QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF LEICESTERSHIRE COUNTY COUNCIL||(CLAIMANT)|
|SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS||(DEFENDANT)|
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MR T MORSHEAD (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"(1) A definitive map and statement shall be conclusive evidence as to the particulars contained therein to the following extent, namely--
(a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover a right of way on foot, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than that right."
Accordingly, as is obvious, it is very important that the definitive map be accurate and thus section 53 sets out a duty to keep the definitive map under continuous review. It also extends to a statement.
"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 modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of 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 modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event."
Thus, there is a duty, as the section sidenote indicates, to keep the map and the statement under continuous review, to take into account the occurrence of any of the relevant events and to see whether as a result there is a need to modify the map or the statement or both.
"(a) the coming into operation of any enactment or instrument ... "
I need cite no further because that is not relevant to this particular dispute; nor is (b). The one that matters is (c), which reads:
"(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 in 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;
(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification."
Then subsection (4) reads:
"(4) The modifications which may be made by an order under subsection (2) shall include the addition to the statement of particulars as to--
(a) the position and width of any public path or byway open to all traffic which is or is to be shown on the map; and
(b) any limitations or conditions affecting the public right of way thereover."
Those are the only statutory provisions which I think I need read.
"It is necessary to give some meaning to all the words used. Accordingly, there must be a difference between showing 'that a right of way which is not shown in the map and statement subsists' and showing that a right of way which is not shown in the map and statement 'is reasonably alleged to subsist'. Accordingly the questions for the council and subsequently for the Secretary of State were: does the evidence produced by the claimant together with all the other evidence available show that either--
(a) a right of way subsists? (I shall call this test 'A'), or
(b) it is reasonable to allege that a right of way subsists? (I shall call this test 'B').
To answer either question must involve some evaluation of the evidence and a judgment upon that evidence. For the first of those possibilities to be answered in the affirmative, it will be necessary to show that on a balance of probabilities the right does exist. For the second possibility to be shown it will be necessary to show that a reasonable person, having considered all the relevant evidence available, could reasonably allege a right of way to subsist."
"If there is a conflict of credible evidence, and no incontrovertible evidence that a way cannot reasonably be alleged to subsist, then the answer must be that it is reasonable to allege that one does exist."
That has not been criticised as a proper approach. Indeed, as Owen J made clear, the question is whether a reasonable person could reasonably allege a right of way, having considered all the relevant evidence, and the council and the Secretary of State in turn must be judges of that. It is perfectly obvious that the evidence necessary to establish Test B will be less than that necessary to establish Test A.
"The evidence in support of the Manor Cottage route, however, looks at the situation only from the point of view of people walking southwards from the open countryside into Main Street. When considered the other way round, I believe the Glebe Cottage route would have been the more inviting choice. To that should also be added what I consider can reasonably be assumed to have been in the mind of the author of the 1951 Parish Survey Plan and Statement, namely that he knew where the Main Street end of the footpath was, and showed it on his plan accordingly; it therefore did not need also to be recorded verbally.
Taken together, these factors lead me to the conclusion that although there is indeed evidence in favour of the applicant, that evidence is not clear cut because there is likewise credible evidence to the contrary. The Order therefore fails Test A."
Whether or not the language used was wholly satisfactory, it seems to me to be absolutely clear from what the inspector has there said that he took the view that the weight of the evidence was such that he was not persuaded that the right of way over Manor Cottage existed. Indeed, he would not have referred to the Parish Survey Plan and Statement of 1951 and the point about Glebe Cottage being more inviting from Main Street unless he had formed the view that that was the more probable route. But he then went on to consider Test B. He made the point that there was evidence in support of Manor Cottage, in particular a substantial body of user evidence, and in those circumstances he was persuaded that Test B was satisfied because the footpath was reasonably alleged to subsist over Manor Cottage.