Burrows v Secretary of State for Environment Food and Rural Affairs [2004] EWHC 132 (Admin)

Case No CO/2842/2003[2004] EWHC 132 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 23 rd January 2004
Strand,
London, WC2A 2LL
Before
ANDREW NICOL QC, sitting as a Deputy Judge of the High Court
Between
MERVYN DARRELL BURROWSClaimantSECRETARY OF STATE FOR ENVIRONMENT FOOD AND RURAL AFFAIRSDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
T. Hirst (instructed by Chadwick Lawrence) for ClaimantT. Morshead (instructed by Treasury Solicitor) for Defendant
Judgment
[1]This case concerns Howley Mill Lane, Morley, Leeds (‘the Lane’). The Lane is currently designated as a footpath on the definitive map produced by the West Riding County Council the predecessor to the current local authority, Leeds City Council. The accompanying statement to the definitive map identifies the path as having a width of about 6 feet. The local authority has prepared a Modification Order which would re-designate the Lane as a bridleway. The Order would also modify the statement so as to show the bridleway having a width between 1.8metres and 3 metres. There were objections to these modifications. Accordingly, the local authority was required to submit the Modification Order to the Secretary of State for Environment, Food and Rural Affairs (‘the Secretary of State’) for confirmation. The objectors included the Claimant who owns land adjacent to the Lane. The Secretary of State appointed an inspector, David Woodrow, to conduct an inquiry which was held in March 2003. Mr Woodrow’s report of 9th May 2003 confirmed the Order. The Wildlife and Countryside Act 1981 Schedule 15 paragraph 12 allows a person aggrieved by an Order to question its validity by an application to the High Court and the Claimant has made such an application. In order to succeed he must show that the Inspector erred in law.[2]A local authority’s duties in relation to the definitive map and statement are set out in s.53 of the Wildlife and Countryside Act 1981. This provides:
‘(1) In this Part ‘definitive map and statement’ in relation to any area means, subject to section 57(3) – (a) the latest revised map and statement prepared in definitive form for that area under s.33 of the [National Parks and Access to the Countryside Act 1949] ; or (b) where no such map and statement have been so prepared, the original definitive map and statement prepared for that area under s.32 of that Act; or (c) where no such map and have been so prepared, the map and statement prepared for that area under s.55(3). (2) As regards every definitive map and statement, the surveying authority shall – (a) as soon as practicable after the commencement date, by order make such modification to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the event 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 modification 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 subsection (2) are as follows – …. (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 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. (4) 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 or byway open to all traffic which is or is to be shown on the map; and (b) any limitations or conditions affecting the public right of way thereover….’
[3]In the present case, the Inspector found that the Lane ought to be designated as a bridleway rather than a footpath for two reasons. The first was that the evidence showed that the Lane was a bridleway in 1953 i.e. at the time the definitive map was prepared. In this context the Inspector must have been intending to rely on s.53(3)(3)(c)(ii). His second reason was that, in any case, the Lane had been used as a public bridleway for 20 years from 1963 to 1983. If this was so, the map would need to be modified by s.53(3)(b). There is a dispute as to whether the Inspector had the power to alter the widths of the Lane as set out in the definitive statement, but the Defendant argues that this was justified by s.53(2)(c)(iii) i.e. because of the discovery of evidence which showed that other particulars contained in the map and statement required modification.

