England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		15th January 2009

1. MR JUSTICE WALKER: An inspector, Ms Heidi Cruickshank, was appointed by the Secretary of State for Environment, Food and Rural Affairs ("the Secretary of State") to hold a public inquiry ("the Inquiry") to determine issues arising out of a proposal that North Somerset Council ("the Council") should upgrade part of a public right of way in its area.
2. The proposed upgrade was to raise its status from a footpath to a bridleway, thus permitting the riding of horses. Although the Council opposed such an order, the Secretary of State required that it be made, subject to confirmation following the Inquiry. This requirement was given effect by the North Somerset District Council (part of footpath LA 6/1 at Cleeve) Definitive Map and Statement Modification Order No 1 2005 ("the Order").
3. As a matter of form, the actual alteration and status is achieved by an order of the Council, which is accordingly sometimes referred to as "the Order Making Authority" or "OMA". I will refer to the relevant part of the public right of way as "the Order Route".
4. The Inspector held two inquiry hearings. Following the first hearing she issued an interim decision letter dated 23rd November 2006 ("the Interim Decision"). Her interim view was that a part of the Order Route known as "The Batch" should be confirmed as a bridleway, but that the order should be modified so that the reminder, known as Chapel Lane, should permit vehicular access. Unusually, her decision was based not on a statutory deemed dedication, but on an inferred dedication and acceptance at common law.
5. The second hearing was needed in order to examine the proposed modification. The Inspector at the second hearing directed that it be treated, additionally, as a re-opening of the first hearing.
6. This judgment concerns two claims arising out of decisions made by the Inspector. The first claim, CO/610/2008, is a statutory challenge made under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 ("the 1981 Act"). The Inspector's eventual decision, dated 15th November 2007, ("the Order Decision") abandoned the Interim Decision proposal that Chapel Lane be a vehicular way. Thus, the Order Decision was to confirm the bridleway status of the entire Order Route as set out in the order. This was subject to some minor modifications, not material to this claim.
7. Mr and Mrs Ridley are the owners of Goblin Combe Farm, Somerset. A substantial section of the proposed bridleway runs over their land. They challenge the Order Decision. They do not require permission to bring this claim. Accordingly, the matter comes before the court for substantive hearing. The Secretary of State contests the claim.
8. On 1st February 2008, the Inspector made two further decisions. Both concerned costs occasioned by an adjournment of the second hearing. The second claim, CO/4063/2008, is a claim for judicial review of those decisions ("the costs decisions"). One concerned Mr Ridley. The other concerned Mrs Marlene Masters, who had represented both herself and Mr Ridley as objectors at the second hearing.
9. At the close of the second hearing, the Council complained that Mr Ridley and Mrs Masters ought to pay the costs of the adjournment. In the costs decisions the Inspector concluded that Mr Ridley and Mrs Masters respectively should pay certain of the Council's costs. As the second claim seeks judicial review, permission is needed to bring this claim. Permission was refused on the papers by Irwin J in an order dated 2nd July 2008. This claim now comes before the court as an oral renewal of the application for permission.
10. At the hearing before me, the Council took no part in the proceedings. Argument in support of the claims was presented by Mr John Hobson QC and Mr Andrew Fraser-Urquhart. Argument opposing the claims was presented by Mr Tim Buley on behalf of the Secretary of State. None of the counsel appearing before me appeared before the Inspector.

The first claim

11. It is not disputed that the grounds of challenge available under paragraph 12 of Schedule 15 to the 1981 Act correspond to those which may be relied upon in a claim for judicial review.
12. There are three grounds of challenge. I take them in turn. Before doing so, I set out relevant parts of the Interim Decision and the Order Decision. In these documents the Inspector referred to the Council as the OMA. References to "the WBA" are to the Woodspring Bridleway Association, which made the case in support of confirming the order. Relevant passages from the Interim Decision are:

"5. The Order is made under Section 53(2)(b) of the 1981 Act, relying on the occurrence of an event specified in Section 53(3)(c)(ii). The main issue is whether, on the balance of probabilities, 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.

6. It was agreed that public use of the route on horses had been called into question in 1975, which meant that section 31 of the Highways Act 1980 ("the 1980 Act") could be relevant. However, the main parties agreed that the user evidence was insufficient to support such a statutory claim and the supporters to the Order relied upon common law. An implication of dedication at common law arises if there is evidence from which it may be inferred that a landowner has dedicated a right of way and that the public has accepted the dedication. I shall consider whether the evidence enables an inference of the dedication and acceptance of public bridleway rights to be drawn.

7. WBA argued that the evidence supported the two ends of the Order route having higher public rights than footpath: that is Chapel Lane, from point B to point Y, as indicated on the modified Order plan; and Primrose Lane, from the A370 to the north-west of the Order route, to or beyond point A. If that was accepted, then the likelihood of two cul-de-sac routes was low and it was probable that there was historically one through route, encompassing the section through the Batch, between points Y and A. The through-route might have fallen into disuse, but the more recent use by horse-riders showed that it continued to have a reputation of higher status than footpath.

...

Documentary evidence

Commercial mapping

18. The Order route, in conjunction with Primrose Lane, was shown on three small-scale maps: Day and Masters, 1782, Greenwoods, 1822 and a map by Pigot & Co dating from 1830. Mr Halstead, presenting the WBA, said that all three maps indicated a through-route as part of the local road network and connecting two public roads: Cleeve Hill Road and what is now the A370.

19. He said that on Day and Masters it was shown as an 'Inclosed Road' and that this map was not showing footpaths. For both Greenwoods and Pigot & Co he said that the route was shown as a 'cross-road' and relied upon the cases of Trafford v St Faith's RDC, 1910 and Attorney-General v Council of the Metropolitan Borough of Woolwich, 1929 ('Woolwich') to show that such maps could be taken as some evidence of reputation of the route as a public road.

20. When asked why the kink in the route near Y was not shown, he compared the map to a modern-day road atlas, accurate in the showing of a route in that location, even if not indicating all the twists and turns. In cross-examination, he did not agree that the small scale of the map limited its value, but did agree that the key did not show whether the routes shown were public or private.

21. The OMA said that these maps were no more than supportive, at best suggestive of a through-route. They relied upon Hollins v Oldham, 1995 ('hollins v Oldham') to say that a 'cross road' was merely a 'road' which was not a turnpike road and that there was little indication of whether these were public or private, footpaths or carriageways, with no explanation on the plan. There was no reason to suppose that those using the maps, and therefore those making them, cared whether the routes shown were public or private.

22. The OMA noted the differences in the depiction of the route with Day and Masters showing it as a semi-circular route and Greenwood on a straighter line. Mr Hayden agreed with the OMA and said that the purpose of Day and Masters was to give general guidance of the features on the ground and it did not provide evidence of bridleway rights. He said that these maps were not conclusive and were inaccurate.

23. Whilst the kink in the route is clearly not shown, I accept the argument that these maps are comparable to modern road atlases and do not consider that this means that they are inaccurate for their purpose. Overall, I consider that these small-scale maps do indicate a through-route from at least the end of the eighteenth century.

23. Whilst the kink in the route is clearly not shown, I accept the argument that these maps are comparable to modern road atlases and do not consider that this means that they are inaccurate for their purpose. Overall, I consider that these small-scale maps do indicate a through-route from at least the end of the eighteenth century.

24. The route was identified as a 'cross road' according to the key on two of the maps. I have looked at the judgments to which I was referred. I agree to some extent that the routes would be unlikely to be shown on small-scale maps unless they were available for public use. However, Hollins v Oldham says '...Pingot Lane must have been considered, rightly or wrongly, by [the mapmaker] as being either a bridleway or a highway for vehicles.' There was nothing to show what was meant by the mapmakers in their depiction of the route, or how they arrived at those conclusions. As a result, I consider that the overall weight of evidence I can give to these maps is small, but I find them suggestive of a route with a higher status than footpath.

Yatton Local History Article 'Cleeve's Early Postal Service'

30. WBA referred to this article, which they felt should be given some weight. In particular, they noted the paragraph that said '... I remember that in the early 19th century what is now Cleeve Hill Road left its present route near the quarry, ran along Chapel Lane and came out on the Bristol - Weston Road...' (the A370). WBA relied upon this as evidence of reputation of a 'road' passed down through generations and consistent with the mapping evidence.

31. The OMA thought the WBA were placing reliance upon the route as a postal route and it was noted by Mr Hayden that the Schedule 14 direction seemed to place weight on the theory of use of the route by horses to deliver post. However, WBA clarified cross-examination that they did not rely upon use as part of a postal route to support their case. The OMA noted references in the article to 1816 and said that the surrounding map evidence did not support the proposition that the Order route was a road, as they showed that Cleeve Hill Road continued to the A370 on its present route.

