“Footpath No. 12 (Narborough Road to Parish Boundary) Starts from the Narborough Road by a field gate between Morton’s Shop and the King William IV public house and runs northwards to the Parish boundary, where it joins East Winch Footpath No. 11 at a foot bridge.”
“A definitive map and statement prepared under subsection (1) of this section shall be conclusive as to the particulars contained therein in accordance with the foregoing provisions of this section to the following extent, that is to say (a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date…a footpath as shown on the map; (b)…and (c) where by virtue of the foregoing paragraphs of this subsection the map is conclusive evidence, as at any date, as to a public path…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 the relevant date…”
“(1) … (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 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 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 subsection (2) are as follows- (a)…; (b)…; (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) … (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.”
“…The main issue is therefore whether the evidence discovered by the Council, when considered with all other relevant evidence available, shows that, on the balance of probabilities, the Definitive Map and Statement require modification because: • there is no public right of way over land shown on the Map and Statement as a highway of any description or any other particulars require modification; and • a right of way subsists or is reasonably alleged to subsist over land in the area to which the Map relates.”
“The case for the order rests on an error having been made on the Definitive Map, that the description in the Definitive Statement is correct and that the Map should be amended accordingly.”
“DoE Circular 2/93 Annex B advises surveying authorities that in the case of deletions the conclusive evidential effect of definitive maps and statements means that the evidence must show that no right of way existed at the relevant date of the definitive map on which the way was first shown. The relevant date in this case is21 November 1956 .”
“I do not consider that I can look at the events specified in Section 53(3)(c)(i) and (iii) in isolation, as they are interdependent. I will consider whether there is cogent evidence to show on the balance of probabilities that the map is in error and the statement is correct.”
“I have considered if there is cogent evidence as to whether the map is incorrect and therefore there is no public right of way or the statement is correct and therefore the path subsists or is reasonably alleged to subsist. I find that the evidence shows there is no physical path on the line to be deleted and there is no evidence that use has taken place. There is also no evidence of substance that there is no public right of way. The map evidence for the path to be added is tenuous and undermined by the different lines shown by the Parish Council and others. I am not satisfied, on the balance of probabilities, that the Parish Council descriptions are sufficiently clear when put in the balance against the lack of substantiated use by the public and the obstructions in the 1950s to show that a path subsists or is even reasonably alleged to subsist. I find that on the evidence available to me I cannot resolve the conflict between the Map and Statement and therefore I am unable to confirm the order.”
“The number of each path should be placed on the map as closely as possible to its starting point, this being clearly described at the beginning of the entry, referring to that path in the schedule.”
“It is advisable to show on the maps with the appropriate symbol suggested in section 4 below, the position of every stile, gate or other means of passage.”
“It seems inherently improbable that what was contemplated by section 53 was the deletion in its entirety of a footpath…of a kind mentioned in section 56 of the Act of 1981, the existence, but not the route, of which was never in doubt…”
“38. Where the…inspector…has to consider whether a right of way that is marked on a definitive map in fact exists, he must start with an intial 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.”
“…The evidence needed to remove a public right from such an authoritative record, will need to be cogent. The procedures for identifying and recording public rights of way have, in successive legislation, been comprehensive and thorough. Whilst they do not preclude errors, particularly where recent research has uncovered previously unknown evidence, or where the review procedures have never been implemented, they would tend to suggest that it is unlikely that a large number of errors would have been perpetuated for up to 40 years, without being questioned earlier.”
“If he [the inspector] is in doubt and is not persuaded that there is sufficient to show that the correct route is other than that shown on the map, then what is shown on the map must stay because it is in the interests of everyone that the map is to be treated as definitive…”
“It would, in my judgment, be strange indeed if the detailed and extensive provisions of section 53 were to be inhibited in important or material respects from achieving an accurate up-to-date record. This would be particularly so if, notwithstanding the discovery of new evidence, an error which had been detected on the definitive map or in the statement would nevertheless be perpetuated.”
“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.”
“There are two alternative ways in which the deletion and downgrading provisions in section 53(3) may be reconciled with the provisions of section 56. The first is that adopted by Taylor J in Rubinstein’s case, 57 P & CR 111, namely by treating section 56 as pre-eminent and as limiting the operation of section 53(3). The alternative course is to interpret section 56 as not applying to the review process in section 53 at all so that the review starts from what is shown in the definitive map, but does not for its purposes treat the definitive map as conclusive. For all other purposes within the limits laid down by section 56(1) the definitive map is conclusive. In particular it is conclusive evidence in any dispute that may arise between a landowner…and…[users]…”