Dorset County Council, R (on the application of) v DEFRA [2005] EWHC 3405 (Admin)

Case No CO/1761/2005[2005] EWHC 3405 (Admin)N THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONTHE ADMINISTRATIVE COURTVenue Royal Courts of JusticeStrandLondon WC2Date Wednesday, 20 th July 2005B E F O R E:MR JAMES GOUDIE QC
Between
THE QUEEN ON THE APPLICATION OF DORSET COUNTY COUNCILClaimant-v-
Between
DEFRADefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR JOHN HOBSON QC & MR ROBERT WALTON (instructed by Legal & Democratic Services) appeared for CLAIMANTMR JONATHAN KARAS (instructed by DEFRA Legal Service Directorate) appeared for DEFENDANTMR DAVID FLETCHER (instructed by Messrs Simpson & Co) appeared for INTERESTED PARTY
J U D G M E N T
[1]MR GOUDIE: This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by Ouseley J on 23rd May 2005. The claimant County Council seeks to challenge the decision of the Secretary of State's Inspector on 20th January 2005 not to confirm the Dorset County Council (Bridleways 3 and 11, Edmondsham) Definitive Map and Statement Modification Order 2002. The Council, as the surveying authority, had decided to make the order under section 53 of the Wildlife and Countryside Act 1981 (the Act) because the Council believed that the route had been incorrectly shown in the Definitive Map drawn up in 1989. The Council considers the proper route is B to C and not A to B as shown on the plan. The Inspector, however, determined that there was insufficient evidence to justify such an alteration.[2]The claimant contends that in deciding not to confirm the order, the Inspector wrongly accepted the submission made to him by counsel for the interested party that section 53 subsection 3(c) of the Act "could only be used as a foundation for revealing fresh evidence which the council had failed to take account of when compiling the Definitive Map" and would not include the discovery of an error, made on the basis of a cartographical error or misunderstanding of material available at the time the map was drawn up.[3]The claimant states that the issue raised on this application is whether or not a modification order under section 53 can be made in consequence of the discovery of a mistake, such as a cartographical error made when the map was drawn up, even though the material upon which the mistake was made was not only available to but also had been considered by the Order Making Authority. The claimant advances three grounds. The first I have already referred to, that the Inspector wrongly accepted the submissions which I have identified. The second ground is that the Inspector's reasoning was inadequate, and the third that the Inspector failed to take into account the various historical maps relied on by the Council.

Mr Justice Ouseley, in refusing permission, stated:

"Even if it is just about arguable that the width of section 53 3(c) of the 1981 Act is sufficient to permit this asserted error to be within it and that the various Court of Appeal decisions which point strongly the other way were not directly contemplating this problem, I do not consider that the Inspector reached an arguably legally inadequately reasoned decision on the existence of any error or omitted from his mind the relevant maps, even though he is brief."
Section 53 2(b) of the Act provides that as regards every Definitive Map and statement, the surveying authority should keep them under continuous review and make such modifications as appear to them to be requisite in consequence of the occurrence of an event specified in subsection 3. There must, therefore, be a relevant "event". These events include (c) the discovery by the authority of evidence which, when considered with all relevant evidence available to them, shows that a "right of way which is not shown in the map and statement subsists, or is reasonably alleged to subsist over land and in the area to which the map relates." There must therefore be a discovery and the discovery must be of evidence.[5]The Secretary of State and the interested party submit that modification on the ground in question may indeed be made where there is the discovery by the authority of evidence; however, that the reinterpretation of evidence previously before the authority is not a ground for modification and that the claimant's case was based upon the interpretation of evidence previously before the authority which is not the discovery of evidence. The Secretary of State and the interested party further submit that this interpretation is consistent with authorities, including the decisions of the Court of Appeal in R Secretary of State for the Environment v ex parte Simms and Burrows [1991] 2 Queen's Bench 354, per Purchas LJ at 380, who refers to the discovery of new evidence, per Glidewell LJ at page 388, who refers to the finding of some information which was previously unknown, and per Russell LJ at 392; Fowler v Secretary of State for the Environment & Devon County Council [1992] 64 Property and Compensation Reports 16 per Farquharson LJ at 22, who referred to fresh evidence; and Trenchard v the Secretary of State [1997] EWCA Civil 2670 per Pill LJ, referring to further evidence becoming available and approving a definition of discovery as connoting a mental process in the sense of the discoverer applying his mind to something previously unknown to him.[6]The Council's witness, their Senior Rights of Way Officer, Mr Slade, referred, in his witness statement before the Inspector, to the Definitive Map published in 1967 and continued:
"The effect of the route being shown in this way on the Definitive Map is conclusive evidence that there was, at that time, a right of way for the public on that route on foot, on horseback, or leading a horse. However, the Revised Draft map published in 1974 shows the line of the bridle-way had been moved north ward on to the line of the road on the northern side of the triangular paddock. There was no legal basis for moving this line as there had been no intervening legal order to divert the bridle-way. Therefore, it can only have been done in error. As there was no objection, this error was repeated in the current edition of the Definitive Map published in 1989."
[7]On 28th July 1992, however, Mr Slade himself had written as follows:
"You asked how it came about that the route of Bridleway 3 had altered between the two editions of the Definitive Map. The effect of the alteration was to route the bridleway along the hypotenuse of the triangular area, instead of taking the longer route along the northern boundary of 'Hillside'. Following a query from a Mr Bennett of Twiseldown Farm in 1979, it was discovered that the route across the common was in fact a road, for reasons set out in my reply to Mr Bennett of which I enclose a copy. The plan accompanying the enclosure award, which is quite detailed, shows the route of the road passing a little way to the north of where Hillside now is. The road was then added to my map of County Roads. The route of Bridleway 3 was amended on the Revised Draft Map to coincide, as nearly as possible, to the legal route as shown on the Inclosure Award. There having been no objections to the alteration during the time allowed, the corrected route was published in the new edition of the Definitive Map."
A reason therefore was given, namely to coincide as nearly as possible to the legal route as shown on the enclosure award.[8]The Inspector gave his reasons as follows at paragraphs 11 to 18 inclusive of his Decision Letter:
"11. The case for the council was that the inclusion of Bridleway 3 on the Definitive Map in 1989 was due to a cartographical error. They asserted that the existence of the claimed route on the first Definitive Map of 1967 accorded with the route as shown on earlier maps, going back to the Ordnance Survey map of 1887, which itself was based on surveys as early as 1870."
I interpose that the Inspector clearly refers to the Council's case, being that there had been a cartographical error and that the Council were relying on cartographical evidence:
"12. The 1989 Definitive Map is conclusive evidence, as provided by section 56(i) Wildlife and Countryside Act 1981, of the existence of the rights of way shown thereon. It follows that the Council must produce cogent evidence to justify any modification they propose."
I interpose that that is the correct starting point:
"13. Mr Fletcher submitted that section 53(c)(i) of the 1981 Act could only be used as a foundation for revealing fresh evidence which the Council had failed to take account of when compiling the Definitive Map. He cited a sentence from the Encyclopedia of Highways Law [which is then set out]. He contended that a cartographical error would have excused a patent error, such as the line of the bridleway running through Hillside, as shown on the provisional map of 1964, Mr Crowther responded that if the view cited from the Encyclopedia were correct, there would never be any opportunity under the 1981 Act to make a modification of the Definitive Map to correct a slip of the pen."
I interpose that Mr Fletcher was counsel for the objectors and Mr Crowther was a solicitor with the County Council. "14. I accept Mr Fletcher's interpretation of the Mayhew case [that is the case cited in the quoted sentence from the Encyclopedia]. The word 'discovery' connotes a mental process of the discoverer applying their mind to something previously unknown to them." I interpose that this is a clear ruling on the issue of law which arises and indeed is expressed in terms of the definition of discovery, approved by the Court of Appeal in the Trenchard case, to which I have referred:
"15. An objector referred to a letter written on 28th July 1992 to a member of the Council by Mr CJ Slade, Rights of Way Officer, with the Council (Document 8). It was argued that the letter indicates that the Council chose the line shown on the 1987 [sic] Definitive Map as it recorded the actual use on the ground."
I interpose that the reference there to 1987 should plainly be a reference to 1989 and that the letter referred to is not one that is dealt with in Mr Slade's witness statement. I further interpose that this letter indicates that the line was chosen deliberately and not by mistake. "16. Three aerial photographs were put in evidence by Mr Brian Davison, who objected to the Order. They were taken at different times between 1944 and 1947 [Documents 5, 6 and 7 respectively.] Both he and the Council used their interpretations of the photographs to support the existence on the ground of the respective routes. I have studied the photographs with great care and concluded that they show Bridleway 3 clearly and the claimed route hardly at all." I interpose that the Inspector is summarising the evidence bearing on whether or not there had been an error and the respective contentions of the parties. Paragraph 17 is a critical paragraph and is obviously to be read in the overall context:
"17. The Council have not produced any evidence to convince me that the movement of the line of the bridleway north ward on the Revised Draft Map of 1974 could only have been done in error. The letter from Mr Slade, referred to in paragraph 15, provides an alternative view as to the reason for the changing line. I consider that view to be more likely."
I interpose that the Inspector is there with brief reasons giving his appraisal of the evidence and concluding that, on the balance of probabilities, there was not an error but rather that there had been a deliberate choice:
"18. For these reasons, I conclude that there is insufficient evidence based on the documents submitted to me to persuade me to modify the Definitive Map to record the claimed route."
In other words, the Inspector duly considered the Council's evidence, and of course the documents submitted to him included the maps, but he was not persuaded by it.[9]In my judgment, the Council has wholly failed to show that it has discovered any evidence. What it has done is to reinterpret the evidence that had been before it all along. I cannot see that that can arguably come within section 53 3(c)(i). There must be a discovery, but there has been none. One does not discover a different interpretation and if one could do so, the process of mind changing could go on indefinitely. Moreover, even if a mistaken interpretation would suffice, it was an issue of fact for the Inspector whether or not an error had been made. There was conflicting evidence as to that. In my judgment, the Inspector did not err in his approach to the evidence and came to a conclusion to which he was entitled to come. I therefore refuse permission.