England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		22nd February 2007

MR JUSTICE GIBBS:

Introduction

1. The claimants bring these judicial review proceedings with the permission of Collins J. The claimants are Mr and Mrs Chaston and the defendants the Devonshire County Council. Permission was originally refused on all grounds by another judge on consideration of the papers, but Collins J granted permission after an oral hearing on grounds restricted to the following:

1. That in making a decision on the correct route of a public footpath close to the claimants' house the defendants acted irrationally, and

2. They acted contrary to the rules of natural justice in arriving at the decision.

The facts

2. The claimants' house is called "Old Mill Farm", formerly known as Galmpton Mill on the South Hams coast in Devon. The footpath is known as "Footpath 52". In order to make sense of the issues which arise in this claim, it is necessary to consider the geography and, at least briefly, the history. This is done by reference to photographs helpfully supplied by the parties, and to certain plans. I shall annex these to the judgment for illustrative purposes.
3. The photographs consist of a bundle which I have marked 'X' and are numbered 1 - 7. Photograph 7 shows the claimants' property. The claimants' main buildings, to the left of the photograph, look out onto the seashore. They are separated from it by a metalled lane or driveway which abuts the buildings, which in turn abuts on the shore side a bank covered with vegetation which borders a shingly beach. The paved lane or driveway (which I shall call "the driveway") belongs to the claimants. To the left, or north of the property, the driveway leads into Mill Lane, a public highway, which is shown going off the left-hand side of photograph 7 on an upward incline. Photograph 1 shows a view of the driveway leading into Mill Lane; a new-looking wooden post is visible which marks approximately the point at which Mill Lane begins. The significance of the post will appear later.
4. The central question forming the background to this claim may be stated thus: to what extent (if at all) does the public footpath when it leaves Mill Lane pass over the claimants' driveway before descending the bank to continue along the beach by the shoreline? It is important that there is no issue between the parties that at some point at or close to the edge of the claimants' property the footpath does adopt a line along the beach and above the foreshore. That beach, both in front of the claimants' property and likewise further south beyond it, is available to walk along, save during the very highest of tides.
5. The answer to the central question posed depends upon the direct interpretation of documents known as "the Definitive Map" and the "Definitive Statement". The status of these documents in relation to the question is laid down by statute, namely the Wildlife and Countryside Act 1981. Section 56(1), so far as relevant, reads as follows:

"... the map is conclusive evidence, as at any date, as to a highway shown thereon, any particulars contained in the statement as to the position or width thereof shall be conclusive evidence as to the position or width thereof at that date, and any particulars so contained as to limitations or conditions affecting the public right of way shall be conclusive evidence that at the said date the said right was subject to those limitations or conditions, ..."

6. In brief, what appears on the map and is written in the Definitive Statement are to be taken as conclusive evidence as to the position of the relevant footpath.
7. I turn therefore to the Definitive Map. This will be attached to the judgment and marked "B". The route of the footpath shown on the map is marked by a red line which, having regard to the scale of the plan and the location and width of the line, is at best ambiguous in answering the central question. (There is also a somewhat larger scale map depicting the general line of the footpath, based on Ordnance Survey material, attached to this judgment and marked 'A'.) The Definitive Statement reads as follows:

"From Greenway/Galmpton Road

To The end of the Unclassified County Road by Galmpton Hill

Description The path is a footpath. It starts at Greenway/Galmpton Road, County Road No. 13, 140 yards east of the drive to Lower Greenway and proceeds northwards following the boundary hedge of Ord. No.455 on to a Private Accommodation Road (not repairable by the inhabitants at large), running parallel with the foreshore, which it follows to join the end of the Unclassified County Road by Galmpton Hill. (Stile and kissing gate on route)."

8. The disputed section of the footpath is some 30 metres long. There were before the defendants three rival contentions about that section. These have been referred to as Route 1, Route 2 and Route 3. They may best be described by quoting from the report of Mr Shercliff, an experienced planning inspector, who, as will be seen, was chosen by the defendants to recommend to them the correct route of the path; and also by reference to two plans.
9. The first of these (attached marked 'C') shows the disputed 30 metres between marks X and Y, being part of the driveway. It shows, at a point marked A close to point X, the end of the public highway Mill Lane. That is where the new gatepost is shown in Photograph 1. The plan further shows points, at B and C, the place at which a gateway had earlier been erected by former owners of Old Mill Farm, in order to bar access to the driveway to the south of it. Finally, there is a point "D" marked on the plan, close to a disused limekiln to the south and east of Old Mill Farm, to which the footpath leads once it has left the vicinity of the claimants' property. The inspector described the three possible routes uncontentiously in this way:

"1. The route claimed by the landowners runs from point A, down a flight of 10 steps relatively recently cut into the bank, and then along the level beach on the seaward side of the bank above the mean high water mark as far as point D by the disused limekiln. This alignment I shall call Route Option 1.

2. The route claimed by some objectors to be the correct one runs southwards from A-X for 17 metres or thereabouts down the metalled track as far as the southern end of the ... granary. [This is a building on the claimants' property.] From here it turns sharply to the west to pass through a gap in the vegetation, just short of a Devon stone gatepost at point C, to meet the beach. From this point it passes over the same ground on the beach as that described in the previous paragraph. This alignment I shall call Route Option 2."

10. The gatepost referred to as part of the description of Route Option 2 is shown in the foreground of Photograph 1:

"3. A third route, claimed by other objectors to be the correct one, continues generally southwards along the metalled track past C-B to exit the immediate curtilage of Old Mill Farm through a fence (recently removed) at point Y, thence to follow the undisputed route along the beach. The distance between A-X and Y is about 30 metres. This route I shall call Route Option 3."