32. Given that the landowner had a recent letter from the author of this article it was said that she could not 'remember' what had happened in the early 19th century. In her letter, the author referred to a 1799 Poulett map, which was not put before this Inquiry by any party, and said that she still believed that the Order route had been a continuation of Cleeve Hill Road. She was not of the opinion that it was a postal route.

33. I agree that there is a suggestion of reputation from this article; however, given the surrounding map evidence I must agree with the OMA that there is nothing to show that the Order route was an alternative to Cleeve Hill Road at the beginning of the nineteenth century, although the maps show it to be available. I give no weight to this article in providing evidence, except as a small amount towards reputation.

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39. WBA said that the Order route was shown coloured yellow throughout, in common with known public roads, such as Cleeve Hill Road and the area around the quarry east of point B. The plan was numbered in line with the 1800 map discussed above and the plot numbered 1004 was identified in the survey book as 'Stallards Batch including old cottage'. Notes made by a member of WBA relating to which routes were shown as dead end routes were also provided and it was suggested, by comparison with these, that the two enclosed sections of Chapel and Primrose Lanes must have been public as they were not listed as dead end routes and were not attributed to any owner.

40. The OMA disagreed that the route was coloured throughout and suggested that it was staining and discolouration caused by aging. In cross-examination they agreed that the enclosed sections of Chapel and Primrose Lanes were coloured. Mr Hayden said that there was no way to know that the WBA notes were exhaustive and so no weight could be given to the theory.

41. I have looked very carefully at both copies of this map that have been provided and I agree that both Chapel and Primrose Lanes are coloured, with a barrier across the end of Primrose Lane at or near point A. Comparing similar areas, the colouring around the edge of the quarry to the east of point B is quite clear and I consider that there could be colouring the (sic) across the section of the route within the Batch, numbered 1004 on this plan. However, neither copy is sufficiently clear to allow me to be certain of this and, therefore, I cannot give the map weight in relation to the Batch, although I do give weight to the depiction of Chapel and Primrose Lanes in the same way as other known public roads.

Tithe Award Map, 1841

42. WBA supplied copies of both the local copy of the tithe map and the first class map, which would have been the Tithe Commissioner's copy. The tithe was the first map to show a barrier at the end of Chapel Lane, point Y, and both Chapel and Primrose Lanes were numbered 1071, which the Apportionment showed as 'Lane' within the section entitled 'Roads Rivers & Waste'. By reference to Woolwich it was said that a lane was a minor road leading between one main road and another; the fact that both 'ends' were numbered as 1071 was significant in showing that the Commissioners viewed the Order route and Primrose Lane as a through-route.

43. WBA carried out a comparison of the other routes listed as lanes and said that three were now recorded as public roads, two as Roads Used as Public Paths (RUPP's), one a footpath, although they believed there were higher rights over this route, and one other they believed was public. As a result, they argued, this gave a presumption that the routes included as lanes within this part of the Tithe Award were public highways, and probably vehicular.

44. They noted there was a difference between roads or lanes and occupation roads, which were private and listed in the same section. The Batch section was shown within Apportionment number 521, listed as 'Stallards Batch...Pasture' and they referred me to the case of Kent County Council v Loughlin and others (1975) ('Kent') where it was said that tithe was not payable on roads which did not produce crops. They said that a bridleway could exist on this land and not cause sufficient damage to the crop for any deduction to be taken from the tithe payment. The crop was grass growing on a limestone peninsula. WBA said that the surveyors had found a physical feature and referred to Webb v Eastleigh Borough Council, 1957 ('Webb') to say that the tithe map could be taken as evidence of the existence of a highway.

45. The OMA said that the tithe apportionment was a statutory document of which the map was an explanation. They referred to the case of Maltbridge Island Management Company v The Secretary of State for the Environment and Hertfordshire County Council, 1998 ('Maltbridge') in which it was clarified that evidence of existence could be found, but that both public and private roads could be shown and so further analysis was required. In this instance, the OMA said that the central section was shown as a pasture and not a lane and demonstrated, as far as possible, that the route was not public.

46. Mr Hayden said that the purpose was to identify titheable land, not to show roads or their status, and that the evidence was inconsistent with a public right of way over the Batch, as a landowner would wish to declare it and reduce the tithe charged. He said that the other routes now recorded with vehicular status could have become such since the tithe map. He agreed with the OMA that the map should be given strong evidential weight.

47. It was agreed between the main parties that an error had been made within the Schedule 14 direction in relation to the depiction of routes on the tithe map. It had been said that routes were coloured, and this appeared to be given some weight, but they believed that the confusion had arisen between the tithe and the earlier Sturge map, discussed above. All agreed that no roads on the tithe map were coloured.

48. I agree that the showing of 'roads' on tithe maps is incidental to their primary purpose, however, taking account of the judgements of both Kent and Maltbridge I consider that they can provide relevant evidence. The case of Webb is distinguished from this case, as nowhere is it clarified that the tithe map was in fact one of those considered.

49. In this instance I consider that the map confirms that the route physically existed in much the same way as today, with two enclosed sections corresponding to Chapel Lane and Primrose Lane, and the section through the Batch unenclosed on its southern boundary, but clearly existed as a physical feature.

50. In relation to status, I agree with the WBA and give some credence to the theory that it was seen as one route, given that the number is the same on Chapel and Primrose Lanes. I consider that both enclosed sections are clearly indicated in a manner consistent with other public vehicular highways and give weight to this as showing that at the time both were known and treated as such. However, there is a clear difference in the depiction of the section within the Batch and it seems to me that this must relate to a difference in status. Although I consider it probable that this indicates a public route throughout I have to agree with the objectors that it provides no positive evidence in favour of any particular status over the Batch and suggests that the status differs from, and is lower than, Chapel and Primrose Lanes.

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Ordnance Survey mapping

53. The OMA said that the 6" to 1 mile OS map of 1888 was unclear, due to its size and scale, but that Chapel and Primrose Lane appeared to be enclosed. In relation to the 1903 map, WBA said that Chapel and Primrose Lane were both enclosed, with Chapel Lane given an OS plot number of 702 and a separate measurement for acreage, and Primrose Lane similarly separately measured and numbered 724. It was said to be the practise of the OS at the time to separately number and measure roads but noted that it must have been the assumption of the surveyor that these were two separate routes, which varied from the consistent numbering seen on the tithe map.

54. The section through the Batch was identified with dashed lines on the southern edge, indicating that it was not enclosed but physically visible as a feature on the ground. It was included within the area measurement for the rest of the Batch, over which other routes were shown. WBA noted that this section appeared to be wider than other routes, which were shown and marked 'F.P.' on this map, and said that this should be seen as recognition by the OS surveyor that the route was physically different and did not have the appearance of a footpath. It was agreed in cross-examination that it was possible that it could have been a footpath even if it had not looked like one.

55. The OMA said that the depiction over the Batch was not inconsistent with a route used by private farm traffic, and did not mean that it was not at the time also a footpath.

56. WBA produced an OS map dating, they believed, from about 1903-1905, on which Chapel and Primrose Lane were shown as fenced, unmetalled roads and the Batch section as an unmetalled road, unfenced on the southern side. Due to the picture of a car on the cover of the map, they believed it was reasonable to assume that the purpose of the map was to provide motoring information. They referred to an Act of 1903 which had apparently introduced the terms first, second and third class into identification of roads; the roads on this map were described in this way in the key.

57. In addition, a 1958 1" OS map was put forward by WBA as showing the Order route and Primrose Lane as a through-route, identified as an uncoloured road, which must indicate what was found by the surveyors. By comparison, public paths were shown with dashed black lines. A map entitled '1st (University) Battalion' was said to be an OS 1" map base, showing the Order route as a through-route. An OS provisional map, compiled from 6" sheets of 1902-1930, with revisions of 1949-1956 and 1966, was also said by WBA to show a through-route.

58. Mr Hayden noted that OS maps were subject to a disclaimer regarding their depiction of public rights of way and said that the value of these maps with regard to status must be dependant upon this disclaimer.

59. I consider that the OS mapping series provides good evidence of the continued existence of the route, generally in much the same way as it appears today; that is with Chapel and Primrose Lane as enclosed sections, whilst the section through the Batch is unenclosed on is (sic) southern side, against the field, but visible as a feature on the ground.

