England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE SULLIVAN: This is an application under paragraph 12(1) of Schedule 15 to the Wildlife and Countryside Act 1981 to quash the Hertfordshire County Council (Sawbridgeworth 42) Modification Order 1995 ('The order'). The effect of the order is to modify the Herefordshire County Council Definitive Map and Statement of public rights of way by adding Mill Lane, Sawbridgeworth as a by-way open to all traffic, ('BOAT').

2. Mill Lane runs north from the junction between Leat Close and Station Road over a bridge across a mill stream, onto a small island formed by the mill stream on its southern side and the navigable River Stort on its northern side.

3. Once on the island, the way turns through approximately 90 degrees, runs alongside the south bank of the River Stort, turns again in a north, north east direction crossing the river by an iron bridge just to the south of a lock.

4. It terminates at the towpath, which is a public footpath, on the north eastern bank of the River Stort.

5. The 1981 Act requires the County Council, as the surveying authority, to keep the definitive map under continuous review. By section 53(2) and (3), if the County Council discovers new evidence which, when considered together with other relevant evidence available to them, shows that a right of way which is not shown on the definitive map subsists, or is reasonably alleged to subsist, they must make an appropriate modification order.

6. The County Council made the order in July 1995. The effect of the order as made by the County Council was to show the way as a BOAT from Leat Close, over the mill stream and up to the bridge over the River Stort. From there, the route across the bridge to the towpath on the opposite bank would have been shown as a public footpath.

7. Schedule 15 to the 1981 Act requires that publicity shall be given to the making of orders, enables representations and objections to be made, and provides for a public inquiry or hearing to be held by the Secretary of State if the objections or representations are not withdrawn.

8. Having considered the report of the inquiry or hearing, and the representations and objections, the Secretary of State may confirm the order with or without modifications. In the majority of cases, this decision-making power is delegated by the Secretary of State to an Inspector.

9. There were objections to the order, so the Secretary of State appointed an Inspector to determine the matter and the Inspector held a public inquiry in Sawbridgeworth in November 1996.

10. In his decision letter of 29th January 1997 (the decision letter), he proposed to confirm the order, subject to the modification that the whole length of the way would now be classified as a BOAT.

11. Before he was able to confirm the order as modified, the Inspector had to comply with the requirements of paragraph 8(2) of Schedule 15. He had to give notice of his proposal to modify the order and if that prompted further representations or objections, he had to hold an inquiry and consider them.

12. There were further objections, and so he held a second inquiry in October 1997. Following that inquiry he decided in a decision letter dated 24th November 1997 (the second decision letter) to confirm the order as modified. The whole of the disputed way was to be added to the definitive map as a BOAT.

13. The Applicants own property on the island which is affected by the way. Mr Ainger on their behalf submits that the Inspector made five errors of law in the decision letter, and that there was unfairness at the second inquiry which led to the second decision letter.

14. In order to understand the six criticisms it is necessary to set out the relevant passages from the decision letter and the second decision letter.

15. The County Council's decision to make the order was prompted initially by 136 user evidence forms and 7 letters which claimed the existence of a right of way. These dated from 1982 and were a response to a challenge to the public's right to use the route at that time.

16. At the Inquiry, six witnesses spoke and there were seven statutory declarations all supporting the order. Although there had been written objections to the order, hence the need for an inquiry, the objectors, represented by Mr Ainger, called no witnesses, but cross-examined the County Council's evidence and made legal submissions.

17. The Inspector described the route and the immediate area and then summarised the cases of the parties, beginning with the County Council, which had based its conclusion that, on the balance of probability, a right of way existed over the route, on both historical and user evidence.

18. Mr Tucker, formerly managing director of Thomas Burton Ltd, stated that he had, from time to time, caused the way to be closed and had put up notices stating that the roadway was private property. A chain was strung across it sometime in 1965.

