England and Wales High Court (Administrative Court) Decisions

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

		15/12/08

1. On 28^th January 2004 the Ceredigion County Council made an order (Ceredigion County Council (Footpath 49/29/M) Definitive Map Modification Order 2004) under Section 53(2)(b) of the Wildlife and Countryside Act 1981. The order affected the Claimant's land and she objected. In January 2006 an inspector appointed to consider her objections held an inquiry after which he issued an interim decision letter dated 14^th February 2006 in which he stated his intention to confirm the order subject to modification with respect to the route of the footpath. After receiving further written submissions he issued a decision letter dated 28^th July 2006 in which he confirmed the order without modification of the route. Significantly, the Claimant's contention that the use of the footpath had been interrupted by the construction of a building on ground over which the footpath is said to run, though irrelevant to the modified route, was relevant to the route as shown in the Council's order and as confirmed. Different dates on which the right to use the footpath was called into question, applied to the different routes. The Claimant contended, as one of her grounds of complaint, that the inspector had failed sufficiently to deal with this interruption.
2. On 16^th September 2008 I gave judgment in this case. I decided that the inspector had failed adequately to deal with the question of interruption of the use of the footpath and that his decision could not stand.
3. After giving judgment I asked counsel for their views on the terms of the order. I understood them to be in agreement that all that was required was an order quashing the decision of the inspector. That was the order which I intended to make. I took it that it was agreed that it would be necessary for the inspector to reconsider the evidence relating to interruption of use of the way.
4. It is now contended on behalf of the Claimant that I had no power to quash only the decision of the inspector. Mr Green, counsel for the Claimant, submits that the inevitable consequence of my decision is that the Council's modification order must be quashed. The Defendant disagrees and contends that there are good practical reasons why a court has power to quash only the decision of the inspector leaving the process by which the Council arrived at its modification order intact.
5. I note that an order drafted after I gave judgment purports to quash the decision of the Defendant dated 26^th October 2006. Some clarification of that order is required in any event.
6. I have received submissions in writing by Mr Green and Mr Coppel on behalf of the Defendant.
7. The procedure under Schedule 15 to the Wildlife and Countryside Act 1981, as it applied in the present case, is set out in Mr Coppel's written argument at paragraph 10. It involves eleven stages. In summary the County Council, having come to the conclusion that there is evidence which shows that a right of way not shown on the definitive map is reasonably alleged to exist and having consulted with every affected local authority, must make an order modifying the definitive map and publicize that order. If there is any objection the Secretary of State (or in Wales the Welsh Assembly Government) must appoint an inspector to hold a local inquiry or to hear representations, and having received the inspector's decision may confirm the order with or without modification. The lengthy and expensive step is plainly the holding of the local inquiry.
8. The Claimant's submissions are based upon the words of paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981, which is in the following terms:

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

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

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

9. Mr Green submits (at paragraph 10 of his written argument):

1) that paragraph 12 provides the exclusive means of challenge where a modification order has been made by the Secretary of State; and

2) that the only form of relief provided in paragraph 12(2) is an order quashing part or all of the modification order.

10. Mr Coppel submits that the better reading is that paragraph 12(2) is a "dispositive" provision: it confers on the court a power to quash which is not limited to the inspector's decision (the decision directly under challenge) but extends to the Council's modification order. The court's power to quash the inspector's decision is a consequence of the court's jurisdiction to review that decision. It is not restricted by paragraph 12(2). (See paragraphs 5 to 8 of his written argument.)
11. Counsel have failed to identify any decision of the High Court or of the Court of Appeal in which this issue has been argued and determined. Mr Green, however, relies upon the following decisions which, he submits, are consistent only with, or supportive of the construction of paragraph 12 for which he contends.
12. In Dyfed County Council v Secretary of State for Wales (1990) P&CR 275 the council had made an order under section 53 of the Act modifying the definitive map to show five footpaths including that which was the subject of the appeal. An inspector had refused to confirm three of the footpaths, including the one in dispute in the appeal, and in accordance with his decision the Secretary of State had confirmed the order subject to that modification. The council applied under Schedule 15 to quash the order. The council failed at first instance but succeeded in the Court of Appeal because the inspector had failed to give sufficient reasons to enable the Court to determine whether or not his decision was right in law. At page 280 Sir Nicholas Browne-Wilkinson V-C said:

"It follows in my judgment (and the Secretary of State does not dissent) that there has been a failure to comply with the requirements of Schedule 15 to the Act of 1981 since there has been a failure to conduct a proper local inquiry. That failure has substantially prejudiced the interests of the county council. Accordingly under paragraph 12 of schedule 15 we have power to quash the order. In my judgment the order should be so quashed in this case for the reasons that I have given.