11. The line of the three route options is illustrated in diagrammatic form on a further plan, annexed to this judgment and marked by me "D".
12. I pause at this point in the analysis to comment on the degree of importance to the various parties which this dispute carries. The dispute is about a footpath. The defendants do not suggest that there is a bridleway, still less vehicular access of a public nature over the disputed section. The only issue for the defendants and the members of the public whose interest they take into account and who might wish to use the footpath is this: whether, going south from Old Mill Lane, walkers would descend the bank to the beach immediately before the claimants' property, or 17 metres further on, or 30 metres further on. The first option means going down a slightly steeper part of the bank than the third, but walkers would have the benefit of steps. The second option appears to be rather more awkward than both the other two. The first option might perhaps require for those with small children that their buggies or pushchairs should be carefully carried or manoeuvred down the steps. But for anyone who has taken their children or grandchildren for walks along footpaths, that awkwardness would be neither here nor there. All three options are on the face of it plainly acceptable to walkers. Thus, from the point of view of the ordinary user of the footpath, the dispute might be described as a storm in a teacup. On the other hand, from the point of view of the claimants and their predecessors it has been and is a matter of some importance. Do they have people walking by right on a public footpath on their property past their front windows and/or through the main yard of their property, or not?
13. Nevertheless, it is clear that the issues raised have, for whatever reason, excited passions which are by no means restricted to the claimants. The remarks in the preceding paragraph are I believe no more than objective common sense. However, in terms of assisting in determining whether where the route of the footpath actually goes, they are of no legal significance. To this extent they may be relevant, they support the claimants' proposition that the decision-making process of the defendants has to be fair, rational and in accordance with natural justice, having regard to the importance of the issues as they affect the parties but the claimants in particular, whose interests are liable to be substantially affected.
14. I now come to a brief history of the events leading to this claim. Mr and Mrs Chaston, the claimants, took possession of Old Mill Farm in September 2000, knowing that Footpath 52 ran nearby. A short while later, believing the Definitive Map to show the path to be routed along the back of the beach above the mean high-water mark, they set about securing their property by fencing it from those areas available for public use. To achieve this they cut a set of steps into the bank (to which I have already referred) by point A, close to which they moved an existing DCC waymark; they re-erected a pair of gates between points B and C, equipped with a "private" sign on its northern face; and repaired the fence at point Y, such that whatever gap there may have been was then filled in. Some months later they erected a gate across the end of the unclassified road Mill Lane between points A and X.
15. The claimants' view of the correctness of their interpretation of the Definitive Map with regard to the route of the footpath was strengthened when advice and assistance from the South Hams Coast and Countryside Service confirmed that their proposals for securing their property whilst maintaining public access to the definitive path were satisfactory. It was further strengthened after being informed by several local residents that they (the residents) remembered having to clamber down the bank at point A where the steps were to be cut.
16. Nevertheless, other path users took a different view, namely that the route to which they had become accustomed, rightly or wrongly, had been unlawfully blocked. They took the matter up with the County Council. Council officers reconsidered the evidence then available to them and in due course came to the view that, contrary to whatever may have been said to the claimants on earlier occasions, the definitive route ran through the curtilage of Old Mill Farm. Public usage was thus unlawfully blocked by the claimants' actions, and officers, acting under delegated authority, served a section 143 notice requiring the new gates to be removed and the boundary at point Y to be opened up. This was done in May 2003.
17. The claimants sought counsel's opinion, and it was clear from correspondence passing between the parties that they had become set on a pursuit, by judicial review, of what they believed to be the erroneous serving, and subsequent enforcement by the County Council, of the section 143 notice.
18. In May 2004 the defendants' Public Rights of Way Committee in turn resolved to institute a non-statutory hearing from which to receive a recommendation as to the precise location of the disputed length of the footpath. It will be noted that the terms of reference of that non-statutory hearing were as follows:

"... to help resolve an issue regarding the precise route of a definitive footpath on the ground in South Devon. It will involve an Inspector hearing evidence, assessing documentary evidence and then writing a report to our Rights of Way Committee."

19. The inspector chosen by the County Solicitor of the defendants was Mr R F Shercliff. The Planning Inspectorate, to whom a request was made for Mr Shercliff to act as inspector, were given the following terms of reference:

"We shall be grateful if Mr Shercliff will conduct a non statutory hearing to consider all the available evidence, both documentary and oral, relevant to the issue of the location on the ground of the part of Footpath 52 Kingswear which runs in the vicinity of the property known as Galmpton Mill. We would then like Mr Shercliff to write a report to us with his recommendations as to the line that that section of the path takes on the ground."

20. It will be noted that the terms of reference of the inspector included considering all the evidence and making recommendations about the line of the path. It was not simply to gather evidence and present it to the defendants for consideration.
21. The inspector duly reported, and his report is a crucial document. It recommended to the defendants that Route 'A' was the line that the relevant section of the path took on the ground.
22. It would prolong this judgment excessively to cite the report extensively. It is on the face of it a detailed, careful and well reasoned document, assessing all the evidence, and leading to a rational and sustainable conclusion in favour of Option 1.
23. In arriving at his conclusions the inspector directed himself as follows:

"8.2. It seems to me that the matter may best be determined first by examining whether or not there has been a historic public right over the way in question (by which I mean a public right in existence before the definitive map was compiled); secondly by scrutinising closely that which is depicted on the definitive map and written in the definitive statement; and thirdly, should these steps be insufficiently helpful, then by going behind the evidence to try to see what was most likely to have been in the mind of the map and statement's compilers as these documents progressed through the various stages prescribed by the National Parks and Access to Countryside Act 1949.

8.3. With regard to this last step, evidence from those who claimed to have used the path before 1955 is important: that of path use since 1955 is less so, unless it can be taken as corroborating or strengthening the evidence of those who knew the path at the time the definitive map went through its due processes.