19. Mr Tucker was reported in the local paper at the time as having put it there....'to prevent people parking their cars there at night and to protect the property generally'...' not really intended to prevent pedestrians enjoying a walk'. Several users recalled this incident but stated that it had never stopped them from using the route. In the opinion of the County Council therefore, this had not constituted an effective challenge.

20. County Council concluded by saying that whatever the position might be in respect of vehicular rights of way, the user evidence established public footpath rights certainly by 1964, and so they invited the confirmation of the order showing the route, if not as part BOAT, part public footpath, then as footpath only.

21. The Inspector summarised the objector's contentions that the historical evidence was extremely weak and that the Council had ignored or misrepresented the limited material which was available.

22. Having noted the County Council's proposition, that the user evidence taken independently of the historical evidence suggested that footpath rights existed on the balance of probability, and having referred to section 53 of the 1981 Act, the Inspector concluded as follows:

23. His second decision letter was much shorter. He summarised the points made by the objectors, which included:

24. He then concluded that no new evidence had been submitted, which related specifically to his modification, as opposed to rehearsing issues which had been covered at the first inquiry. He therefore concluded that the modified order should be confirmed.

25. I will now deal with the six issues raised by Mr Ainger.

26. The River Stort was made navigable by 1768 under the River Stort Navigation Act 1766 (the 1766 Act). The 1766 Act authorised the undertakers to construct the lock I have mentioned above. It also authorised them to construct the towpath and by section xiii to construct such bridges over the new cuts "as shall be proper for the use of the occupiers of the lands thereunto adjoining".

27. Unusually, millers had the power to operate the locks, and Mr Ainger submits that it may be inferred that the miller who owned the mill, on what became the island, built the lock cottage on the Essex side of the river known as "Merriemead".

28. More generally, he submits that bridges across new cuts were accommodation works, and so any use of the bridge below the lock by those wishing to gain access to lock cottage, the towpath, or the lands adjoining the river on the Essex side were all referable to section xiii of the 1766 Act.

29. He relies upon the maxim omnia presumuntur rite esse acta and cites the decisions of the Court of Appeal in Yorkshire Derwent Trust Limited v Brotherton (1990) 61 P&CR 198 at pages 209 and 224 and Stoney v Eastbourne Rural District Council (1927) Ch 367 at 389. One should not infer dedication if user the way is explicable on other grounds. If user is of the kind which is authorised by statute, in this case the 1766 Act, one should assume that it is referable to that, and thus has a lawful origin, and not that it is referable to trespass.

30. He accepts that the public may, by extensive usage, acquire a right of way over accommodation works, but in respect of any usage of this route going beyond use as a footpath, he submits that the only evidence, which the Inspector summarised in paragraph 17 and to which he cross-referred in paragraph 31 of his decision letter, was consistent with usage under the 1766 Act:

31. He submits that if there is no evidence of vehicular usage prior to 1st December 1930 which is not referable to the 1766 Act, then the use of the way by vehicles thereafter would have been unlawful, if the way had by that time become a public footpath (see the Road Traffic Act 1930, and R v The Secretary of State ex parte Stevens (1998) The Times 20th February).

32. Mr Hobson submits that paragraph 22 of the decision letter demonstrates that the Inspector was aware of the significance attached to the 1766 Act by the Applicants and that he fairly summarised their case in this respect. But he says that the 1766 Act did not prevent the subsequent establishment of a right of way by use of the way in a manner that was not referable to the 1766 Act. He submits that whilst user by the lock keeper, by bargemen and adjoining owners may have been referable to the 1766 Act, the Inspector was taking into consideration more extensive user and was entitled to conclude that a right of way had been acquired. He submits that the evidence of user found by the Inspector was sufficiently extensive to justify the conclusion that it was inconsistent with private use of accommodation works under the 1766 Act.

33. Whilst the Inspector mentioned the Applicants submission that the user was referable to the private use of an accommodation bridge under the 1766 Act, there is no indication in his conclusions that he evaluated the user evidence to see whether it might have been referable to the 1766 Act.