Acquisition of right to use the path as a bridleway by 20 years user

[4]While the first reason for designating the Lane as a bridleway and the alteration of its widths may be regarded as corrections of the map and statement as they were originally prepared and by reference to matters as they stood in 1953, the Inspector’s second reason for designating the Lane as a bridleway followed from his findings that the conditions were fulfilled for the later acquisition of a public right of way by a form of prescription. These conditions are set out in Highways Act 1980 s.31 which says:
‘(1) 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. (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 a notice such as is mentioned below in subsection (3) or otherwise. (3) Where the owner of the land over which any such way as aforesaid passes – (a) has erected in such 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 1st January 1934, or any later date on which it was erected, the notice, in the absence of proof to a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway. …. (5) Where a notice erected as mentioned in subsection (3) above is subsequently torn down or defaced, a notice given by the owner of the land to the appropriate council that the way is not dedicated as a highway is, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner of the land to dedicate the way as a highway. …. (7) For the purposes of the foregoing provisions of this section ‘owner’, in relation to any land, means a person who is for the time being entitled to dispose of the fee simple in the land…’
[5]In the present case, the objectors alleged that there could be no prescriptive right because of a notice that had been placed at the entrance to the Lane. The Inspector said this:
‘18. It was argued on behalf of the objectors that the use of the lane by horse riders was challenged by the erection of a notice, at some point in 1975, at the junction of Howley Mill Lane with Scotchman Lane, saying ‘Private Road – Access Only’, as described in the letter of 16th April 1975 from a Mrs Clark to the West Yorkshire Metropolitan County Council…I accept that this was likely to have been put up by some person with an interest in the matter, though no evidence was given as to who this might have been. Such users of the lane as remembered seeing the notice said that they thought that it meant that the lane was a road which was in private ownership, or unadopted. A public footpath sign pointed down the lane beside this notice, and use of the lane by horse riders continued as before, so they did not consider that it was a prohibition of their use of the route. ‘19. I consider that the notice had an informal and uncertain meaning, and that the public would normally interpret the word ‘road’ as signifying a way for vehicles. The footpath sign plainly indicated that the public did have a right to use the route on foot, notwithstanding the notice, so the notice could not have been read as a blanket prohibition. The words ‘Access Only’ should in my view be taken to grant consent for the use of the lane by vehicles only for the purpose of accessing the properties that it served. Consequently, assuming that the notice was indeed erected by, or with the authority of, a person who owned the lane – as distinct from owning land adjacent to it or served by it – I do not think that it can be taken as having called into question the right of the public to traverse the lane on foot or on horses, or as having granted a limited permission for such use, though it might be taken as having been a challenge to the use of the lane by vehicles other than those accessing to the properties served by it.’
[6]Mr. Hirst on behalf of the Claimant criticises the Inspector’s approach. He says that the Inspector was wrong to treat the notice as ‘informal’. He says that the notice clearly indicated that (apart from the footpath) there was no public right of way and that the only other right (again apart from as a footpath) was for access. He says that the word ‘road’ as a matter of ordinary English, but particularly in West Yorkshire, means a way which is used by horse riders as well as vehicles and that the notice thus clearly challenged the existence of any public right (again apart from the use of the lane as a footpath). He also says that the Inspector fell into error in focussing on how the notice would have been understood by members of the public. The proper approach was to ask what the notice evidenced about the owner’s intention.[7]Mr Morshead, for the Defendant, says that in order to prevent prescriptive rights accruing the notice must be inconsistent with the dedication of the way as a highway (see Highways Act 1980 s.31(3)(a)). In the context of the present dispute, it must, more precisely, be inconsistent with the dedication of the way as a bridleway as opposed to a footpath. Mr Morshead concedes that if the only relevant circumstance had been the notice relied on by the objectors, the test might well have been satisfied. However, the notice had to be considered in its physical context. It was next to the public footpath sign. It was also placed near a part of the Lane which had been covered with tarmac. The Inspector had visited the site.[8]I agree that the adequacy or otherwise of the notice in its context as an expression of the landowner’s intention was a question of fact for the Inspector. If the Inspector had asked himself the wrong question, he would have erred in law, but I do not accept that it is to be inferred from his decision that the Inspector did ask himself the wrong question. In any event, there is not a sharp distinction between the two alternatives: the one which Mr Hirst said was correct and the one which he said was wrong. The inference as to the intention of the person who erected it is (in the absence of any evidence to the contrary) naturally to be drawn from how the notice would be likely to be understood by members of the public who saw it in its context.[9]The Inspector would also have erred in law if he had reached a perverse view as to the intention to be attributed to the person who erected the notice, but I do not consider that it is right to characterise his finding as perverse or irrational. On the contrary, they were findings that it was open to him to reach. The authorities which Mr Hirst cited, Rafique v Trustees of the Walton Estate (1993) 65 P&CR 356 and Smith v Brudenell-Bruce [2002] 2 P&CR 51 do not support the proposition that the Inspector’s decision in the context of the facts of the present case was perverse.[10]Even if I were wrong about this, there is a further reason why the Claimant cannot succeed in his challenge to the Inspector’s decision that the public had acquired a right to use the lane as a bridleway.[11]A notice is only effective for the purposes of s.31(3) if it has been erected by the owner of the land over which the way passes. It would also, of course, be sufficient if the notice was erected by a person acting on the authority of the owner. Mr. Morshead submits that the Inspector made no finding that the notice in question had been erected by an owner of land over which the lane passed. Mr. Hirst says that this is wrong. He points to the sentence in paragraph 18 of his decision where the Inspector said of the notice:
‘I accept that this was likely to have been put up by some person with an interest in the matter, though no evidence was given as to who this might have been.’