8.4. Some witnesses spoke of use of the path on horseback, implying that a route other than one suitable for horses cannot be the definitive one. This is not so. The public has rights over FP 52 no higher than rights on foot. I must go no further than to satisfy myself that the route I determine to be the correct one would have been usable, and used, by walkers in the years immediately prior to 1955.

8.5. Since occupying Old Mill Farm, the present landowners were encouraged by the South Hams Coast and Countryside Service to believe that Route Option 1 was in fact the definitive route. This may or may not have been so, but the South Hams' action could have been no more than advisory: it was not authoritative. It may be helpfully relevant when trying to get into the minds of the definitive map's compliers, but of itself it does not amount to an unerring statement of the route's line."

Those directions cannot in my judgment be faulted.

24. As to the historic situation, the inspector found that before the turn of the century there was no sign of a public footpath from the end of Mill Lane towards the limekiln (paragraphs 8.9 and 8.10). In fact, the route was blocked near Galmpton Mill, as he found, by a building known as a "gig house".
25. On a 1905 map there was an inconclusive indication of a possible track between Galmpton Mill and the limekiln (paragraph 8.11).
26. However, on the most authentic version of the 1905 map there was shown an obstruction across Mill Lane above Galmpton Farm to the north, rebutting in the view of the inspector the suggestion of a public right of way at that stage (paragraph 8.13).
27. There was nothing the inspector found, based on the history, which could support a presumption of dedication of a right of way following a period of long public user (paragraph 8.47). The inspector's finding in that regard was plainly right. He was right to concentrate on the Definitive Statement and Definitive Map. So much as I understand it is not in dispute.
28. The inspector considered the Definitive Map in the section of the report dealing with the claimants' contentions. He said this:

"4.14. The relevant date of the definitive map was 21 November 1955. It appeared, by reference to the bench mark south of Galmpton Mill and to the naming of the Mill itself, to be based on a 6" version of the 1905 2nd Edition OS map, rather than on any later edition. Path 2 [the relevant path] had been overlaid in red by hand, though between points A and D it was not possible to discern its precise line."

29. Again, that opinion was, if not unarguably right, then fully justified on the basis of the appearance of the Definitive Map.
30. Since the map did not assist the inspector on the point at issue before him, he turned to the proper interpretation of the Definitive Statement. He reached the following conclusion:

"4.18. The only credible reading of the final clause of the one sentence comprising the definitive statement was that, having arrived at the riverbank, the route of FP 52 then ran parallel with the foreshore all the way to the end of Mill Lane, which all agreed lay at point A-X. This clause could not be taken as having referred to an accommodation road between the old limekiln and Galmpton Mill; there was no evidence that such ever existed, and no evidence of any need for one."

31. Again, those conclusions were, if not unarguably right, then fully justified on the logical analysis by the inspector as an expert in the field both in practical and legal terms.
32. The inspector's conclusion section amplified the decision which he reached:

"Conclusion

8.31. From the very specific words in the definitive statement, the use of which allows me to place significant weight upon this document as evidence of the precise line of the path in question, I conclude that unless there is other evidence of sufficient weight to defeat it then this document shows the public right claimed in the early 1950s was one on foot along Route Option 1."

33. What follows the inspector's conclusion thus expressed is of importance to the present claim. It relates to what the inspector called "user evidence". What he meant by that was evidence capable of establishing the use of the disputed section of the claimants' land as a public footpath in the period during and before which the plan and statement were produced. There was other evidence relating to use, for example statutory declarations by former owners, and other matters which rebutted what the inspector called the "user evidence".
34. As regards the user evidence, the inspector made careful and detailed finding which no one at this hearing has sought to challenge. These were, to put it bluntly, that much of it had been fabricated. That which was not fabricated was, with one exception and for various reasons, unreliable. The inspector's appraisal of these matters was calm and objective, and has not been challenged at this hearing. At paragraph 8.40, under the heading "Conclusions with regard to the letters", the inspector said this:

"8.40. I can and do take one of the twenty seven letters as evidence weighing against the conclusion I reached in paragraph 8.31 above: the others are of no help. Even so, the weight attached to this letter must itself be counterbalanced by the evidence of those who recall clambering down the bank at point A or who recall the path running to the beach at that point."

35. It was against that background of the inspector's decision that the County Solicitor made his report to the committee. It is the recommendation in that report which led to the defendants' challenged decision, which chose Route Option 3, despite the inspector's recommendation.
36. The justifications for departing from the inspector's recommendation need to be carefully examined. There is no issue that in principle the defendants were not bound by the inspector's recommendation. There is no substantial issue that in certain circumstances the defendants would be entitled to receive and act upon further evidence. The question is whether it was rational and/or fair under the principles of natural justice for it to do so (a) in the particular circumstances of this case and (b) in the way that it did. In that context, the reasons for the departure from the recommendation and the procedure adopted need to be carefully examined.
37. Further representations were received from members of the public and other bodies. Some of these complained of the way the inspector conducted the inquiry. It was said that members of the public with an interest had not been given a fair or proper chance to speak or present their evidence and/or had felt intimidated.
38. Very fairly, the County Solicitor did not accept the complaint about the manner in which the inquiry had been conducted because, as he noted, no complaint was received about that until the inspector's recommendations adverse to the objectors were published. Further, the defendant itself was represented at the inquiry.
39. The material upon which the County Solicitor did place weight in advising the defendants falls into two categories.

1. Interpretations of the Definitive Statement advanced after the hearing by a Mrs Mazumdar and a Dr Tulloch.

2. Post-hearing written evidence which the County Solicitor took as support for Route 3.

The details are set out at page 4 of the County Solicitor's report.

