England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 94/1223/D

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

MR. JUSTICE PILL

Royal Courts of Justice

Tuesday, 29th July 1997

Before:

LORD JUSTICE HIRST

LORD JUSTICE MUMMERY

SIR RALPH GIBSON

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(1) ANNA MARIE O'KEEFE

(2) MICHAEL JOHN CAMERON O'KEEFE

Applicants

-v-

(1) SECRETARY OF STATE FOR THE ENVIRONMENT

(2) ISLE OF WIGHT COUNTY COUNCIL

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(Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 180 Fleet Street, London, EC4A 2HD. Telephone No: 0171-831 3183. Shorthand Writers to the Court.)

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THE APPELLANT/APPLICANT MR. O'KEEFE appeared in Person.

MR. N. PLEMING Q.C. (instructed by the Treasury Solicitor) appeared on behalf of the Secretary of State for the Environment.

MR. D. BRAHAM Q.C. (instructed by the Solicitor, Isle of Wight County Council) appeared on behalf of the Second Respondent, the Isle of Wight County Council.

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J U D G M E N T

(As approved by the Court)

Crown Copyright

MUMMERY LJ

The Appeal

On 24 June 1994 Pill J dismissed a motion dated 13 August 1992 by Mr & Mrs O'Keefe for an order that the confirmation by the Secretary of State for the Environment on 3 July 1992 of the Windmill Wood Chale Isle of Wight Modification Order No 1 1991 (the Order) be quashed. He also set aside two orders made by Kennedy J on 2 October 1991 granting leave for judicial review.

The hearing before Pill J lasted 5 days. All three parties, Mr & Mrs O'Keefe, the Applicants; the Secretary of State for the Environment, the first Respondent; and the Isle of Wight County Council (the Council), the second Respondents, were represented by leading counsel.

The challenge to the Order involves the construction and application of the National Parks and Access to the Countryside Act 1949 (the 1949 Act), the Wildlife and Countryside Act 1981 (the 1981 Act) and the Highways Act 1980 (the 1980 Act) to a long running and hard fought dispute about a claimed public footpath, which has already been the subject of a successful application for judicial review against the Council before Macpherson J on 16 February 1989. He quashed an earlier modification order made by the Council on 29 February 1988: see R v. Isle of Wight CC,ex p O'Keefe (1989) 59 P & CR 283, though it was later doubted whether he had any jurisdiction to make that order: R v.Cornwall CC, ex p Huntington [1992] 3 All E.R.566 at 575h.In making the Order the Council attempted to follow what that judge said was "the right course" on p 17 of the transcript of his judgment.

Mr & Mrs O'Keefe applied to Pill J for leave to appeal. They obtained leave, served a notice of appeal dated 23 August 1994 and engaged in a three day hearing in this court. On this occasion they conducted their case in person with Mr O'Keefe as advocate, assisted by Mrs O'Keefe in the presentation of legal arguments summarised in 106 pages of typed script. The submissions appeared to be the product of years of research into the law affecting judicial review, into the complex legislation on public rights of way and into the detailed factual history of this dispute and of footpaths generally in the Isle of Wight. Delay in the hearing of this appeal has to some extent been caused by Mr & Mrs O'Keefe's failure to lodge on time the relevant bundles of documents in accordance with court requirements.

Factual Background

In 1986 Mrs O'Keefe bought about 35 acres of land in the vicinity of Chale. Since 1987 Mr & Mrs O'Keefe, who both occupy the land, have resisted attempts to include a disputed public footpath in what is claimed to be " a definitive map and statement" prepared by the Council pursuant to the provisions of section 32 of the 1949 Act. Modification orders were made by the Council, first in 1988 and again in 1991, in purported performance of their duty, as the surveying authority, under Section 53 of the 1981 Act to keep the definitive map and statement under continuous review.