[12]I agree with Mr Morshead that the Inspector did not find that the notice had been erected by an owner or a person with the owner’s authority. I do not accept Mr. Hirst’s argument to the contrary. In the following paragraph, the Inspector said this:
‘Consequently, assuming that the notice was indeed erected by, or with the authority of, a person who owned the lane – as distinct from owning land adjacent to it or served by it… [my emphasis]’
. If in paragraph 18 the Inspector had indeed made a finding that the notice had been erected by an owner of the land over which the way passed, there would have been no need for him in paragraph 19 to have made an ‘assumption’ that this was the case. On the other hand, paragraphs 18 and 19 can be read harmoniously together if the expression ‘some person with an interest in the matter’ is understood as extending beyond those who owned the land over which the way ran and as including, for instance, those who owned land which was adjacent to the way or was served by it. In other words, the finding in paragraph 18 was that the notice had been erected by someone who may or may not have been an owner of the land over which the way passed, but who because of such ownership or for some other reason had an interest in the matter. I do not accept, therefore, that paragraph 18 contains the finding which is necessary for the Claimant to succeed. Paragraph 19 plainly makes an assumption that the notice was erected by an owner of the land over which the way passes, rather than making a finding that this was so.[13]Mr Hirst canvassed the possibility that it would be sufficient if the notice had been placed by his client or someone else who had a private right of way over the lane. He contended that the owner of an easement over land ought to be included in the category of ‘owner’. This submission is defeated by Highways Act 1980 s.31(7) which provides that for the purposes of s.31 ‘owner’ means a person who is entitled to dispose of the fee simple in the land. A person who has only an easement is not entitled to dispose of the fee simple in the land over which the easement may be exercised.[14]Mr Morshead raised a further objection to the Claimant’s reliance on the notice. He observed, correctly, that a notice will only be effective if it has been maintained by the owner after the time that the notice was erected – see s. 31(3)(b). He observed that the Inspector had found that the notice was in existence in 1975, but only in 1975 and that there was no evidence that the notice had been maintained until the end of the 20 year period in question i.e. until 1983. Mr. Hirst responded that s. 31(3)(b) does not require the notice to have been maintained for any particular period. It was sufficient that it had some degree of permanence. He observed that in the case of Cotton v Secretary of State for the Environment [1997] COD 276 (the parties also provided me with a transcript of this decision) the landowner had put up notices made of cardboard each year. The notices were held to be insufficient to express the owner’s intention not to dedicate the paths in question, but it was not suggested that the notices would anyway have been insufficient because of the fact that they were made of cardboard.[15]Because of the conclusions which I have already reached on this aspect of the case, it is not necessary for me to reach a concluded view on this issue. Had it been necessary, I would not have accepted Mr Morshead’s submissions in this regard. I do not think that Cotton helps Mr Hirst. In the first place the sufficiency or otherwise of the notices in that case for the purpose of s.31(3)(b) simply was not debated. In the second place, there was evidence that the signs were put up each year. Thus the case says nothing about the efficacy of a cardboard sign put up on a single occasion. On the other hand, I do not accept Mr Morshead’s submission that a notice, once erected has to be proved to have been maintained until the end of the 20 year period. The section does not say for how long the notice must have been maintained. Under s.31(3) a notice is relevant because it constitutes sufficient evidence to negative the intention of the landowner to dedicate the way as a highway. That in turn is relevant because those asserting that a public right of way has come into existence must show that the way has been actually enjoyed by the public as of right and without interruption for a full period of 20 years (see s.31(1)). It is clear that the notice does not have to have been maintained throughout the whole length of the 20 year period. In my view, the erection and maintenance of a notice for some substantial time during that period will show that there was no intention to dedicate the way as a highway. Consequently, the 20 year period will be interrupted.