40. In addition, the County Solicitor criticised or disagreed with, at least by implication, some of the inspector's reasoning and conclusions. He implied that the inspector may have underestimated the evidence of use of Route 3, and paid too little attention to the paucity of evidence of user relating to Route 1. He also questioned the weight given by the inspector to the statutory declaration of Mr Wildy, a previous owner of Old Mill Farm, and the inferences drawn by the inspector from Mr Wildy's silence at the time of compilation of the Definitive Plan and Statement.
41. The defendants accepted the County Solicitor's recommendations and decided that route 3 was the correct route of the footpath.

The parties' submissions

42. The claimants' submissions in summary are that the defendants acted irrationally and/or perversely and contrary to the rules of natural justice. It is accepted that they acted fairly and appropriately in setting up a non-statutory inquiry to decide the line of the footpath. They provided specific terms of reference for the inspector, as an experienced planning inspector, chosen by them, requiring him to recommend the correct line. They were, however, it is submitted, plainly unreasonable in not accepting his recommendation. Alternatively, they were unreasonable, having received additional material after the conclusion of the inquiry, in the procedure then adopted.
43. The defendants were, it is said, unreasonable in being persuaded by the material to reject the inspector's recommendation. If they were minded not to follow that recommendation, they should have referred the material back to the inspector, so that he could review his decision in the light of it. It was insufficient simply to disclose the material to the claimants for their comment.
44. The irrationality and unfairness, it is submitted, are to be viewed in a particular context, namely that the defendants' decision adversely affected the claimants' quiet enjoyment of their property. The right of quiet enjoyment is a fundamental common law right, and should not be lightly interfered with. The test of reasonableness in decisions affecting the right is one which should involve "anxious scrutiny" (R v Secretary of State for the Home Department, Ex parte Brin [1991] 1 AC 696, at page 757, per Lord Ackner; R v Ministry of Defence, Ex parte Smith [1996] QB 517, at pages 554-556 per Sir Thomas Bingham (as he then was); R v Lord Saville of Newdigate, Ex parte A [2000] 1 WLR 1855, paragraphs 34 and 37 per Lord Woolf MR).
45. The defendants' submissions were in summary that the procedure they adopted was well within the proper exercise of their powers of decision-making. They paid proper respect to the rights of the claimants by appointing an inspector to conduct a non-statutory inquiry. They were not bound by his recommendations. He was in effect appointed with a view to gathering evidence to assist the defendants to come to their own decision. The holding of the inquiry provoked the submissions of further evidence which the defendants were fully entitled to take into account. There was no requirement to refer that material back to the inspector for his consideration. It was neither irrational nor procedurally unfair for them to choose not to do so. There is a clear analogy, it is said here, with planning inquiries. For example, when the Secretary of State calls in a planning application under section 35 of the Town and Country Planning Act and appoints an inspector to hold an inquiry, he can and sometimes does choose not to follow the inspector's advice. He is permitted to receive further evidence after the inspector has concluded his inquiry, and change his mind on the basis of such evidence without referring the matter back (see, for example, R v Secretary of State for the Environment, Ex parte the Greater London Council, R v Secretary of State for the Environment, Ex parte London Borough of Newham [1986] JPL 32, a decision of Glidewell J on 29th March 1985 concerning the construction company Mowlams).
46. In the present case, the requirement of fairness, it is submitted by Mr Coppel, were satisfied by disclosing the further material to the claimants and allowing them to make further written representations. In those written representations the claimants did not suggest reference back to the inspector. The County Solicitor's recommendation to the defendants was, it is said, a balanced and well-reasoned document which accorded proper respect and weight to the inspector's recommendations. There can, it is submitted, be no grounds for challenging the defendants' decision.

The law

47. The legal framework may be dealt with quite shortly, since there is no real controversy between the parties.
48. The provision which entitles the defendants to remove an obstruction to a footpath is the Highways Act 1980, section 143, which provides:

"(1) Where a structure has been erected or set up on a highway otherwise than under a provision of this Act or some other enactment, a competent authority may by notice require the person having control or possession of the structure to remove it within such time as may be specified in the notice."

49. The defendants were the competent authority. If a notice is properly given and not complied with, the defendants would have the power by subsection (2) to remove the structure and recover their expenses.
50. The effect of the section is uncontroversial. The issue in this case is whether the procedure adopted by the defendants in exercising their power was rational or procedurally fair.
51. As regards the law relating to the setting up of non-statutory inquiries, I have been referred to R v Suffolk County Council, Ex parte Steed (1995) 70 P&CR 487, and R (Cheltenham Builders Ltd) v South Gloucestershire District Council, a decision of Sullivan J in this court on 10th November 2003, [2003] EWHC 2803 (Admin). I am content to adopt the analysis of Sullivan J in the latter case, which concerned the Commons Registration Act 1965. That analysis referred to and followed the Suffolk County Council case. The principles set out by Sullivan J are equally applicable to the present statutory framework. I quote parts of his reasoning from paragraph 34 onwards:

"Fairness

34. One of the many deficiencies in the Act and the regulations is that they do not prescribe any procedure (beyond publicising the application and sending copies of any objections to the applicant) for determining an application. In particular, no provision is made for an oral hearing. In practice, many registration authorities remedy this omission by making arrangements for an independent inspector (normally counsel experienced in this branch of the law) to hold a non-statutory inquiry. This practice was noted with approval by Carnwath J (as he then was) in R v Suffolk County Council ex.p Steed [1995] 70 P & CR 487 at pages 500 to 501:

'It is accepted that, if the matter has to be reconsidered by the Council on its merits, then some form of oral hearing will in practice be necessary. Although there is no provision for such procedure in the regulations, I understand that authorities do sometimes organise non-statutory hearings where the written submissions disclose significant conflicts of evidence. This is appropriate. The authority has an implied duty to take reasonable steps to acquaint itself with the relevant information ... (Secretary of State v Tameside Borough Council (1977) AC 1014, 1065). Some oral procedure seems essential if a fair view is to be reached where conflicting recollections need to be reconciled, even if the absence of statutory powers makes it a less than ideal procedure.'