34. Paragraph 31 refers to the user and documentary evidence as being mutually supportive. The user evidence is summarised in paragraphs 16 and 17. It is not suggested that the user evidence forms referred to in paragraph 16 supported the existence of a right of way other than on foot. The only user evidence which supported the proposition that there was a right of way on horseback or leading a horse or for vehicles, was that referred to in paragraph 17. The witnesses, who themselves used the way on foot, had seen other users:

35. Use by bargemen, with or without horses, would clearly be referable to the 1766 Act. So too would use by farmers and carters wishing to gain access across the cut to lands adjoining the Stort. Accommodation works such as bridges over canals or railways are constructed precisely in order to facilitate such journeys.

36. Thus, I do not accept Mr Hobson's submission, that, on its face, the user described by the Inspector, insofar as it went beyond the use of the way as a footpath, was more extensive than the kind of user which would be referable to the 1766 Act. Even if it might have been more extensive, for example, carters using the bridges as part of a long distance route, there is no indication that the Inspector addressed his mind to the question whether that was the case. One would naturally except substantial vehicular traffic to and from a mill. Such traffic would be equally consistent with a private carriageway.

37. The evidence of pedestrian user was so extensive that a conclusion that a public right of way on foot had been established, in addition to the private rights enjoyed over the accommodation works provided under the 1766 Act, would have been unassailable. But insofar as the Inspector's conclusions go further, and the user evidence is said to support not merely a footpath, but a BOAT, over the whole length of the route, including the bridge below the lock, it was necessary for the Inspector to consider whether the very limited evidence of that more extensive user was referable to the 1766 Act. This he failed to do.

38. At the public inquiry the County Council had called Mr Millman, a Definitive Map Officer with the Council, to give evidence. He presented a detailed and comprehensive proof of evidence, which reviewed all the available material. He identified and discussed not merely those documents which, in his view, supported the proposition that a public right of way existed, but also those documents which might lead one to a contrary conclusion. Among the latter, were a number of documents of title.

39. Mr Ainger submitted that these documents showed that Mill Lane was consistently treated as a private road by all those who entered into the agreements, leases and conveyances at various dates between 1814 and 1981.

40. He made a number of detailed criticisms of Mr Millman's evidence in respect of these documents of title. I find it unnecessary to rehearse those criticisms for the following reasons: firstly, whether or not Mr Millman was correct in every detail, there is no doubt that his proof of evidence was a conscientious attempt to set out all the available evidence in a comprehensive and balanced fashion. He was subjected to cross-examination and the Inspector felt that the credibility of his evidence had, if anything, been enhanced as a result.

41. Secondly, the question is not what Mr Millman thought these private documents showed, but what conclusions the Inspector reached about the documents.

42. Thirdly, it is clear from paragraph 14 of the decision letter, which I have set out above, that Mr Millman's evidence was that these documents of title, "taken in isolation would suggest that Mill Lane and the route across the island were a private carriageway".

43. Fourthly, it is plain that the Inspector agreed with and adopted that assessment. Having referred in paragraph 29 to the public documents, he chose to give them greater weight "rather than the opposing evidence from private documents - indentures, conveyances, etc".

44. Thus, both Mr Millman and more importantly the Inspector, accepted the Applicants case that these "private documents", were opposed to the existence of a public right of way. Whether the Inspector was entitled to attach greater weight to the public documents is a separate matter, with which I will deal after considering points (3) and (4) below.

45. The County Council's evidence as to the effect of these documents is summarised in paragraph 10 of the decision letter. It is clear from paragraphs 29 and 30 of the decision letter that the Inspector accepted that the Tithe and the Finance Act documents whilst not conclusive, were to be preferred to the "opposing evidence" from private documents.

