Devine and Laverty v Welsh Ministers

Section 53 of the Wildlife and Countryside Act 1981 requires a surveying authority to keep the definition map and statement under continuous review. In a decision dated 26 August 2010, following an inquiry, Mr Millman, an inspector appointed by the Welsh Ministers, confirmed the Rhondda Cynon Taff County Borough Council Definitive Map and Statement Definitive Map Modification (Footpath 359 Llantrisrant) Order 2009. The effect of the modification was to show a public footpath running from Forest Walk, Talbot Green, roughly north by north eastwards and parallel to the River Ely until the Ely Railway Bridge and then north by northwest along the route of former Coed-Ely branch of the former Ely Valley Railway.

Part of the footpath so designated runs over land owned by the claimants. The inquiry was held on three days between 20 and 22 July 2010. The Welsh Ministers transferred the authority to make the decision to the Inspector.

In this application under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 (“the 1981 Act”) the claimants apply for the decision of the Inspector to be quashed. Paragraph 12 of Schedule 15 provides:

The evidence in support of the application consists of a statement dated 13 October 2010 by the claimant's solicitor, Mr Hutchings, a partner of John Collins and Partners LLP. The exhibits to his statement include variousmaps and conveyancing documents, and the statements of the second claimant and Mr Noel Israel, two of those who gave evidence before the Inspector.

The background to this application can largely be taken from the Inspector's decision, omitting such matters as are disputed and on which the claimants rely in support of their application.

In paragraphs 5 - 8 of his decision the Inspector identified the main issues. The principal issue was whether the evidence showed on the balance of probabilities that public pedestrian rights existed over the route shown on the order map. The Inspector identified two tests, that set out in section 31 of the Highways Act 1980 and the common law test but (see paragraph 73 of his decision) in the light of his conclusions on the statutory test he did not consider the common law test.

The material parts of section 31 are:

In paragraph 7 of the decision the Inspector stated that he had to be satisfied that:

The Inspector heard and considered evidence by 15 objectors, including the claimants, by the acting Public Rights of Way Officer of the Council, Ms Humber, and by 12 other witnesses. Two individuals are named in the decision as additional supporters.

There is some overlap between the grounds upon which this application is made. The first ground, on which much of the time at the hearing was taken, concerns the treatment of whether there was a wire fence at the point B during the relevant period. This ground has three limbs, sometimes described as separate grounds and certainly so described in Mr Lewis's skeleton argument on behalf of the Welsh Ministers. It is submitted that the Inspector failed properly to consider the evidence as to this because (a) he found that there was a fence traversing the route at some point but did not consider the implications of this in resolving the conflict of evidence between the objectors who said there was a fence at the material time and other witnesses whose evidence was that there never had been a fence; (b) in considering when the fence was erected he did not consider all the evidence, including the documentary evidence and the circumstantial evidence; and c) the Inspector unreasonably found that the documentary evidence as to the location fencing that was required to be placed was ambiguous. During the hearing Mr Blohm QC, on behalf of the claimants, accepted that an allegation of unclear findings about the erection of a sheep wire fence between points B and C of the route was not a freestanding ground but submitted that it supported the three limbs of this ground. Mr Lewis's skeleton argument identified these as grounds 1 to 3.

Secondly it is submitted that the Inspector unreasonably failed to take account of the map produced by Llantrisrant Community Council in 1987. That map was a map of local walks but it did not show a footpath along the route subject to the 2009 order. Mr Lewis's skeleton argument identified this as ground 4.

Mr Lewis submitted on behalf of the Welsh Ministers that these two grounds are in reality challenges to the weight the Inspector gave particular items of evidence, and attempts to reopen issues which under the statutory scheme and paragraph 12 of Schedule 15 of the 1981 Act are not the proper subject of a statutory challenge because they are matters for the Inspector.

The third ground of challenge is that it is submitted that the Inspector erred in his approach to the application of the test laid down in British Transport Commission v Westmoreland County Council [1958] AC 126 as to whether the landowner at the material time, the British Transport Commission, had capacity to dedicate a footpath, and in the Inspector's conclusion that it would not have been incompatible with the objects of the British Railways Board for the Order route to be so dedicated in July 1986.

At bottom this ground, although put in a number of ways, concerns whether the land could conceivably have been used as a railway before the tracks were lifted in 1989 and whether that factor meant that there could be no designation because the purposes for which the British Railways Board held the land was to operate a railway. Mr Lewis's skeleton argument identified this as ground 5.

