector was in just as good a position as Dr Hodson to analyse the whole evidence, bearing in mind that she accepted virtually all Dr Hodson's analyses of the historical maps. It was for the Inspector to apportion weight to the various items of evidence that were put before her.

The judgment of Lord Brown in South Bucks District Council and another v Porter [2004] 4 All ER 775 at para 36 gives guidance, in a planning context, equally applicable to the context of a foot paths enquiry, on what reasons should be given by the decision maker:

“ The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision- maker erred in law , for example, by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issue is in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, they are unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.” (my stress)

The Claimants first contend that the Inspector failed adequately to explain her reasons for disagreeing with the conclusions of “this very highly regarded map historian and expert witness”. In fact, in relation to Dr. Hodson’s particular expertise, the Inspector makes it clear at para 44:

“The overwhelming majority of the historical documentation pre-dating the definitive map was provided by Dr. Hodson. I do not propose to identify each plan in the bundle since, with one or two minor differences, I agree with Dr. Hodson’s explanations of what they show.”

The Inspector does indeed differ explicitly on occasions from Dr Hodson’s interpretations and explains why she does, but Dr. Hodson’s conclusions go beyond her expertise, or, alternatively, no expertise not possessed by the Inspector was necessary to take an overview of all the evidence. It was, therefore, not necessary for the Inspector to explain why she differed from Dr. Hodson’s general conclusion. All the Inspector needed to do was to set out, in the detail necessary for the parties to understand them, the main reasons for her decision. Looking fairly overall at her decision letter I consider it has not been established by the Claimants that the Inspector has failed to achieve that, in relation to the general conclusion of Dr. Hodson, as opposed to her more specific conclusions.

It is, in my judgment, a poor point in the Statement of Facts and Grounds (SFG) that the Inspector failed to refer to Dr. Hodson’s oral evidence and cross examination. It is not suggested that Dr. Hodson materially added to her detailed written evidence in her oral evidence in chief and it is explicitly the Claimants’ case that she was not shaken from her stance in cross examination. That, however, is subject to one important exception, namely, evidence which developed a major theme in Dr. Hodson’s report, namely, whether FP 1 was more likely to have been a private way (or rather, 2 private ways), and which related to a point marked X on Dr Hodson’s map YH3a (page 34 in the first bundle). Mr. Turner’s statement makes that point and it is not disputed by the Defendant.

Looking in more detail at the specific failings alleged under this ground against the Inspector, the first sub heading is that of the first definitive records.

The parish of Llanfwrog, in which the two rights of way in question were situated, was one of several parishes asked to draw in pencil the public rights of way in its area on to maps which were then confirmed by the county council in ink to form the draft maps. The Inspector was satisfied that the county council followed all procedures required by the National Parks and Access to the Countryside Act 1949 by way of consultation and advertisement. The Inspector accepts that it seems unlikely that the residents of Llanfwrog and Bontuchel were regular readers of the London Gazette. The supporters of the order contend that the original survey data for footpaths 1 and 17 was incomplete. The Inspector notes that in determining the application made by Mr Turner the county council took the view that the incomplete nature of the forms is not evidence that the paths did not exist. As a general principle the Inspector properly agrees with that view.

However she indicates that the lack of detail leaves room for doubt about the veracity of the surveyors claims that footpaths 1 and a 17 were public paths. Nevertheless she extracts that the lengthy process set out by the 1949 act by which the definitive map was to be prepared was such that had paths been falsely or mistakenly claimed, the error should have been exposed in the later stages. Thus the Inspector concludes that the omission of many details from the original survey plans did not invalidate the claim that these paths were public rights of way, but the forms offer a great deal less support for that status than if such information had been included. The general contention of the Claimants is that that should have meant that the hurdle referred to in Trevelyan should have been lower. It seems to me on a fair reading of the Inspector's reasons that she took that view as well.

The claimants contend that the Inspector failed properly to appreciate the significance of the path referred to in the decision letter as "Mr Burden's path". This path, shown in yellow on map YH3 a, was not (and still is not) shown on the definitive map, but it was the subject of correspondence with the surveying authority during 1966 and 1967. At paragraph 39 of the decision letter the inspectors states that "some years later [than 1954] parish council correspondence and minutes from 1966 and 1967 show that it was well aware of what was and what was not recorded on the draft definitive map". In fact, what the correspondence actually shows, is that members of the council believed that Mr Burdon's path ought to have been shown on the map, and yet it was not so shown. Thus, this evidence tends to suggest ignorance in the locality of the procedure for preparing the draft definitive map. I am satisfied that on this issue, the Inspector came to an erroneous conclusion.

