Trail Riders Fellowship v Secretary of State for the Environment, Food and Rural Affairs

Highway – Bridleway – Byway open to all traffic (BOAT) – Inspector appointed by defendant secretary of state modifying council order by designating route as bridleway rather than BOAT – Claimant challenging decision under Wildlife and Countryside Act 1981 – Whether evidence indicating use as vehicular highway – Whether inspector making irrational decision – Whether historical evidence indicating use as vehicular highway – Claim dismissed   The claimant brought an action under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 against the decision of an inspector appointed by the defendant secretary of state confirming, with modifications, an order made by the county council in respect of a road in Pilsley Village in Derbyshire. The modification in question substituted “bridleway” for “byway open to all traffic (BOAT)” in the order. The county council had sought to designate the road in question as a BOAT. The effect of the designation as a bridleway instead of a BOAT was that no motorised vehicles could use it. It was limited to pedestrians, horse riders or pedal cyclists. It was not disputed that the road in question was a highway. In order to decide whether it was a vehicular highway, the inspector had to consider such historical documentary evidence as was available. In addition, if he was not persuaded that the documentary evidence showed that the route was a vehicular highway, he had to consider whether there had been a use by the public as of right and without interruption for a period of 20 years before its status was brought into question: see section 31 of the Highways Act 1980. Having held a public inquiry, the inspector concluded that the county council had not established to the required standard, namely the balance of probabilities, that the route was a vehicular highway. Therefore he made an interim decision that it should be designated as a bridleway. Following a second inquiry, he maintained his interim decision. The claimant had in the past used the route for motorcycles and wished to be able to continue that use.   Held: The application was dismissed. It was only if an error of law was established that the court could find in the claimant’s favour. It was not permissible for the court to review the factual issues. The inspector was bound to exercise his judgment on the facts found by him and that judgment could not be impugned unless it was one which could not rationally have been reached or which was erroneous because of a failure to have regard to a material particular or because regard had been had to an immaterial particular. The inspector was to be regarded as an expert tribunal so that the hurdle to surmount to establish perversity was a high one. Furthermore, since the approach was the same as that which applied to judicial review, the court had to be careful not to let its own views on the merits influence its judgment. Thus, only if the inspector failed to apply the correct test or to take all and only relevant factors into account, the weight to be given to them being a matter for him, or the decision reached was perverse, could the claim succeed: R (on the application of Elveden Farms Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2012] EWHC 644 (Admin) considered. On the evidence, the inspector could properly, as a matter of judgment, have found the route in question to be a BOAT but equally he was entitled, as a matter of judgment, to reach a contrary conclusion. None of the matters raised by the claimant had persuaded the court that the inspector’s decision was flawed and the conclusion that the user evidence did not infer vehicular designation was inevitably correct. Adrian Pay (instructed by Brain Chase Coles Solicitors, of Basingstoke) appeared for the claimant; Jacqueline Lean (instructed by the Treasury Solicitor) appeared for the defendant. Eileen O’Grady, barrister Read a transcript of Trail Riders Fellowship v Secretary of State for the Environment, Food and Rural Affairs here