The Secretary of State became embroiled in the dispute, which is essentially between Mr & Mrs O'Keefe and the Council, because the procedure relating to orders under section 53, as set out in Schedule 15 to the 1981 Act, provides for the submission to the Secretary of State of certain orders, made by the surveying authority, modifying the definitive map and statement. In accordance with the prescribed procedure he may confirm the order, with or without modifications. The Order was made by the Council on 15 February 1991 and was confirmed by the Secretary of State. The salient events,though examined and debated in detail at the hearing, may be briefly stated for the purpose of this judgment.

The application for an order modifying the definitive map and statement by the addition of a public footpath over Mr & Mrs O'Keefe's land at Windmill Wood was made on 25 July 1989 by the Chale Parish Council. The footpath is 276 metres long. It joins Chale lane with an existing footpath (C 28) which runs north to south through Mr & Mrs O'Keefe's wood.

On 15 February 1991 the Council made the Order in the terms set out in the schedule headed " Modification of Definitive Map".

"Description of path or way to be added:

A public footpath commencing at a gateway (Point D on the attached map) on Chale Lane, Chale, Isle of Wight, approximately 12 metres south of the junction with Gladices lane, passing west for 86 metres to point B on the attached map then turning approximately south west for a further 190 metres to join Public Footpath C 28 to Point A on the attached map. The footpath has a width of 1 metre and a total length of 276 metres".

The Order followed a resolution at a meeting of the Rights of Way Sub-Committee of the Council held at County Hall, Newport on Thursday, 10 January 1991. The members of the Sub-Committee considered the application for a modification order in the light of specified documents - the Report of the County Secretary and Solicitor and his advice on the legal background; the report of the County Surveyor, with background papers, and his findings on user evidence and documentary evidence; the Joint Report of the County Secretary and Solicitor and the County Surveyor; land owner/occupier evidence; landowners' comments and submission from landowners headed " O'K Submission 1990" (11 pages with evidence), attached as Appendix 1 to the Report of the County Secretary and Solicitor; consultation with relevant local authorities; and local members' comments. The Sub-Committee, whose proceedings were taped and transcribed, considered the evidence in detail with the Council's officers and concluded-

" (1) That there was sufficient evidence of use by the public over the full 20 year period, uninterrupted and as of right.

(2) That the character of the way was appropriate to public use.

(3) That there was no evidence that the owners had no intention during the 20 year period to dedicate it."

It was then resolved as follows-

"That a modification order be made adding to the Definitive Map a footpath between C 28 and Chale Lane at Windmill Wood, Chale, along the route marked A B C D on Map 1 as submitted to the meeting on the Rights of Way Sub-Committee held on 10 January 1991."

On 22 March 1991 Mr & Mrs O'Keefe objected to the modification order. The Council accordingly submitted it to the Secretary of State for confirmation. On 6 June 1991 the Secretary of State's Planning Inspectorate wrote to Mr & Mrs O'Keefe informing them that, in view of their objection, it was proposed to hold a local inquiry into the matter. The letter enclosed the Council's statement of the grounds on which they considered that the order should be confirmed and their observations on the objections. The O'Keefes sought leave for judicial review which was granted by Kennedy J on 2 October 1991.

By letter dated 28 April 1992 Mr & Mrs O'Keefe stated that they wished to withdraw their objections to the Order. They wished to proceed with their application for judicial review of the Order and the court was precluded from entertaining the application until after the Order had been confirmed. That was a consequence of the decision in R -v- Cornwall County Council Ex Parte Huntington [1992] 3 All E.R. 566 in which the Divisional Court held that paragraph 12 (3) of Schedule 15 to the 1981 Act operated to oust the jurisdiction of the court to hear grounds of complaint by way of judicial review against a local authority who made a modification order, until that order was confirmed. That decision was later affirmed by the Court of Appeal: [1994] 1 All E.R. 694.

Mr & Mrs O'Keefe made it clear in the letter that they were not withdrawing their objections to the decision-making process of the Council under challenge by way of judicial review.

By letter dated 5 June 1992 the Inspector appointed by the Secretary of State (Mr AT Gray) to hold the local inquiry confirmed the Order stating in paragraph 3 of his letter-

" The order was submitted to the Secretary of State because there was one unresolved objection, but it has since been withdrawn and the order is now unopposed. I have therefore decided, in exercise of the powers transferred to me, to confirm the order."