35. In other cases, hearings have been held before the decision making Committee itself, at which the applicants for registration and objectors had been given the opportunity to call and cross-examine witnesses and to make oral submissions. The defendant contends that neither a non-statutory inquiry nor a hearing before the Committee was necessary in the present case. ...

36. I accept that registration authorities have a discretion as to the procedure to be adopted (assuming that the limited requirements in the regulations have been complied with), but that discretion is not unfettered. It must be exercised in a manner which is fair to applicants and objectors. What fairness requires by way of procedure will depend upon the circumstances of the particular application. Coupled with the obligation to act fairly, the registration authority is also under an obligation not merely to ask the correct question under the Act, but to 'take reasonable steps to acquaint [itself] with the relevant information' to enable it to correctly answer the question: ..."

52. I bear in mind that the question at issue in that case was whether an inquiry was required at all. The point here is rather different. In my judgment, however, the principles set out by Sullivan J in paragraph 36 are still germane, especially to the post-inquiry procedure adopted here.

Conclusions

53. As it seems to me, there is merit in the claimants' challenge to the defendants' decision. The original decision to appoint a non-statutory inspector was an eminently fair one. The inspector was a respected expert of the defendants' choice. As a general proposition, the defendants were nonetheless entitled to disagree with him. However, having regard to the specific terms of reference set down for him, they were not entitled to treat the inquiry he conducted simply as an evidence-gathering and evidence-provoking exercise, as was submitted to me on behalf of Mr Coppel. To the extent that they treated it as such, they were in error, in that it was procedurally unfair to do so. I accept the claimants' submissions that his task was essentially one of finding and interpreting facts in the light of his expertise, and then to recommend to the defendants after that exercise the line the footpath took. Under those circumstances, in my view, the rules of natural justice dictated:

(a) that a decision made contrary to the inspector's recommendation required persuasive grounds to support it;

(b) that the reasons for such a decision, if it were proposed to be made, should at least be put to the claimants for them to make representations, knowing that the defendants proposed to make such a decision; it was not sufficient simply to disclose to the claimants the "new" material;

(c) the claimants should have been given the opportunity to have the matter referred back to the inspector.

