‘12 … The court held, in effect, that, if evidence came to light to show that a mistake had been made in drawing up the definitive map, then such a mistake could be corrected in either of the three ways envisaged in section 53(3)(c) of the 1981 Act. The objective of these provisions was to ensure that the definitive map provided as accurate a picture as possible of the relevant rights of way.’
‘35. Tracing these maps through in sequence illustrates the claim by KCC that the historical line of this path does not match that shown on the current definitive map but has been altered subtly eastwards on each redraft but with no deliberate intention in the form of a legal order to do so.’
‘46. On the basis of the positive evidence to support the line of this footpath, that is the Ordnance Survey records and the initial parish survey of rights of way in Doddington, and considered on a balance of probability, I conclude that the most likely explanation was that the public used the route A-B-X to then continue via X-C and along the remainder of Footpath ZR281. 47. Having reached that conclusion, and in the absence of any positive evidence to support the use by the public of the line shown in purple on the Order map as C-D, I conclude that this route is incorrectly shown on the current definitive map and statement and should be deleted.’
‘27. Two main issues arise in this case: i) What is the effect of the ‘conclusive’ provision in section 56(1) when the surveying authority are considering whether to make modifications to the map and statement under the provisions of section 53 of the 1981 Act? ii) What is the definitive map and statement which is to be considered when considering whether to make modifications pursuant to section 53?’
‘In rejecting the appellants’ case that the evidential presumption created bys.56(1) of the Wildlife and Countryside Act 1981 applied to the original 1952 definitive map and statement of public rights of way, and finding instead that it applied to the later “map and statement as modified”, when there had been no relevant “modification” of the 1952 definitive map and statement under the 1981 Act, but rather the section of footpath in question was found by the [Secretary of State’s inspector] to have been copied onto the later definitive maps in error, the learned judge erred in law.’
‘Once prepared, however, and until subsequently revised, the map and statement is to be conclusive evidence in rights of way disputes between landowners and the various categories of persons exercising rights of way.’
‘38. Where the Secretary of State or an inspector appointed by him has to consider whether a right of way that is marked on a definitive map in fact exists, he must start with an initial presumption that it does. If there were no evidence which made it reasonably arguable that such a right of way existed, it should not have been marked on the map. In the absence of evidence to the contrary, it should be assumed that the proper procedures were followed and thus that such evidence existed. At the end of the day, when all the evidence has been considered, the standard of proof required to justify a finding that no right of way exists is no more than the balance of probabilities. But evidence of some substance must be put in the balance, if it is to outweigh the initial presumption that the right of way exists. Proof of a negative is seldom easy, and the more time that elapses, the more difficult will be the task of adducing the positive evidence that is necessary to establish that a right of way that has been marked on a definitive map has been marked there by mistake.’
‘63. … The only presumption capable of applying at the review stage is thus the evidential presumption identified by the court in Trevelyan’s case.’