In paragraphs 18 - 20 of the decision the Inspector states that while there was no doubt that a considerable number of members of the public walked on the southern part of the Order route and as far as the railway bridge on section A-B of the route, the issues "are whether this use followed a single definable route or was, as claimed by the objectors, ‘general recreational use’, whether use was interrupted, and whether it was ‘as of right’”. In paragraph 20 he states that:

The documentary evidence concerning the part of the route between point B and point C consisted of ordnance survey maps, the map of walks produced by the Community Council, photographs of the former railway line taken in 1990 which (see paragraph 32) do not show a fence and the documentation relating to the sale of the former railway land to the Residents' Association in 1990.

In paragraph 30 the Inspector says of the maps:

In paragraph 33 under the heading of documentary evidence B-C the Inspector states:

Paragraph 37 of the decision states:

Oral evidence is dealt with in paragraphs 40 and 41. These state:

Paragraphs 60 to 65 deal with fences. The material parts of these can be summarised as follows. In paragraph 60 he states that Dr Laverty's evidence was that for some time during the 20 year period around 1991 there had been a barbed wire fence along the Order route as it climbed the bank from the River Ely to the railway line but a fence had been in place across the former railway line where it crossed the bridge near point B for between one and two years from 1990 or 1991, and that there had been a further fence across the track bed between B and C over which she had not been able to climb and which was in position for at least six months in 1992.

This paragraph concludes:

In paragraph 61 it is stated that none of the 20 individuals or couples who completed user evidence forms mentioned fences across the route and the 12 users who gave evidence, including those who stated they had used the whole Order route, were adamant that their progress had never been impeded by fences. Several were clear that there had been a fence across the line of the former railway but only to the south of B adjoining Dr Laverty's garden and not across the Order route.

The Inspector said that he was impressed by the surprise expressed by the Borough Council's witnesses when it was put to them that they must have encountered fences when using the Order route. He states:

In paragraph 63 the Inspector stated:

He stated that the conflict of evidence between the users and the objectors was incapable of reconciliation save on an improbable basis, and in paragraph 65 stated that:

“I prefer the evidence of those witnesses who appeared for the CBC and I conclude that there were probably no fences impeding access to and along the former railway during the relevant 20 year period."

As to the British Transport Commission v Westmoreland point, the Inspector stated at paragraph 14 that the objectors had argued that since the rails between B and C were only lifted in 1989 there could have been no dedication of that section of the order until then at the earliest, and it was not possible to presume dedication under the statutory test.

Paragraph 15 stated that both sides relied on the judgment in British Transport Commission v Wesmoreland. That paragraph states the test. In paragraph 16 the Inspector stated that:

In paragraph 17 he said that he considered that:

I turn to the submissions and my conclusions. It is common ground that the Inspector's decision is susceptible to challenge under paragraph 12 of Schedule 15 only on one of the well-known grounds of judicial review. It must therefore be established that there has been either error of law, procedural impropriety, (whether breach of the rules of natural justice or specific procedural requirement), impropriety of purpose, failure to take account of relevant considerations, taking account of irrelevant considerations, or Wednesbury unreasonableness.

The issue before the Inspector in this case was factual, that is, to decide whether the factual requirements in section 31(1) of the 1980 Act were satisfied or not. That involved deciding whether it had been established that there had been 20 years’ use of the route, as of right, as a footpath.

It is clear law that the powers of a reviewing court with respect to the factual issues remitted by the legislature to the relevant governmental body, here the Welsh Ministers and the designated Inspector, are particularly limited. In such cases, questions of fact are for the primary decision maker and, in the classic statement of Lord Radcliffe in Edwards v Bairstow [1956] AC 14 38-39, the court should not intervene unless the facts are such that no person properly instructed as to the relevant law could have come to the conclusion reached by the finder of fact, that is, that the only reasonable conclusion on the facts found is inconsistent with the conclusion in fact arrived at.

In the present context this proposition is reflected in the principles identified by Forbes J in Seddon v Secretary of State for the Environment [1981] 42 P & CR 26. His Lordship described the first of the five principles as perversity. The court may overturn a decision if it considers that no reasonable person in the position of the primary decision maker, in that case the Secretary of State, in this case the Inspector, properly directing himself on the relevant material could have reached the conclusion that he did. His Lordship also set out a number of principles which he described as peripheral. These include:

He also said:

Forbes J also stated that in approaching its task:

There are similar statements in other cases. I bear in mind in particular the well-known statement in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 at 164 that decision letters should be approached with a measure of benevolence and should not be subjected to the kind of legalistic scrutiny that might be appropriate for a legislative instrument.