The " unresolved objection" referred to in the letter was that of Mr & Mrs O'Keefe.

The Relevant Legislation

It is common ground that the relevant statutory provisions concerning public footpaths are contained in Section 31 (1) and (2) of the 1980 Act. They are derived from equivalent provisions in the Rights of Way Act 1932 and facilitate the proof of dedication to the public by providing for a rebuttable statutory presumption of dedication arising from uninterrupted actual use of a way by the public as of right over a period of 20 years or more -

"(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it

(2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in subsection (3) below or otherwise."

These provisions are pertinent to the appeal, as Mr & Mrs O'Keefe assert that, in the exercise of the powers and in the operation of the procedures under the 1981 Act, the Council have misinterpreted and misapplied both these provisions and precedents of high authority on the proper construction of these provisions or their equivalent in earlier legislation. The impact of the 1981 Act on the provisions in the 1980 Act makes it necessary to examine the relevant provisions of both the 1949 Act and the 1981 Act.

An object of that legislation (in its material parts) was-

"....... to avoid tiresome and expensive litigation between individuals over disputed rights of way."

See R v. Secretary of State for the Environment Ex p. Burrows [1991] 2QB 354 at 364C.

The method chosen by Parliament was to confer powers on local authorities to prepare and keep under continuous review definitive maps and statements. Public rights of way, which had been ascertained, would be recorded in maps and in statements providing conclusive evidence of their existence in any dispute which might otherwise have been litigated in the courts at private or public expense.In this way there would be a permanent,up-to-date and conclusive record of this country's footpaths, memorably described by one writer as " inscriptions upon the landscape " and frequently celebrated in English poetry and prose.

In defining the extent of the powers conferred and the procedures to be followed Parliament attempted the difficult task of achieving a just balance between, on the one hand, the private property interests of landowners affected by public footpaths and bridleways, and, on the other hand, the recreational and access interests of the public, whether they be ramblers, riders or just those who,after the labours of the day, enjoy a quiet stroll across a cornfield or a meadow on a summer evening.

Powers and Duties of Council

The relevant powers of the Council concerning the ascertainment of public rights of way are contained in Section 53 of Part III of the 1981 Act. Section 53 imposes a duty to keep the definitive map and statements under continuous review. In this case the relevant definitive map and statement is defined in Section 53(1) as meaning -

"(a) the latest revised map and statement prepared in definitive form for that area under section 33 of the 1949 Act...."

Subsection (2) defined the duty of the Council in these terms-

"(2) As regards every definitive map and statement, the surveying authority shall -

(a) as soon as reasonably practicable after the commencement date, by order make such modification to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, any of the events specified in subsection (3); and

(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modification to the map and statement as appear to them to be requisite in consequence of the occurrence of that event."

Subsection (3) specifies the events referred to in subsection (2). The material provision states-

" (b) the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;

(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows -

(i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies;"

It is provided in subsection (5) that any person may apply to the authority for an order under subsection (2) which makes such modifications as appears to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3).

Section 56 states that a definitive map and statement shall be conclusive evidence as to the particulars contained therein to the extent provided.

In R v.Secretary of State for Wales,ex p Emery (9 July 1997, unreported) the Court of Appeal( Nourse, Roch and Phillips LJJ) approved the approach of Owen J to the construction of these provisions in R v. Secretary of State for the Environment,ex p Bagshaw (1994) 68 P & CR 402, an authority cited to us in argument. At p 23 of the transcript Roch LJ said-

"...where the applicant for a modification order produces credible evidence of actual enjoyment of a way as a public right of way over a full period of 20 years,and there is a conflict of apparently credible evidence in relation to one of the other issues which arise under s 31, then the allegation that the right of way subsists is reasonable and the Secretary of State should so find, unless there is documentary evidence which must inevitably defeat the claim either for example by establishing incontrovertibly that the landowner had no intention to dedicate or that the way was of such a character that use of it by the public could not give rise at common law to any presumption of dedication."