60. I accept that the indication of the ends of the route on the 1903 OS map might be indicative of the status of these sections as 'roads', given the OS instructions. However, I do not think that later maps can be more than suggestive and, as mentioned above, the standard disclaimer on OS maps limits the value that can be placed upon them in relation to status.

Finance Act, 1910

61. WBA said that Finance Act maps, based upon an OS base map, showed Chapel and Primrose Lane uncoloured and excluded them from surrounding hereditaments, which was taken, by reference to Robinson Webster (Holdings) Limited v Colin Edward Agombar and Sandra Catherine Agombar, 2002 ('Agombar'), as strong evidence that these were public roads and part of the general road network.

62. The OMA noted that the Batch section was within the hereditament numbered 1186 and supplied a copy of the field book entry, which showed no deductions made for tax purposes under the heading 'Public rights of way or user' which they took to indicate that there were no rights of way over the Batch. The OMA relied upon Maltbridge and an extract from Sauvain to support their case. They said that it was not known why some sections were not included in the hereditaments but that it could be because owners could not be identified.

63. WBA argued that there may be financial reasons why a landowner might not claim deductions for rights of way, as the tax was incremental and claiming a deduction would lead to a greater increase in the value of the land, therefore, the lack of deduction should not be taken as an indication that there was no right of way.

64. In agreement with the OMA, Mr Hayden did not think that the possible explanation for the lack of claimed rights of way over the Batch was reasonable and said that the evidence should be taken as corroborative of the non-existence of public rights. The OMA said that Agombar supported the case that it was in the landowner's interest to claim deductions, rather than not to do so.

65. The point of the Finance Act was to identify taxable land and, taking account of the cases mentioned, I consider that this provides strong evidence that both Chapel and Primrose Lanes were recognised as public vehicular highways at this time.

66. I find some difficulty in relation to the section over the Batch, as no value for rights of way are deducted from this hereditament, despite there being other routes that were, within forty or so years, placed on the Definitive Map as public footpaths. I also note that there is some suggestion at the time of recording FP LA 6/1 the route had been in use for 75 years, see below. Given these discrepancies, I do not accept that it should be seen as supportive of there being no right of way, as suggested by the objectors, although I agree that there is no evidence that the landowner would deliberately have avoided claiming deductions for the reason proposed by WBA.

67. I consider that the Finance Act provides very similar evidence to the tithe map in relation to Chapel and Primrose Lane and, given the weight to be attached to such documents, provides good evidence of vehicular rights on Primrose and Chapel Lanes. However, I find no evidence in relation to the Batch, other than the likelihood that there were no vehicular rights recognised.

Highways Report Map, circa 1930

68. The OMA said that these records had arisen in response to the Local Government Act 1929, moving the responsibility for highway maintenance from the Rural District Councils, such as Long Ashton Rural District Council ('LARDC'), to County Councils. Each RDC had prepared a handover map showing publicly maintainable roads from which this map was derived. It was noted that this was a working copy and so there was additional information that had been added over the years.

69. They said that Primrose Lane was coloured yellow to point A and numbered 185; yellow indicated group C roads, of little importance. The section over the Batch was uncoloured, with a pencil notation of 'FP' and Chapel Lane was marked with a purple dashed line, shown in the key as an Unclassified Country Road ('UCR'), and numbered CR 60146; no information had been found relating to this number within any schedules. The OMA said that they understood UCRs to be routes of lesser significance, possibly bridleways, whilst Mr Hayden said that this did not provide evidence of bridleway rights.

70. WBA noted that it seemed that the yellow colouring relating to Primrose Lane had at some time extended beyond point A, giving some doubt as to the extent of the public highway. They also said that the recording of Chapel Lane as a UCR supported the tithe and Finance Act evidence discussed above.

71. I note that the OMA believed that the notation of Chapel Lane could relate to bridleways but consider that the earlier information indicates a route of higher status. In my opinion, its inclusion in this map provides strong evidence that the County Council accepted the assessment of LARDC that it was a public vehicular highway.

72. The depiction of Primrose Lane continues to support the earlier evidence. There is no evidence in the tithe or Finance Act information to support vehicular highway rights beyond point A and, on the balance of probabilities; it seems more likely that this was a drafting error, which was then corrected by removing the yellow colouration.

73. As the pencil notation on the Batch could have been added at any time I do not give it particular evidential weight in relation to this period. Although this map provides no evidence of a bridleway on the Batch, it should be borne in mind that the purpose was to record public maintenance liability and not necessarily public rights; as a result, this simply shows that the LARDC and the County Council were not of the opinion that there was a publicly maintainable route on the Batch and does not relate to the issue of status.

Parish Council Minutes (1)

74. The Order route is within the parish of Cleeve, which had previously been part of Yatton and Cleeve were put forward. There was some initial uncertainty as to when the change in parish boundaries might have occurred but the representative from Cleeve Parish Council confirmed that this had been in 1949. It was noted that each party presented the minutes to support their own case and I have looked at all the minutes presented.

75. WBA placed weight upon the Yatton Parish Council minutes of 2 September 1925 where, under the side-heading 'Bridle paths', there was reference to '...the path along by Cleeve Chapel to Brookmans Batch...'. It was said that the Brookman family lived at Goblin Combe Farm at that time and so this name had been given to the land, which had earlier been known as Stallards Batch.

76. The Parish Council were to write to the LARDC Surveyor and it was reported in the minute of 7 October 1925 '...that the surveyor had given instructions to have the Bridle Paths cleaned and trimmed up...' WBA said it was reasonable to assume that this entry showed agreement to deal with the matter and spend public funds on the route.

77. The OMA said that the later minutes supported their contention that the section over the Batch was no more than a footpath and referred me to entries in the Cleeve Parish Council minutes from 1951 and 1954 relating to Mr Browne Cole, who kept pigs on the Batch. According to Mr Ridley, the pigs grubbed up the Order route and Mr Browne-Cole had been asked to fence it off to prevent this damage, which he had done in the mid-1950's. Mr Ridley had removed this fence after he took ownership in 1975 and said that it had given the impression that the route was an enclosed lane throughout.

78. One person confirmed that she remembered the route appearing as a hedged lane due to the brambles that had grown up through the fencing. She said that there was a stile near Y, which she thought related to Footpath LA 6/3 ('FP LA 6/3'), although she remembered it as closer to Y rather than the point at which the Definitive Map indicates the two routes joining.

79. In my opinion, the reference to bridle paths does include the Order route, however, it is difficult to determine whether the reference '... to Brookmans Batch..." (my emphasis) includes the continuation along the Batch between Y and A, or simply the length of Chapel Lane. Later minutes refer to the route as a footpath.

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Definitive Map and Statement

83. WBA said that the Cleeve walking survey card of 16 January 1951 seemed to be the initial Parish Council survey to identify routes for inclusion in the Definitive Map. It described the route as from 'Channel View Farm to Wrington Boundary. Path Clear. Good Order. Gate at Warren broken.' The WBA said that this showed that there were no stiles or gates, except at Warren, as other Cards did mention such obstructions.

84. An undated note on paper headed 'The Lord Nelson' referred to Nos 1, 2 and 3 with 'No. 1 Channel View Farm to Walnut Tree Farm. Path well defined and in good condition. No styles (sic). No gates... constant use for the past 75 years.' It was not known when this was written but thought likely to be at some time during the production of the Definitive Map.

85. The OMA put forward the Survey Plan, which showed Primrose Lane extending east alongside Channel View Farm. 'FG' marked the position of a field gate to the east of FP LA 6/2. The LARDC Draft Map, drawn up from the Parish surveys, showed the Order route commencing from its junction with FP LA 6/2, with a gap between point A and the start of the Order route.

86. Within the summary of objections made to the Draft Map two related to the Order route: (a) to the 'Omission of continuation of LA 6/1 to join county road at entrance to Channel View Farm'; and (b) 'That section of 6/1 from Chapel to "channel View" should be CRF'. The determination records that for (a) they would 'Add footpath to Draft Map' but for (b) they declined to make the change and the observation by Clerk said 'See L.C. 60146 - Liability denied at eastern end'.

87. It was common ground between WBA and the OMA that (a) had arisen because there had been an error on the survey plan indicating the end of Primrose Lane further east than the end of the publicly maintainable highway. As a result, when the Draft Map was drawn up, with the end of Primrose Lane at point A, FP LA 6/1 ended to the east of A, connecting only to FP LA 6/2.

88. What was not agreed was the significance of the request in (b). WBA said that this showed that the route was of higher status than footpath or bridleway. In support of this proposition my attention was drawn to the Cleeve Village Character Statement in a report for the Parish Council dated 13 July 2005, which referred to Chapel Lane as one of the '...green lanes or ancient tracks for carts...'.

