McLeish and another v Secretary of State for Environment, Food and Rural Affairs and another

Right of way – Modification order – Wildlife and Countryside Act 1981 – First defendant secretary of state confirming definitive map modification order made by second defendant surveying authority – Claimants applying to challenge inspector’s decision – Whether surveying authority entitled to correct mistakes made in drawing up definitive maps – Whether entry on definitive map being conclusive – Application dismissed The second defendant surveying authority made a definitive map modification order under section 53(2)(b) of the Wildlife and Countryside Act 1981 in consequence of the discovery of evidence pursuant to section 53(3)(c)(i) and (iii) of the 1981 Act. The second defendant explained that it had become aware of a discrepancy between the route initially claimed as a public path in 1952 and the route shown on the current definitive map. The legal record of public rights of way now showed the footpath running over a property, which lay to the east of the claimants’ property, when it should more correctly have be shown over the neighbouring land which included a point within the courtyard of the claimants’ property. An inspector appointed by the first defendant secretary of state confirmed the order. The claimants applied pursuant to paragraph 12 of schedule 15 to the 1981 Act to challenge the inspector’s decision. The two main issues were as to the effect of section 56(1) of the 1981 Act which provided that the definitive map and statement “shall be conclusive evidence as to the particulars contained therein …” when the surveying authority was considering whether to make modifications to the map and statement under section 53 of the 1981 Act; and what definitive map and statement was to be considered when deciding whether to make modifications pursuant to section 53. Held: The application was dismissed. (1) Under the statutory scheme, a definitive map and statement was intended to establish the existence of a right of way: section 56(1) of the 1981 Act. Parliament also provided a mechanism for the addition and removal of rights of way from a definitive map. When the surveying authority was considering whether evidence showed that a right of way not shown on the map and statement subsisted, or that there was no public right of way over land shown as a highway, the map and statement was not conclusive evidence of the particulars therein. When an inspector had to consider whether a right of way marked on the definitive map in fact existed, the initial presumption was that it did. Where an inspector was considering both whether a right of way not shown on the map and statement subsisted (under section 53(3)(c)(i)) and whether there was no public right of way over land shown as a highway (under section 53(3)(c)(iii)), the starting point was likely to be the section 53(3)(c)(iii) question. A finding, on a balance of probabilities, that an alternative way was the correct route would normally be sufficient evidence to show that the existing way was wrong. When considering the section 53(3)(c)(iii) question, the presumption was against change: Trevelyan v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 266 applied. R (on the application of Leicestershire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWHC 171 (Admin) considered. (2) The definition of definitive map and statement in section 53(1) was subject to section 57(3) which provided that where a definitive map and statement had been modified, and where the surveying authority considered it expedient to, and did, prepare a copy of the map and statement as so modified, the modified map and statement should be regarded for all purposes of Part III of the 1981 Act (including section 53) as the definitive map and statement. When the decision letter was read fairly and as a whole, and in particular when the reference to “on a balance of probability” was understood, it was clear that the inspector applied the correct approach and found that the presumption against change was rebutted by the evidence. (3) The correct starting point was the presumption that the definitive map and statement showed the correct route of the footpath. The presumption applied to the 1952 definitive map and statement. The inspector had adopted the approach set out in Leicestershire, namely to first consider whether the alternative route was correct, proceeding on the basis that, if on the balance of probabilities it was shown to be right, that would be evidence that the route shown on the existing map and statement was wrong. If a map and statement had been modified following the statutory procedures that was the definitive map and statement which applied. Further, the interpretation of maps, and the conclusions drawn as a result of that interpretation were matters for the inspector: Whitworth and others v Secretary of State for Environment, Food and Rural Affairs [2010] EWHC 738 (Admin) applied. (4) Although not put forward at the hearing, the claimants sought to argue that the inspector had failed to consider the possibility that a section of the path was not a public right of way. In an application for statutory review of a planning decision there was no absolute bar on raising a point which was not taken before the inspector or decision-maker. But it was necessary to examine the nature of the new point in the context of the process which was followed up to the decision challenged to see whether the claimant should be allowed to argue it. Those principles applied equally to challenges made under paragraph 12 of schedule 15 to the 1981 Act: Trustees of the Barker Mill Estates v Test Valley Borough Council [2017] EGLR 14 considered. The fact that the new point affected land other than that affected by the order also raised issues of fairness. If a point not taken before the inspector was allowed to be raised in these proceedings such parties would be deprived of an opportunity to put forward a case on that issue. Accordingly, the point raised in relation to the status of the path should not be allowed to be taken in these proceedings. (5) The decision letter, read as a whole, clearly set out a rational analysis, identifying the approach to be taken, referring to and assessing the evidence, and then applying the identified approach to the evidence. Its conclusion was supported by the evidence and disclosed no irrationality. Noemi Byrd (instructed by Brachers LLP) appeared for the claimant; Ned Westaway (instructed by the Government Legal Department) appeared for the first defendant; The second defendant did not appear and was not represented. Eileen O’Grady, barrister Click here to read a transcript of McLeish and another v Secretary of State for Environment, Food and Rural Affairs and another