46. Mr Ainger submitted that the status of a way was immaterial for the purposes of the Tithe Commutation Act 1836, since neither public nor private roads were tithable. Thus, tithe documents whilst they could be relevant as to the existence or non-existence of a way on the ground at the date of the map and apportionment, were neutral as to its status. He cited dicta of Hilbery J in Merstham Manor Ltd v Coulsdon & Purley UDC (1936) 2 All ER 422 at pages 438 to 439.

47. Having concluded that there was a highway in that case, Hilbury J said this by way of comment:

48. Mr Ainger accepts that these dicta were obiter, but they were sited with approval by Sedley J in Issac v The Secretary of State for the Environment and Devon County Council (unreported) the transcript is dated 10th November 1995.

49. A similar approach to the relevance of Tithe maps seems to have been adopted by Goff J, as he then was, in Attorney-General v Beynon (1970) 1 Ch 1. During the course of argument on a preliminary point. In the event, Goff J looked at Tithe map de bene esse, for the purpose of determining the boundary of a way.

50. In Sauvain's Highway Law, 2nd edition at paragraph 2-72, there is the following:

51. Mr Hobson submits that Tithe maps are not irrelevant. They are part of the historical background and may be taken into consideration. In Kent County Council v Loughlin (1975) 235 EG 681, Lord Denning, MR, had thought that the Tithe maps were of great value. In the present case

52. Mr Millman's approach, which was accepted by the Inspector, was not to say that the Tithe map information was conclusive, or that because a highway was shown on the Tithe map for 1839 there must have been a public highway at that date. He accepts that such an approach would have been far too simplistic and in conflict with the data cited above.

53. It is worth setting out Mr Millman's approach in a little detail. After referring to the 1836 Act, he had this to say as to the manner in which roads were shown on the 1839 map.

54. He then considered the 1838 apportionment. Having tabulated the manner in which it dealt with the various roads in the area he said this:

55. In the light of those submissions, my conclusions under issue (3) are as follows: Hilbury J's comments are acknowledged to have been obiter, and it is not clear how the evidence from the Tithe maps was deployed before him or before Sedley J. Goff J, in ruling on the preliminary point in the case before him was not concerned with the issue which arises before me.

56. The Tithe map and apportionment evidence is undoubtedly relevant as to both the existence, and physical extent, of a way at the relevant time (see the Beynon and Loughlin cases and Sauvain). Because both public and private roads were not tithable, the mere fact that a road is shown on, or mentioned in, a Tithe Map or Apportionment, is no indication as to whether it is public or private.

57. But if detailed analysis shows that even though he was not required to do so, the cartographer, or the compiler of this particular map and apportionment, did in fact treat public and private roads differently, whether by the use of different colours, the use or non-use of plot numbers, or other symbols, or in schedules or listings, I do not see why evidence based upon such analysis should not be admissible as to the existence, or non-existence of public rights of way. Whether the analysis does lead to such a conclusion, and if so, what weight should be attributed to the conclusion is a matter for the Inspector. Since it was not one of the purposes of the 1836 Act to distinguish between public and private roads, such information as can be derived from the Tithe Map and Apportionment cannot be conclusive, and must by its very nature be tentative, but the Inspector was not obliged, as a matter of law, to conclude that

58. Mr Millman's analysis and conclusions on this issue were of no probative value whatsoever.

59. The Inspector accepted, in paragraph 30 of the decision letter that the "Tithe and Finance Data is not conclusive", but he gave "greater weight" to this "relatively objective evidence", rather than to the private documents, which I have dealt with under issue (2) above.

60. I will return to this aspect of the matter after consideration of the remaining issues.

61. I have set out the passages in the decision letter which make it clear that the Inspector accepted Mr Millman's approach to the conclusions to be drawn from this evidence. Having described the procedure for the inspection of each hereditament under the 1910 Act, and that provision was made for a reduction in the value of the hereditament if it was subject to, for example, public rights of way, Mr Millman said this:

62. From the ordinary meaning of the word 'road' I conclude that the'road leading down to Sawbridgeworth Mills', which can from the plans be seen to be identified with Mill Lane, was a vehicular highway."

