Piers Monckton v Staffordshire County Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 01 December 2022 |
| Neutral Citation | [2022] EWHC 3049 (Admin) |
| Docket Number | Case No: CO/3499/2021 |
| Court | Queen's Bench Division (Administrative Court) |
The King on the application of
[2022] EWHC 3049 (Admin)
Mrs Justice Lang DBE
Case No: CO/3499/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
George Laurence KC and Matthew Dale-Harris (instructed by Michelmores LLP) for the Claimants
William Webster (instructed by Staffordshire Legal Services) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 1, 2 and 3 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30 am on 1 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives
The Claimants apply for permission to seek judicial review of a resolution by Staffordshire County Council Countryside and Rights of Way Panel, made on 16 July 2021, to order modification of the Definitive Map and Statement of Public Rights of Way (“the DMS”) for the District of South Staffordshire, pursuant to the Wildlife and Countryside Act 1981 (“the 1981 Act”).
The Council received an application from the Interested Party, Mr Martin Reay, pursuant to the 1981 Act, for an order to modify the DMS by the addition of the public footpath from Stretton to the highway to the east of Bickford Grange Farm (“the claimed footpath”).
Objections were received from the First and Second Claimants who were, at the material time, the owners of most of the land across which the claimed footpath runs. Some of that land has since been transferred to the ownership of the First Claimant's son, but that change has no bearing on this claim.
An officer's report (“OR”), dated 21 March 2021, was prepared for the Panel. It recommended that an order be made to add the claimed footpath to the DMS since the evidence submitted by the Interested Party, and the evidence discovered by the Council, was sufficient to show that the claimed footpath, which is not shown on the DMS, was reasonably alleged to subsist along the route marked A-B-C, on the plan attached at Appendix B to the OR (Supplementary Bundle (“SB”), page 227) (hereinafter “the Appendix B plan”).
On 16 July 2021, the Panel resolved to make the order as recommended in the OR.
The claim for judicial review was issued on 13 October 2021. The Council deferred the making of a modification order pending the determination of the claim.
On 20 December 2021, I made an order, on the papers, that the application for permission should be adjourned to a hearing so that the Court could determine the Council's submission that permission should be refused on the basis that there was a suitable alternative statutory remedy in Schedule 15 to the 1981 Act. The Claimants' position was that the Panel's resolution was plainly wrong in law, and therefore the Court should intervene to halt the statutory procedure by making an order restraining the Council from acting on the resolution and making a modification order (see the relief claimed in paragraphs 62 and 63 of the Re-amended Statement of Facts and Grounds).
To avoid unnecessary duplication, I directed that there should be a rolled-up hearing, so if permission to apply were granted, the Court would determine the substantive claim on the same occasion.
The rolled-up hearing was listed in June 2022, but it was adjourned by consent and relisted.
Permission
I have decided to refuse permission for two alternative reasons. First, there is a statutory scheme under the 1981 Act for the determination of disputes over proposed modification orders of this kind, which is a suitable alternative remedy to a claim for judicial review. The alternative procedure, which includes an Inquiry by a specialist Inspector, is more appropriate than judicial review, as it will include an independent examination of the facts, followed by an expert judgment on the facts and the law. An aggrieved party may then apply for statutory review by the High Court on a point of law. The second reason is that the Council has given a comprehensive undertaking that the Panel will review its resolution of 16 July 2021, in the light of the new evidence and submissions which have emerged in the course of these proceedings. Therefore the Panel's review decision will, in effect, supersede the resolution under challenge.
The statutory scheme
The DMS is a record maintained by the surveying authority (usually the local authority) of the public rights of way within its area. Its purpose is to ensure that existing public rights of way are properly identified and maintained.
By section 53 of the 1981 Act, the Council is under a duty to keep the DMS under continuous review. It provides, so far as is material:
“(2) As regards every definitive map and statement, the surveying authority shall —
(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in subsection (3); and
(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event.
(3) The events referred to in subsection (2) are as follows —
(a) the coming into operation of any enactment or instrument, or any other event, whereby —
(i) a highway shown or required to be shown in the map and statement has been authorised to be stopped up, diverted, widened or extended;
(ii) a highway shown or required to be shown in the map and statement as a highway of a particular description has ceased to be a highway of that description; or
(iii) a new right of way has been created over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path or a restricted byway;
(b) the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path or restricted byway;
(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 such that the land over which the right subsists is a public path, a restricted byway or, subject to section 54A, a byway open to all traffic;
(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.
(4) The modifications which may be made by an order under subsection (2) shall include the addition to the statement of particulars as to —
(a) the position and width of any public path, restricted byway or byway open to all traffic which is or is to be shown on the map; and
(b) any limitations or conditions affecting the public right of way thereover.
…
(5) Any person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection.
…..”
In this case, it is claimed that the relevant “event” for the purposes of subsection (2), came within sub-paragraph 3(c)(i):
“(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 in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path…..”
Schedule 14 to the 1981 Act sets out the procedure to be followed when an application for a modification order is made. The application must be in the prescribed form with a map and any evidence which the applicant wishes to adduce in support of the application (paragraph 1). Every owner and occupier of land to which the application relates must be notified (paragraph 2). The authority must investigate the matters in the application and decide whether or not to make the order (paragraph 3).
Schedule 15 to the 1981 Act sets out the procedure to be followed when the authority makes an order. Paragraph 3 provides that, upon making an order, the authority shall notify persons affected, publish it and make it available for inspection. Notice of the order shall specify a period of at least 42 days within which representations or objections with respect to the order may be made.
An order made by the authority shall not take effect until confirmed by the Secretary of State (paragraph 2). Paragraph 6 provides for confirmation of the order where there are no representations or objections. Paragraph 7 provides for confirmation of the order where there are representations or objections, in which case the Secretary of State shall cause to be held either a local inquiry or a hearing. The Secretary of State may appoint an Inspector to act on his...
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