Wright and another v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 06 May 2016 |
| Neutral Citation | [2016] EWHC 1053 (Admin) |
| Date | 06 May 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5497/2015 |
[2016] EWHC 1053 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/5497/2015
George Laurence QC and Claire Staddon (instructed by JWK Solicitors) for the Claimants
Tim Buley (instructed by the Government Legal Department) for the Defendant
Hearing dates: 26 April 2016
Approved Judgment
The Claimants, as trustees, own Burntbarrow Plantation, a 100 acre wood on the outskirts of the village of Storth in Cumbria. This plantation is part of the Dallam Tower Estate, the Estate. The definitive rights of way map, maintained by Cumbria County Council under s53 of the Wildlife and Countryside Act 1981, the 1981 Act, showed a footpath running roughly west to east through its northern part. Members of the public in the Storth village area used other footpaths through the woods. They said that they had done so as of right for the period of twenty years ending in 2007. The paths in question ran from three entry points, known as A, G and F, off two local roads, into the southern part of the woods; these met within 50 yards or less at a point, known as C, whence a single path ran north, before forking at D, to meet the northern footpath at points E and I. In 2007, those three entry points were substantially blocked by the Claimants.
Cumbria County Council received the statements of the members of the public, in thirty eight "User Evidence Forms", UEFs, a common type of evidence for this purpose. It also considered the objections lodged by the Claimants. It concluded that this was new evidence showing that rights of way were reasonably alleged to subsist which were not shown on the definitive map, satisfying s53 (3)(c)(i) of the 1981 Act. Accordingly, in June 2013, the County Council, pursuant to its duties in s53(2)(b), made an Order modifying the definitive map to show the paths in question as footpaths over which there were public rights of way. This Order, to give it its full title, is the Cumbria County Council (Parish of Beetham: District of South Lakeland) Definitive Map Modification Order (No 6) 2013, which for ease I call the Order.
The Claimant objected, and so the County Council had to submit the Order for confirmation to the Defendant Secretary of State, pursuant to paragraph 7 of Schedule 15 to the Act. A public local Inquiry was held by an Inspector, for the most part in March 2015. The applicants at the Inquiry primarily based their application for the modification on the statutory presumption in s31 of the Highways Act 1980, the 1980 Act. This provides that where a way over land has actually been enjoyed "by the public as of right and without interruption for a full period of twenty years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it." By s31(2), the twenty year period is calculated retrospectively from the date when the right of the public to use the way was brought into question. Here, that was in the summer of 2007, and so the primary relevant twenty year period, through which use as of right had to be shown, ran from the summer of 1987 to the summer of 2007.
The Inspector heard oral evidence from eight members of the public about user of the paths, and oral evidence called on behalf of the Estate; he also had the UEFs, which had been considered by the County Council, as well as the objection made by the Estate to the County Council. He concluded, in his Interim Decision of 20 May 2015, that the Order should be confirmed, but with this modification to the Order as made by the County Council: the paths from G and F to C should not be confirmed. It was the paths from A to C, D, E and I which should be shown on the definitive map.
The Claimants challenge that decision pursuant to paragraph 12 of Schedule 15 to the 1981 Act, and Part 8 CPR, on the familiar grounds for such a challenge.
This decision was in fact an interim Decision, since those adversely affected by the proposed modifications, who wished to raise new issues, had the opportunity to object. There were no objections. Although there was a final decision in September 2015, confirming the Order with the modifications as the Inspector proposed, the relevant decision for the purpose of this challenge is the Interim Order Decision, IOD.
The challenge is to the confirmation of the Order in relation to the path from A-C, and relates to the lawfulness of the Inspector's reasoning and conclusion about the evidence of user in the period 1987–1990, which Mr Laurence QC, for the Claimants, termed the Early Years of the twenty year period.
The Decision
The Inspector summarised the background to the issues. He noted first the agreement that the paths were blocked at points A, G and F bringing the rights of the public into question in the summer of 2007. The Inspector summarised the position of the parties in IOD [11 and 12].
"11. Some 38 rights of way user evidence forms were submitted to the Council in support of public use of the claimed footpaths and 8 witnesses gave evidence of their use of the Order routes at the Inquiry. Witnesses and evidence forms indicate differences in the routes used.
12. The Plantation is part of the Dallam Tower Estate and in their objection to the Order it is submitted that the public use of the Order routes was not as of right, but by force in the sense of contentious user following forced entry. In any event, the Estate contend that, during the 20 year period before 2007 and earlier, the landowner demonstrated sufficient evidence of a lack of intention to dedicate, whilst there is insufficient evidence of public user in the 20 year period before 1993."
[11] is important for its reference to the UEFs. [12] is important because it shows that the thrust of the case made by the Estate did not relate to the sufficiency of user or to sufficiency of user during the Early Years, but was that, through blockage and signs, it had made clear its case that use of all the paths had been contested during the twenty year period. The reference in the last sentence of [12] to the 20 year period before 1993 is relevant only to footpath F-C, where there was scope for a fall back argument by the applicants, ultimately rejected, to the effect that by the time F-C was blocked in 1993, rights at common law had already been established.
The Inspector then set out his conclusions on the evidence about footpath A-C:
"13. From Throughs Lane the Order route starts parallel to the road before turning into the Plantation through a small (0.8m wide) gap in the stonewall alongside the edge of the Plantation. The gap in the wall has dressed stone. The route then climbs a steep bank across a rocky outcrop before descending to point C. It is clearly a less commodious route than the near-by alternative of routes F & G. Upon entering the Plantation at Point B witnesses recalled a large laurel bush with no branches. Mr Morris recalled having to 'limbo' under a branch, but no witnesses indicated that their use of the route was prevented. Mr Morris was a regular (daily) user of route A and other routes after 1982 and three other witnesses gave evidence of their regular use of this route throughout or within the 20 year period before 2007.
14. There is no evidence from any of the witnesses at the Inquiry, or otherwise, to indicate that route A was impeded in any way except by the presence of the laurel tree throughout the 20 years before 2007."
In IOD [19], the Inspector concluded that, during the 20 year period, A-C and its onward continuation to the fork at D and the junctions with the northern footpath at E and I were sufficiently used as of right, without interruption and that there was insufficient evidence of a lack of intention to dedicate by the Estate. "The laurel tree at the entrance of route A, whilst hindering the public use, did not prevent public use and is not any indication of a lack of intention to dedicate." Such challenges as there were, were insufficient to demonstrate a lack of intention to dedicate.
I also need to mention what he decided in relation to footpaths F-C and G-C. The applicants had accepted that in 1993 F-C, "a well-defined track [with] the appearance of an accommodation road" for the use of the Estate had been obstructed by the Estate, and that the subsequent user of that route was contentious, and so could not be relied on to establish any rights. This blockage had however led the public to enter the plantation, through a gap in the wall, at point G, very near to F, and to use the path G-C instead. There was a conflict of evidence or of its interpretation as to whether there had been signs prohibiting such access at or near point G, whether there had been repairs to the wall which the public had forcibly breached, or whether the gap had just arisen out of dilapidation. He concluded "that public use of the way before 1993 would not have been sufficient to come to the attention of the landowner and as Mr Townend, [who represented the applicants] indicated significant use of this route by the public only commenced after route F was obstructed." There was therefore no twenty year period of use, and he also accepted the Estate's evidence that there was no intention to dedicate.
The challenge
Mr Laurence submitted that the inspector had to be satisfied, as a statutory pre-condition to the modification, and whether the point was fully raised or not, that there was evidence of public user as of right throughout the whole of the...
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