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

Right of way – Modification order – Wildlife and Countryside Act 1981 – Inspector confirming definitive map modification order made by surveying authority – Appellants challenging inspector’s decision – Judge upholding decision – Appellants appealing – Whether conclusive evidence presumption provision in section 56 of 1981 Act applicable to review process – Whether presumption against change applicable to modified map and statement – Appeal dismissed The second respondent 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 respondent 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 appellants’ property, when it should more correctly have been shown over the neighbouring land, which included a point within the courtyard of the appellants’ property. An inspector appointed by the first respondent secretary of state confirmed the order. The appellants applied pursuant to paragraph 12 of schedule 15 to the 1981 Act to challenge the inspector’s decision. At first instance, the court decided that the presumption in section 56(1) of the 1981 Act that the definitive map and statement “shall be conclusive evidence as to the particulars contained therein…” applied to the map and statement, as modified. The decision letter, read as a whole, set out a rational analysis, identified the approach to be taken, referred to and assessed the evidence, and applied that approach to the evidence: [2024] EWHC 532 (Admin); [2024] PLSCS 53. The appellant appealed. Held: The appeal was dismissed. (1) Section 56 of the 1981 Act meant that a definitive map or a copy of a definitive map prepared pursuant to section 57(3) (which once prepared pursuant to that subsection became definitive), was authoritative in establishing the existence and location of public rights of way. Once prepared, and until revised, the map and statement were conclusive evidence in rights of way disputes between landowners and the various categories of persons exercising rights of way. There was a presumption against change. However, mistakes could be corrected by the review process. On a review, the conclusive provisions in section 56 did not operate to prevent what proved to have been a mistake in the definitive map from being rectified: R v Secretary of State for the Environment, ex parte Burrows [1991] 2 QB 354 and Trevelyan v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 266 applied. On a review, the question whether a modification should be made on the ground of a mistake in preparing the existing version of the definitive map (or a section 57(3) copy) had to be determined on the balance of probabilities. There was a rebuttable presumption that the existing definitive map was correct and evidence of some substance was required to rebut it. But evidence of substance had to be put in the balance, if it was to outweigh the initial presumption that the right of way existed. The more time that elapsed, the more difficult would be the task of adducing the positive evidence necessary to establish that a right of way had been marked on a definitive map by mistake. (2) The conclusive evidence provision in section 56 and the evidential presumption against change described in Trevelyan were entirely distinct. The only presumption capable of applying at the review stage was the evidential presumption identified by the court in Trevelyan. It was important to note the limitations of that presumption which was rebuttable and only applied in the absence of evidence to the contrary. When there was evidence to the contrary, the weight to be given to it would depend on all the circumstances, and it might be, if the map was shown to be in error, that it would be entitled to no weight at all. Ultimately a decision needed to be made on the balance of probabilities, taking account of all the evidence: R (Norfolk County Council) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWHC 119 (Admin); [2005] PLSCS 22; [2006] 1 WLR 1103 considered. (3) When a modification was made, it was the map and statement as modified (or a copy made pursuant to section 57(3)) that henceforth became definitive. There could at any given time only ever be one definitive map. As against the world, the conclusive evidence provision in section 56 would apply to the current map. For the purposes of the next review, the evidential presumption against change described in Trevelyan would apply. In principle, if it was shown during the review process that the latest version of the definitive map was in error, for example because of a copying error, as in the present case, it would be sensible to apply the evidential presumption to the previous version. However, that did not avail the appellants in the present case where the inspector found that it was clearly proved that the current 2013 version of the definitive map was the result of copying errors, which had caused the line of the footpath to shift eastwards with no intention to make a modification to the route. That was sufficient to rebut any presumption applying to the 2013 version and to demonstrate, in the terms of section 53(3)(c)(iii), that there was no public right of way over the land shown on the current definitive map. (4) But the inspector also made findings that the route shown on the 1952 version of the definitive map could not be correct either because it showed the footpath running through existing buildings. That had to be an error which was sufficient to rebut any evidential presumption that the 1952 definitive map was correct. Ultimately, therefore, the inspector had to reach a conclusion on the balance of probabilities without the assistance of any such presumption. That was what she did, having careful regard to all the available evidence and reached a conclusion open to her as to the correct route. Accordingly, the evidential presumption against change did not apply to the 1952 map due to errors and the inspector’s decision to revert the footpath to its correct historical route was justified.  Noemi Byrd (instructed by Brachers LLP) appeared for the appellants; Ned Westaway (instructed by the Government Legal Department) appeared for the first respondent; the second respondent 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 the Environment, Food and Rural Affairs and another