The provisions of schedule 14 have effect as to the making and determination of applications under subsection (5); and the provisions of schedule 15 have effect as to the making, validity and date of coming into operation of other orders under subsection (2): see section 53 (6).

The Procedural Requirements

Schedule 15 contains the procedure to be followed in connection with, inter alia, orders under section 53. After provisions for consultation before making an order and publicity on making an order, the schedule provides the procedures to be followed in the case of unopposed orders and of opposed orders, and for the questioning of the validity of orders after they have been made -

"6 (1) If no representations or objections are duly made, or if any so made are withdrawn, the authority may -

(a) confirm the order without modification ; or

(b) if they require any modification to be made, submit the order to the Secretary of State for confirmation by him.

(2) Where an order is submitted by the Secretary of State under subparagraph (1) the Secretary of State may confirm the order with or without modifications.

7 (1) If any representation or objection duly made is not withdrawn the authority shall submit the order to the Secretary of State for confirmation by him.

(2) Where an order is submitted to the Secretary of State under sub-paragraph (1), the Secretary of State shall either:-

(a) cause a local inquiry to be held; or

(b) afford any person by whom a representation or objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by the Secretary of State for the purpose

(3) On considering any representations or objections duly made and the report of the person appointed to hold the inquiry or hear representations or objections, the Secretary of State may confirm the order with or without modifications."

Both paragraphs are material because Mr & Mrs O'Keefe did object to the making of the order and made representations against it. They later withdrew their objections to the making of the order after the Council had submitted the order to the Secretary of State for confirmation by him.

The later paragraphs in the schedule relating to local inquiries, the appointment of inspectors and for publication of formal decisions and orders may be omitted, but paragraph 12 is relevant as it sets out the procedure for questioning the validity of an order made under section 53 -

" 12 (1) If any person is aggrieved by an order which has taken effect and desires to question its validity on the ground that it is not within the powers of section 53 and 54 or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 11 make an application to the High Court under this paragraph.

(2) On any such application the High Court may, if satisfied that the order is not within those powers or that the interests of the applicant have been substantially prejudiced by failure to comply with those requirements, quash the order, or any provision of the order, either generally or in so far as it affects the interests of the applicant.

(3) Except as provided by this paragraph, the validity of an order shall not be questioned in any legal proceedings whatsoever."

The Role of this Court

Before dealing with the detailed submissions of Mr O'Keefe, it is important to be clear about the limits on the function of this court. It is not the function of this court, nor was it the function of Pill J -

(1) to decide whether or not, on all the evidence and on the true construction of section 31 of the 1980 Act, there is a public footpath across Mr & Mrs O'Keefe's land; this is not a private law action for trespass or for an injunction or for a declaration that a public right of way does or does not exist;

(2) to entertain an appeal, by way of a re-hearing in this court, against the decision of the Council to make the Order or against the decision of the Secretary of State to confirm the Order;

It cannot be over emphasised that the only function of this court is to decide whether Pill J was right or wrong in rejecting Mr & Mrs O'Keefe's challenge to the validity of the Order on the limited grounds specified in paragraph 12 of Schedule 15 i.e whether the Order is within the powers of section 53 and whether there has been compliance with the procedural requirements of the schedule.

I shall deal with each of Mr & Mrs O'Keefe's points in turn.

The Confirmation Point (paragraphs 6 & 7 of Schedule 15)

Mr O'Keefe submitted that the Secretary of State had no power to confirm the Order after they had withdrawn their objections. On that event the Secretary of State should have released the Order to the Council, as only the Council have power to confirm an unopposed order. Alternatively, even if the Secretary of State had power to confirm the order, he could not do so without first holding an local inquiry. He did not do so.

This argument was rejected by Pill J. He held that the Secretary of State had power to confirm the Order, as the Order had been submitted to him. The objection to the confirmation of the Order had by then been withdrawn and the provisions of schedule 15 did not require the Secretary of State to refer the order back to the Council for them to confirm. In these circumstances there was no obligation to hold a local inquiry. Further, even if there had been a failure to comply with the procedural requirements of schedule 15, there was no substantial prejudice to Mr & Mrs O'Keefe: See paragraph 12 (2).