Normally I would reach that conclusion with considerable regret, given the time expense and trouble that has already been expended on this case in seeking to establish whether a public right of way exists. However, in this case my regret is tempered by the fact that I suspect that hitherto the matter may have been approached on the wrong basis. It may be helpful to the parties, if they are going to re-consider what should happen in the future, if I explain the doubts which I have."

13. Sir Nicholas Browne-Wilkinson then set out in detail his evaluation of the evidence in the case. He concluded with the words relied upon by Mr Green:

"I have only dealt with the matter at such length in the hope that may help resolve for the future the nature of the rights around this lake rather than give rise to yet further litigation such as that with which we have been dealing.

For myself I would allow the appeal and quash the order made and confirmed by the Minister, leaving it open for the matter to be started afresh."

14. In this case there were five footpaths to be considered, of which only two were confirmed by the Secretary of State, and the Court had doubts about the evidence. This was not a case in which an order quashing only the inspector's decision was likely to be a helpful or suitable remedy, nor did counsel for either party contend for it. Plainly the Court thought that the guidance given would resolve the issue.
15. Mr Green next relies upon R v Cornwall County Council ex parte Huntington [1994] 1 All ER 694. There the Court of Appeal decided that no application for judicial review could be made before the Secretary of State had confirmed a modification order. There are good reasons why that should be so, not least the desire to avoid delay in the Schedule 15 procedure. However, the Court did not decide that a successful challenge to the order, after it has been confirmed, has the consequence that the procedure must begin afresh.
16. In Jacques v Secretary of State for the Environment [1995] JPL 1031 Laws J allowed an objector's challenge to the decision of an inspector confirming various modification orders and quashed the orders. He said that it was common ground that any order made under the statute [sc on an application under paragraph 12 of Schedule 15] had the effect not merely of quashing the act of confirmation by the Secretary of State's inspector: it meant that the original orders made by the council would be quashed so that the council would have to embark on the statutory process again from the beginning if they sought to persist in the designation of the footpaths as public rights of way. It will be apparent that there was no argument about the powers of the court.
17. In Maltbridge Island Management Company v Secretary of State for the Environment 31^st July 1998 CO 540/98 (BAILII: [1998] EWHC Admin 820) Sullivan J quashed a modification order which had been confirmed by the inspector. He said:

"It is a matter of considerable regret that I do not have power under the 1981 Act to remit the decision [sc of the inspector] for reconsideration. My only power is to quash the order. [Counsel for the Secretary of State] 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."

18. It seems to me to be plaint that, if he had thought that he had power to do so, Sullivan J would have quashed only the decision of the inspector and remitted the matter for reconsideration by him.
19. In The National Trust v Secretary of State for the Environment [1999] JPL 697 an inspector had confirmed a modification order made by the County Council but it was conceded by the Secretary of State that that his decision could not stand. There was disagreement however about the grounds on which the decision fell to be quashed. Kay J therefore considered the grounds to assist the County Council in considering whether a fresh order should be made in an attempt to avoid further litigation.
20. This was a somewhat unusual case. Kay J was not called upon to consider the remedy. The approach is consistent with Mr Green's submission but not in my judgment inconsistent with the alternative.
21. In Norman v Secretary of State for the Environment, Food and Rural Affairs [2006] EWHC 1881 (Admin), Collins J, having concluded that the decision of an inspector confirming a modification order was flawed, said that it should be quashed and the matter remitted for reconsideration. Leading counsel for the objectors thereupon submitted that the consequence of the decision was that the order was quashed; that there was no order and that the council had to consider whether to start again. Counsel for the Secretary of State did not suggest otherwise.
22. Mr Green also relies upon the decisions of the High Court in Marriott v Secretary of State for the Environment, Transport and the Regions [2001] JPL 559 (in which Sullivan J again quashed an order with regret but did not consider any alternative) and in Todd v Secretary of State for the Environment, Food and Rural Affairs [2004] 1 WLR 2471 in which Evans-Lombe J quashed an order.
23. Mr Coppel submits that in none of these authorities was the issue the subject of detailed argument. He refers to the decision of Kay J in Buckland and others v Secretary of State for the Environment Transport and the Regions [2000] EWHC Admin 279 (11th January 2000) in which the Judge quashed the decision of the inspector. It is difficult to know whether, when the order reflecting Kay J's decision came to be drawn up, it provided for remitting the matter to the inspector for reconsideration or whether the modification order was simply quashed.
24. He also refers to Rowley & Anor v Secretary of State for Transport Local Government and the Regions [2002] EWHC 1040 (Admin) (24th May, 2002). There an inspector after holding an inquiry had confirmed the decision of the county council to make an order modifying the definitive map by the inclusion of a footpath over the objectors' land. Elias J concluded that the decision by the Secretary of State (through the inspector) to confirm the county council's order was made contrary to law. He quashed the confirmation of the order "with the consequence that the modification of the definitive plan and statement resulting from that confirmation shall not take effect." Again it is not entirely clear what were the terms of the order.
25. It might be noted that in both these cases counsel who appeared had also appeared for the Secretary of State in the Maltbridge Island case in 1998 and was counsel for the objector in Norman v Secretary of State in 2006.
26. Mr Coppel also refers to Applegarth v Secretary of State for the Environment Transport and the Regions [2001] EWHC Admin 487 (28th June, 2001). In that case Munby J upheld the decision of the Secretary of State, based upon an inspector's inquiry, to confirm the modifying order, so the issue which I have to consider did not arise. However the inquiry with which Munby J was concerned was the second inquiry. A different inspector at an earlier inquiry had concluded that the modifying order should not be confirmed. That decision had been challenged by the county council before Carnwath J who had made an order by consent quashing the decision so that the question of confirmation of the order therefore fell to be redetermined by the Secretary of State. The objector and the county council had agreed to proceed before the second inspector by way of written representations rather than by public inquiry. Mr Green would contend that the quashing of the inspector's decision by Carnwath J lay outside Schedule 15.
27. At paragraph 11 of his judgment Munby referred to the relief which he had jurisdiction to grant. He said:

" ×. I should make clear the nature of the court's function. [The objector] does not have a right to "appeal" to the High Court. Paragraph 12 of Schedule 15 to the 1981 Act gives him, as a "person aggrieved" a right to "make an application to the High Court". The effect of paragraphs 12(2) and 12(3) is that I cannot interfere, whatever my own view of the merits of [the objector's] contentions might be, unless I am "satisfied" either (i) that the modification order made by [the council] on ×. is not within the powers of sections 53 and 54 of the Act or (ii) that [the objector's] interests have been "substantially prejudiced" by a failure to comply with the requirements of Schedule 15. Even if I am so satisfied my only power is to "quash" the modification order in whole or part. It follows that I have no power to grant [the objector] any declaration or other relief."

28. I agree with Mr Coppel's submission that in none of these authorities was there detailed argument on this issue. He submits that they are indecisive and that the issue falls to be determined. He refers to the general principle that on an application to quash "reconsideration will be the normal course of events" (De Smith 6^th Edition paragraph 17-025), and that the court in construing a statute should seek to avoid an impracticable or pointless result (Bennion on Statutory Interpretation 5^th Edition pages 971 and 999).
29. He further submits that the inconvenience and expense of beginning the Schedule 15 procedure again, when the only criticism relates to one part of the inspector's decision, is a good policy reason for construing paragraph 12 of Schedule 15 as permitting the court to quash only the inspector's decision.
30. I agree with these arguments and, but for the decision of Sullivan J in the Maltbridge Island case, I would accept Mr Coppel's submissions, quash the decision of the inspector and direct that he redetermine the issue of the interruption of use of the way, either upon the evidence he has already heard or upon such further evidence as he might consider necessary.
31. However that is precisely the course which Sullivan J would have followed in the Maltbridge Island case if he had felt able to do so. Although there was no argument on the point before him, he plainly considered that the words of paragraph 12 precluded the making of such an order. That is a conclusion to which he must have come after giving the matter careful consideration even in the absence of argument.
32. The Maltbridge Island case is not binding upon me but I should follow what I infer to be the basis of the decision unless I am persuaded that it is wrong. None of the other authorities leads to that conclusion. Indeed Norman v Secretary of State supports Sullivan J's approach.
33. Accordingly I conclude that Mr Green's submissions are correct. The order must be an order quashing the Ceredigion County Council (Footpath 49/29/M) Definitive Map Modification Order 2004.
34. Further I accept that the Claimant has succeeded on these written submissions and that she should recover her costs of making them.
35. However, I am satisfied that permission to appeal against my decision as to the terms of the order (but not the decision as to the error by the inspector) should be granted if the Defendant wishes to pursue this point. I see no purpose in awaiting an application by the Defendant with its additional costs and delay, when I would grant such permission if sought.
36. Accordingly the order will be in the terms of the draft submitted by Mr Green save that paragraph 4 will provide:

"The Defendant's application for permission to appeal against the finding that the inspector erred in law is refused but the Defendant has permission to appeal as to the terms of the order granting relief."

His Honour Judge Vosper QC 15^th December 2008