Case No: C1/ 2011 / 0366  
Neutral Citation Number: [2011] EWCA Civ 1328
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE

Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET

Date: Wednesday 29th June 2011

Before:

LORD JUSTICE PILL
LORD JUSTICE JACKSON
and
LORD JUSTICE GROSS
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Between:

	Devine & Anr	
Respondents
	
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Welsh Ministers	

Appellants	

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(DAR Transcript of 
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A Merrill Communications Company
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Mr Gwion Lewis appeared on behalf of the Appellants.

Mr Wadsley & Ms Evans appeared on behalf of the Respondents.
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Judgment

Lord Justice Pill:

1.	This is an appeal by the Welsh Ministers (“the appellants”), against a decision of Beatson J made on 27 January 2011.  The judge quashed the decision of an inspector, to whom the appellants had transferred appropriate authority, making an order under Section 53 of the Wildlife and Countryside Act 1981. An order dated 6 May 2009 had been submitted to the appellants by Rhonda Cynon Taf County Borough Council ("the Council") and proposed to add to the definitive map for the area the footpath between Forest Walk and footpath No.1 Llanharan.  The footpath is near Talbot Green, Pontyclun, in the county borough.  On 26 August 2010 the inspector confirmed the order subject to modifications not material for present purposes.

2.	Before making the order the inspector held a local public inquiry at which Mrs Catherine Devine and Dr Teresa Laverty (“the respondents”) were represented by leading counsel.  The inspector heard oral evidence from witnesses called by the council and from objectors, including the respondents. He also considered documentary evidence and made a site visit.  The respondents own parts of the land over which the footpaths would run and plainly have an interest in the present proceedings.  

3.	Section 31 of the Highways Act 1980 ("the 1980 Act") provides, insofar as is material: 

“(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 a right and without interruption for a full a 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 sub-sub-section (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 notice or otherwise."

4.	The respondents’ entitlement to challenge the order arises from paragraph 12 of Schedule 15 to the 1980 Act.  The order was accompanied by a map and a description: 

"The southerly part (A-B on the Order map) runs from the turning circle at the end of a cul-de-sac road called Forest Walk to just south-west of a railway bridge over the River Ely. It is in woodland, close to and in parts adjacent to the River. It then rises very steeply from the river side to the top of the southern end of the bridge. The northern part of the Order route (B-C) runs northwards across the bridge and along the course of the former Ely Valley Railway to where it is crossed by Footpath 1 Llanharan."

5.	The use relied on by the council was for the period 1986 to 2006.  The inspector concluded  at paragraph 67: 

"I conclude from the evidence considered so far that the Order route was, during the period 1986 to 2006, of a character such that use of it could give rise to a presumption of dedication, that the public used it on foot during that period as of right and without interruption, and thus that it may be deemed to have been dedicated as a public footpath unless there is sufficient evidence that there was no intention during that period to dedicate it."

Having gone on to consider evidence in relation to intention to dedicate, the inspector concluded at paragraph 72 that "the statutory tests were deemed dedication is met".

6.	The Ely Valley railway ceased to be used as such in 1984 and the rails were removed in 1989.  Forest Walk, where one of the respondents lives, that is Mrs Devine, was built in 1979 or 1980.  The former railway land was sold in 1990.  The conveyance included an obligation to fence the railway track at point B but the inspector found at paragraph 33 that there was no documentary evidence that the fence was erected.

7.	Under the heading Physical Barriers and Other Features the inspector gave a detailed account of the route and the features found along it based on his own observations during the site visit.  It is common ground that that was the purpose of the paragraphs.  At paragraph 32: 

“The objectors produced photographs of the former railway line taken in 1990.  They show the track-bed, formed of ballast. They do not show, as was argued, that the Order route between B and C would have required clearance at that time to be walkable.  No fence is shown on the photographs.”  

[…]

“37. A little way below the top of the embankment, and at the top, there are concrete posts which have the appearance of those seen often at the sides of the railways. It is clear that at some time in the past they would have had wires attached, two sets of which would have had to be climbed through or over to get to the railway line. It is not possible to gauge from the physical evidence for how long the wire has been missing or broken. There are also posts from which wire would have traversed the line just south of the bridge. This cannot have been in place earlier than 1984, when the last train ran.