Moreover, Dr Hodson argued that there was a distinct possibility that footpaths 1 and 17 were selected as possible public routes simply from an examination of the then extant ordnance survey maps. Mr Burdon's path was not shown on the OS maps but it is not in dispute that 1 and 17 were shown on the OS maps. This is a perfectly valid point in favour of the supporters and I accept that the decision letter is deficient in failing to deal with it. Indeed, the Defendant has neither dealt with these points in the summary grounds for defending the Claim nor in the skeleton argument, nor in oral argument before me.

These two points would have further weakened the Trevelyan presumption and do, in my judgment, go to a central issue, namely, the likelihood of the initial survey being accurate. There is no doubt that the Inspector heard, and, in my judgment, properly accepted other evidence which suggested that there was no opposition to the designation of Footpaths 1 and 17 as private rights of way despite the fact that 2 landowners actually knew or must have known of the process which was being conducted. Those landowners were Councillor Jones and the Forestry Commission.

The Claimants criticise the Inspector in relation to her conclusions about those landowners but I consider that her conclusions at paragraphs 39 and 40 of the Decision Letter were reasonable and in conformity with R v National Assembly for Wales ex parte Robinson (2000) P & CR 348. However, the Inspector herself, at para. 40, indicates that that aspect of the evidence was not of very great weight and it seems to me very arguable that her conclusion at 40, an important step on the way to her ultimate conclusion, was reached without consideration of the OS map point and in error on the Burdon’s path point.

It hardly needs stating that the issue of whether the routes were public or private was a central, indeed, decisive one in the inquiry. I am satisfied that the Inspector did consider this issue and she refers to it at several points in the decision letter. A central argument of Dr Hodson was that on a consideration of the map and other evidence foot paths 1 and 17 were more probably than not private rather than public routes. The claimants argue that the Inspector's treatment of Dr Hodson's argument was incomplete and erroneous.

In relation to footpath 1 Dr Hodson’s summary of her evidence at paragraph 281 of her report is as follows:

“ in my opinion it is significant that only section A-E of FP 1 was selected for inclusion on the 1 inch map. This indicates to me that this section was a well used permanent path in 1874. If it had been a public path throughout, forming a useful "cut between roads", I would have expected the entire length from A to H to have been shown. This suggests to me that FP 1 was not regarded as a public path by the Ordnance Survey in 1874."

This was the issue which was elaborated on by Dr Hodson in her oral evidence. She indicated that in her opinion had there been a through route to the Aberddu Road prior to 1885, it would have continued directly across the fields from E to a point marked as X on the plan YH3a rather than joining what was in the opinion of Dr Hodson a clearly private path.

The Inspector accepts, at paragraph 48, the general principle enunciated by Dr Hodson that the inclusion of part of footpath 1, namely, A-E on the OS one-inch map of 1887 (plan YH10, dated 1887 but based on an 1874 survey) implies that only that section was considered a well-used permanent path (though it did not imply that it was a public one). That was because it was not shown to reach the Aberddu Road and therefore could not fall into the category of “useful cuts between roads”. The Inspector’s conclusion on this important matter is as follows:

“ Whilst I accept this general principle, two issues concern me about this specific route: firstly that the path shown on the 1 inch map does reach a road although not one known today as public, that is the access road from Woodlands Farm (then Bryn Crach) to the Aberddu Road. Secondly, between B and E the footpath crosses farmland where there has been no evidence to suggest this was provided with a surface of any permanent nature. Neither of these two points preclude Dr Hodson's conclusion but I am inclined to place less weight on the significance of this evidence as a result."

The first point simply does not grapple with the evidence. The road reached by the part of the path never has been public. Moreover on the map concerned the path does not continue from the private access road in question to point H. Mr Williams for the defendant suggested that there may have been a public right of way along the access road (although, as far as can be seen from the evidence which was available to the Inspector and from her reasons, that was not established and seems to me mere speculation) but even that does not explain why the path did not continue to H. It is conceivable that the Inspector heard some other evidence which underlay her first point but she does not indicate what that evidence was. As it stands the point is a non sequitur.

The claimants indicate that they do not understand the second point made by the Inspector in the quoted paragraph. The defendant has not been able to explain it. Neither do I understand it.

