Wild v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Lord Justice Moses,The Chancellor |
| Judgment Date | 21 December 2009 |
| Neutral Citation | [2009] EWCA Civ 1406 |
| Date | 21 December 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2008/3080 |
[2009] EWCA Civ 1406
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINSTRATIVE COURT
MR JUSTICE KEITH
Before: The Chancellor Of The High Court
Lord Justice Scott Baker and
Lord Justice Moses
Case No: C1/2008/3080
William UPTON (instructed by Clarke Willmott) for the Appellant
Tim BULEY (instructed by DEFRA (legal)) for the 1 st Respondent
Sarah HANNETT (instructed by Legal Department, Dorset County Council) for the 2 nd Respondent.
Hearing date: 28 October 2009
Lord Justice Scott Baker:
Mr James Wild, who was the claimant in the court below, appeals against the decision of Keith J. on 1 December 2008 who upheld the decision of a planning inspector Ms Doran. She had confirmed on 14 March 2007 an order made on 28 February 2003 by the Dorset County Council (“The County Council”), who are the second respondents to the present appeal, adding a length of footpath to the Definitive Map and Statement. The first respondent is the Secretary of State for Environment, Food and Rural Affairs.
The footpath in question is some 660 metres long and runs from Clay Lane to Looke Lane, Puncknowle, Dorset and is shown by the line marked A,B,C,D, on the plan annexed to the inspector's decision letter. Mr Wild is the owner of Puncknowle Manor Estate which was conveyed to him by Galloway Ltd in 2000. The land over which the path passes was not included in the conveyance. However, he claims that his acquisition of the estate conferred on him the title of Lord of the Manor and it is in that capacity that he owns the land over which the path passes. It is common ground that the inspector reached no conclusion on this and that resolution of the issue of ownership is unnecessary for the purposes of this appeal. What is clear is that the land over which the path passes has had no registered owner and has not been the subject of any conveyance.
Mr Wild's complaint is that the County Council made an order on 28 February 2003 under section 53 (2) (b) of the Wildlife & Countryside Act 1981 (“The 1981 Act”), known as the Dorset County Council (Footpath from Clay Lane to Looke Lane, Puncknowle) Definitive Map and Statement Modification Order 2003, proposing to add the length of footpath in question to the Definitive Map and Statement and that the inspector made an error of law in confirming the order.
An event that requires modification to the Definitive Map and Statement is, per section 53 (3) (c)(i) of the 1981 Act:
“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 rights subsists is a public path, a restricted byway or, subject to section 54A, a byway open to all traffic.”
The inspector correctly directed herself that she had to decide whether the evidence showed on the balance of probabilities that a public footpath not shown on the Definitive Map and Statement subsisted. She concluded that the footpath in question did and confirmed the order subject to certain minor modifications that are not relevant to this appeal.
Mr Wild was dissatisfied with the decision and applied to the High Court under paragraph 12 of Schedule 15 to the 1981 Act which 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 or 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 had 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 effects 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.”
It is common ground that Keith J. who heard the application, was entitled to interfere with the inspector's decision but only on ordinary judicial review principles. He concluded that the errors she was alleged to have made were not established and that, accordingly, her decision stood. We have to consider whether his conclusion was correct and this involves looking afresh at the inspector's reasoning.
There were two main issues before the inspector. First it was argued that the evidence established a presumption of dedication under the criteria in section 31 of the Highways Act 1980. In the alternative, if these criteria were not met, it was contended that there was implied dedication at common law i.e. the evidence was such that it must be inferred that the landowner had dedicated a right of way and that the public had accepted that dedication. The inspector found that the section 31 criteria were not met and it is this alternative finding at common law that concerned the hearing before Keith J. and the appeal before us.
The inspector referred to a number of other events at the beginning of the decision letter. In 1972 there was a claim under the Commons Registration Act 1965 that land known as The Drives comprising part of the Order route and an adjacent parcel of land was common land. The Chief Commons Commissioner declined to confirm its registration as common land.
In 1978 there was a public inquiry to determine whether or not a bridleway existed over the Order route. The inspector upheld the objection to its being recorded as such on the draft revised Definitive Map.
In 1999 an order was made by the County Council following an application to modify the Definitive Map and Statement by adding the route as a footpath. In 2001 an inquiry was held and the inspector confirmed the council's order. His decision was however quashed by consent in the High Court.
In 2003 the County Council made a fresh order to add the route to the Definitive Map and Statement as a footpath and it is that order that gives rise to the present proceedings.
The inspector in the present case found that the documentary evidence although confirming the long-standing existence of the Order route as a physical feature did not provide categorical evidence of its status. There was insufficient evidence to show the existence of public vehicular rights and the documentary evidence alone could not substantiate the existence of a public right on foot. I should emphasise that what is material is public rights not private rights.
In summary the documentary evidence comprised the following:
(a) A one inch Ordinance Survey Map of 1871 which showed the Order route albeit with a slightly different alignment to that of today.
(b) A map of 1826 which shows the Order route but did not distinguish between public and private roads.
(c) A Tithe Map of 1841 which again showed the Order route but which for reasons explained by the inspector did not assist in establishing the route's status.
(d) A map relating to the Finance Act 1910 which again showed the Order route but the route was excluded from hereditaments. The inspector said that this did not assist because there was more than one credible explanation.
(e) A sale plan prepared in 1913 for the sale of Puncknowle Manor Farm Estate by auction and a plan when the Estate was again sold in 1952, which the inspector thought were inconclusive, although the 1913 plan showed public routes colour-washed and the Order route uncoloured. She pointed out it was a sale of private property rather than the definition of public rights.
(f) Various Parish Council Minutes that took the matter no further.
(g) An aerial photograph in 1971 that showed the Order route between A and C was well used with a defined vehicle width track accessing adjacent fields. North of C to D there were clear indications of a trodden way. The inspector did not accept Mr Wild's submissions that the route from C to D was overgrown and impassable although a 1997 aerial photograph showed it more overgrown.
It is unnecessary for me to recite the evidence that the inspector heard, both orally and in the form of written statements, about use of the Order route.
The inspector began by correctly setting out the main issue she had to decide namely whether the whole of the evidence showed on the balance of probabilities that a footpath not shown on the Definitive Map and Statement existed and that the Map and Statement required modification. She referred to section 31 of the Highways Act 1980. Section 31 (1) provides:
“Where a way over any land, other than a way of such a 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.”
Section 31 (1A) is irrelevant to the present appeal.
Section 31 (2) provides:
“The...
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