38. Further north, nearly half way between B and C, are the remains of a fence of sheep netting lying on the ground at right angles to and on either side of the track-bed, which at that point is on fairly level ground with narrow belts of immature woodland on both sides. If this fence crossed the line it cannot have been in place before 1984. The remains are attached to trees either side of the track-bed. I consider that a fence erected by the BRB would probably have consisted of wire stretched between concrete posts, as at other locations. What can be seen of the remains does not suggest professional erection. The objectors suggested it could otherwise only have been erected by Taff Ely Borough Council. I do not agree. The fence could, for example, have been erected by a neighbouring landowner for the purposes of stock control if stock were getting onto the former line and wandering along its length. It does not seem likely that it was erected by the owner of the railway land.

39. No significant conclusions about use of the Order route can be drawn from this evidence on its own, but they may be in conjunction with user and objector evidence which refers to the various fences, the embankment and the gate.”   

8.	There was conflicting evidence as to the use made of the route and in particular as to whether it was fenced.  The inspector was required to make a finding of fact on that subject.  He stated at paragraph 20: 

“20. There were stark disparities between accounts of the use of the Order route and of its features given by users, and those given by witnesses for the objectors. Evidence given by some users was inconsistent with that given by others, and there were also some contradictions between accounts given by the objectors’ witnesses. I accept the objectors’ argument that in these circumstances any relevant documentary or physical evidence may assume significance, so I shall first consider contemporaneous documentary evidence, then any current physical evidence which may shed light on the position during the relevant period, before dealing with the oral evidence.”

I refer, to highlight the point, to the opening words which plainly were an accurate statement of the position.

9.	The inspector considered the evidence, including the evidence of Dr Laverty, in detail.  He made his findings at paragraph 60 to 64:

“60. Dr Laverty owns a property just south of point B which has included since 1991 a small part of the land crossed by the Order route. Her evidence was that for some time during the 20 year period around 1991 there had been a barbed wire fence across the Order route as it climbed the bank from the River Ely to the railway line, that a fence had been in place across the former railway line where it crossed the bridge near point B for between one and two years from 1990 or 1991, and that there had been a further fence across the track-bed between B and C over which she had not been able to climb and which was in position for at least six months in 1992. The physical evidence of posts and remnants of wire (paragraphs 37 to 38) corroborates the existence of fences across the route, although not that they were in place during the 20 year period.

61. None of the 20 individuals or couples who completed user evidence forms mentioned fences across the route, and the twelve users who gave evidence to the enquiry, including those who stated that they had used the whole Order route, were adamant that their progress had never been impeded by fences. Several were clear that there had been a fence across the line of the former railway, but were clear that there had been a fence across the line of the former railway, but only to the south of B, adjoining Dr Laverty’s garden, and not across the Order route. I was impressed by the obvious surprise expressed by the CBC’s witnesses when it was put to them that they must have encountered fences when using the Order route to access the former railway line and between B and C. They were sure that the only barrier they had seen was south of B. It seemed to me that they were credible witnesses on this point.

63. I do not consider the Dr Laverty’s oral evidence of the existence of fences to be bolstered by the physical evidence of fence posts and the remains of wires, from which it is not possible to conclude at what period they would have formed effective barriers to use. The photograph taken looking north along the former railway line taken in the autumn of 1990 shows no fence.

64.  It seems to me that the conflict of evidence between users and objectors is incapable of reconciliation except on the improbably basis that Dr Laverty and one of the objectors’ witnesses encountered fences very shortly after they were erected, and that they were torn down or breached almost immediately afterwards (although the objectors stated that they did not allege that this was done by any of those who had completed user forms).”

10.	The inspector concluded at paragraph 65: 

"I prefer the evidence of those witnesses who appeared for the CPC [that is the council] and I conclude that there were probably no fences impeding access to and along the former railway during the relevant 20 year period."

11.	The first point of challenge was identified by the judge at paragraph 10 of his judgment: 

"whether there was a wire fence at point B during the relevant period."

It is submitted that the inspector had found that there was a fence traversing the route of the footpath at some point but did not consider the implications of that finding when resolving the conflict of evidence between the objectors and other witnesses.  It was also submitted that the inspector failed to consider documentary and circumstantial evidence.  It was accepted at the hearing before the judge that an allegation of unclear findings about the erection of a sheep wire fence between points B and C was not a freestanding ground of challenge.  