89. It was noted that the reference to the eastern end, that is Chapel Lane, was the same as the reference on the Highways Record Map. WBA said that public maintenance liability often became confused with public rights and that this appeared to be the case here, with a denial of 'liability' but no reference to the right of the public.

90. Following on from the objections, the Draft Modification Map showed the Order route between points A and B, as it is currently recorded. The OMA noted that there were no counter-objections to this map and the Definitive Map, which appears to have been published in 1965 and has a relevant date of 26 November 1956, shows the route as a public footpath between points A and B. One of the statutory objectors said that the Definitive Map was incorrect as FP LA 6/1 ended at the junction with FP LA 6/2 and did not continue to Primrose Lane, however, the Definitive Map clearly shows that the route continued through to Primrose Lane.

91. The evidence indicates that the route was not subject to any obstructions or restrictions during the surveys for the Definitive Map. The current landowner confirmed that the fence erected by Mr Browne-Cole led to the appearance of the route as an enclosed lane and this corresponds to the evidence of the 1958 OS map. This would mean that there was no need for structures across the route to enclose any livestock on the Batch.

92. I agree that (a) seems to have arisen due to the depiction of Primrose Lane, and this is borne out in the Parish Council minutes below. I am not clear how objection (b) arose, as there does not seem to be any corresponding documentation, although I see that it was an LARDC objection. However, it does give a small amount of evidence of reputation, which continues today within the Village Character Statement. I also agree that the most likely explanation for the denial of liability relates to confusion between maintenance liability and public rights.

Parish Council Minutes (2)

93. Minutes of March 1952, December 1956 and May 1957, relating to the initial survey of the Definitive Map were submitted and, following comments regarding 'discrepancies' in the 1957 minute, a note was found from the LARDC that FP 6/1 should be extended at its western end to give access to and from the country road. This ties in with the changes to the recording of the route on the Definitive Map discussed above. Parish Council minutes of 20 May and 23 June 1964 also referred to this matter.

94. WBA said that the entry of 27 April 1965 was particularly relevant in showing that the Parish Council considered the route to be a bridleway. It read, "No objection was made to the addition to footpath LA 6/1 and two submissions were made...that the path at the bottom of the Batch should be a bridleway and the path leading from the halfway stile to Woolmers should be included as on the map of 1948.' This was said to have been made in response to the publication of the Draft Modification Map, whilst the reference to the path to Woolmers related to FP LA 6/3, which had been accidentally omitted. They said that references to a bridleway at Goblin Combe were not relevant to the Order route, referring to the continuation of the route on the opposite side of Cleeve Hill Road.

95. I also note that according to the Schedule 14 Report to the Secretary of State there was a reference to a minute of September 1957, however, this minute was not put before me.

96. The OMA said that the route 'at the bottom of the Batch' could relate to the route of FP LA 6/2 and queried why the minute referred to it firstly as footpath LA 6/1 and then as 'the route at the bottom of the Batch', rather than consistently as one or the other.

97. WBA said that this was simply a mirror of the way in which the objections (a) and (b) had dealt with the issues, firstly in relation to extent and then to status. Mr Ridley said that he believed the reference did relate to the Order route, as he was aware that there had been discussion about making this route a bridleway and he felt that the description of a route at the bottom of the Batch could not relate to FP LA 6/2.

98. I agree with the OMA that the double reference seems odd, however, I note the comments of Mr Ridley, and agree with him with regard to the description. As a result, I accept the argument of the WBA that the way this minute was written was in line with the objections. The route referred to was the Order route and this provides further evidence of a belief of bridleway status within the Parish Council.

99. The minute of May 1965 showed that the map had been returned with these suggestions and a request was made to meet with the Somerset County Council representative on legal aspects relating to the Definitive Map.

100.The OMA provided a minute from June 1965 showing agreement that '...a footpath sign should be placed at...the entrance to Chapel Lane...one near Gitsoms at the Batch'. On the site visit, they pointed out the sign at point B, as dating from a similar period.

101.In December 1965 a minute showed that it was '...reported that the words "Bridle path" had been erased from the entrance gate at Goblin Combe Farm, and resolved to purchase a notice "Public Footpath + Bridle Path" and erect it at this spot.' It was suggested by the WBA that this related to the gate at point A and they referred me to a letter of October 1992 from Mrs Birkett, who said that from 1955-1969 she had walked here and there was a white gate with black writing saying 'bridle path' at point A. After about seven years, the signing was painted out or removed, which she had mentioned to the highway authority at Flax Bourton.

102.The owner of Goblin Combe Cottage wrote to say that she had lived there with her parents, and spent much time there since then, and although she remembered the gate at point A, she could not recall a notice on it saying 'bridleway'. She had always known the route as a footpath and not for horse riding by the public.

103.The minute of May 1966 related to obstruction of a right of way from the Batch into the woods, apparently erected to prevent cattle straying. It was suggested that this was probably where FP LA 6/2 and FP LA 6/3 joined to the south of the Order route. WBA said that the minutes recorded a decision by the Parish Council, which had not been rescinded and should be given weight. Three recommendations were made, the first relating to the obstruction, and that;

'(b)The Council to place at the foot of the Batch near the iron gate at the farm, a notice stating public footpath. (This would prevent...horse riding)

(c)That the Council place in Primrose Lane near the wooden gate at the farm entrance a notice stating "Public Footpath and Bridle Path" indicating the existence of a Bridle Path running towards Chapel Lane."

104.A letter to Mr Gitsom was put forward, which related to the decision of this meeting. The letter numbered the items 1, 2 and 3, but 3 varied from the minute (c) above, as the sign proposed was to say only 'Public Footpath'. The OMA queried why a notice would be needed saying footpath and bridleway as footpath rights would be included within bridleway rights. They said that the letter indicated that the Parish Council only recognised footpath rights on the route, rather than bridleway. Mr Ridley confirmed that when he moved to the property there was an iron gate in the fence-line across FP LA 6/2 to the south-east of point A.

105.The recollection of the owner of Goblin Combe Cottage is in conflict with the evidence of Mrs Birkett. I would have some difficulty in reconciling this if it were not for the 1965 Parish Council minute. Although I note that Mrs Birkett remembered the sign having been removed a little earlier that 1965, I consider it highly likely that this refers to the same sign. I consider that this provides strong evidence that there was a sign on or near the gate, even if not everyone noticed it or remembers it at this distance in time.

106.The location of the iron gate helps to clarify that the initial intention of the Parish Council was to erect a footpath sign here, on FP LA 6/2, to make it clear that there were no bridleway rights along this footpath into Kingswood. However, at the wooden gate at the end of Primrose Lane, point A, two notations were required to refer to the separate footpath (LA 6/2) and bridleway to Chapel Lane, the Order route. It is not clear what occurred between the time of the meeting and the letter to say that only a footpath sign was required, however, I do take this as being a further indication of the reputation of the route as a bridleway by The Parish Council.

...

Evidence of use

115.It was agreed among the parties that the evidence of use was not sufficient to fulfil the requirements under statute, having been interrupted in 1975 when Mr Ridley took ownership, renewing fencing and erecting a stile to the east of A.

116.Five user evidence forms showed use of the route on horses in the period 1953 to 1975. An additional statutory declaration was also submitted covering use from 1963 to 1974. Mrs Brierley and Denis Burn, who had submitted evidence forms, each sent further letters. Mrs Gawthorpe had last ridden the route herself in 1974 and remembered it being fenced on the southern side, and seeming like a hedged lane throughout. Another person wrote to say that she had ridden the route to visit Mrs Gitsom in 1966-1968.

117.The use varied from twice a week to once a month and was recreational. All the users said that they had not received permission to use the route and had not been stopped until a stile was erected and a gate locked in the mid-1970's, when the land changed hands; the letter from Denis Burn said that there was an unlocked gate. This ties in with the evidence from the landowner, who bought the land in 1975 and erected the current stile.

118.Mrs Brierley, whose husband spoke at the Inquiry in objection to the Order, wrote that she had no evidence that the route was a bridleway but had believed that it was. As she was friends with the landowners, she had not been told not to ride there, nor received permission, although she thought that Mrs Burn had permission to ride with friends.

119.The evidence from Mrs Burn says that she did not have permission, however, the current landowner says that he was aware of an agreement for her to ride. The statutory declaration of Dr Burn, who appears to be her son, says that he was given permission to ride through the field to Kingswood, south of the Order route. He writes that 'To go that way we rode up chapel lane and along the path to her farm.' WBA said this implied that they road the Order route to reach FP LA 6/2, over which they had permission.