63. Mr Ainger submits that Mr Millman made a number of errors in this evidence, which the Inspector in turn adopted in his conclusions. Mr Millman ignored the survey under the 1910 Act which stated that Plot 196 had a deduction of £10 for a right of way. Mr Ainger submits that this deduction must have been referable to a conveyance of 1907, which imposed a liability to contribute to half the cost of repairs of the lane. Here there was no evidence of any public expenditure on the maintenance of the way. If the way had been maintained at public expense prior to 1836 it would have vested in Sawbridgeworth Urban District Council. Under section 35 of the 1910 Act, not referred to by Mr Millman, no duty was to be charged on land held by or on behalf of a rating authority. One would therefore have expected an express statement that the lane was not chargeable to duty by virtue of section 35, but there was no such indication.

64. He advanced a different interpretation of instruction 560, which was referred to by Mr Millman. He also made the point that if, on the strength of the Tithe Apportionment and map, one is invited to conclude that the way was a public highway by 1838, it is difficult to understand why it was not a public highway two years earlier in 1836. If it was a public highway at that time, then it would have vested in the Highway Authority under the Public Health Act 1875. One would have expected to see evidence of expenditure upon maintenance and some reference to the exception under section 35 in the 1910 Act material.

65. Mr Hobson's submissions in respect of the 1910 Act material echo his submissions under issue (3), which I have dealt with above. He submits that if a way is shown uncoloured on the plan prepared under the 1910 Act, it is of corroborative evidential value, but it is not in any way conclusive. He cites paragraph 2-73 of Sauvain:

66. He submits that Mr Millman looked into detail at the maps and field book entries for this particular area to see what could be deduced from them. He did not approach the issue in a simplistic manner: if the way is shown uncoloured on the 1910 Act it may be presumed to be a public highway. He accepts that such a generalised approach would not have been appropriate.

67. Mr Hobson accepts there may well be other alternative interpretations of the 1910 Act material. For example, he submitted that the £10 deduction for a right of way was most probably referable to a way marked "right of way" on the Inland Revenue map within Plot 196 itself. But, he submitted, the Inspector had considered in paragraph 30, the alternative explanations, in the light of the evidence-in-chief and the cross-examination of Mr Millman, and had concluded that Mr Millman's interpretation was to be preferred on the balance of probabilities: this he was entitled to do. I accept Mr Hobson's submissions on this point. It is true that different explanations can be advanced for what is shown in the 1910 Act material. The Inspector was entitled to consider whether Mr Millman's explanation seemed the more likely on the balance of probabilities. He was entitled to treat this information as being of some corroborative value. He was not obliged to regard it as neutral, as submitted by Mr Ainger. Whether he was entitled then to give it "greater weight", than the previous documents, I will consider after dealing with issues (5) and (6).

68. Mr Ainger submitted that the Inspector erred in concluding, in paragraph 30 of the decision letter that there was no effective challenge to the public's use of the way in 1965. He pointed to evidence before the Inspector that a chain had sometimes been placed across the way and a notice stating that it was private property had been displayed. That evidence is summarised by the Inspector in paragraph 15 of his decision letter.

69. Mr Ainger submits that such conduct was sufficient to bring right of public to use the way in question. There did not have to be an actual interruption of the user. He referred to Fairey v Southampton County Council (1956) 2 QB 439, in which Denning LJ, as he then was, had stated at page 457, that if the public did nothing in response to such a challenge, "the acquiescence of the public tends to show that they have no right of way."