12.	The judge identified the second subsisting ground of challenge at paragraph 11: 

"…the Inspector unreasonably failed to take account of the map produced by Llantrisrant Community Council in 1987. That map was a map of local walks but it did not show a footpath along the route subject to the 2009 order."

13.	The judge found for the respondents on both grounds.  He stated: 

“55. I have, however, concluded that, notwithstanding the circumspection a court is required to show in dealing with the factual conclusions of an Inspector, on these limbs of the first ground Mr Blohm's submissions are to be preferred. The Welsh Ministers' defence of the approach of the Inspector to the fencing issue depends to a large extent on the premise that the Inspector did not conclude that a wire fence traversed the Order route at or around point B. Although paragraph 37 of the decision states that the "wire would have traversed the line just south of the bridge", it is clear from the context that the Inspector is considering the Order route. Had he not been considering the Order route, the wire and the posts would have been in the wrong location. It is, moreover, clear from paragraph 60 that he was, in paragraphs 37 and 38, concerned with remnants of wire which went "across the route". He stated that the "physical evidence of posts and remnants of wire (paragraphs 37 - 38) corroborates the existence of fences across the route, although not that they were in place during the 20 year period". 

56. The Inspector's statement in paragraph 63 that he did not consider Dr Laverty's oral evidence of the existence of fences was "bolstered by the physical evidence of fence posts and the remains of wires" is in context also consistent with the view that those physical remains are remains from which wire would have traversed the Order route. 

57. What is the consequence of this? In a context where what was at issue was whether the route had been fenced off at all and not simply when it had been fenced off, these parts of the decision letter which in effect reject part of the evidence given by those who said there never was a fence, were factors supporting the evidence of the objectors. The Inspector considered the question whether the physical remains gave any guidance as to when the wire traversed the route and concluded that it did not. There is no and could be no challenge to that finding. But he then set aside consideration of the physical evidence and did not stand back and consider the implication of his conclusion that at some time the wire had traversed the route on the other evidence and the circumstantial evidence before him including the obligation on the Association to fence "forthwith" and Mr Israel's evidence. He did not accordingly take it into account in making his assessment of the credibility of the witnesses.

58. The Inspector's approach to the map prepared by the Community Council is also relevant at this stage. I have said that, had the issue about how the information in the map was gathered been raised at the inquiry, the Inspector's conclusion to give the map no weight would not have been open to challenge. But it was not raised. I have concluded that to set aside a map produced by a public body with the support of the Countryside Commission at about the material time by giving it no weight, with no explicit consideration of the factors listed in section 32 of the Highways Act and, as I have said, no implicit consideration of them and without the issue having been raised at the inquiry, is Wednesbury unreasonable. The consequence is that the Inspector also did not take the map into account at all in assessing the evidence of the witnesses who gave oral evidence or made statements. As Mr Blohm recognised, had the Inspector done all of these things he may nevertheless have come to the same conclusions. I, however, accept Mr Blohm's submission that what in fact occurred was a failure to take account of this evidence.”

14.	At paragraph 59 the judge stated: 

"My conclusions on these matters mean that the claimants must succeed on the first two limbs of the fencing issue together with the second issue, the map question."

15.	The judge had in mind the "circumspection a court is required to show in dealing with the factual conclusions of the inspector."  He cited the decision of Forbes J in Seddon v SSHD [1981] 42 P & CR 26 and the judgment of Sir Thomas Bingham MR in Clarke Homes v SSHD [1993] 66 P & CR 263.  Issues are to be resolved "without excessive legalism or exegetical sophistication."

16.	In seeking to uphold the decision of the judge, Mr Wadsley, for the respondents, submits that the inspector's finding at paragraph 37 that "wire would have traversed the line just south of the bridge" was a reference to the line of the footpath and not the railway line.  The inspector was recording what he had seen and the expression "just south" is consistent only with crossing the Order route and not the fence mentioned in paragraph 61 of the inspector's report: “across the line of the former railway … and not across the Order route".  Reference in paragraph 37 to a fence not having been in place earlier in 1984 was relevant, it is submitted, only if the Order route was being considered.  

17.	What the members of the court considered to be the strongest point of Mr Wadsley is the reading together of the last two sentences of paragraph 37 with the last sentence of paragraph 60 of the inspector's report.  It must follow from that, Mr Wadsley submits, that the inspector had found that there was a fence across the Order route at the relevant time.  