[16]The purpose behind s.31(3)(b) seems to be two-fold. Firstly, it makes real the likelihood that the notice will be seen by members of the public. The requirement in s.31(3)(a) that the notice be ‘visible to persons using the way’ demonstrates that a notice will only be effective to raise a presumption of the owner’s lack of intention to dedicate if there is a real opportunity for the public to see the notice and not one which is merely transitory. A notice in paper and pen which was liable to be washed out in the first shower of rain would probably not serve this purpose. Secondly, maintenance of the notice may show persistence by the landowner despite opposition from those who may claim that the public is entitled to use the way. Parliament clearly contemplated the possibility that members of the public who used the way might take issue with the notice and tear it down or deface it. Section 31(5) allows a landowner whose notice is treated in this way to give notice to the appropriate council and the presumption that he intends not to dedicate his land to the public will be preserved. Alternatively, though, that presumption may be preserved by ‘maintaining’ the notice in accordance with s.31(3)(b).[17]The issue of maintenance of the notice was not explored at the Inquiry. Those asserting the existence of a right of way did not, it seems, rely on this provision as a reason why the Inspector should find that the notice was insufficient. Mr. Hirst, who appeared for the Claimant at the Inquiry, tells me that there was evidence that the sign was a metal one. There was not any evidence that it had been torn down or defaced. It was no longer in existence at the time of the Inquiry, but the hearing took place long after the end of the 20 year period relied on in support of the dedication of the way. Mr Morshead said that the only evidence in relation to the notice was that it had been present in 1975. That was not quite accurate. The Inspector records that some users of the lane remembered seeing the notice. They are unlikely to have done so at a distance of some 25 years if the notice had had only a transitory existence. For all of these reasons, I would not have dismissed the present claim because the notice did not satisfy s.31(3)(b). Whether the path should have been designated as a bridleway when the definitive map was produced[18]After hearing the submissions of the parties on the previous issue I indicated that I had come to the conclusion that the challenge to the ’20 year’ aspect of the Inspector’s decision had failed. In consequence the Inspector’s decision that the path should be designated as a bridleway would stand whether or not the Claimant’s challenge to his alternative route for reaching the same conclusion was successful. In these circumstances, my decision on this aspect would not be critical to the outcome of the claim. After some brief oral discussion, I was invited to give a decision on the challenge to the alternative route on the basis of the parties’ skeleton arguments without further oral elaboration.[19]The original survey for what became the definitive map took place in about 1951. The lane, then referred to as Path No. 96, was described under the heading ‘type of path e.g. footpath, bridleway, or road used as a public path’ as ‘C.R.F.’ This stands for ‘Cartroad used as footpath’. In 1952 the local authority gave notice of the publication of the draft map and statement. This described the lane as a bridleway.[20]Part of the land ran over land owned by the British Transport Commission (‘BTC’). In 1953 BTC gave notice of objection claiming ‘None of the way is a public path or a bridleway or a road used as a public path.’ There was a hearing as to this objection. A typed note at the foot of the document recording BTC’s objection says:
‘At hearing Transport Commission’s representative stated that Mr. Preston of Haigh Park Farm (land owner) pays £5 per year to Messrs. J.B and W Hirst Ltd. for right to use portion of the road as access to his fields. There has been no interruption of use for pedestrians on the part of the Commission.’
The Inspector recorded that there was evidence of a handwritten note expanding on the hearing of BTC’s objection. According to the handwritten note, the hearing took place on 23rd October 1957 and the evidence concerning Mr Preston’s payment had been that it was for vehicular use. This was of significance because Mr Preston’s payment would not then have been evidence contrary to the public having a right to use the lane as a bridleway.[21]It appears that BTC had been involved in litigation concerning the Rights of Way Act 1932 and whether this had had retrospective effect. The Court of Appeal had held that it did in Fairey v Southampton County Council [1956] 2 QB 439. Thus if the public had used a way for 20 years without interruption there would have been a presumption of dedication by the owner of the land under the 1932 Act even though the 20 year period had terminated before the Act had been passed. The case was referred to in a letter to the local authority and dated 30th September 1958. The Inspector described the letter as having come from BTC, but it may alternatively have come from a local authority in Winchester. In any event, the Inspector records that it was stated in evidence at his Inquiry that following the decision of the Court of Appeal, BTC had withdrawn its remaining undetermined objections, but because of the stage that the process had reached in relation to the lane, it was too late to do so.