In my judgment, the judge correctly accepted the submissions of the Secretary of State on this point. The legal position may be summarised as follows:-

(1) After the Order was made by the Council on 15 February 1991, Mr & Mrs O'Keefe objected by letter of the 22 March 1991.

(2) In accordance with paragraph 7(1) the Council submitted the Order to the Secretary of State for confirmation by him. At that date it was an opposed order.

(3) After the Secretary of State had become seized of the matter, the Inspectorate wrote to Mr & Mrs O'Keefe on the 6 June 1991 informing them that the Order had been submitted for confirmation; that the Order fell to be determined by an Inspector under paragraph 10 of Schedule 15; and that, pursuant to paragraph 7, it was proposed to hold a local inquiry. On 28 April 1992 Mr & Mrs O'Keefe wrote to the Department of the Environment stating that they wished to withdraw their objection to the Order. As already mentioned, they took this step so that they could proceed with their challenge to the Order in the light of the Divisional Court's decision in Ex Parte Huntington (supra) on the 20 February 1992.

(5) As Mr & Mrs O'Keefe had withdrawn their objection to the order and there were no other objections to consider, there was no longer any point in holding a local inquiry and there was no impediment to the Secretary of State proceeding to exercise his discretion to confirm the order without modification. As the decision had been assigned to an inspector, he was the appropriate person to confirm the Order.

(6) The withdrawal of the objection by Mr & Mrs O'Keefe did not, on the proper construction of paragraph 7, deprive the Secretary of State of power to confirm the Order or require him to remit the Order to the Council.

(7) The provisions do not require the Secretary of State to give a reasoned decision for confirmation of an order to which only one objection was made and then withdrawn.

(8) The provisions do not require that the Secretary of State continue to hold a local inquiry to consider an order when the only objection to it has been withdrawn. No practical purpose would be served in so doing.

(9) The failure (even if, contrary to my view, there was such an obligation, as is contended for) to do any of these things has not caused any substantial prejudice to Mr & Mrs O'Keefe. They expressly withdrew their objection to the Order so that it could be confirmed. That has not prevented them from pursuing their challenge to the decision-making process of the Council. Indeed,it enabled them to continue to do that. In these proceedings they have been able to advance all the arguments allowed by paragraph 12 for a challenge on the grounds of excess of power and procedural irregularity.

(10) Any prejudice which they may have suffered by not having a local inquiry at which they could challenge the evidential material relied on by the Council was a consequence of their own considered decision to withdraw their objection. If the local inquiry had taken place the Inspector could simply have said to them,lawfully and reasonably, " I thought you had withdrawn your objection; there is no point in proceeding with this inquiry. I confirm the order, as there are no objections."

Definitive Map and Statement Point

On this point Mr O'Keefe submitted that there was no power to make a modification order under Section 53 (2) unless there was in existence a definitive map and statement, properly prepared in compliance with the 1949 Act. Without such a definitive map and plan, there was nothing capable of being modified or reviewed. He contended that there was no definitive map or statement for a variety of reasons: the Council had not carried out the requisite survey; the Council had not considered particulars relating to the position, width, boundaries and condition of the paths; and the Council had not formally adopted or annexed the survey cards to the map.

In support of this submission Mr O'Keefe referred in detail to the provisions on public footpaths in Part IV of the 1949 Act. Section 27(1) imposed on the Council the duty to carry out a survey of public paths and to prepare a draft map showing footpaths " as may appear to the council to be appropriate, wherever in their opinion such a right of way subsisted,or is reasonably alleged to have subsisted, at the relevant date. " A duty was also imposed on the Council by section 28 to consult with District and Parish Councils as to the arrangements to be made for the provision by them of information for the purposes of the survey. Under section 28 (4) it was the duty of those local councils to collect and furnish information to the surveying authority. It was then for the Council to prepare a draft map of their area and, in accordance with section 27(4), to annex to the map a statement "specifying the relevant date and containing such particulars appearing to the authority to be reasonably alleged as to the position and width thereof, or as to any limitations or conditions affecting the public right of way thereover, as in the opinion of the authority it is expedient to record in the statement."