18.	When summarising the evidence given by each of the parties, he states (this is not in issue) that there was evidence only of an intermittent interruption.  Reference is made to paragraph 60: 

"…a fence had been in place across the former railway line where it crossed the bridge near point B for between one and two years from 1990 or 1991..."

19.	There was no evidence as to who had constructed the fence and as to the circumstances in which, after a comparatively short time, it appears on the objectors’ evidence that it had been removed.  Mr Wadsley rightly submits that provided he has established significant interruption, then the necessary period of user as of right is not established.

20.	Having considered the respondent's submissions I have come to the conclusion that the findings of the inspector are coherent and consistent and cannot successfully be challenged.  I agree that paragraphs 34 to 38 of the decision of the report are based on the inspector's own observations during his site visits.  He states a plain conclusion at paragraph 39.  Having given the description to which I have referred: 

"No significant conclusions about use of the Order route can be drawn from this evidence on its own."

21.	I refer to the pattern of the decision letter, as to which there is no issue.  The inspector had to make a difficult decision as to what oral evidence to accept. There were, as he put it, stark disparities between the accounts given on behalf of the parties.  In that situation, rightly as it seems to me, he looked for physical or documentary evidence which might point one way of the other as to who was telling the truth.  Under a heading, Documentary Evidence, considerable detail is given, before turning to the question of oral evidence which the inspector also considered in detail.  I repeat paragraph 39 of his decision: 

"No significant conclusions about use of the Order route can be drawn from this evidence on its own [that is the evidence in the preceding paragraphs], but there may be in conjunction with user and objector evidence which refers to the various fences, the embankment and the gate."

The inspector was thus rightly keeping open the possibility that the physical documentary evidence might assist him in reaching the difficult conclusion he had to reach as to which witnesses were telling the truth.

22.	The conclusion at paragraph 39 follows immediately after the narrative and is sensible, in my view, only if the finding at the end of paragraph 37 related to a location on the railway line beyond the Order route.  It is not at all likely that the inspector, in what has every appearance of being a carefully prepared report, would have ignored in paragraph 39 a finding in paragraph 37 if it was in conflict with the conclusion stated.  Moreover, in paragraph 37 itself, there is a reference to the “railway line” just before the controversial sentence and there is a reference to the date at which the use of the railway as a railway ceased.  

23.	That the reference was to a fence across the railway line is consistent with the undisputed evidence summarised in paragraph 61 that there had been a fence across the railway line of the former railway to the south of point B and not across the Order route.  There was a fence across the railway line "but only to the south of B and not across the Order route".  That is a very plain finding of fact.  It led to the finding which followed, in paragraph 65, that the evidence of the witnesses for the council was to be preferred and that there probably had been no fences impeding access to and along the former railway during the relevant 20-year period.   

24.	Thus one has first a recognition of the manner in which the oral evidence should be considered.  Help should be sought, if available, from potentially corroborating evidence in the physical findings on site and/or in relevant documentation.  The inspector had all that in mind when he reached the conclusion he did.  

25.	In paragraph 61 he said in terms where the fence across the line of the former railway was (that is south of point B).  He followed that with a finding that it seemed to him that "they [that is the council's witnesses] were credible witnesses on this point".  Having regard to the approach which the court should take to inspectors' reports in circumstances such as this, it would, in the face of that, require powerful evidence of incoherence or inconsistency in the decision letter to justify quashing the decision the inspector made.

26.	If the letter can be read as a whole as coherent and internally consistent, that should be done.  Inconsistencies, unless obvious, should not readily be found.  Mr Wadsley submitted that, in the circumstances, unless the report was "utterly clear", the decision should be quashed.  I cannot accept that as a correct approach.  

27.	For the appellants, Mr Lewis submits that the judge has imputed to the inspector a finding of fact he did not make.  Mr Lewis submits that, when one reads paragraph 37 to 39 as a whole, the inspector has clearly not made the finding attributed to him that there was a fence across the Order route, particularly when read with paragraph 61.  The fence in question, as to the existence of which he had no difficulty, was a fence south of point B and south of the Order route.

28.	In relation to the relationship of paragraphs 37 and 60, the court’s concern about the point was put expressly to Mr Lewis.  He relies on the overall view of the decision letter and I have already commented upon that, and I find the submission cogent for the reasons already given.  I do not have much difficulty with paragraph 37 read alone; it appears to me that the reference to the wire just south of the bridge was a reference to a wire across the railway line and not across the route line.  The last sentence of paragraph 60 presents more difficulty and I repeat it: 

"The physical evidence of posts and remnants of wire (paragraphs 37 to 38) corroborates the existence of fences across the route, although not that they were in place during the 20 year period."