[22]The Inspector commented that there was no evidence as to the date of the notices on which BTC had presumably relied. He observed that the user evidence went back 71 years. The Inspector thought that it was significant that other landowners had not objected to the designation of the lane as a bridleway. He had also observed earlier in his decision that although the archived survey forms did not record the nature of the uses, the County claim at the time that the way should be recorded as a bridleway was presumably because of more detailed user statements which had since been lost. On all the evidence, the Inspector concluded that the original designation of the lane as a footpath was mistaken and that there was already a right of way along the lane on horseback at the time of the original definitive map.[23]The Claimant challenges this conclusion for the following reasons:a. The Inspector was in error in regarding the handwritten notes to have been of the same hearing as the typed record.b. Alternatively, the typed record should have been accepted as definitive.c. There was no evidence that the user statements prepared for the earlier hearing had referred to horses being ridden along the lane.d. The Inspector was wrong to have treated the Council as contending that there was established use as a bridleway. The acronym CRF showed that it considered the lane was used mainly as a footpath.e. In any case, the outcome of the earlier inquiry suggested that the user statements had not referred to use on horseback.f. The Inspector’s reliance on Fairey was misplaced and the Inspector was not entitled to infer that BTC had objected to the designation of the lane as a bridleway as part of a blanket objection.[24]The Defendant responds to these challenges as follows:a. The Inspector was entitled to conclude on the evidence that there had only been one hearing.b. To the extent that the evidence as to what had taken place at the previous Inquiry was different, the Inspector was entitled to take account of the handwritten notes.c. The Inspector was entitled to draw an inference as to the contents of the earlier user statements from the Council’s original proposal to designate the lane as a bridleway.d. CRF was not the description settled on by the Council. In any case, this term only describes the main use of the path. It does not purport to delineate all the uses.e. The Inspector’s interpretation of the outcome of the earlier Inquiry was legitimate, even if not the only possible one.f. The objectors in the present Inquiry had accepted the relevance of the Fairey decision.[25]As between these contentions, I consider that the Defendant’s responses to the Claimant’s challenges on this part of the case are sound.[26]However, I do think that the Inspector’s decision in this regard is open to a different criticism. His jurisdiction was dependent on ‘the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows …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.’ – see s.53(3)(c)(iii). It is plain that the section intends that a definitive map can be corrected, but the correction (via this route as opposed to s.53(3)(a) or (b)) is dependent on the ‘discovery of evidence’. An Inquiry cannot simply re-examine the same evidence that had previously been considered when the definitive map was previously drawn up. The new evidence has to be considered in the context of the evidence previously given, but there must be some new evidence which in combination with the previous evidence justifies a modification. I asked Mr Morshead what new evidence there was in the present case. He pointed to the new evidence from users that was assembled for the present Inquiry (in most cases, these statements were dated some considerable time before the Inquiry was held). Some of these users were able to speak to the use of the lane by horse riders going back to the 1940s or even the 1930s. The difficulty with this argument is that the Inspector did not rely on any of this new evidence. It was not therefore this evidence which showed the need to modify the map. Mr. Morshead pointed also to the handwritten note regarding the payment of £5 by Mr Preston showing that this was for the right to drive vehicles over the way. I do not see how this could qualify as ‘discovered evidence’. After all, the handwritten note, as I understand it, was a record of the evidence which had been given at the hearing of BTC’s objection. Section 53(3) must require the discovery of evidence which was not produced to the decision maker who made or approved the existing version of the definitive map.[27]Mr. Morshead’s third response was that no point appears to have been taken at the 2003 Inquiry as to whether there was newly discovered evidence and this was why the Inspector did not address the issue in his report. Again, I do not find this to be a satisfactory answer. In the proceedings before the High Court a claimant is entitled to question the validity of a modification order on the grounds that it is not within s.53. If the Inspector’s reasons for approving the modification did not depend in part on the discovery of evidence then a necessary condition for modification was not satisfied. The failure to take the point at the Inquiry may be relevant to costs, but the ability (or duty) to modify the definitive plan cannot be acquired by default.[28]Therefore, if the re-examination of the position as it stood in the 1950s had been the only basis for re-designating the lane as a bridleway, I consider that the modification would have been unjustified. However, it is not the only basis. The later acquisition of a public right by 20 years user was an independent basis for modifying the designation.