In relation to the period up to 1885 Dr Hodson makes a convincing case for the implication from the map and other evidence that neither footpath was a public path. I remind myself, however, that the weight to be applied to any evidence is for the Inspector and not for me. In 1885 a Mr Hugh Jones made a declaration in respect of the Woodlands Estate in which he declares that the land was to be sold "free from encumbrances". The Inspector says that it seemed appropriate to question the degree of familiarity that Mr Jones actually had with the property. In fact, when one looks at his declaration, he indicates that he was very familiar with the property and it is not in dispute that although he did not live at the property his own property was only 2 km away. Given those undisputed facts it seems to me quite inexplicable (in the sense that the decision letter gives no reason for it) that the Inspector should have thought it appropriate to question his familiarity with the property. Again it appears that the Inspector was choosing to rule out apparently convincing expert opinion by reference to erroneous facts.

As the Inspector accepts generally Dr Hodson's argument about the map evidence prior to 1885 in relation to both footpath 1 and footpath 17, these errors or inexplicable findings appear to me to lead to the deduction that, had they not been made, the inevitable conclusion in relation to the two footpaths is that prior to 1885, on a balance of probabilities, they were not regarded as public paths. That is not to descend into the arena or substitute my judgment on the evidence for the Inspector’s, but merely to recognise that there is plain evidence patent from the decision letter and unchallenged material that the Inspector led herself into an erroneous determination.

The period from 1885 to 1939 was an important period as a significant area of land crossed by the foot paths was occupied during that time by a Miss Bremner. She had been disfigured in an accident in her youth and was an intensely private person. The 1939 date is significant, for if the footpaths were not public during the course of Miss Bremner’s occupation, there was less than the necessary 20 years thereafter for a public right of way to be acquired by the date of the survey for the draft Definitive Plan.

It is not disputed by the Claimants that the Inspector was correct to find that there was evidence from which her conclusion could be drawn that there may have been some paths across the Woodlands Estate that were accepted as public paths (though the evidence for that appears to have been limited to part of the evidence of one witness, a Mr. Bill Evans, whose account is set out at para 61 of the decision letter). All the other evidence set out in the decision letter goes the other way but is given little weight by the Inspector, as she was entitled to do.

The real issue, however, and it is one that is not explicitly or clearly stated in this section of the Inspector’s decision, is whether FP 1 and 17 were those public paths. The Inspector was, in my judgment, entitled to reach her conclusion at para 77 :

“I therefore cannot agree that there is no reasonable likelihood that Footpaths 1 and/or 17 could have been in existence during the occupation of the Woodlands Hall Estate by Miss Bremner”.

I have already indicated that the phrase “no reasonable likelihood” seems to me to be very probably the Inspector dealing with the way in which the supporters arguments had been phrased at the inquiry. It is difficult to think that the Inspector had not regarded the detailed expert evidence given by Dr. Hodson on the Bremner period as “substantial” evidence tending to overcome the presumption that the definitive map was correct and it is argued that here the Inspector was not applying the correct standard of proof. As I have indicated, this was, in my judgment, but one step in the Inspector’s chain of reasoning leading to her conclusion in paragraph 86 and I reject that criticism of the Inspector. However it does, it seems to me, to follow from the paragraph 77 conclusion that the Inspector recognised that if, on balance, the evidence of the Bremner period showed that FP 1 and 17 were private rather than public paths, that was conclusive of the position as of 1954.

In my judgment, the Claimant’s more substantial criticism of the Inspector’s dealing with this period is that the Inspector completely fails to deal adequately with the positive expert interpretative evidence from the map historian Dr. Hodson that the 2 footpaths must have been private rather than public.

There is no doubt from the evidence, which appears to be accepted by the Inspector at paragraph 56 that Miss Bremner built a number of private paths across her estate along which she planted double hedges so that she could not be observed. The hedges can be seen in an aerial photograph. They are first recorded on an 1899 revision of the OS plan (YH11). There can be little doubt, therefore, that Dr Hodson had correctly interpreted parallel lines crossing Miss Bremner’s property on that map as representing those private paths protected by double hedges. On the basis that the Inspector indicates generally, as I have indicated, that she accepts the interpretation of the plans by Dr. Hodson, there is no evidence set out in the decision letter establishing that there was any basis for her rejecting Dr. Hodson’s evidence on the double hedges and paragraph 56 is entirely consistent with her having so accepted Dr. Hodson’s evidence.

