Isaac & Isaac v Secretary of State for the Environment & Devon County Council
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE SEDLEY |
| Judgment Date | 10 November 1995 |
| Judgment citation (vLex) | [1995] EWHC J1110-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 November 1995 |
| Docket Number | CO-2527-94 |
[1995] EWHC J1110-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Mr. Justice Sedley
CO-2527-94
MR. G K ISAACS appeared in person.
MR. M FURNESS appeared on behalf of the 1st respondents. (Instructed by the Solicitors for SSE.)
MR. I ALBUTT appeared on behalf of the 2nd respondents. (Instructed by solicitors for Devon CC.)
10th November 1995
Graham John Isaac (initially with his father, who has died while this application was pending) applies to the court under paragraph 12(1) of schedule 15 to the Wildlife and Countryside Act 1981 for the quashing of a Modification Order which has been confirmed by the Secretary of State. The effect of the Order, if valid, is to modify the definitive rights of way map and statement by showing Woods Lane, Upexe, as a byway open to all traffic.
Mr Isaac, who owns land beside one section of the lane, has always claimed that it is a private road over which the only rights of passage appertain to the land bought by him and his father in 1967 from British Rail, which lies at the south end of the lane, and to the owners of two houses and fields higher up the lane. One of the latter is Mr David Griffiths who has come to court in person to add his submissions to those of the two named respondents.
In 1987 Mr Griffiths and his wife brought an action in the Exeter County Court against Mr Isaac, pleaded in nuisance and based on the alleged obstruction by Mr Isaac of the lane by dumping vehicles and materials there. Mr Isaac in March 1987 had put a sign at the southern end of the lane saying 'Private No Entry', and this had prompted others to approach the local authority with a view to having Woods Lane shown on the definitive map as a public right of way. While the County Court proceedings were pending, in March 1988, Mr Isaac and his father responded by putting metal gates across Woods Lane at the level of their northern and southern boundaries. The following month Mr and Mrs Griffiths amended their claim to assert that Woods Lane was a public highway. By the time the action came to court Devon County Council had made a Definitive Map Modification Order designating Woods Lane as a byway open to all traffic.
In a carefully reasoned judgment, to parts of which I shall return, Judge Overend concluded that Woods Lane was not a public highway but a private road subject only to private rights of way. Upon this finding his other conclusions, which do not concern me, turned. An application by the plaintiffs for leave to appeal on the right of way point was refused by Judge Overend but allowed by the Court of Appeal, and I am told that the substantive appeal is due to be heard later in the present month, both parties acting and appearing in person. It is, however, common ground that the issues in the present proceedings cannot be affected by the decision of the Court of Appeal in the County Court action, whichever way it goes.
Meanwhile Mr Isaac and his father had set out to make an immediate challenge in this court to the County Council's Modification Order. On the 27th February 1992 McCullough J refused their application for certiorari to quash the County Council's decision. The Isaacs' appeal, conducted by them in person, came on in the Court of Appeal jointly with a similar case from Cornwall, and both are reported at [1994] 1 All ER 694, sub nom. Ex parte Huntington. Simon Brown LJ, giving the leading judgment, held that the issue which each applicant sought to canvass against the respective County Council was inapt for decision by the court because the substantive issues fell to be investigated at forthcoming public inquiries from which recourse to the court would if necessary lie in the form in which the present issue now comes before me. Specifically, Simon Brown LJ held:
"…In so far as they desire also to raise matters of legal complaint regarding the process whereby the County Councils (by their respective sub-committees) came to their decisions to make modification orders in the first place (necessarily provisional as these are until confirmation) the applicants will be able to do so under the express provisions of paragraph 12(1). Any failure, for instance, on the respondent's part to comply with the provisions of schedule 14 would prima facie offend against section 53(5): a confirmed order may well therefore be held invalid 'on the ground that it is not within the powers of section 53'."
The Inspector in the event upheld the County Council's order, and Mr Isaac comes before this court accordingly with two sets of submissions, the first directed, as before, at shortcomings in the County Council's decision and decision-making process, the second directed at the procedure adopted by the Inspector and at his conclusion.
The law
Part III of the Wildlife and Countryside Act 1981 is captioned 'Public Rights of Way'. Within it, section 53 places an obligation on county Councils to modify and keep under continuous review the definitive map and statement showing public rights of way following the occurrence of various events of which the material one is that specified in section 53(3)(c):
"the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows -
(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies….."
There follows in section 54 a duty to reclassify every public road as a byway open to all traffic, a bridleway or a footpath. There is no question in the present case that if Woods Lane was rightly found to be subject to a public right of way, it was as a byway open to all traffic.
By paragraph 3(1) of schedule 14 to the Act the County Council, as surveying authority, is required when the initial procedures have been completed to 'investigate the matters stated in the application; and…..decide whether to make or not to make the Order to which the application relates'. Devon County Council's functions in this regard have been delegated by standing orders to its Public Rights of Way Sub-committee. In February 1989 this sub-committee received a report from the County solicitor on an application made by Rewe Parish Council for Woods Lane to be designated a byway open to all traffic. It considered the matter twice more, in March and April of 1989, and at the latter meeting decided to make a Modification Order in the form sought by the parish council. Then in September, following the receipt of further evidence, the sub-committee set up a Working Party which considered the new evidence and in November recommended to the sub-committee that it should proceed to make the Order. The sub-committee, however, referred the issue back to the Working Party for further consultation; but in January 1990 the Working Party concluded that it should maintain its recommendation and the sub committee, after hearing reports from the chairman of the Working Party and the County solicitor, accepted and acted on the recommendation.
Schedule 15 to the Act provides for the next stages. The Order, which is not effective until confirmed, must be publicised by the local authority who may then confirm it if no opposition emerges. In the event of opposition, paragraph 7 requires the Order to be submitted for confirmation to the Secretary of State, who must either set up a local inquiry or otherwise afford a formal opportunity to be heard. In the former case, as happened here, the inspector's decision is treated by virtue of paragraph 10(1) as the Secretary of State's. Paragraph 12 then provides:
"(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 and 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 [viz notice of the decision to confirm the order] 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 insofar 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."
To give focus to the issues of law arising in the present case, it is necessary next to set out in short form the challenges which Mr Isaac advances in support of the quashing of the order. They are:
(i) That the sub-committee failed to consider the evidence for itself;
(ii) That the working party and sub-committee acted without correct legal advice on the relevant highways law;
(iii) That Mr Isaac and his solicitor were not provided with the full evidence in time to deal with it before the sub-committee;
(iv) That the inspector wrongly refused to admit certain evidence, in particular the judgment of Judge Overend;
(v) That the inspector's conclusion was untenable in law;
(vi) That the inspector misdirected himself in law about the power of the Isaacs' predecessor in title to dedicate the road as a highway;
(vii) That the inspector disregarded the Isaacs'
own evidence demonstrating the...
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