Trevelyan v Secretary of State for the Environment, Transport and the Regions
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIP, MR |
| Judgment Date | 23 February 2001 |
| Neutral Citation | [2001] EWCA Civ 266 |
| Docket Number | Case No: 2000/0392/C |
| Court | Court of Appeal (Civil Division) |
| Date | 23 February 2001 |
[2001] EWCA Civ 266
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Latham)
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Of The Rolls
(lord Phillips)
Lord Justice Simon Brown and
Lord Justice Longmore
Case No: 2000/0392/C
IN THE MATTER OF THE WILDLIFE AND COUNTRYSIDE ACT 1981 AND IN THE MATTER OF THE LANCASHIRE COUNTY COUNCIL (DEFINITIVE MAP AND STATEMENT OF PUBLIC RIGHTS OF WAY) (DEFINITIVE MAP MODIFICATION) (No.7) ORDER 1996
Mr George Laurence, QC and Rhodri Price Lewis (instructed by Brooke North for the Appellant)
Mr John Hobson, QC (instructed by The Treasury Solicitor for the Respondent)
This is an appeal from the Queen's Bench Division, Crown Office List against the Judgment of Latham J.
Some 20 years ago, for the benefit of those who enjoy walking in the countryside, the Lancashire County Council designated as a long distance footpath the Ribble Way, which follows the course of the river of that name. In so doing they followed rights of way depicted as such on the relevant definitive map. So long as a right of way is shown on that map, its existence is conclusively demonstrated. Legislation provides, however, a procedure that can lead to the deletion from a definitive map of rights of way that have been marked on it in error. Mr and Mrs Lord live in Sawley Lodge in the parish of Sawley and own the land around it. They bought their home in 1976. The Ribble Way passes through their land along bridleway 8. This proved unwelcome, for some who walked along this bridleway trespassed from it and committed acts of vandalism. Mr and Mrs Lord then discovered evidence which led them to conclude that bridleway 8 had been marked on the definitive map in error where there was, in fact, no right of way. In 1985 they began the appropriate procedure to get deleted from the definitive map that part of bridleway 8 which crossed their land. I shall describe this part from now on simply as 'bridleway 8', although in due course I shall have to address the fact that it did not include the easternmost section of bridleway 8. The procedure that Mr and Mrs Lord put in train followed a course more tortuous and lengthy than the Ribble Way, but culminated in an order made by the Respondent on 1 st April 1999 deleting a large part of bridleway 8 from the definitive map. Mr Trevelyan, the appellant, was until recently the Deputy Director of the Ramblers Association. He appealed to Latham J. to have the Respondent's order quashed. That appeal failed. He now appeals to us with the permission of Laws L.J. who rightly took the view that the case raises a point of principle as to the correct approach to be adopted when considering whether a right of way should be deleted from the definitive map.
The facts
I shall adapt the clear statement of the relevant facts and statutory provisions set out by Latham J. in his judgment, for these are not contentious.
The definitive map in question was published on 10 th August 1973. It was prepared pursuant to the provisions of the National Parks and Access to Countryside Act 1949 (the 1949 Act). Section 27 required the relevant authority, in this case Lancashire County Council, to survey land over which a right of way was alleged to subsist and to prepare a map showing such a right of way whenever in its opinion such a right of way subsisted, or was reasonably alleged to have subsisted, at the relevant date. For the purposes of the present case, the relevant date was the 22 nd September 1952. In order to carry out this duty, Section 28 required the County Council to consult with Rural District Councils. Section 29 then required a draft map to be prepared and advertised, and made provision for objections and determination by the County Council of such objections. In the light of such objections, the County Council was empowered to modify the map. A right was then given by Section 29(5) for objections to any such modification to be dealt with by way of appeal to the Secretary of State, who was, in turn, empowered to hold a local inquiry under Section 29(6). At the completion of that process, Section 30 provided for the preparation of a provisional map; and Section 31 entitled any person aggrieved to appeal to quarter sessions. By Section 32, the County Council was then obliged to prepare the definitive map. By Section 32(4), designation of a right of way on such a map was deemed to be conclusive evidence that there was at the relevant date the right of way so designated. Section 33 required the County Council to keep the definitive map under review, and provided for amendment by way of addition or modification but not deletion.
The relevant authorities were first given power to delete a right of way in limited circumstances by schedule 3 to the Countryside Act 1968. The power to delete with which this appeal is concerned was however given by Section 53 of the Wildlife and Countryside Act 1981 which provides as follows:
"(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 sub-section (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 sub-section (2) are as follows:
…(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;
(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.
(5)
Any person may apply to the authority for an order under sub-section (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 sub-section (3); and the provisions of schedule 14 shall have effect as to the making and determination of application under this sub-section."
Schedules 14 and 15 to the 1981 Act make complicated provision for the procedures to be adopted in the event of any issues arising under Section 53. By Schedule 14, an authority to whom any application is made for an order under Section 53 is to investigate the matter and come to a determination. If the authority decides not to make an order, the applicant may appeal to the Secretary of State who is to give such directions as appear to him necessary in the light of his decision on the appeal. By Schedule 15, where an authority has made an order, but there are objections, the order is to be submitted to the Secretary of State, who may appoint an inspector to hold an inquiry and to determine whether or not to confirm the order. In circumstances which I shall consider in greater detail in due course, it is open to the inspector to confirm an order with modifications. If the order is confirmed, but with modifications, and there are objections to the modifications, the Secretary of State is again required to hold a local inquiry or give the objectors an opportunity to be heard by an inspector before coming to a final decision. Paragraph 12 of the Schedule entitles any person aggrieved by the confirmation of an order on the grounds that it is outside the powers of Section 53 or 54, to appeal to the High Court. This is the jurisdiction invoked in the present proceedings.
The right of way in question was not delineated on any maps before the coming into force of the 1949 Act. The survey of the relevant area for the purposes of that Act was carried out by Mr W Proctor, who was the Sawley parish representative on the Bowland Rural District Council, which was responsible for the survey on behalf of the Lancashire County Council. This was done between December 1950 and February 1951. Information supplied by Mr Proctor led the Bowland RDC to record a right of way for those on foot or horseback running from the public highway in Sawley, along the drive leading to Sawley Lodge, and then across open fields, generally following the line of the River Ribble, through woods, eventually returning to the public highway. Its length was approximately 3 miles. It was identified on the definitive map as bridleway 8. The survey form delineating the route of the right of way did not include any explanation as to the nature of the evidence supporting the claim.
The land over which it ran had originally formed part of the Sawley Estate, which had, until 1949, been owned by Mr Fattorini. After his death it was split up. The land over which the western half of the claimed bridleway passed was purchased in August 1950 by Mr and Mrs Hindley. When, as a result of the survey, the County Council produced the draft definitive map in 1953, including bridleway 8, Mr and Mrs Hindley objected to the map on two...
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