Powell and Irani v Secretary of State for Environment, Food and Rural Affairs and Another
| Jurisdiction | England & Wales |
| Judgment Date | 30 March 2009 |
| Neutral Citation | [2009] EWHC 643 (Admin) |
| Date | 30 March 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7364/2008 |
[2009] EWHC 643 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Michael Supperstone Q.C.
Sitting as a Deputy Judge of the High Court
Case No: CO/7364/2008
Justine Thornton (instructed by Pinsent Masons) for the Claimants
Philip Coppel (instructed by the Solicitor to the Department for Environment Food and Rural Affairs) for the Defendants
Hearing dates: 20 February 2009
Michael Supperstone QC:
Introduction
The Claimants apply under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 (“the 1981 Act”) for an order quashing a decision of the Secretary of State for Environment, Food and Rural Affairs, the First Defendant, acting by his Planning Inspector, dated 11 June 2008, confirming a Footpath Modification Order (“the Order”) made by Doncaster Metropolitan Borough Council, the Second Defendant, on 24 August 2007.
The effect of the Order is that a public footpath will run through the back garden of a newly built house jointly owned by the Claimants at 6 Vicarage Close in the village of Hatfield in Doncaster (“the property”).
The Claimants challenge the Order on two grounds. First, that in refusing an application by Mr Powell, the First Claimant, for an adjournment of the public inquiry into the Order, the Inspector acted unfairly, in breach of the rules of natural justice and thereby outside his powers under the Act. Second, there was no evidence before the Inspector on which he could have reached the conclusion he did that the width of the right of way was 1.4 metres.
The Legislative Framework
The obligations of a local authority in relation to footpaths are set out in the 1981 Act. In particular, under section 53 the local authority is placed under a duty to keep a map of public paths in its area (known as the Definitive Map) under review. Section 53(2) provides:
“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”.
The events specified in sub-section (3) include the following:
“(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 … ;
(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 statements 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.”
Section 53(3)(b) relates to events which have happened since the definitive map was prepared. Principally, section 53(3)(b) will be brought into play through 20 years' use of a way as of right, thereby invoking the statutory presumption under section 31 of the Highways Act 1980 (“the 1980 Act”). Section 31 of the 1980 Act provides, so far as is material:
“(1) Where a way over any land, other than a way of such character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
(2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by notice such as is mentioned in subsection (3) below or otherwise.
(3) Where the owner of the land over any such way as aforesaid passes –
(a) has erected in such a manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and
(b) has maintained the notice after the 1 st January 1934 or any later date on which it was erected,
The notice in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.”
Section 53(4) of the 1981 Act provides that:
“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 … which is to be shown on the map;”
Section 53(5) provides:
“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.”
Subsection (6) is to like effect in relation to events falling within sub-paragraph (a) of subsection (3).
The provisions of Schedule 15 to the 1981 Act have effect as to the making, validity and date of coming into operation of orders. Schedule 15 makes provision for consultation, publicity, submission of the order to the Secretary of State, appointment of inspectors, local inquiries and proceedings for questioning the validity of orders. Pursuant to paragraph 12 of Schedule 15:
“(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 sections 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 make an application to the High Court under this paragraph.
(2) On any such application the High Court may, if satisfied that the order is not within those powers or that the interests of the applicant have been substantially prejudiced by a failure to comply with those requirements, quash the order, or any provision of the order either generally or in so far as it affects the interest of the applicant.”
An appeal under Schedule 15 is in the nature of a statutory judicial review and is limited to ordinary public law grounds ( Norman and Anr v Secretary of State for Environment, Food & Rural Affairs [2007] EWCA Civ. 334, per Laws LJ at para 3).
Detailed procedural rules for the conduct of any public inquiry into an order are laid down in the Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 (“the Rules”).
Pursuant to Rule 8(1) of the Rules the persons entitled to appear at an inquiry are the authority who made the order, the applicant for the order, every person who has made an objection which has not been withdrawn and everyone else who has submitted a statement of case. Pursuant to Rule 8(2) the Secretary of State may permit any other person to appear at a hearing and such permission shall not be unreasonably withheld.
Under Rule 21(15)
“The inspector may –
(a) proceed with the inquiry in the absence of any person entitled or permitted to appear at it;
(b) take into account any written representations, evidence or any other document received by him from any person before the inquiry opens or during the inquiry, provided he discloses it at the inquiry; and
(c) from time to time adjourn the inquiry.”
Factual Background
On 24 August 2007 the Second Defendant made a Footpath Modification Order which provided for a right of way through the garden of the property. The house and other surrounding houses had been developed by HSL Developments Limited (“HSL”). On 16 October 2007 HSL submitted an objection to the Order. On 28 November 2007 in light of the objection from HSL, the Second Defendant submitted the Order to the First Defendant for confirmation.
In December 2007 the Claimants purchased the property from HSL. During negotiations for the purchase, Solicitors for the Claimants and Solicitors for HSL agreed that HSL would continue to pursue their objection to the Order. The deadline for submission of the Statement of Case by HSL under Rule 17 of the Rules was 7 April 2008. On 15 April 2008 the Claimants received a letter from the Second Defendant advising them that HSL had not pursued the objection or filed a Statement of Case.
By letter dated 22 April 2008 Bell Dallman & Co. (“Bell Dallman”), Solicitors for the Claimants, wrote to Messrs Atteys, Solicitors for HSL as follows:
“In your letter to us of 8 th November 2007 you stated that your clients would continue with the appeal until the matter was resolved.
We are disappointed to note, therefore, from the Council's letter that your clients did not submit evidence to the Planning Inspectorate in support of their objections of the claim by the 7th April deadline.
Can you please offer us an explanation as to why they did not do...
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