On the basis of these statutory provisions Mr O'Keefe contended that -

(1) The Council had never discharged their duties in the preparation of the two necessary documents, the definitive map and the statement. On the contrary, they had misunderstood the 1949 Act and frustrated its purpose. They had never surveyed the footpaths or investigated and checked the information provided to them by the District and Parish Councils. They had left it to those councils to do the surveys and had wrongly treated the survey cards completed by them as the end result. They had not prepared or published their own statement containing the statutory particulars of the paths.

(2) References to the Minutes of the Council's Roads Committee and Rights of Way Sub-Committee for 1950 , 1951 and 1952 showed that the Council had proceeded in this unauthorised way, wrongly regarding the other councils as the surveying bodies. (3) The result was that there was no definitive map or statement which complied with the requirements of the legislation, no conclusive evidence of any footpaths in the Isle of Wight under section 32 (4) of the 1949 Act and nothing capable of modification by the Council under section 53 (1) of the 1981 Act. Although Part III of the 1st Schedule to the 1949 Act contained provisions as to the validity of maps and statements, precluding them from being "questioned in any legal proceedings whatsoever" (paragraph 10), they did not apply, as there were no maps or statements which satisfied the requirements of the Act and there was nothing for those ouster provisions to bite on.

Pill J was against Mr & Mrs O'Keefe on these points. He held that a " statement " within the meaning of section 27(4) of the 1949 Act and Section 53 (2) of the 1981 Act was in existence, even though the survey cards were not physically annexed to the map. There was therefore power to modify the map and statement under Section 53 (2).

In my judgment, Pill J came to the correct conclusion. There was evidence that a total of 1,353 cards came into existence and were kept in a filing cabinet in the same room as the map. They are bulky. The information on the cards was properly considered by the appropriate committee of the Council.Substantial information about the paths is provided. In many cases (232) further particulars were requested. Many cards were amended. Some were removed. Decisions,recorded in the Minutes, were taken on practical matters. The cards have been regarded as the statement, made public and treated as valid for many years, though no further document was prepared, published or physically attached to the map. The relevant date is on the map, but not on the cards. The date of the first map was 11 November 1952 and of the First Review 8 February 1968. I agree with the judge that the cards constitute a statement for the purpose of the legislation. The 1949 Act did not require the statement to be in any particular documentary form or to be adopted in a particular manner or to be physically attached to the map. The statement is intended to accompany and be read with the map. Neither makes much sense without the other. Together they constitute substantial compliance with the statutory requirements. The provisions of paragraph 10 of the 1st schedule to the 1949 Act prevent their validity from being questioned in these proceedings.

The Role and Powers of the Council under the 1949 and 1981 Acts

Mr O'Keefe challenged the power of the Council to make the Order on what he described as "administrative and constitutional law" grounds. He argued that the Council had no power to make an order under section 53 of the 1981 Act effective to create a public footpath across the land owned by his wife without a prior judicial determination of the facts and the law. He criticised the reference in the judgment of Pill J to the Council as " the relevant fact finding body" whose findings are given a high degree of respect in the court of review. The point was developed by reference to authority along the following lines:-

(1) The administrative function of the Council was to ascertain rights of way by a survey and by consideration of the factual and legal situation existing at the relevant date. It was then their duty to record existing rights of way on the definitive map and statement. Section 66 of the 1981 Act defined a right of way to which Part III applied as "a right of way such that the land over which the right subsists is a public path..." It was not within their power to adjudicate upon disputed property rights and create public rights where none subsisted,or to make decisions with expropriatory consequences for landowners. It was ultra vires for them to do so.The resolution of a dispute about a public right of way was a matter for the courts, not for the Council.

