R (on the application of Macintosh) v Secretary of State for the Environment, Food and Rural Affairs

Classification of highways — Modification to definitive map and statement — Surveying authority making order downgrading way over claimant’s land — Inspector declining to confirm order — Section 53(2) and 53(3)(c)(ii) of Wildlife and Countryside Act 1981 — Standard of proof required for modification — Claim dismissed The claimant owned woodland through which passed a right of way that was designated as a bridleway on the definitive map and statement for the area. The claimant applied to the interested party, as the surveying authority under the Wildlife and Countryside Act 1981, for an order downgrading that part of the way to a footpath. The authority made an order downgrading the way, in exercise of its power under section 53(2). It was of the view that the power was triggered by the event set out in section 53(3)(c)(ii), namely the discovery by the authority of evidence that, when considered with all the other relevant evidence available to it, showed that a highway of a particular description ought to be shown as a highway of a different description. The defendant’s inspector subsequently declined to confirm the order. In identifying the main issues, he considered the wording of section 53(3)(c)(ii), the guidance in the relevant departmental circulars and in Trevelyan v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 266; [2001] 1 WLR 1264. He found that the available evidence was ambiguous, and concluded that there was no cogent evidence to show that the bridleway should be downgraded. The claimant challenged that decision by way of judicial review, contending that the inspector had: (i) erred in his application of the legal test; (ii) failed to take account of material considerations; and (iii) reached a conclusion that was unreasonable and perverse. Held: The claim was dismissed. The initial presumption where a right of way was shown on the definitive map and statement was that that way existed in the form shown. The onus was on claimant to show that the map and statement were wrong, and, although the standard of proof was the balance of probabilities, evidence of some weight would be needed to outweigh the presumption. The inspector had applied the correct test in holding that cogent evidence was required to show that the way should be downgraded: Trevelyan applied. He had considered all material matters and his conclusion was not one that no reasonable inspector could have reached. In reality, the claimant’s complaints were concerned with the weight that had been attached to particular pieces of evidence, and that was a matter for the inspector. Stephen Sauvain QC (instructed by DWF, of Liverpool) appeared for the claimant; Jonathan Karas QC (instructed by the legal department of Defra) appeared for the defendant. Sally Dobson, barrister