29.	Mr Wadsley has rightly referred to the very short time between the end of railway use and the beginning of the 20-year use relied on.  He submits that the strong probability would thus be that any fence which was there following the abandonment of railway use must still have been there in 1986.  In my judgment all the inspector was doing in paragraph 60 was to comment on the evidence of Dr Laverty.  He was consistent in his approach of seeing whether corroboration was present by way of physical evidence when considering the oral evidence.  He summarised Dr Laverty's evidence as being that there was more than one fence across the Order route which would prevent the making of a footpath order. 

30.	I read the last sentence of paragraph 60 as no more than a comment on that evidence, which he was summarising.  The reference to paragraph 37, which might incorporate the whole of that paragraph, presents a difficulty, but I accept the submission of Mr Lewis that, by the bracketed reference, the inspector was not intending to encapsulate the entirety of paragraphs 37 and 38, so as to incorporate them in the general statement at the end of paragraph 60.  Shorthand was used and that was unfortunate, but I see no basis upon which lack of clarity on that particular point could justify the quashing of a decision carefully prepared, in which a proper approach was followed by the inspector, and in the course of which he made clear findings of fact on the oral evidence which was at the core of the case.  In my judgment the learned judge was in error in quashing the decision on that ground.  I add that I see no inconsistency between the inspector's description and his eventual conclusion. The inspector was also entitled on the evidence to conclude that the obligation to fence contained in the 1990 conveyance was not performed.  

31.	The second ground can be dealt with more briefly.  The inspector found at paragraph 31: 

"No path on the line of the Order route between A and B shown on small-scale OS maps of the area published between 1980 and 2007. Since no information was given as to when the area was actually surveyed by the OS the detail such as paths and tracks, I can give no weight to this evidence. Nor is a path shown on a map on local walks drawn by Llantrisant Community Council in 1987, but since no evidence was provided as to how the information shown was gathered, I can give it no weight."

32.	It is submitted by Mr Wadsley that the map was produced by a responsible local representative body, the Community Council, which was seeking to promote walks in the area.  It was issued during the relevant 20-year period; the absence on it of the conveyed footpath could not be dismissed, it is submitted, as being of no weight.  Mr Wadsley has referred to Section 32 of the 1980 Act which requires evidence such as this to be taken into consideration.  

33.	Mr Lewis submits that the community council map was not intended to be comprehensive.  Its narrative provides that it has "identified many delightful walks".  The map was prepared at the beginning of the 20-year period when the railway track was still present and the use of the railway had been discontinued only two years before.  The land was still used by the British Railways Board.  Mr Wadsley points to the presence of evidence that before 1984 the walk was used, and submits that weight was required to be given -- though how much was a matter for the inspector -- to the absence of the footpath on the plan prepared by the community council.  

34.	I agree with the inspector that there was no evidence as to the criteria by which the map was prepared or, as he pointed out, how the information was gathered.  That too was shorthand; he was pointing out that there was no evidence from the community council that suggested that the map was intended to be a comprehensive survey of footpaths in the area.  The inspector was in my judgment entitled to give the map no weight; indeed I would have expressed surprise if he had taken a different view, even if evidence of some use by the public was available in 1987 to the council.  Their reluctance to include on such a map a route along a railway track on land still owned by the British Railways Board would in my judgment have been obvious.  This is not a ground for  quashing the decision.

35.	For those reasons I would allow this appeal and uphold the inspector's decision.

Lord Justice Jackson:

36.	I completely agree with Pill LJ on point 2 concerning the map.  I confess to finding point 1, the fencing point, considerably more difficult, but I agree that an inspector's decision letter should be approached on the basis of a straightforward down-to-earth reading and without excessive legalism: see Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P and CR 263 at page 272.  Thus guided, ultimately I am persuaded by Pill LJ's analysis of the inspector's decision letter as a whole that there was no proper basis for quashing it, notwithstanding the unhappy wording of paragraphs 37 and 60.  Accordingly, I too agree that the appeal should be allowed.

Lord Justice Gross:

37.	I agree that this appeal should be allowed for the reasons stated by Pill LJ. 

Order:  Appeal allowed