That being established, there is, it seems to me, no evidence or reason given in the decision letter to explain why the conclusion which logically follows from the interpretation of that 1899 plan (and which is drawn by Dr. Hodson) should not have been drawn by the Inspector (at least on a balance of probabilities), namely, that a central section of footpath 17, from points O to P on the illustrative map YH3a, did not come into existence until Miss Bremner’s occupation and was, almost certainly, a private and not a public path. Moreover, that section of FP17 is precisely the section that is crossed by the other allegedly public path, FP1, again strongly suggesting that that path, for which there is no pre 1885 evidence of having been public, was, indeed, throughout Miss Bremner’s occupation, a private path.

The Defendant does not condescend in the summary grounds of defence or in Mr. Williams’ skeleton to deal with what seems to me, quite obviously, to be a critical point. Mr. Williams for the Defendant suggested orally that the parallel lines might have represented another permanent feature than a double hedge. If that were the case, then that submission does not explain why the feature did not appear on earlier maps; neither does it get over the difficulty that no explanation appears in the decision letter for the inspector having rejected the conclusions of Dr. Hodson on a vital issue.

In my judgment, it is insufficient to contend, as does the Defendant in the written and oral argument, that the Inspector heard other evidence, including other oral evidence which Dr. Hodson did not hear and that the Inspector was in a far better position that Dr. Hodson or this Court to judge the correct weight to attach to Dr. Hodson’s evidence as a whole and whether or not to agree with her conclusions. I entirely agree with that point in a general sense and in principle but Lord Brown’s exposition in Porter’s case of the necessary ingredients for reasons, requires an inspector, in my judgment, to disclose how a material issue of fact was resolved, albeit briefly. On this aspect, her reasons for not accepting the Hodson evidence on an otherwise decisive matter cannot be deduced from her very general conclusion at paragraph 86 nor do they appear in the section of the decision letter dealing with Miss Bremner’s occupation where, if there were grounds or evidence for rejecting Hodson, one would expect to find them.

In this section the Inspector sets out at paragraph 68 the positive evidence, in a statement, of one Nancy Jones, born in 1921, who played as a child on the Bremner estate. She remembered that she was warned that the estate was private and that she was not to use Miss Bremner’s paths or play in the woods. The paths were private not public rights of way. The Inspector strangely deals with her evidence by saying

“In my view, her recollections are not entirely inconsistent with public rights of way along footpaths 1 and 17 whilst all other paths within the woods were private and exclusively for Miss Bremner’s use.”

It could hardly be doubted that this was evidence of “substance” on the Trevelyan test to set against the presumption that the definitive map was correct and on this point it is difficult to avoid the conclusion that the Inspector was straining against the weight of evidence and applying a stricter test than balance of probabilities. Be that as it may, against the background of that type of positive evidence, it was, in my judgment, clearly necessary for the Inspector to identify, at least in short form, why she was differing from Dr. Hodson’s conclusions from her interpretation of the map evidence.

While accepting Mr. Williams’ argument that there is no duty on the Inspector to refer to each and every piece of evidence and that she was not writing an exam paper, I am driven to the conclusion that she came to important conclusions, in relation to the evidence that the original survey may have been mistaken and that in the period up to the end of Miss Bremner’s occupation the paths were private and not public, that were either erroneous, lacked any supporting evidence or which ignored without good reason powerful and critical evidence. In that sense, and in no other, the Inspector’s decision was, in my judgment, irrational or Wednesbury unreasonable.

Had the Inspector not made these errors or had she taken properly into account the Hodson arguments, I am clear that there could have been only one reasonable conclusion, namely that the definitive plan was in error in marking FP 1 and 17 as public rights of way. Were it not for one matter, I would have used my power under CPR 54.19 to order the confirmation of the 2006 Order. However, it is accepted by the Claimants that, having regard to her conclusion that the definitive map was not mistaken, the Inspector did not thereafter consider whether public rights of way came into existence after 1954 (see paragraph 87 of the decision letter). I am unclear as to whether any of the parties to the inquiry adduced evidence or were arguing that that could have been the case. It is to be hoped that that residual discrete issue can be dealt with without the expense of a further public inquiry.

For the reasons I have set out above I therefore make a quashing order in relation to the decision of the Inspector of the 14^th April 2008 not to confirm Order ref: R6830/W/2007/51495