120.I note that J Brown-Cole, whose family owned the land in the 1950's, wrote to say that he or she did not see horses using the route, and thought that parts of it were too narrow. Mr Stevens had grown up in the village and returned there after the war. He was aware that there was a footpath over the Batch but did not remember use by horses and did not think that it was a bridle path. Mrs Ballard said that there was not a bridleway and that Mrs Gitsom had let a few riders use the Batch. D Birdsall, who had used the route on foot from 1968, confirmed that the stile at point Y was more recent but said that gates or the equivalent near point A would have prevented use by horses in that direction.

121.Two of the statutory objectors, who had lived in Chapel Lane since the mid 1950's, confirmed that when they moved there Chapel Lane was an unmade overgrown track. As they were building their properties they used the route and gradually improved and maintained it to the standard seen today. Both confirmed that they had occasionally seen horses using it. Another statutory objector said that Chapel Lane had not been open to horses over the last thirty or so years, since she had lived in Cleeve.

122.Mr Dyer wrote regarding use of Goblin Combe and said that he had never seen a horse, as there was a stile on the route, however, due to his reference to the Airport, I believe that he was probably talking about the section to the east of Cleeve Hill Road.

123.The earliest user evidence arises from 1953 but relates to only one rider, with further evidence of use not arising until 1958. It may be that the Browne-Cole family had already sold the land by this time, or that the early use was so infrequent that the riders were not seen. The comment regarding the narrowness of the route could well tie in with the evidence regarding Chapel Lane and it seems that use increased as the route was cleared by the landowners here for their own interests. Although I consider that visiting the landowners probably cannot be considered use as of right this does not provide further evidence that the route was used, and capable of being used, by horses.

124.I agree with WBA that it is likely that the permission related to FP LA 6/2; this would explain why Mrs Burn and Denis Burn state that they were not given permission in relation to the Order route, whilst the current landowner was aware of an agreement regarding land at the farm.

125.There was no user evidence from the time that Mr Stevens played in the Batch as a child and so it is unsurprising that he does not remember horses then. The later time that he lived in the area does cover the period of most use of the route by horses. It is not clear whether he would have been in a position to be aware of use, but his lack of knowledge does not negate the direct evidence of use. D Birdsall confirms the later erection of the gate at Y but it is not clear why horses would be stopped by a gate near Goblin Combe. There is no evidence that they were stopped at this point until the mid 1970's when the stile was erected; the times could have been confused, although I note that the current landowner said that there was a broken stile there in 1975.

126.The evidence from those living in Chapel Lane confirms that horses were using the route, even if only in low numbers. There has not been use by horses since the obstructions were put in place in the mid-1970's, which explains why the other objector has not seen horses here since living in the village.

...

Summary.

134.I agree with the WBA that it is the evidence as a whole that needs to be considered rather than parts of it in isolation. Although individually some evidence must be given little weight, when taken as a whole a clearer picture emerges.

135.I consider that the evidence as a whole shows that there has been a route in this locality, as a through-route since at least the late 1700s, as evidenced by the Day and Masters map. The commercial mapping indicates the route as a continuous one and I consider that the analogy of a modern day road atlas is fair. The more detailed contemporary maps indicate the route physically in much the same way as it is found today; Chapel Lane as an enclosed route, with the part over the Batch enclosed on the northern boundary and unenclosed to the south, leading to Primrose Lane, an enclosed route.

136.The Sturge map of 1821 indicates a barrier at point A, whilst the tithe map of 1841 is the first to indicate a barrier near point Y. I agree with the WBA that tithe could be taken from routes capable of producing a crop, and so not necessarily indicative of a lack of rights, however, the tithe map makes a point of separately identifying Chapel and Primrose Lanes from the part over the Batch, by placing the number 1071 at each end of the two sections. I note the comments with regard to the 'lanes' and agree that it is more likely than not that the lanes listed carried public rights and were probably vehicular. However, I agree with the objectors that this map indicates a difference in the way that the parts of the route were treated, leading to a presumption of a difference in status.

137.The copy of the 1888 map is too poor to be of any use but the 1903 OS map confirms the continued barriers at points Y and A, which from later evidence are likely to be gates. I accept the proposition of the WBA that the separate identification and numbering of Chapel and Primrose Lanes indicate that they were considered highways.

138.This is bolstered by the Finance Act evidence, which I consider provides further evidence that both these routes were public vehicular highways. I find the evidence from the hereditament relating to the Batch is neutral. The objectors suggested that it meant that there were no rights but, given my comments regarding the other rights of way over this hereditament and the apparent use over 75 years noted at some time in the period 1951-1965, I consider that it is unlikely that there were no public rights, although there were not thought to be any vehicular rights over the Batch.

139.Just twenty years later the highway authority recognised both Chapel and Primrose Lanes as public highways, although they have since denied public maintenance liability for Chapel Lane. I note that the OMA thought that the depiction of Chapel Lane as a UCR on the highway records could indicate that it was a bridleway, and that the 1925 Parish Council minutes referred to it as such, however, I do not think that these references override what is indicated by the earlier evidence.

140.I consider that there is a synergy in the evidence indicating Chapel and Primrose Lanes as public vehicular highways and so I propose that Chapel Lane should be recorded as a restricted byway between points B and Y, point Y being the point at which a differentiation occurs between Chapel Lane and the Batch within the map evidence.

141.I agree with the WBA that two cul-de-sac highways are unlikely, however, looking at the cases to which I was referred, I consider that they must be distinguished from this case in that the evidence, both physically and within the relevant documents, showed the continuation of the 'cul-de-sac' in the same manner as the known highway. This is not the case for this Order and I agree with the objectors that both the tithe and Finance Act maps indicate that there was a difference in status across the Batch in comparison to Chapel and Primrose Lanes.

142.I do not consider that any piece of evidence individually points to the route across the Batch as a bridleway but I do consider that, taken as a whole, on the balance of probabilities, the case for bridleway status over the Batch has been made. As a result of the earlier presumed dedication by an unknown landowner, or landowners, the action of more recent landowners in placing a gate and stiles on the route has been ineffectual, as these could not stop the public rights already established.

...

Conclusions

150.I am satisfied, on the balance of probabilities, that the evidence is sufficient to show that a right of way with the status of restricted byway subsists over the Order route between points B and Y and the status of bridleway between points Y and A. I consider that the proposed route should be placed on the Definitive Map and Statement, with modification in relation to the matter of the width and status.

151.Having regard to these and all other matters raised at the Inquiry and in the written representations, I conclude that the Order should be confirmed with modifications."

13. Relevant passages from the Order Decision are as follows:

"Main issues

17. The main issue is whether the new evidence submitted, considered with all other relevant evidence produced at the 2006 Inquiry and in written submissions, shows: public vehicular rights exist over Chapel Lane, such that it should be recorded with the status of restricted byway; public bridleway rights exist over the section across the Batch; and, the proposed widths for the Order route are correct.

18. There was some repetition of evidence that had already been given in objection and considered in relation to the IOD. Although I may not specifically refer to such evidence, all the evidence presented, whether documentary, in writing or orally, has been considered in reaching this decision.

...

'Sturge' Parish Plan, 1821

21. I considered this parish plan in paragraphs 39 – 41 of my IOD. The objectors argued that this was not a new survey by Sturge and a copy of a section of it shows that quantities of allotments in Kenn Moor and of Kingswood were taken from other recent surveys, the Commissioners Award and a survey by John Brown, whilst Sturge surveyed the other parts of the parish. Numbering followed both the Commissioners map and another map of the parish. I noted in paragraphs 25 and 26 of the IOD that there was an unidentified map dating from 1800; given the match in the numbering between these two maps I consider it probable that the 1800 map was that identified in 1821 as having been '…made by ___ Charlton for Lord Paulett…'

22. The objectors argued, by reference to section 32 of the Highways Act 1980 ('the 1980 Act'), that as the map seemed to have been produced for rating purposes no evidential weight could be given to it in relation to whether there was a public bridleway over the Order route. Copies were also provided of other entries in the survey book which identified certain plots with an unnumbered entry beneath showing 'Lane adjoining', one of which was not given any 'Relative value' in the relevant column.

23. The weight to be given to any evidence will depend to a degree upon the primary purpose for which the document was produced and I agree that the main purpose of this map seems to have been a valuation of the land however, the identification of 'roads' is an incidental result of such a survey and page 100 identifies 'Inclosed Roads 26 ¾ Miles in Length'. Given that the Order route and the associated 'Lanes' were not identified in the same way as that associated with entry 323 it is possible that they were included in this total length of inclosed roads. I find nothing to overturn my earlier consideration, at paragraph 41 of the IOD, that Chapel and Primrose Lanes were shown on this map in the same way as other known public roads.

