Ernstbrunner v Manchester City Council and another

Definitive map and statement — Part III of the Wildlife and Countryside Act 1981 – Evidence of footpath route– Appellant applying for order requiring respondent council to secure removal of gate obstructing claimed route of public footpath on private road – Crown court refusing order and finding that definitive map showing diversion from private road — Whether description of footpath in definitive statement precluding finding – Whether map and statement inconsistent – Whether highway rights established by earlier definitive map and statement capable of continuing in force notwithstanding absence from current version – Appeal dismissedThe appellant was a member and local representative of the Ramblers’ Association. In November 2004, he applied to the magistrates’ court for an order, under section 130B(2) of the Highways Act 1980, requiring the first respondent council to take action to secure the removal of a gate, which, he contended, obstructed a public footpath that ran through a farm owned by the second respondent. The first respondents were the highway authority for the area and, under Part III of the Wildlife and Countryside Act 1981, were the surveying authority responsible for maintaining the definitive map and statement for the area; the relevant map and statement dated from 1984. The court found that the gate was not on the line of the footpath, a decision was upheld by the crown court on appeal.The crown court rejected the appellant’s argument that the description of the footpath in the definitive statement, when construed in the light of the 1963 definitive statement drawn up under previous legislation, indicated a route passing along the private road on which the gate stood. It found that the definitive map, which showed a distinctive kink in the footpath to the north as it passed the farmyard, was intended to and did show the footpath as diverging from the private road and following the edge of the second respondent’s property along a line that was marked on the ground by stone setts laid between a fence and a row of conifers. The court further held that the map did not conflict with the definitive statement.The appellant appealed. The questions for the court were, inter alia, whether the crown court had been: (i) precluded as a matter of law from reaching its finding of fact as to the route of the footpath by reason of the description in the definitive statement; and (ii) entitled to interpret the definitive statement as not conflicting with the map. The appellant contended that the crown court’s findings of fact were perverse. In the alternative, he submitted that the 1963 definitive statement, although no longer definitive, still had evidential effect and provided evidence of a highway on the line contended for, which would remain extant until the highway rights were legally stopped or extinguished.Held: The appeal was dismissed. (1) It had been open to the Crown Court to conclude that the draftsman of the 1984 definitive map had intended to depict the route of the footpath as following the marked line on the edge of the second respondent’s property. That finding related to a highly distinctive and unusual feature on the map for which there was no other tenable explanation, and coincided exactly with the physical features on the ground. In the light of the draftsman’s discretion as to what to include in the definitive statement, no significance could be attached to his failure to describe the relevant section of the footpath in the statement. The particulars of the footpath in the definitive statement were not comprehensive, lacked detail and were not sufficiently unequivocal as to contradict and prevail over the crown court’s findings regarding depictions on the map. Reading the map and statement together, and bearing in mind the lack of particularity in the statement, that statement, as properly construed, was not, even when interpreted in the light of the 1963 definitive statement, inconsistent with the court’s finding as to the route depicted on the definitive map: LE Walwin & Partners Ltd v West Sussex County Council [1975] 3 All ER 604 distinguished.(2) A definitive map and statement did not create highway rights. In the absence of express statutory powers, a highway could be created only by dedication to public use and acceptance of that dedication by or on behalf of the public. Both section 32(4) of the National Parks and Access to the Countryside Act 1949, under which the 1963 map and statement had been published, and section 56 of the 1981 Act were evidential in character. Although they provided that a definitive map and statement would be conclusive evidence of certain matters, including the existence, position and width of a footpath, the 1963 map and statement had ceased to be definitive and of conclusive evidence on their replacement by the 1984 version. Although it could provide evidence of the matters that it described, the 1963 statement did not support the appellant’s contentions and, even if it had, it would have had to be considered in the context of all the other evidence, which included an alternative route that was conclusively established by the 1984 definitive map and statement. There was no reasonable possibility of the appellant establishing the footpath for which he contended.George Laurence QC and Ross Crail (instructed by Zermansky Solicitors) appeared for the appellant; the first respondent did not appear and was not represented; Stephen Sauvain QC (instructed by Thompson & Cooke Solicitors) appeared for the second respondent.Sally Dobson, barrister