(2) The power to modify under section 53(3)(c)(i) of the 1981 Act was confined to cases where new evidence about existing rights as at the relevant date had been discovered since that date and it became necessary to correct a mistaken entry in or omission from the map or statement. In this case no new evidence was discovered about an existing right of way which should have been put on the map at the date of review in November 1968. That power did not extend to cases where the right did not exist at the relevant date. This right of way did not exist in 1968; the period relied on for the modification order was 1965 to 1985. Disputed new rights have to be litigated in the courts. They cannot be created by administrative actions of a recording authority.

(3) A contrary construction would confer on the Council a judicial function. That cannot have been intended in relation to disputed public rights of way governed by section 31 of the 1980 Act. A presumption of dedication of a path to the public under section 31 and conclusive evidence of its existence could not arise simply from the making of an allegation, however reasonable, that such a right existed (that being the diluted test referred to in the 1949 and 1981 Acts.) A presumption of dedication could only be raised on specific grounds and properly established by a judicial process for determining the facts and applying the law to them.

(4) The Council had only an administrative power to determine the application for an order to modify the map and statement and to produce a record of an existing right; they had no judicial power to declare or to determine the existence of the right of way. There were many reasons why the Council could not qualify as a judicial fact-finding tribunal determining civil rights : they were not impartial, as they were a judge in their own cause;they were not independent; they had no judicial procedure (neither a local inquiry nor the inspector exercised a judicial function); the decisions of the Council were taken by lay members (described by Mr O'Keefe as "little more than puppets") with no relevant expertise; there was no public hearing of the dispute about the right of way; the landowner affected by the order was not consulted or heard before the order was made-he was only informed after it was made.

Mr O'Keefe supported these submissions by reference to the Tribunals and Inquiries Act 1958,to Article 6(1) of the European Convention on Human Rights and to the pathbreaking decision of the House of Lords in Anisminic v. Foreign Compensation Commission [1969] 2 AC 147 concerning the fundamental importance of confining areas of judicial inquiry, committed by Parliament to bodies other than the courts, within the legal scope of the statutory powers specially conferred. In my judgment, Mr O'Keefe's arguments do not impact on the validity of the Order. They are contrary to the object of the legislation and they misinterpret the scheme and context of the statutory procedure for the attainment of that object. The legal position is as follows:-

(1) When the Council received the application from the Chale Parish Council to modify the definitive map they were under a duty to decide whether to make the Order or not.

(2) The Council decided to make the Order, after following the prescribed procedure and acting within the scope of the powers conferred on them. Evidence was discovered and considered by the Council which they were entitled to regard as a reasonable allegation that a public right of way subsisted over the O'Keefe's land.

(3) The Order had no effect until it was confirmed. It was brought to the attention of interested persons, including Mr and Mrs O'Keefe, who objected.The consequence was that the Order was referred to the Secretary of State who directed a local inquiry to hear representations and objections. That provided the statutory opportunity for the O'Keefes to challenge the factual and legal basis of the decision to make the Order. They could themselves give evidence to the inquiry, call witnesses to give evidence, challenge the evidence relied on for dedication of the path to the public and make full submissions on the evidence and the law to the inspector. This did not happen.The only reason that it did not happen is that the O'Keefes withdrew their objection, so that there was no longer any point in holding an inquiry into whether an unopposed order should be made.

(4) The point and substance of their complaints about the role and the powers of the Council fall away once the significance of the withdrawal of their objection is appreciated. The statutory machinery was available and was in fact set in motion to enable the objections to the Order to be investigated by an independent inspector. The O'Keefes themselves voluntarily surrendered the opportunity to participate in that procedure. The arguments on "judicial" functions and the" creation of rights" are interesting but irrelevant to the critical questions in this case, namely whether the Council acted within their statutory powers and in accordance with the statutory requirements. They did.