70. Mr Hobson submitted that by analogy with the questions whether user was as of right, and whether there was sufficient evidence of lack of intention to dedicate, whether conduct was sufficient to bring the right of the public to use the way into question, was also a matter of fact to be determined by the Inspector. He referred to the dicta of Rose LJ in R v The Secretary of State for the Environment ex parte Cowell (1993) JPL 851 at 856:

71. He then answered that question by looking at the evidence before Quarter Sessions and concluded there was sufficient evidence before the Justices to support their finding that there had been a challenge in 1931.

72. I accept Mr Hobson's submissions upon this issue. There was ample evidence on which the Inspector could conclude that whereas there was no effective challenge in 1965, there was an effective challenge in 1982, so effective indeed that it led to no less than 136 local residents completing user evidence forms. It is unnecessary to consider what role, if any, "acquiescence" may play in such inquiries, because in this case far from there being any acquiescence, there was very substantial opposition to the effective challenge in 1982.

73. In any event, this point seems to me to be academic, because whether the 20 year period in section 31 of the Highways Act 1980 is taken to run back from 1965 or 1982, there was ample evidence of user on foot for well in excess of the requisite period.

74. Mr Ainger submitted that there had been unfair conduct by the County Council and the Inspector at the second inquiry. Between the first and the second inquiries a large scale plan, dated from 1772, was donated by Harlow Museum to the County Council's archives. Mr Millman sent a letter to the Planning Inspectorate, with a copy to the applicants, which said inter alia:

75. It is clear from paragraph 9 of the second decision letter that at least one objector had been to look at the plan and had made submissions about it to the Inspector.

76. Mr Ainger made detailed submissions as to the significance of the 1771 plan and contended that

77. Mr Millman's letter had misrepresented its significance to objectors.

78. I am unable to accept that criticism. Mr Millman acted with complete propriety. He did not consider the map to be of any particular significance, but he nevertheless drew to the Applicants attention and said they could look at it if they wished.

79. The Applicants were free to do so, and to make whatever submissions they chose about it. Mr Ainger also submitted that the Inspector had unfairly restricted the evidence at the second inquiry. I find it unnecessary to decide the extent to which the Inspector was entitled to restrict the evidence at the second inquiry to his proposal to modify the order as made by the County Council, and to decline to embark upon a reconsideration of the evidence relating to the merits of the order as a whole, because it is plain that the Inspector did take all the submissions which the Applicants wished to make into account. He summarised them in paragraphs 6 to 9 of the second decision letter, even though they reiterated to a very large extent arguments which had already been well ventilated at the first inquiry.

80. In short, I am satisfied there was no unfairness on the part of either the County Council or the Inspector at the second inquiry.

81. There was ample material which would have entitled the Inspector to conclude that a public footpath had been established over this way, notwithstanding the right to use accommodation works under the 1766 Act. The evidence of pedestrian user was, as the Inspector put it, "very persuasive". But the order made by the Inspector did not add the way to the definitive map as a footpath, it was as added a BOAT. One therefore has to ask the question, what material was there before the Inspector which was capable of justifying the conclusion that further public rights of way, on horseback, or leading a horse, or with vehicles had been established. Questions of weight are for the Inspector, but one must be able to identify some material on which he would reasonably have concluded that, on the balance of probabilities, a BOAT had been established.

82. Paragraph 31 of the decision letter describes the documentary evidence and the user evidence as being "mutually supportive". In my view that conclusion was erroneous as a matter of law on two grounds.

83. First, the documentary evidence. I have indicated in answer to issues (3) and (4) above, that the Inspector was entitled to place some weight on the Tithe and Finance Act material. Once some weight can be placed on a piece of evidence, the amount of weight to be placed upon it is normally a matter for the Inspector, but there does come a point when the court is entitled to say: no reasonable Inspector could prefer one piece of evidence to another. It will be less difficult for the court to reach that conclusion where, as here, the evidence consists of documents, as opposed to an assessment of the credibility of witnesses giving oral testimony.