Whether the Inspector was entitled to modify the widths of the lane

[29]The 1951 survey of the lane had shown it to be about 20 feet wide at Scotchman Lane but at the junction with F.P. 44 it becomes about 12 feet wide. There were no objections to these descriptions of the width of the lane. However, in 1958 the local authority amended the width to 6 feet. For the purposes of the present modification, the local authority reviewed the Ordinance Survey plans going back to 1854. In addition, internal memoranda from the Council showed that the original definitive map and statement had given the width of the lane as 6 feet as an arbitrary measure designed to limit the Council’s liability. In this context, therefore, there was ‘discovered evidence’ and Mr Hirst did not suggest otherwise.[30]However, he contended that it was not within the power of a local authority to modify a statement of a path’s width. He relied on Wildlife and Countryside Act 1981 s.56. This says:
‘(1) A definitive map and statement shall be conclusive evidence as to the particulars contained therein to the following extent, namely – (a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover a right of way on foot, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than that right. …. (e) where by virtue of the foregoing paragraphs the map is conclusive evidence, as at any date, as to a highway shown thereon, any particulars contained in the statement as to the position or width thereof shall be conclusive evidence as to the position or width thereof at that date, and any particulars so contained as to limitations or conditions affecting the public right of way shall be conclusive evidence that at the said date the said right was subject to those limitations or conditions, but without prejudice to any question whether the right was subject to any other limitations or conditions at that date.’
[31]Mr Hirst argues that s.56(1)(e) distinguishes between ‘position or width’ on the one hand and ‘limitations and conditions’ on the other. A statement that a path is subject to limitations or conditions is without prejudice to any question as to whether it is subject to any other limitations or conditions at that date. The statement as to position or width is unqualified by a similar proviso.[32]I reject this argument. The conclusive character of the definitive map and statement is not intended to preclude the duty of the local authority to modify them where one of the events in s.53(3) occurs – see R v Secretary of State for the Environment ex parte Simms [1990] 3 All ER 490 CA. Thus, for instance, discovered evidence (when considered with all other relevant evidence) might establish that there is no public right of way over land shown on the map and statement as a highway – see s.53(3)(c)(iii). There would then be a duty to modify the definitive map and statement. This duty would arise because of s.53. The proviso in s.56(1)(a) would not allow for such a change since it contemplates rights additional to those marked on the map, not the removal of a highway which has been included. But the s.53 duty will still prevail. Similarly, the scope of the proviso to s.56(1)(e) is simply immaterial to the duty under s.53(3)(c)(iii) to modify particulars which are shown to be incorrect. The term ‘particulars’ is plainly broad enough to include the width of the way as indicated in the statement accompanying the definitive map. I would regard this as clear as a matter of ordinary language, but s.56 also clearly treats the width of a way as an example of such particulars – see the opening words of s.56(1) and s.56(1)(e) itself. Since Parliament is likely to have given the same meaning to the term ‘particulars’ in the two sections, to this limited extent s.56 is of assistance in construing s.53.[33]Mr Hirst advanced as a second argument based on s.53(4). This says:
‘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 or byway open to all traffic which is or is to be shown on the map; and (b) any limitations or conditions affecting the public right of way thereover.’
Mr. Hirst argues that the width of a path may be added to a statement where no width is previously mentioned, but if a width is presently included in a statement, it cannot be altered.[34]I do not accept that this is the correct construction of the subsection. Its purpose is to extend what might otherwise be thought to be the duty to make modifications so as to make clear that that duty includes the addition of the specified particulars. Mr Hirst’s argument would treat the purpose as being to limit the duty. The language of the subsection does not justify that approach. Nor could Mr Hirst suggest why Parliament might have wished to preserve in aspic (as Mr Morshead put it) a statement as to the width of a path when it is clear that the map could be modified by deleting the whole path if new evidence warranted this. I agree with Mr Morshead that this would be contrary to the greater powers of modification which the 1981 Act was intended to introduce and which the Court of Appeal acknowledged in the Simms case.[35]Consequently, I do not agree that the Inspector exceeded his powers or otherwise erred in law when he approved the modifications to the width of the lane.