I also bear in mind the well known speech of Lord Brown in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 after reviewing the authorities on the duty of an Inspector to give reasons. The relevant paragraphs are paragraphs 35 and 36 of his speech. In paragraph 36 his Lordship stated:

In Clarke Homes v Secretary of State for the Environment [1993] 66 P & CR 263 Sir Thomas Bingham MR as he then was had said that it is only where a decision letter leaves room for genuine as forensic doubt as to what an Inspector decided and why that there can be a review and this he said was an issue to be resolved without excessive legalism or exegetical sophistication.

I have said that most of the hearing concerned the first ground and indeed the first two limbs of the first ground, but before dealing with those I consider the submissions on the third limb of the first ground and the second ground. These are that the description of the documentation relating to the sale of the former land as ambiguous was erroneous, and that the Inspector fell into error in failing to give any weight to the map prepared by the Community Council.

I do not consider that there is anything in ground 1(c) as a freestanding ground. The description of the documentation as “ambiguous” clearly relates to the totality of the documentation. There are two plans showing different locations for the required fencing line. It is true that one of them is a conveyancing document and one of them is a document prepared by the Residents' Association in connection with costs but the fact remains that there are two plans. The Inspector recognised in paragraph 20 of his decision that documentary evidence is normally of assistance in resolving conflicts of evidence by witnesses but, given the different location of the proposed fencing in the two plans, the Inspector was within the scope of what is permitted to the primary finder of fact in regarding the conveyancing documentation as not being of assistance and indeed ambiguous. I turn to the map produced by the Community Council.

Mr Blohm submitted that the Inspector erred in paragraph 31 of his decision in giving no weight to the fact that the map of walks published by the Community Council in 1987, not long after the commencement of the relevant 20-year period, did not show a walk along the route of the claimed way because "no evidence was provided as to how the information shown [on the map] was gathered". He submitted that in the light of the guidance in section 32 of the Highways Act it was irrational for the Inspector to give no weight to this factor.

Section 32 provides that the decision maker “shall take into consideration any map ... which is tendered in evidence” and “shall give such weight thereto as [it] considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced."

Mr Blohm argued that this map was prepared by a local public authority for the assistance of visitors and members of the locality. The purpose of the leaflet containing the map was stated on the leaflet by the chairman of the Community Council to identify "many delightful walks" and to encourage walking during European Environment Year. The front of the pamphlet invited readers "to follow the sign of the rabbit and help keep our community footpaths open." The leaflet states that its production was supported by the Countryside Commission. The map was thus, argued Mr Blohm, drawn up by a local public authority with a view to encouraging walking during European Environment Year and to keep local footpaths open. He submitted that the natural inference is that it was drawn up by local people using local knowledge of walks used by the public and was prepared under the guidance of the Community Council. The leaflet had been produced reasonably recently and near the commencement of the 20-year period. Moreover, Mr Hutchings' evidence (see paragraph 15 of his statement) was that no question was raised at the inquiry either by the Inspector or by the local authority as to the method of the gathering of the information on the map. Mr Blohm submitted that in those circumstances it was wrong, and if necessary, irrational to decide to give the map no weight on the basis of a point not raised during the inquiry.

Mr Lewis submitted that this is in reality a challenge to the weight the Inspector gave a particular item of evidence, and not a proper basis for a statutory application to quash. Had the issue of how the information in the map had been gathered been raised at the inquiry, that may have been an accurate way of describing this ground, but the fact that it was not, together with the fact that the Inspector does not even by implication address the factors listed in section 32 in my judgment puts the matter in a different light, and I will return to this after considering the first two limbs of the fencing issue ground.

I turn to those. Mr Blohm submitted that in determining whether the Order route was fenced across the railway track at the bridge, point B, at the material time, the Inspector failed to have regard to all the real documentary and oral evidence in support of the contention that it was (see paragraph 5.1 of his skeleton argument, in which it is said that the only such evidence taken into account was that of Dr Laverty and (to a lesser extent) another witness, a Mr Cox). He maintained that this was not to re-engage in an impermissible reassessment of the evidence with a view to challenging the Inspector's conclusions on matters remitted to the Inspector, it was a submission that relevant evidence had not been taken into account.