54. As regards the persuasiveness of the reasons, it is not for me to pass any definitive judgment on the reasons found by the County Solicitor. But I would remark that all the material submitted to the defendants after the hearing could have been submitted to the inspector. The inspector made a finding, unchallenged in this court, that all with an interest in the dispute had a chance to make their views known in the light of the notice of hearing given. The additional relevant user evidence, namely that supporting Route 3, was evidence which related to the same issue as those documents which had been submitted to the inspector and which he had found to be with one exception either fabricated or unreliable. I accept the submissions of the claimants that an analysis of the letters referred to by the County Solicitor and received subsequent to the inquiry showed them in many instances to be ambiguous, in part contradictory, and by no means unequivocal in their support for Route 3.
55. Now the photographic evidence of the state of the land in the 1930s and beyond shows that the area in front of the claimants' buildings in the past, as well as the bank and the beach, appeared to be entirely accessible to pedestrian and other traffic. In that sense, all three routes were available. It is thus at least possible, if not probable, that walkers, horses and even vehicles may have passed over all parts of it in earlier times. In view of that, and of the inspector's acceptance that all routes were available, he might well have attached very little weight to evidence of the kind subsequently submitted, and might well have been right to do so. He was not considering a bridleway, or vehicular access, or the accrual of historic rights. He was considering the line of a footpath as defined in the map and plan, having regard to the statutory provisions which governed them.
56. In making these observations, I am conscious that I am entering to some extent into the potential merits of issues considered by the inspector and subsequently by the County Solicitor and the defendants. I am equally conscious that it is not for this court to decide the merits of those issues, given that the main challenge here, as I interpret it, is not to the substantive decision but to the way in which it was reached.
57. However, the relevance of the potential merit of the new material lies in the following. That material is plainly not of overwhelming weight or significance. It goes no further than to provide alternative analyses of issues which were squarely before the inspector (Dr Tulloch and Mrs Mazumdar) and some written evidence which could support past use of route 3. The latter could be said to fall potentially into the category of "other evidence of sufficient weight to defeat it" (i.e. a qualification to the inspector's main conclusion at 8.31 of his report). But in order to judge whether this new evidence or new material was of sufficient weight, it would have to be put in the context of all the inspector's findings. In my judgment, the County Solicitor's report failed to do that, or failed adequately to do that.
58. I asked Mr Coppel, whose submissions were very clear and very helpful, to identify the three best points in the new evidence to support the County Solicitor's recommendation. He did not rely on Dr Tulloch or Mrs Mazumdar. In my judgment he was right not to do so. Mrs Mazumdar had been present at the inquiry as one of the objectors. The representations she now makes were not placed before the inquiry. She does not claim to have visited the site. With regard to Dr Tulloch, he objected in his letter both to the conduct of the inquiry and the interpretation of the Definitive Map. The former is not relied on by the defendants and the latter, as formulated by Dr Tulloch, carries the issue little or no further. I have already made observations on that topic.
59. The three particular letters chosen by Mr Coppel, to which of course I do not tie him, were those from R F Crocker (page 193); Mrs Quick (page 158); and Mrs Maunder (page 196). I turn first to R F Crocker's letter. That speaks of the use of the route that is at best equivocal and may not correspond even with Route 3. Mrs Quick speaks of "walking past Mill Farm over the stream and on to the limekiln". It is doubtful whether that description of the route describes descending to the beach via Route 3. Mrs Maunder's letter provides the briefest of descriptions, i.e. "that footpath immediately in front of Galmpton Mill". She says she has walked it for 60 years, but she does not mention either of the gates which must have represented an obstruction to Route 3 for a significant part of that period.
60. I have also considered the numerous other letters and statements flagged up by Mr Coppel and the remaining documents in the additional material. Nothing which I read persuades me that the County Solicitor could, in considering that material, have properly placed it in the context of the inspector's findings as a whole.
61. What significance should I attach to the fact that the claimants were supplied with all the fresh material and invited to comment on it; and to the further fact that their response did not include a request that the case be referred back to the inspector?
62. It is undoubtedly the case that if the defendants had not given the claimants a chance to comment, that would have given very serious cause for criticism; and to the extent that they did give the claimants an opportunity to respond they are to be commended. But it does not follow that the supply of the material and the chance to respond satisfied the requirements of procedural fairness on the facts of the present case. In my judgment it did not. The claimants were not on notice that the defendants were to be asked to reject the inspector's recommendation on the basis of contrary detailed written advice by the County Solicitor. That is something which the claimants, having regard to the nature and remit of the inspector's inquiry and its decision, and having regard to the nature and quality of the additional material, could not reasonably have anticipated.
63. I have rehearsed already a number of matters relating to the new material which support the view that the course the defendants took could not reasonably have been anticipated. I turn to certain of the express or implied criticisms of the inspector's findings as set out in the County Solicitor's report. Towards the end of the first full paragraph of page 4 of the report, he refers to photographs from the 1940s or earlier which show a route available for pedestrians and vehicles passing in front of Mill Farm. I have already referred to this evidence. But the inspector accepted that there was such an available route (though vehicular access was not relevant). He also expressed logical reservations (as the County Solicitor mentioned) at paragraph 8.11 of his report; and the matters mentioned at paragraph 8.13 were also relevant as support for the inspector's view on this aspect of the case, namely that the historic accessibility of the land was of limited relevance.
64. It should be noted, in relation to the first full paragraph of page 5 of the County Solicitor's report, that the views pressed by him about Route 2 were shared by the inspector. The County Solicitor contested the value of the inference which the inspector was described as drawing from the evidence from and about Mr Wildy, the previous owner. But to this aspect of the evidence, as the inspector expressly recognised, he could only attach "small weight" (paragraph 8.23).
65. The defendants were of course entitled to disagree with the inspector's views and interpretations of the evidence before him. But it has to be said that such reasoned criticism as there was of the inspector's approach was relatively limited and muted. In itself it was in my judgment incapable of rationally justifying the adoption of a wholly contrary view to that formed by the inspector.
66. Under all those circumstances, it seems to me that the procedure adopted following the receipt of the additional material was irrational and contrary to the principles of natural justice. I am by no means saying, and I do not say, that there is any indication of a deliberate intention to be unfair; but on careful analysis, the effect of relying on the fresh evidence and representations as a basis for adopting the contrary view to the inspector, and without referring the matter back to the inspector, was, on the particular facts of this case, unfair. Procedural fairness in my judgment dictated at least a referral of the material to the inspector for reconsideration and review of his original recommendation.
67. Having regard to the original decision to refer the matter to the inspector and to the terms of reference he was given, nothing less than that in my judgment ought to have occurred. There is evidence with the papers that the inspector is ready and willing to reconsider the matter if requested.
68. Accordingly, the relief which I am minded to direct, unless persuaded otherwise by counsel, is to quash the defendants' decision and to direct that all additional material be placed before the inspector so as to review and reconsider his original recommendation.
69. MR ULLSTEIN: My Lord, we do not seek to persuade you otherwise. That is exactly the order we seek.
70. MR JUSTICE GIBBS: Mr Coppel?
71. MR COPPEL: My Lord, may I attempt to persuade you otherwise? The position here is, as your Lordship will have seen from the material, that the various parties who originally were before the inspector and/or supplied material were unhappy with the way in which the non-statutory inquiry was conducted. As a result of their unhappiness, some of them, as your Lordship will have seen, left the inquiry. Some of those people and others put in additional material subsequently.
72. The County Council does not have any quarrel with the way in which the inspector conducted the inquiry, but the County Council is anxious to ensure that at the end of the day it is not confronted by a further challenge by other disgruntled people. For that reason and that reason alone, it would, if the matter is to be sent for further consideration, like to start with a fresh sheet of paper and that means a fresh inspector, with, as it were, no bad feelings, rightly or wrongly, justified or unjustified, with which the matter is to restart. For that reason, we say that if the matter is to go back to an inspector to consider, it is better that we, as I say, start with a fresh sheet, start with a fresh inspector, and take it from there.
73. We appreciate that is going to involve a certain duplication of work, because plainly if we were to go back to the inspector who has previously conducted the material, we can start from pretty much from where he left off. But we feel that the mustering, which in a case like this does involve a lot of effort, the mustering work will have been done and so will not need to be duplicated. So, yes, there is a certain amount of wastage, but it is a less than it otherwise would be.
74. MR JUSTICE GIBBS: Yes, well thank you very much Mr Coppel. I will go back to Mr Ullstein for his reply on that.
75. MR ULLSTEIN: My Lord, as your Lordship has pointed out in the judgment, the defendants have not in any way supported the criticism as to the way in which the inspector conducted his inquiry. That is not very surprising, given that the County Solicitor represented the defendants at that hearing, so that there was ample opportunity for them to say to the inspector at the inquiry that the unhappiness of certain individuals should be taken into account and perhaps the procedure was (inaudible). It was never done. My Lord, you have already held that Mr Shercliff's report was careful, (inaudible) — and careful reasoned analysis. He has heard a great deal of the evidence. It is open to him now to hear a little bit more evidence from relatively few individuals, and that is the appropriate way in which to deal with the matter, as indeed your Lordship has found ought to have been done in the first place, to say, "Ah well, we must now start all over again, appointing a fresh inspector, having a further inquiry, everybody going back again who has already been heard", is not, in our respectful submission, either fair or proportionate at the end of the day. Mr Shercliff is ready, willing and able to continue, and your Lordship's first instinct, if I may say so, was right and that is what ought now to happen.
76. MR JUSTICE GIBBS: Thank you.
77. I can understand the reasoning behind Mr Coppel's submissions and why the defendants might prefer the approach which he seeks. But I consider that the right answer is that which I originally had in mind and that which is promoted by Mr Ullstein for the following reasons. First of all, because I have formed a view that the inspector's report is on the face of it clear, competent and not subject to any arguable criticism. Secondly, because, as I have said, very fairly the defendants do not lend themselves to the criticism of the inspector that some objectors have subsequently raised. Thirdly, because of the additional time and expense that would be involved. But fourthly, and I think importantly, because of the way in which the inspector left the matter when he reached his conclusions. I refer here to a passage I have quoted already in my judgment, at paragraph 8.31, that significant weight should be placed on the document as evidence of the precise line of path in question, and that therefore the inspector says:

"... I conclude that unless there is other evidence of sufficient weight to defeat it then this document shows the public right claimed ..."

78. Therefore the inspector has quite properly flagged up the issue and has already well in mind the context in which further evidence could be relevant and could, if appropriate, persuade him to a different conclusion.
79. Mr Ullstein, that which both Mr Coppel and you have said helpfully leads me to think that maybe I should give slightly more specific directions, that the matter be referred back to the inspector for consideration of all the additional material and, secondly, that the inspector has a discretion to hear any of the witnesses orally if he considers that justice requires it. That seems to me to be appropriate.
80. MR ULLSTEIN: My Lord, I am obliged.
81. MR COPPEL: My Lord, can I invite your Lordship to require that the inspector hear the parties, if the parties (by which I mean the people who made written submissions) wish to make oral submissions to him. As your Lordship will have seen, one of the points made by Mr Ullstein was that what they had put in writing cannot actually be relied upon. Now if that material is to be challenged, it is only right that the challenge is put to them so that they can answer it, so that they can develop it and so forth. These are unrepresented people, and what is fair for one party is fair for them as well.
82. MR JUSTICE GIBBS: I see the force of that.
83. MR ULLSTEIN: My Lord, I am not going to oppose that, if that is what the local authority want.
84. MR JUSTICE GIBBS: The only thing I would add to it is that it does somewhat broaden the scope of the inspector's consideration and he may, under those circumstances, wish to recall others who gave evidence in the original inquiry. I think that, I am not going to require him to do that, but I am going to give him permission to do that if he thinks right. Does that seem sensible?
85. MR ULLSTEIN: My Lord, certainly.
86. MR JUSTICE GIBBS: So if you could, both of you, kindly draft something which refers the matter back to the inspector to consider the new material; notice to be given to the authors of the new material that it is being referred to the inspector; a requirement on the inspector to hear any of the authors of the new material who request to be heard orally; and permission to the inspector, if having conducted that exercise he considers that justice requires it, to take oral evidence from persons who were available at the original inquiry.
87. MR ULLSTEIN: My Lord, certainly.
88. MR JUSTICE GIBBS: Is that --
89. MR ULLSTEIN: My Lord, yes.
90. MR JUSTICE GIBBS: Could that be done, please?
91. MR ULLSTEIN: Yes. My Lord, there remains the question of costs. In relation to that I not only seek my costs but I seek my costs on the indemnity basis from January of this year, because on 23rd January those instructing me wrote to the County Solicitor inviting them to agree precisely the order that your Lordship has made. (Pause)
92. MR JUSTICE GIBBS: Yes. To be frank, on what I call pre-CPR principles I would not be considering making an indemnity costs order.
93. MR ULLSTEIN: My Lord, no.
94. MR JUSTICE GIBBS: So I will need to look at the rule I think.
95. MR ULLSTEIN: My Lord, can I invite your Lordship to look at CPR 36.21, which is page 996 of the 2006 White Book. Now my Lord, I accept that it talks of costs and other consequences where the claimant does better than he proposed in the Part 36, but my Lord it would be impossible in the circumstances in this case to do better than our Part 36. What we have done in this case is to invite the defendants to agree to precisely the order which your Lordship has made. Now the rule provides in (3):

"The court may also order that the claimant is entitled to –

(a) his costs on the indemnity basis from the latest date when the defendant could have accepted the offer without needing the permission of the court; and

(b) interest on those costs at a rate not exceeding 10% above base rate."

And then (4):

"Where this rule applies, the court will make the orders referred to in paragraphs (2) and (3) unless it considers it unjust to do so."