Conclusion

[36]It follows that this claim must be dismissed. - - - - - - - - - - - - - - - - - - - - - DEPUTY JUDGE: For the reasons in the judgment which has been prepared and handed down, this application is dismissed. MR HIRST: My Lord, clearly obviously the application stands dismissed. The two issues which I have canvassed in the skeleton argument-- DEPUTY JUDGE: Thank you, I received that. MR HIRST: -- are permission and costs. Can I deal with costs. I have agreed with my learned friend for the defendant that the total of their costs should amount to £6,183. My Lord, as regards the question of costs, I have set really all I want to say in the skeleton argument. I wonder if I could just refer you to one footnote in the White Book, and it is on page 999 of Volume 1. DEPUTY JUDGE: Yes. MR HIRST: And under paragraph 44.3.8, the second paragraph, there is specific reference there made to, shall we say, special considerations for judicial review proceedings. I do not propose to read it out. My Lord, in my submission, the courts give special favour, if you like, or consideration at least, to the ordinary citizen who brings an application of this kind when he is up against the State. I have identified obviously in my skeleton argument the fact that in the course of the inquiry it was not at all clear that the Inspector was intending to consider the validity, if you like, or reliability, of the decisions in 1953 or 1957. In those circumstances, I merely suggest that it is understandable, therefore, why there should have been this application pursued. The other point I make, of course, is that we succeeded on one out of our three points. If you are not in favour of my submission that there should be no order as to costs, I would suggest that if there has to be an order that the claimant pay the defendant's costs, it should be a proportion of the costs. DEPUTY JUDGE: Thank you. MR MORSHEAD: My Lord, just in relation to the public interest point of course---- DEPUTY JUDGE: You need not trouble me on that. I wonder if it would help if I indicated my provisional view, having heard what Mr Hirst had to say and having read his note in advance. It seems to me that on the one hand the defendants have succeeded overall; that the two substantive matters, whether or not the footpaths should be redesignated as a bridle way, and whether or not the Inspector's decision as to which should stand, you were successful in relation to both. As far as the one issue was concerned, re-visiting the 1953 designation, my tentative view, I think is the best way to put it -- no, my view was against you on that. My tentative view was to do with the maintenance of the sign. Although those two matters taken together did not in the end affect the ultimate decision on either of the substantive issues, given that there is a degree of discretion in the court has to how to deal with costs, again my provisional view, subject to anything you have to say, is the Secretary of State should get 90 per cent of his costs. MR MORSHEAD: I have got something to say about that, can I just take instructions whether it is worthwhile. (PAUSE) Well, my Lord, as it will not take me long, if I may make the submission I have in answer to that. It is that the question for your Lordship, although of course, your Lordship has a wide discretion, nevertheless to start from the proposition what additional costs have been incurred, having to deal with this matter on which the defendant was unsuccessful. Of course your Lordship will have in mind that on all the grounds that the claimant relied on, he failed. The point that your Lordship has identified as having been available to him, and which might have vitiated the defendant's decision on, as it were, the historical basis of the order, is a point that came from the court. It is impossible, in my respectful submission, to grant additional costs the claimant has incurred as a result of that, or to formulate any rational basis for making a reduction in this case. DEPUTY JUDGE: Is it right, Mr Morshead, that the issue is what additional costs the claimant has incurred. I am talking about the claimant paying all bar 10 per cent of the defendant's costs. MR MORSHEAD: Well, my Lord, whether one expresses it in the way I have done, or whether one enquires what lower amount of costs would the Secretary of State have incurred, the end result, in my submission, is the same. Given the way the claim was put and pursued, it is impossible to identify how the Secretary of State could have incurred a lower amount of costs, when the same would have been involved. As the claim could not have been properly conceded, the matter was bound to come before your Lordship. The point would have only emerged in the way it emerged from the mouth of the court, and no difference would have resulted. So, my Lord, that means, as it were, the only basis on which your Lordship could exercise his discretion is an expression, as it were, of sympathy and, in my respectful submission, that is not actually a proper exercise of the discretion. Unless I can help you further? MR HIRST: My Lord, just to come back briefly. Your Lordship found that the Inspector exceeded his powers, that is the basis on which the claim was brought under paragraph 12. The defendants were concerned to uphold their Inspector and, in my submission, that is perfectly sensible, in the circumstances, why some allowance should be made for that by way of reducing the total amount of costs the defendant recovers. DEPUTY JUDGE: The issue that I have to decide is the question of costs of this application. The claimant has failed in the application. In those circumstances, the defendants asks for an order that the claimant bear his costs. The claimant in written submissions has put forward the view that there should be no order as to costs on the basis that in one respect my judgment finds that the Inspector exceeded his jurisdiction; although, in the end, that made no difference to the ultimate fate of