His starting point was that the issue between the parties was not when a fence was erected but whether the area had been fenced off at all. The Inspector made no finding from the physical evidence as to when that wire fence would have done so, but stated that it could not have been earlier than 1984, when the last train ran. But Mr Blohm submitted that paragraphs 37 and 60 of the decision letter contain a finding by the Inspector that a wire fence traversed the route just south of the bridge. However, having made that finding and to that extent rejected the evidence of those who said there was never a fence at the material point, he did not consider that finding or its implications in his overall assessment of the evidence of the witnesses giving different and contradictory accounts and the evidence as to whether the area had been fenced in 1991.

Mr Blohm submitted that the Inspector's conclusion on the physical evidence should have informed his assessment of the credibility of the witnesses because it tended to support the evidence of the objectors including the claimants, but his assessment was not informed by this. He argued that once the Inspector had found that at some stage a fence had traversed the route, it should have been apparent to him that a significant number of witnesses who gave evidence in support of the contention that the way had not been fenced at all (see the witnesses referred to in paragraph 10 of Mr Hutchings’ witness statement including a Mr Ryan, a Mr Tucker and possibly a Mr Rees), must have been in error.

Mr Blohm also submitted that the Inspector fell into reviewable error in considering the fact of the fencing in isolation from other evidence, in particular the conveyancing documents and the circumstantial evidence provided by Mr Israel's statement, the obligation undertaken by the Association in 1990 to fence the boundaries of the purchased land "forthwith" and the failure to take account of the different status of the final conveyancing documents and the plan with the internal memorandum of costs produced by the Association. He submitted that, stepping back, once it was accepted that there had been a fence traversing the route at the point of the boundary between the land sold to the Association and that retained by the British Railways Board at point B, there was no reason for the fence to have been erected at any other time.

Mr Lewis submitted that the claimants’ submissions on this issue are based on a misunderstanding of the decision letter and even at their highest are no more than an attempt to re-argue matters that were firmly for the judgment of the Inspector who was entitled to attach what weight he pleased to the various arguments and contentions of the parties. As set out by Forbes J in Seddon v Secretary of State for the Environment, he argued that this was an attempt to gainsay the weight the Inspector had given to the various items of evidence and arguments.

Mr Lewis submitted that in the light of the inconsistent evidence before him, the Inspector had a difficult task. He resolved the conflicts of evidence by deciding whose evidence he preferred and he supported his conclusion on that with adequate reasons.

At the heart of Mr Lewis's submissions on this part of the case was the argument that the claimants and Mr Blohm had misunderstood the Inspector's decision letter. He maintained that, contrary to paragraph 7(1) of Mr Blohm's skeleton argument and his oral submissions, the Inspector did not conclude that fencing was in existence at the location suggested by the claimants and did not by implication decide that the fence must have been erected traversing the route after 1983 but before July 1986. He submitted that the claimants erred in reading the last sentence of paragraph 37 of the decision as including a finding that the Order route was necessarily blocked at some point after 1984.

Mr Lewis argued that the Inspector did not even make any findings as to whether there was any wire in place in the posts south of the bridge during the material time, let alone whether any such wire would have constituted an effective obstruction (see paragraph 18 of his skeleton argument). He argued that it followed that the Inspector's reasoning did not contain the necessary implication that a fence at point B must have been erected at the material time. Paragraph 37, he submitted, contains no findings on this issue given the Inspector's statement that it was "not possible to gauge from the physical evidence for how long the wire has been missing or broken".

Mr Lewis also submitted that the other evidence relied on by the claimants was considered. Mr Israel's statement was referred to in paragraph 33 of the decision and, although Mr Israel stated he was certain the fence had been erected, the evidence of others was that they had never been obstructed by one and, given that, the Inspector was entitled to place the weight that he did on the fact that Mr Israel did not attest to seeing a fence.

I do not accept the proposition made by Mr Blohm that all relevant evidence must be given “some weight” or the distinction he made between probative and determinative evidence in this context. One of his propositions was that a tribunal of fact deciding a contested issue of fact must "have regard to" all evidence and "give it such weight as is due", although he qualified this by stating that how much weight is to be given to a piece of evidence is a question for the tribunal. The qualification is, however, inconsistent with the first part of the proposition. It is clear, not least from the Seddon decision, that in deciding a contested issue of fact the tribunal of fact must have regard to all evidence. It does not follow that it must give it all some weight. There may be reasons that relevant evidence is of little or no weight, see for example section 4(1) of the Civil Evidence Act 1995 which contemplates this by its reference to the court's estimation of "the weight (if any)" to be given to hearsay evidence. For a reviewing court to conclude that evidence to which the finder of fact has had regard but which is described as not having weight in itself justifies interference with the decision is to trespass into the territory forbidden to a reviewing court.