84. I can well understand the proposition that, in general terms, greater weight should be attached to "relatively objective" public documents, rather than private documents. But in applying that general approach to the Tithe map information in this case, one has to ask the question: what was the statutory purpose of the Tithe Map and Apportionment? Or, to put it another way, what was the information about which they might be expected to be "reasonably objective"? Since it was not the purpose of the Tithe Map and Apportionment to distinguish between public and private highways, it is difficult to see why they should be accorded any greater weight than private documents when they are being used for the purpose of answering this particular question, rather than, for example, the question whether there was a way (public or private) across tithable land, at a particular time, and if so, what was the boundary between the way and tithable land.

85. The private documents before the Inspector spanned a period of many years. They dealt specifically with the way in question, and were entirely consistent with the existence of a private carriageway to the mill and the accommodation bridge. In some cases private documents might be regarded as less reliable than public documents because, for example, they might be self serving, or they might be based on inadequate information because of the absence of detailed investigation and any opportunity for what would nowadays be described as public consultation. But there is considerable force in Mr Ainger's submission that, to take the example of the 1907 conveyance, there would have been no point in imposing conditions dealing with the cost of keeping the lane and the river bridge in repair if the way was a public highway. These were onerous repairing obligations. Both parties to the conveyance would have had every reason to ascertain the true position and then to reflect it in the conveyance.

86. I am not allowed to substitute my own assessment of the documentary evidence (public and private) for that of the Inspector. I do not do so, but I do conclude that in view of the limited weight that could properly be attached to the Tithe map information for the purpose of deciding whether a way was public or private in 1838, and the "corroborative" role of material prepared under the Finance Act, the most that could reasonably have been concluded against the Applicants was that the documentary material, when viewed as a whole, was neutral, with indications pointing both ways.

87. Looking at the documentary evidence as a whole, both the public and the private documents, I do not consider that it could reasonably have been concluded that it was supportive of the existence of public rights of way on horseback, or leading a horse, or with vehicles, rather than a private carriageway for such purposes, leading to the mill and to the lock.

88. Even if I am wrong about that, and the Inspector could reasonably have concluded that the documentary evidence was supportive of a BOAT, he based his decision upon the proposition that it and the user evidence were "mutually supportive".

89. The second error relates to his treatment of the user evidence in the light of the 1766 Act. I will not repeat my conclusions under issue (1) above. It is sufficient to say that the evidence of user on horseback or leading a horse, or with vehicles, was not merely very limiting, it was prima facie capable of being referable to the 1766 Act, and the Inspector failed to consider whether, on the balance of probabilities, that was in fact the case.

90. Since the Inspector did not suggest that either the documentary evidence or the user evidence was sufficient on its own to justify his conclusion that the way should be classified as a BOAT, even if he had erred in respect of the user evidence alone, his decision would have been fatally flawed.

91. As I mentioned at the beginning of this judgment, the County Council made this modification order as long ago as 1995. It is a matter for considerable regret that I do not have power under the 1981 Act to remit the decision for reconsideration. My only power is to quash the order. Mr Hobson did not submit that I should decline to quash the order in the exercise of my discretion if I concluded that the Secretary of State had erred in law on either of the two grounds that I have identified. It follows that the order must be quashed and this lengthy process must be begun afresh. I can only hope that this judgment may be of some assistance to both the County Council and the Applicants in deciding whether a public footpath, rather than a bridal way or a BOAT may reasonably be alleged to exist over the way leading to the towpath, which is itself a public footpath.

92. MR WATERWORTH: I believe costs follow the event.

93. MR HOBSON: I will not attempt to oppose that.

94. MR JUSTICE SULLIVAN: We discussed this the other day. It is a statutory challenge, so you do not need leave if you want to appeal in any event. Very well, the order is quashed. The Applicants to have their costs paid by the Respondent. Thank you, Mr Hobson, for your very helpful submissions, and, Mr Waterworth, if you will pass on my thanks to Mr Ainger when he returns from sunnier climes.