96. MR JUSTICE GIBBS: Yes.
97. MR ULLSTEIN: So, my Lord, the norm would be that, unless you considered it unjust to do so, indemnity costs would follow from 21 days from 23rd January.
98. MR JUSTICE GIBBS: Yes.
99. MR ULLSTEIN: So that effectively it means the costs of the hearing would be on the indemnity basis, and that prior to that it would be on the standard basis to be assessed.
100. MR JUSTICE GIBBS: Yes. Thank you very much.
101. Mr Coppel, I have already indicated that but for the rule the defendants' conduct has not been such that would warrant indemnity costs and I want to make that clear. But what do you say about the application of this rule?
102. MR COPPEL: A number of things. First of all, my Lord, it is unusual to have a Part 36 offer in judicial review public law proceedings. They are normally private law proceedings in which a Part 36 offer is made. Second of all, your Lordship will remember that in --
103. MR JUSTICE GIBBS: The rule obviously does apply, though, does it not?
104. MR COPPEL: Oh yes, my Lord, it does, but it is unusual for fairly obvious reasons, if I may say so.
105. Second of all, your Lordship will remember that in my learned friend's case, which remained his case throughout until the hearing before your Lordship, there was a large-scale attack on what was termed "irrelevant considerations", which fell by the side during the course of the hearing. Your Lordship will no doubt remember that a good part of my skeleton argument was directed to that. That point was not in fact persisted in during the course of the hearing, and what my learned friend majored on was what might be termed natural justice, procedural fairness, and of course that is what your Lordship ultimately found for my learned friend. In those circumstances, it would be quite wrong, we say, for indemnity costs, which in effect do suppose a certain amount of, shall we say, antagonistic conduct by one of the unsuccessful litigants in the conduct of the proceedings, it would be wrong for the defendant council to be meeting the claimants' costs on an indemnity basis, including those matters which ultimately did not form part of the claimants' case and formed no part of your Lordship's reasoning.
106. My Lord, we say for all those reasons it would be quite inappropriate in the exercise of discretion to compel the defendant council to pay the claimants' costs on an indemnity basis.
107. MR JUSTICE GIBBS: Thank you.
108. MR ULLSTEIN: My Lord, unusual or not, this offer hit the nail fairly and squarely on the head, and in our respectful submission it cannot be said that it would be unjust. That would amount to the costs of the hearing should be placed on the indemnity basis when this offer was refused, and your Lordship has both in your substantive judgment and in relation to the order itself directed that just that should be done.
109. So far as the irrelevant considerations are concerned, this was a case in which skeleton arguments were sequential and not exchanged, and my learned friend knew full well from our skeleton where the main challenge was coming from at the end of the day. So that it is right, in our respectful submission, that Mr and Mrs Chaston, having tried properly and sensibly to settle the case, should, in accordance with the rule, have their costs on the indemnity basis from that date. My Lord, my learned friend is quite wrong. Indemnity costs are not punitive and the pre-CPR view that it was to reflect the court's disapproval have disappeared with that rule, which is there to try to persuade parties to come to terms in any form of litigation.
110. MR JUSTICE GIBBS: Thank you very much.
111. There is much in what Mr Ullstein says about indemnity costs. But having carefully considered the matter, I do not think it would be just to award them in this case. I think it would be unjust. The principal reason for that is this. The defendants, as a public body, found themselves in a difficult position. The background to this matter has not escaped me. Those difficulties were concerned I think in balancing in a political sense (with a small P) the strongly held views of a number of parties. Although I have held that the procedure that they adopted in the event following the inquiry was unfair and contrary to the rules of natural justice, I maintain the view that in a number of respects they were sensitive to the views of different parties. In particular, they did not seek to attack in any significant form the conduct of the inquiry by the inspector that they had appointed, and in other respects have behaved responsibly as a public body.
112. Neither the fact that these are judicial review proceedings nor the fact that the defendant is a public body would prevent me in appropriate circumstances from applying the rule in question. But I am persuaded that in all the circumstances, including at least in part the way in which the arguments have developed, that it would be unjust to apply it in this instance.
113. MR ULLSTEIN: Will your Lordship then say costs on the standard basis, to be the subject of a detailed assessment.
114. MR JUSTICE GIBBS: Detailed assessment in this case.
115. MR ULLSTEIN: Detailed assessment if not agreed.
116. MR COPPEL: One further submission. May I have permission to appeal? I state very quickly why.
117. MR JUSTICE GIBBS: Yes.
118. MR COPPEL: It is always a difficult thing to do after one has lost. But three basic reasons. First of all, we say that in your Lordship's judgment your Lordship has effectively elevated the status of the non-statutory inquiry and the role of the inspector in the non-statutory inquiry to effectively become the decision-maker, and in so doing relegated the significance and the importance of the council in the decision-making process. We say your Lordship erred there.
119. MR JUSTICE GIBBS: Yes.
120. MR COPPEL: Secondly, we say that it is no requirement of natural justice and procedural fairness that a decision-maker must indicate the conclusion that the decision-maker is minded to reach, in order that the party that falls to be disappointed can have another shot at it. We say that the authorities only support the proposition that natural justice and procedural fairness require that the decision-maker put the material received and afford an opportunity to meet that, and that to the extent that your Lordship has effectively gone further, you have gone further than the authorities.
121. Then finally, my Lord, we say that the conclusion you reached that there was a breach of natural justice when in fact that additional material was put to the claimant and the claimant responded, with far and wide-reaching submissions, is simply unsustainable. For those reasons, my Lord, we ask for permission.
122. MR JUSTICE GIBBS: Thank you very much. I refuse permission for the following reasons. Ground 1: I do not accept that I elevated the role of the inspector to that of a decision-maker. In fact I expressly disavowed such a proposition in my judgment.
123. Secondly, as to the purported misdirection on the requirements of natural justice and procedural fairness, there may be many cases in which natural justice and procedural fairness do not require a claimant to be told of the prospective decision of the decision-maker. But following the analysis of Sullivan J in the case to which I referred and that which preceded it, I considered whether or not on the facts of this specific case the circumstances dictated that the matter should be referred back to the inspector to reconsider his opinion. I did not elevate the proposition to any general principle.
124. The third ground put forward by Mr Coppel I think essentially is another way of putting the second ground.
125. Furthermore, there is no compelling reason why this matter should go to the Court of Appeal. One only has to consider the subject matter of the underlying dispute to appreciate that.
126. For all those reasons, I refuse permission to appeal and I think that actually the sooner the matter is referred back to the inspector and then the inspector either changes or repeats his recommendations and then the defendants takes its decision, whichever way that might be, the better.
127. I have been given a form to fill in with my reasons. Having given them orally, do I actually need to do that or can they be appended?
128. MR ULLSTEIN: My Lord, I do not think your Lordship does, since all you need to put on the form is "for the reasons given orally".
129. MR JUSTICE GIBBS: Thank you very much.