I have, however, concluded that, notwithstanding the circumspection a court is required to show in dealing with the factual conclusions of an Inspector, on these limbs of the first ground Mr Blohm's submissions are to be preferred. The Welsh Ministers' defence of the approach of the Inspector to the fencing issue depends to a large extent on the premise that the Inspector did not conclude that a wire fence traversed the Order route at or around point B. Although paragraph 37 of the decision states that the "wire would have traversed the line just south of the bridge", it is clear from the context that the Inspector is considering the Order route. Had he not been considering the Order route, the wire and the posts would have been in the wrong location. It is, moreover, clear from paragraph 60 that he was, in paragraphs 37 and 38, concerned with remnants of wire which went "across the route". He stated that the "physical evidence of posts and remnants of wire (paragraphs 37 - 38) corroborates the existence of fences across the route, although not that they were in place during the 20 year period".

The Inspector's statement in paragraph 63 that he did not consider Dr Laverty's oral evidence of the existence of fences was "bolstered by the physical evidence of fence posts and the remains of wires" is in context also consistent with the view that those physical remains are remains from which wire would have traversed the Order route.

What is the consequence of this? In a context where what was at issue was whether the route had been fenced off at all and not simply when it had been fenced off, these parts of the decision letter which in effect reject part of the evidence given by those who said there never was a fence, were factors supporting the evidence of the objectors. The Inspector considered the question whether the physical remains gave any guidance as to when the wire traversed the route and concluded that it did not. There is no and could be no challenge to that finding. But he then set aside consideration of the physical evidence and did not stand back and consider the implication of his conclusion that at some time the wire had traversed the route on the other evidence and the circumstantial evidence before him including the obligation on the Association to fence "forthwith" and Mr Israel's evidence. He did not accordingly take it into account in making his assessment of the credibility of the witnesses.

The Inspector's approach to the map prepared by the Community Council is also relevant at this stage. I have said that, had the issue about how the information in the map was gathered been raised at the inquiry, the Inspector's conclusion to give the map no weight would not have been open to challenge. But it was not raised. I have concluded that to set aside a map produced by a public body with the support of the Countryside Commission at about the material time by giving it no weight, with no explicit consideration of the factors listed in section 32 of the Highways Act and, as I have said, no implicit consideration of them and without the issue having been raised at the inquiry, is Wednesbury unreasonable. The consequence is that the Inspector also did not take the map into account at all in assessing the evidence of the witnesses who gave oral evidence or made statements. As Mr Blohm recognised, had the Inspector done all of these things he may nevertheless have come to the same conclusions. I, however, accept Mr Blohm's submission that what in fact occurred was a failure to take account of this evidence.

My conclusions on these matters mean that the claimants must succeed on the first two limbs of the fencing issue taken together with the second issue, the map question. It is not therefore necessary for me to reach a decision on the British Transport Commission v Westmoreland point. However, it was fully argued and I deal with it briefly.

I do not consider that the Inspector fell into reviewable error on this point. The language of the relevant parts of the decision referring to the track being "put permanently out of use" (paragraph 10) and the line being "rendered unusable” (paragraph 16) are not particularly clear. But it is common ground (see Mr Hutchings’ witness statement, paragraph 16) that in 1984 the track was "secured out of use so that it could not be used inadvertently”. In the light of this securing of the track, the Inspector was entitled to conclude that the reopening of the railway would have been "highly improbable" in 1986. The fact that the railway may have been used on a single occasion in 1989 when wagons were used while the tracks were being lifted does not render the finding that reopening the railway would not have been reasonably foreseen in 1986, unsustainable in public law terms.

The decision made by another Inspector after another inquiry on 5 June 2007 relied on by the claimants does not lay down a general proposition that dedication would not be permissible from the cessation of use but only from the removal of track. The Inspector in that case did not rule out incompatibility ceasing while the track remains in place, but only said that in "most cases" the permanent cesser of railway use which would lead to the end of incompatibility would "be indicated by the removal of the track".

For the reasons I have given, the claimants must succeed and the decision of the Inspector be quashed.