...

Highways Record Map, circa 1930

63. It was alleged by the objectors that there had been a misinterpretation of the Highways Record Map, discussed in paragraphs 68 - 73 of my IOD. Although taking a neutral stance the OMA assisted the Inquiry by answering questions on this matter and I have altered their proof to show that the purple-dashed line, used to indicate Chapel Lane, indicated it as a 'certified non-county road' and not an 'unclassified county road'. Although no definition was given of exactly what this term meant the OMA had earlier said that routes shown in this way on the records were often bridleways.

64. The objectors submitted a number of documents to support an argument that the yellow colouration of Primrose Lane on these records showed that it was an accommodation road. These included the List of Streets and maps relating to other Rural District Council areas in Somerset; a letter relating to Hunt's Lane; A statutory declaration from Mr Fido, whose late Uncle was employed by Somerset County Council as Road Maintenance Foreman; and, documents relating to a level crossing at Clanville. It was also claimed that 'roads' were reclassified into Class 111 in order for the highway authority to benefit from a maintenance grant, however, no evidence was provided on this point. Arguments were also made in relation to the removal of a 'charge', that is a private right, from Walnut Tree Farm Lane.

65. As Primrose Lane is not part of the Order route, and Chapel Lane is not coloured yellow on these records, I do not consider that this information is relevant to my determination and so have not considered it further.

Summary

78. I was cautioned by the objectors not to confuse an accumulation of evidence with a synergy between it. I have considered the evidence as a whole, taking account of everything produced to both Inquiries orally, in documents and in writing.

79. I consider that the very early evidence indicates that this was a through-route including the length of Primrose Lane, however, over time it was gated at various points. Following this very early period the section across the Batch has been generally shown as physically different from these two lanes. Most of the evidence treats Primrose and Chapel Lanes in the same way, which is why I considered arguments relating to the status of Primrose Lane on some documents.

80. However, the highways records do not show Primrose Lane and Chapel Lane in the same way. Although I gave only a little weight to these records they did weigh in the balance as part of the evidence that led to my conclusion that Chapel Lane should be recorded as a restricted byway. Although I still consider that Primrose and Chapel Lanes have both been consistently depicted in common with surrounding vehicular highways within the earlier evidence I consider that the highways records just tip the balance away from vehicular status for this part of the Order route.

81. However, bearing in mind the Parish Council references to Chapel Lane as a bridleway, and the comments of the OMA on this point, I consider that Chapel Lane should be recorded as a bridleway, as set out in the original Order. I am still satisfied that the status of bridleway is appropriate for the section across the Batch.

...

Conclusion

84. Having regard to these and all other matters raised at the Inquiries and in the written representations I conclude that the Order should be confirmed subject to the modifications to width as proposed in my Interim Order Decision although set out with respect to the detail referred to in paragraph 77 above."

14. I turn to the first ground of challenge. It is said that the Inspector misunderstood relevant evidence and thus had regard to an immaterial consideration. For present purposes I shall examine the correctness of the assertion that there was a misunderstanding of relevant evidence. I should not be taken as accepting that this would ground a legal challenge.
15. Mr Hobson's submissions started on this aspect with the conclusion in the Interim Decision that a through route along the line of the Order Route had been in existence since at least the 1790s. The Inspector concluded that there was a synergy in the evidence indicating Chapel and Primrose Lanes as public vehicular highways. In paragraph 141 she had observed a difference in status across The Batch in comparison to Chapel and Primrose Lanes and in paragraph 142 had said that while no piece of evidence individually pointed to the route across The Batch as a bridleway, taken as a whole, on the balance of probabilities, the case for the bridleway status over The Batch had been made.
16. What happened after the second hearing was that in the Order Decision the Inspector concluded that highway records, which had not shown Primrose and Chapel Lanes in the same way, "just tip the balance away from vehicular status for this part of the Order route". That was a reference to the clarification as to the meaning of "UCR" as it appeared in the key to the handover map, submitted Mr Hobson. Accordingly, although evidently maintaining her view that Primrose Lane was subject to vehicular rights, her conclusion altered in relation to Chapel Lane so that she no longer proposed to modify the order in that regard.
17. Having changed her mind on that aspect of the case, the Inspector had gone on to reach her final conclusion that Chapel Lane and the section across The Batch should be recorded as a bridleway rather than as a footpath.
18. Mr Hobson submitted that, so far as the status of Chapel Lane was concerned, paragraph 81 of the Order Decision showed that her reasoning was based on (a) references in the Parish Council minutes and (b) "the comments of the OMA on this point".
19. As to (b), Mr Hobson submitted that this related back to paragraph 63 of the Order Decision. Here, after noting the clarification as to what the letters "UCR" stood for, the Inspector recorded that "the OMA had earlier said that routes shown in this way on the records were often bridleways".
20. The nub of this ground of challenge was an assertion that the Inspector had "correctly recorded in paragraph 69 of the Interim Decision" that "all that the OMA had said about this was that UCRs were understood to be routes of lesser significance 'possibly' bridleways". This, submitted Mr Hobson, was far short of saying that they were "often" bridleways, as asserted by the Inspector in paragraph 63 of the Order Decision.
21. The consequence was said to be that the Inspector, in paragraph 63 of the Order Decision, had misunderstood the advice of the OMA, on which she had purported to rely. She had plainly regarded the matter as finely balanced. A mischaracterisation of the OMA's position was, therefore, more than sufficient to render her decision invalid as a matter of law.
22. This ground of challenge faces formidable obstacles. As indicated above, Mr Hobson takes from paragraph 81 of the Order Decision the two matters which he identifies as (a) and (b). I am prepared, for present purposes, to accept that the Inspector was recording, as a key feature, that she was bearing in mind what was said in each of those respects. On a fair reading of paragraph 81 of the Order Decision, however, I see no reason to think that the Inspector was singling out her comment at paragraph 63 of the Order Decision. Paragraph 63 was not concerned with the Parish Council minutes. It seems to me far more likely that, following on from the reference in (a) to what was said in the Parish Council minutes, the Inspector at (b) was referring to the Council's comments on the Parish Council minutes.
23. Mr Hobson responds that those comments were against interpreting the Parish Council as suggesting bridleway status. To my mind, this makes it all the more likely that it was those comments that the Inspector was referring to. She does not say that both the matters she refers to favoured bridleway status in paragraph 81 of her Final Decision. Her interpretation of the Parish Council minutes did favour that status and it is only natural that she should say that she is bearing in mind the Parish Council minutes as a whole, not only the parts that assist the case for bridleway status, but also the parts that do not, along with the Council's comments.
24. Mr Hobson said that in that event, the Inspector had not made her reasons clear. I disagree. There was no obligation to spell things out in the way that Mr Hobson suggests. That alone disposes of this ground. I add, however, that I do not think there is any arguable basis for complaint about the difference between paragraph 69 of the Interim Decision and paragraph 63 of the Order Decision.
25. In response to a question from me, Mr Hobson accepted that when people say that something is "common" or happens "often", they are not being precise. They are not asserting that it happens in more than 50 per cent of cases. Still less are they asserting that it makes it probable that the matter in question actually occurred in the instance which is under consideration. I see no reason to conclude that the Inspector, in paragraph 63 of the Order Decision, was interpreting "often" in anything other than the normal, imprecise sense.
26. Moreover, as was pointed out by Mr Buley, this court does not have before it any independent evidence as to what the Council actually said on the occasion that is referred to in paragraph 63 of the Final Decision and paragraph 69 of the Order Decision. The Inspector does not purport to be giving a full account of what was said; she is simply making an observation which appears to her to be desirable at the relevant stage of the Interim Decision and the Order Decision. The fact that in the Interim Decision she couched it by reference to the word "possibly" can provide no logical basis for saying that she must have mischaracterised what was said when she referred, in paragraph 63 of the Order Decision to the Council making a remark involving the word "often". Thus, even if I had thought that the Inspector, in paragraph 81, was placing particular reliance on her finding in paragraph 63 of the Order Decision, I would still have dismissed this ground of challenge. It provides no basis for thinking that the Inspector mischaracterised anything.
27. The second ground of challenge asserts that the conclusion reached by the Inspector was perverse, being based on insufficient evidence. It is asserted that the two matters identified as (a) and (b) were the sole basis for her conclusion about the status of the Order Route. As Mr Hobson acknowledged in argument, however, those two matters are concerned only with the question of the status of Chapel Lane. As regards The Batch, the Inspector said in paragraph 81 simply that she remained satisfied that the status of bridleway was appropriate for the section across The Batch.
28. In that regard, Mr Hobson accepted that the Inspector was basing her reasoning on what she had said in the Interim Decision. The assertion made by Mr Hobson is that the evidence contained in the Parish Council minutes was insufficient and contradictory. There was no certainty that the references to "bridleway" were to the route of the footpath. In any event, the simple fact that instructions had been given for a sign to be erected was insufficient evidence for a reasonable decision-maker, properly instructed, to conclude that there was an implied dedication at common law of any part of the route as a bridleway. Other than those matters, submitted Mr Hobson, there was no other evidence upon which the Inspector relied to support the inference of dedication of a bridleway on only part of the Order Route. Even if cogent evidence existed justifying the conclusion that Chapel Lane should be recorded as a bridleway, there was no such evidence in relation to The Batch.
29. In his oral submissions Mr Hobson placed great stress upon the difficulties which lie in the path of anyone who seeks to assert that there has been dedication and acceptance at common law. For this purpose, he relied strongly upon what was said by Scott LJ in Jones v Bates [1938] 2 All ER 237 at 244:

"Before the Act [sc the Act of 1932], the law applicable was the common law. The main alteration is effected by s1, which gives a new statutory effect to mere proof of actual user as of right and without interruption. At the time of the passing of the Act, the main outline of the law affecting proof of a public highway ... had been drawn quite clearly by judicial decisions. Whereas in Scotland proof of 40 years' user as of right, and without interruption in the enjoyment of the right, ipso facto established the legal conclusion that the way was public by prescription, in England no such convenient rule of law had been evolved by our courts. Our legal theory had always been ... that the sole origin of a public highway was dedication to the public use by the owners of the land over which it ran, and in consequence that, in case of dispute, the public right could be established only by such evidence as would justify an inference of fact that the way had at some date, known or unknown, been so dedicated. The corollary followed that, on this as on all others issues of fact, the tribunal had to decide, once there was some affirmative evidence before it of user, whether or not on balance it was sufficient to establish dedication ... the task of the tribunal of fact was not limited to deciding the necessary questions of user——was it of right? Was the exercise of the right interrupted? How long had it continued? These findings would in Scotland have sufficed for the decision of the legal issue. In England, however, the tribunal had to deal with such difficult investigations as the state of the title of the owners and whether there was an owner who could dedicate, and consequently sometimes even the time when the dedication——usually quite imaginary——had in fact taken place. Above all the other difficulties, the Tribunal had solemnly to inform on an actual fact that somebody or other had in fact dedicated. It was often a pure legal fiction, and yet put on the affirmant of the public right an artificial onus which was often fatal to his success. The practical result of the English rule of law was that in many cases, although quite a formidable body of evidence was available to demonstrate what I will call the Scottish premises, the public claimant failed on the additional English requisites."

30. Mr Hobson summarised Scott LJ's observations in this way. Whereas in Scotland evidence of user was of itself enough to establish that a way was public by prescription, in England the position was different. User alone could not justify an inference of the fact that the way had at some date, known or unknown, been dedicated. There was a need for cogent evidence other than user in order to show that there had been a dedication. The difficulty of finding such cogent evidence was often fatal to a claim that dedication could be inferred. I am content for present purposes to accept that summary as accurate.
31. I should mention at this stage that in his skeleton argument Mr Buley relied upon observations of Sullivan J in R (on the application of Newsmith Stainless Steel Limited) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC (Admin) 74. However, I do not find it necessary for present purposes to refer to what was said by Sullivan J in that regard and I shall say no more about it.
32. I did not need to call on Mr Buley on this ground of challenge. As a matter of logic and common sense, it is perfectly plausible that an accumulation of material pieces of evidence may lead to a conclusion that while none of them, of itself, actually points to a particular result, taken as a whole they do. The Inspector identified, in relation to a number of pieces of evidence, matters which she thought suggestive of status higher than a footpath. On one of those matters Mr Hobson suggests that the Parish Council minutes were confused.
33. Any assessment of the extent to which there was confusion, and whether that affected the extent to which the minutes were suggestive of bridleway status, was entirely a matter for the Inspector. Nothing in Jones v Bates prevented the Inspector from reaching a conclusion that, taken together, all of the different matters which she thought suggestive in that way warranted a finding that there had indeed been a dedication as a bridleway. Whether they in fact warranted that conclusion was pre-eminently a matter for her.
34. The third ground of challenge was that there had been a failure to consider relevant evidence. In the claim form, and in the skeleton argument, reference was made to two representations, one by Mrs Masters and one by a Mrs Pearse. At the hearing, however, Mr Hobson disclaimed any reliance upon a failure to consider the representation by Mrs Pearse.
35. The representation by Mrs Masters that is said not to have been considered took the form of a letter dated 16th September 2007. The relevant part of the letter noted what had been said in a schedule of objections prepared for Yeovil Rural District Council, concerning a quite different road. In the schedule of objections in that case the clerk had recorded, by reference to land charges search number 78124, that this was a private road "but there appears to be a public footpath thereover".
36. That had led to a determination by Yeovil Rural District Council that the road in question should be added as a "footpath". In the present case there had been a similar statement of objections and on that there had been a reference to "See L.C. 60146". No one had been able to identify LC 60146. The burden of Mrs Masters letter, said Mr Hobson, was that assistance could be derived as to what might have been LC 60146 from what Mrs Masters had discovered had been in LC 78124.
37. I do not doubt that the Inspector duly received Mrs Masters letter. Indeed, I am told, and Mr Hobson does not dispute, that after receiving it the Secretary of State dispatched copies of it to all others involved in the Inquiry. Mr Hobson rightly states that the letter is not specifically recorded by the Inspector in her list of representations. I am not, however, prepared to infer from this that the Inspector failed to consider it. The reason is that the letter offers nothing of any assistance whatsoever as to what the contents of LC 60146 may have been.
38. In another case, involving a different road, the land charges records contained an express provision that there was a private road with a public footpath over it. That offers no basis for reaching any conclusion as to what LC 60146 may have contained. This letter was, in truth, completely irrelevant to what the Inspector had to determine and there was no reason for the Inspector to give it any special mention.
39. In these circumstances there is no substance in any of the grounds of challenge to the Order Decision, and accordingly I dismiss that challenge.

The second claim

40. Although the Order Decision and the costs decisions arise out of the same inquiry process, there is no overlap as to the issues raised by the two claims. Accordingly, I can proceed to consider the second claim, which concerns the costs decision, without referring back to matters arising on the first claim.
41. The Secretary of State submitted a skeleton argument contending that this claim was unarguable and that permission should be refused.
42. What happened at the start of the second hearing was this. Mrs Masters had, on 14th May 2007, sent to the Inspector a five-page document entitled "Skeleton argument". It contained both statements of fact and related evidence, together with propositions of law.
43. The second inquiry opened on 5th June 2007. On that day Mrs Masters produced a 64-page document, recording in detail the evidence she intended to produce and extracts from case law and guidance. She accompanied this with a consolidated bundle of documents, some but not all of which were already before the Inquiry. An initial adjournment of 3 hours took place to allow the WBA an opportunity to consider the material presented by Mrs Masters. The Inquiry then resumed and the first day was duly completed. No application for a further adjournment was made by any party at that stage. At the outset of the second day, however, the advocate for WBA requested that the Inquiry be adjourned generally, stating that she had been in contact overnight with a more senior advocate who had acted for WBA at the first inquiry. He had advised that an extended adjournment be sought so that he could advise on Mrs Masters' statement of evidence, prepare any rebuttal evidence and appear at the resumed inquiry. The Inspector granted that request, adjourning the second inquiry until 14th August 2007.
44. In fact, the more senior advocate consulted in June did not appear at the resumed inquiry. WBA did introduce three pieces of rebuttal evidence, but eventually each of those pieces of rebuttal evidence came to be withdrawn. On this and other aspects of the second hearing the Council maintained a neutral stance. At the conclusion of the second inquiry the advocate for the Council made an application for a partial award of costs. The basis was that the adjournment and associated costs had been occasioned by unreasonable behaviour of Mrs Masters by presenting the material submitted on 5th June 2007 at such a late stage.
45. The Inspector's reasoning in making an award of costs involved three stages. First, WBA would have been disadvantaged by not having a copy of the additional evidence prior to the Inquiry. Hence, it was only fair to agree to their request for an adjournment. Second, WBA could not be faulted for requesting an adjournment. Third, it was Mrs Masters' unreasonable conduct which led to the adjournment, and hence to unnecessary costs being incurred by the Council, who were obliged to attend.
46. There is no dispute as to Stages 1 and 2 of this reasoning. On Stage 3 there are two grounds of challenge. The first is that there has been a mischaracterisation of material factors. The mischaracterisation in question concerned statements within a guidance booklet. The booklet was acknowledged to have no legal force and to provide only a non-binding indication of a procedure to be followed, setting out merely what would be helpful. The Inspector, it was said, had mischaracterised these statements as "procedural requirements".
47. The second is that there had been a failure to have regard to a material factor, the material factor being that Mrs Masters had, in compliance with the guidance, and with the Inspector's letter of 11th April 2007, supplied her "skeleton argument" on 14th May 2007.
48. On those matters, Irwin J, when rejecting the application for permission, said that the Inspector's costs decision amounted to:

"... a perfectly reasonable exercise of discretion, given the delay caused by the late presentation of such a quantity of material. It was immaterial whether the Council asked for an adjournment or not. The delay arose from the late presentation of material by Mrs Masters on behalf of both these Claimants."