the application or, indeed, the ultimate validity of the Inspector's findings. In my view, Mr Morshead is right to say that the starting position is that the defendant is entitled to his costs because he has succeeded. The matter could not have been conceded, indeed the Inspector's decision has in both substantive respects been upheld. However, the courts are encouraged to look rather more closely at the issues that have been canvassed between the parties, and there were two respects -- one firm and one tentative -- in which I was in favour of the arguments put forward on behalf of the defendant. It is right to say that neither of those in the end ultimately affected the outcome of the appeal, which is why, in my view, it is quite right that the claimant should have to pay a substantial parts of the defendant's costs. I also accept, understand and agree with the proposition put forward by Mr Morshead: sympathy for the claimant is not a good reason for exercising a judicial discretion to any extent in his favour. He makes one further point that one of the matters on which the claimant succeeded -- that is the decision of the Inspector to re-visit the designation of the footpath as a bridle way, on the basis of matters as they stood when that designation was first made in or about 1953 -- was on a ground that came from the court rather than featuring in the claimants' application or skeleton argument. I agree with that submission. Nonetheless, there was to a modest extent time taken in the course of the appeal in relation to matters on which the defendant has not succeeded. In the course of argument I expressed the tentative view that that should be reflected by an order that the claimant should pay 90 per cent of the defendant's costs. Having heard the submissions, I revise that slightly and the order will be that the claimant pay the defendant's costs limited to £5,700. MR MORSHEAD: My Lord, just as a matter of wording, have I understood that to mean that your Lordship is assessing summarily the costs of £5,700. DEPUTY JUDGE: That is right, yes. I did not invite you to comment on the amount, I assumed that that had been agreed? MR HIRST: Yes, it had been. My Lord, the final point is the question of permission to appeal, always an embarrassing---- DEPUTY JUDGE: Do not be embarrassed, I have done the same, Mr Hirst. MR HIRST: My Lord, three points essentially. I have set them out very briefly in my skeleton argument. I hope they are fairly clear there. The overriding feature, I would suggest, is that there is a significant point of law which does arise which is as to the effect of a permanent notice raised by a land owner which says "private road", when the question is as to whether the public have acquired public rights of way along that road. My Lord, I appreciate that your judgment -- if I can put it this way -- circumvented that particular question as a straightforward issue, a legal issue, in paragraph 8, when you concluded that the inference as to the intention of a person who erected the sign is naturally to be drawn from how the notice would be likely to be understood by members of the public who saw it in its context. The point of course that I was making was that the Inspector had misled himself, as a matter of law, by simply considering how the members of public would have understood the notice when, in fact, he should have been looking at what it said about the intention of the owner. My Lord, if I may say, the point I raise on appeal is that, my Lord, you are wrong in encapsulating it in that way, and that whilst that may be one way in looking at the evidence, the more natural and more sensible way of approaching it would be simply to consider the natural, ordinary meaning of the words. Your Lordship's approach would simply to be over emphasise the response given by those members of the public who gave evidence at the hearing, who said they merely understood it to be a private access way to the land in question. The other aspect I would criticise is in paragraph 12, where your Lordship goes on to conclude that, in any event, there appears in your conclusion to have been a decision by the Inspector whereby the Inspector did not find that the notice had been erected by the owner or somebody with the owner's authority. My Lord, that was a very late matter raised in the course of argument, in effect. My Lord, the point I would make is that the Inspector made no such clear and direct finding at all. Of course, the point I put forward in argument was that he accepted that it was likely that the sign had been erected by someone with an interest in the land. DEPUTY JUDGE: No, he did not, an interest in the matter. MR HIRST: Forgive me. My Lord, as I say, those are the three points I would submit have a real prospect of success on appeal and, in particular, as regards the meaning of "private road access only", do raise a matter which is of some importance. DEPUTY JUDGE: Thank you. Mr Morshead, anything you want to say? MR MORSHEAD: Of course it is a matter for your Lordship. I would simply remind your Lordship of paragraph 25 of the Inspector's decision letter, which in our submission is consistent with your Lordship's view of how the Inspector approached matters. He was concentrating on the correct question and there was actually evidence of that question. One of the other questions relied on by learned friend is the question of interpreting what the decision is. It is impossible to discern that without any question of law that might tempt the Court of Appeal. As for the proposition that a notice can have a meaning in law devoid of its actual context to the degree that the raises a question of law, in our respectful submission, my Lord has dealt with the matter which leaves no realistic possibility for the Court of Appeal wanting to interfere with it. DEPUTY JUDGE: Mr Hirst, I am against you. Permission to appeal is refused. You will have to go to the Court of Appeal. MR HIRST: Thank you.

Cited in 1 later judgment