The Highways Act Points Mr O'Keefe submitted that the Council, through their officials and Sub-Committee, had misdirected themselves in law as to the proper construction and application of Section 31 of the 1980 Act and had failed properly to analyse and consider the evidential material relevant to the points raised under that section. Relevant letters had not been drawn to the attention of the committee. He contended that there was an absence of intention to dedicate and that there was sufficient evidence before the Sub-Committee to show that there was no intention to dedicate the path as a public footpath; that the Council's officers had wrongly advised the Sub-Committee that it was always necessary for the landowner to make his lack of intention to dedicate manifest; and that there was no evidence of lack of intention. Wrong advice had been given about the burden of proof.The burden was on the claimant to prove that there was an intention to dedicate to the public and that burden had not been reversed by the legislation. Mr O'Keefe cited many cases on this point and contended that Scott L.J. was wrong in Jones v.Bates [1938] 2 All E.R.237 at 244 and 245 and that Lord Denning M.R.was wrong in Fairey v Southampton CC [1956]2 Q.B. 439 at 459. He also cited Folkestone Corporation v Brockman [1914] A.C.338 at 352 and 354. He took the point as to the date when public user had been brought into question (The Isle of Wight Motorcycle Club incident). The Council had taken 1985 as the relevant date. That was erroneous. According to Mr O'Keefe the relevant date was 1987. More fundamentally, he submitted that the material considered by the Sub-Committee did not support a case of user by the public " as of right". The evidence gathered from the questionnaires and from interviews with members of the public did not address the crucial issue whether the public regarded the path as a public path which they had a legal right to use. There was strong evidence of tolerated use by close neighbours, which was not the same as user as of right by the general public. Further, the user in question was of such a kind (eg wandering at large and deviation to avoid a marshy area) that it could not support the existence of a right of way. A point had also been raised in the notice of motion as to the lack of capacity of a limited owner (i.e. a period in which the land was held in trust) to dedicate, but, as that was abandoned by leading counsel at the hearing below and not raised in the notice of appeal, it is unnecessary to consider it.

Mr O'Keefe relied on further authorities on the 1980 Act and on the Rights of Way Act: Merstham Manor Ltd v Coulsdon and Purley U.D.C. [1937] 2 K.B.77 at 81,82; R v Secretary of State for the Environment,ex p Cowell [1995]J.P.L.851 and Jaques v Secretary of State for the Environment [1995]J.P.L. 1031.

On this clutch of contentions Pill J reached the following conclusions with which I agree-

(1) Under the legislation the Council by their Sub-Committee were the relevant body to consider and make a decision on the application of the 1980 Act and the 1981 Act to the facts. They did so.

(2) The Council were not required to give a reasoned decision in relation to the making of the modification order.

(3) The relevant Sub-Committee considered a mass of evidence (referred to above) from various sources at the meeting on the 10 January 1991 when they made the resolution, on the basis of which the modification order was made. In considering Mr O'Keefe's criticisms of the self-directions on law in respect of the decision it is important to read all the documents and the transcript of the meeting as a whole and not to examine passages taken out of context.

(4) There had been no self misdirection as to the legal meaning of user "as of right" in Section 31 (1) of the 1980 Act. The legal advice given to the committee was accurate and adequate. The relevant issue was sufficiently considered by reference to whether the public use without interruption for 20 years was in the honest belief in a legal right to use it as a public footpath. There was ample material to support the view that the user was peaceable, open, not by permission and as of right. The committee were also entitled to conclude on the material before them that there was insufficient evidence of lack of intention to dedicate during the relevant period. There was no misdirection on the burden of proof.

(5) The relevant Sub-Committee considered sufficiently the evidence about wandering at large, the character of the footpath and the statements and comments of the former owners, as well as of Mr & Mrs O'Keefe.

Conclusion

In brief, the decision of Pill J on all the above points was correct. The Order was within the powers of the Council and there was no failure to comply with the requirements for making the Order. This appeal should be dismissed, both as regards the motion to quash the Order and the two orders granting leave for judicial review made before the decision in Ex p Huntington (supra).

Sir Ralph Gibson - I agree

Hirst LJ - I also agree

Order: Appeal dismissed; costs of the appeal to be the Respondent Isle of Wight's costs; Secretary of State to have 50% of his costs of the appeal; application for leave to appeal to the House of Lords refused.

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