49. I am satisfied that there is nothing whatsoever in either of these proposed grounds of review. Mrs Masters, although not legally qualified, had considerable experience of inquiries of this kind. It was perfectly open to the Inspector to proceed on the basis that she knew what was normally expected of her. The fact that the Inspector used the word "procedural requirements" rather than "the normal procedures" is neither here nor there. The nub of the Inspector's reasoning for concluding that Mrs Masters' conduct was unreasonable was that Mrs Masters was undoubtedly aware that substantial material, which was going to be relied upon at the Inquiry, needed to be made available well before the Inquiry began. It is not, of course, for me to decide whether that is right or wrong. It was simply something that was well open to the Inspector to form her own view upon. That is enough to dispose of Ground 1.
50. As regards Ground 2, the Inspector recorded in her reasons, in paragraphs 28 and 29, that the only document received from Mrs Masters in advance was the skeleton argument. The Inspector commented:

"I consider that document inadequate to allow anyone to prepare in relation to the information later brought forward at the Inquiry".

The Inspector added that, whether or not Mrs Masters had been confused by the purpose of a skeleton argument, it should be clear that expecting any party, including the Inspector, to deal with the volume of evidence that Mrs Masters presented on 5th June 2007 would not be helpful to anyone.

51. It is perfectly clear from this that the Inspector had well in mind the provision by Mrs Masters of her skeleton argument. The Inspector concluded that that document was inadequate to allow anyone to prepare in relation to the information later brought forward at the Inquiry. This was again pre-eminently a matter for the Inspector. There is no possible ground of challenge in this regard.
52. In those circumstances, the renewed application for permission to apply for judicial review is refused.
53. Yes, Mr Buley?
54. MR BULEY: My Lord, I am very grateful for your Lordship's comprehensive judgment. My Lord, for my part the only matter which rises is costs, as you will no doubt anticipate. My Lord, I make an application for the costs of my client in respect of both claims, I should make clear. I understand that neither of those applications are opposed in themselves, although my learned friend Mr Amraoui may be able to confirm that in a moment. There, however, a slight issue as to costs. It is a matter of agreement between the parties that my client prepared a fairly extensive bundle of documentation which, in due course, was not relied upon, and which I accepted not be to relevant. I do not know if your Lordship picked up the detail of that.
55. MR JUSTICE WALKER: I saw references to that.
56. MR BULEY: It is accepted that the claimants would have incurred some costs in relation to that and that they should be entitled to off-set the costs they incurred against our claim. So the order which I would invite your Lordship to make would be as follows, bearing in mind we have had a two-day hearing, so detailed assessment is the ordinary course, I would invite your Lordship to make an order for costs on the standard basis, in relation to both claims, in favour of my client, but subject to an off-set of an agreed amount in the sum of £1,400 in respect of the matter I have just referred your Lordship to. I hope that is clear.
57. MR JUSTICE WALKER: (Pause). There will be two orders.
58. MR BULEY: Yes.
59. MR JUSTICE WALKER: The point about the bundles really relates to the statutory appeal, does it not?
60. MR BULEY: Yes, so we could make the off-set in relation to those costs.
61. MR JUSTICE WALKER: We will put the off-set in relation to the statutory appeal.
62. MR BULEY: Yes, that sounds sensible. Did your Lordship want some drafting on this side.
63. MR JUSTICE WALKER: No, I think that that will all be straightforward now.
64. MR BULEY: I do not know if Mr Amraoui wants to say anything about that, but as I understand it, that is the agreement.
65. MR AMRAOUI: Yes, my Lord. Mr Buley has correctly characterised our position, save for one point, which is by way of clarification, just to check that the respondent's costs do not include their time for preparing the bundles in respect of which the production was agreed.
66. MR JUSTICE WALKER: It ought not to. Does your £1,400 allow for that?
67. MR BULEY: No, the £1,400 is the costs incurred by the claimant.
68. MR JUSTICE WALKER: Yes.
69. MR BULEY: What I would say about the point that is raised is this, I made a point of saying that the costs order will be on the standard basis, so we are only entitled to the costs if reasonable and the benefit of the doubt is in favour of the claimant.
70. MR JUSTICE WALKER: You have sold that particular pass, because you have agreed £1,400 for them.
71. MR BULEY: Yes. So in a sense there is recognition that some bits of what we did may not have been reasonable. I do not necessarily accept that no work done there was reasonable, because it might have been reasonable to look into that, but those are matters, if necessary, that can be dealt with in detailed assessment. I suspect that we will deal with it by way of agreement in reality, but on the transcript, because there will be a transcript of this discussion, it will be recognised that I have said in terms that we recognise that some of that work was unnecessary, but that should be sufficient, I suggest, for present purposes.
72. MR JUSTICE WALKER: It will be a matter for the Costs Judge to form a conclusion as to the amount --
73. MR BULEY: Precisely, yes.
74. MR JUSTICE WALKER: -- of costs that were unnecessarily incurred, it being acknowledged that, as a matter of principle, the concession that there be an off-set of £1,400 to allow for the claimant's costs involves a recognition that there was some unreasonableness in relation to the present preparation of the two bundles.
75. MR BULEY: Yes, I am grateful, my Lord, thank you. Nothing further from me. Thank you. I think my learned friend may have --
76. MR AMRAOUI: Yes, my Lord, we do ask for permission to appeal.
77. MR JUSTICE WALKER: Yes.
78. MR AMRAOUI: My Lord, that would be on two bases. The first is, as I understand it, Ground 1, which was canvassed before your Lordship, namely that the Inspector fell into error by in effect conflating the Council's evidence --
79. MR JUSTICE WALKER: This arises only on the statutory challenge.
80. MR AMRAOUI: My Lord, yes.
81. MR JUSTICE WALKER: As regards the refusal of renewal, I cannot give permission. So we are just concerned with the statutory challenge.
82. MR AMRAOUI: We are, my Lord, yes. On the first ground, the Inspector fell into error by conflating the Council's evidence that the UCR was possibly a bridleway with the way in which she actually recorded that in the decision letter, namely that it was often a bridleway. We say that that erroneous recording of the Council's view was relied upon in her decision letter and that, therefore, that tainted her decision with error.
83. MR JUSTICE WALKER: Yes.
84. MR BULEY: The second basis upon which we would seek leave to appeal is that insofar as the Secretary of State has justified the decision on the basis that the Inspector had before her sufficient evidence to conclude that Chapel Lane was a bridleway. We say that she was wrong to read down the evidence so as to justify her finding between the first and the second inquiries. What I mean by that, my Lord, is that we say it is an error of law to consider that because the path was one thing, it would necessarily, by default, be another. We say she has not grappled with the question of whether there was specific evidence that it was a bridleway and the proper approach in those circumstances, as a matter of law, would have been for her to start over again and ask whether there was sufficient evidence that it was a bridleway, rather than simply reading it down in the way that I have described.
85. MR JUSTICE WALKER: Thank you. (Pause).
86. What I have written on the form is that there is no reason to think that the Inspector's Interim Decision and Final Decision involved the errors asserted. Accordingly, there is no reasonable prospect of success and no other reason to give permission. For those reasons, I refuse permission to apply for judicial review.
87. Anything else that arises?
88. MR BULEY: My Lord, no, thank you.
89. MR JUSTICE WALKER: Thank you. I would like to express my gratitude for the assistance that I have had from the legal teams on both sides and, Mr Amraoui, I would be very grateful if you could ensure that that is passed on to Mr Hobson and Mr Fraser-Urquhart.