Thould & Ors v Secretary of State for the Environment Food and Rural Affairs [2006] EWHC 1685 (Admin)

Case No CO/8618/2005[2006] EWHC 1685 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 07 th July 2006
Before
MR JUSTICE WILKIE
Between
GEOFFERY THOULD and OthersClaimantSECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRSDefendant(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
TIMOTHY MOULD (instructed by Birketts llp) for ClaimantJONATHAN KARAS (instructed by Solicitors to DEFRA) for Defendant
Judgment

Introduction:

[1]The claimants apply for judicial review of the decision of an Inspector appointed by the Secretary of State for the Environment Food and Rural Affairs not to confirm the Devon County Council (Bridleway No 57, South Cawton) Definitive Map Modification Order 2004. That order was dated 2 August 2004. It was made because it appeared to the County Council that the relevant Definitive Map and Statement required modification in consequence of the occurrence of an event specified in section 53(3)(c)(iii) of the Wildlife and Countryside Act 1981 namely “the discovery by the authority of evidence which…shows that there is no public right of way over land shown in the map and statement as a highway of any description”. The order was that the Definitive Map and Statement be modified as described in the schedule so as to delete part of Bridleway 57, South Cawton from the Definitive Map and Statement for the County of Devon. The Inspector’s decision was notified to the claimants by letter dated 28 July 2005 and permission was granted to seek judicial review of that decision on 13 December 2005.

The Statutory Scheme

[2]Part 3 of the Wildlife and Countryside Act 1981 makes provision for public rights of way. Section 53(1) of the 1981 Act defines the Definitive Map and Statement. Section 53(2) of the Act obliges the County Council as surveying authority to keep the Definitive Map and Statement under continuous review.

(b) provides:

“(2) As regards every Definitive Map and Statement, the surveying authority shall – … (b)…keep the Map and Statement under continuous review and as soon as reasonably practicable after the occurrence…of any of the events specified in sub-section (3), 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.”
Section 53(3)(c) (ii) and (iii) of the Act refer to the following events either of which triggers the requirement to make modifications to the Map and Statement – “(c) The discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows – … (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.” Section 66 of the Act is the interpretation section for this part of the Act. It provides, amongst other things, that a bridleway is a highway over which the public have rights of way on horse back, or leading a horse, or on foot; a footpath is a highway over which the public have a right of way by foot only; a public path is a highway being either a footpath or bridleway. It also defines a right of way as a right of way such that the land over which the right subsists is a public path or a byway open to all traffic[3]Section 53(5) of the 1981 Act grants any person the right to apply to the surveying authority to make an order modifying the Definitive Map and Statement and a right of appeal to the Defendant against the authority’s refusal to do so. Such an appeal is governed by Schedule 14 to the Act.[4]A Modification Order requires confirmation by the Defendant in accordance with section 53(6) of and schedule 15 of the 1981 Act. Schedule 15 provides for objections to a Modification Order to be heard at a public local inquiry. Paragraph 12 of schedule 15 of the Act confers a right to challenge the confirmation of a Modification Order by way of appeal to the High Court. There is no corresponding statutory provision in relation to a refusal to make or confirm a Modification Order such a decision is, however, amenable to challenge by way of an application for judicial review.[5]Thus, as in this case, there may be a sequence of decisions made by an Inspector on the same issue considering substantially the same evidence. Where a person applies to the surveying authority to make an order modifying the Definitive Map and Statement and the authority refuses to do so, that person has a right to appeal to the Secretary of State (who may appoint an Inspector to report). Where, as here, a council, either on a direct application by a person, or pursuant to a ministerial direction following an appeal from a previous refusal, makes a Modification Order which needs to be confirmed by the Defendant in order to be effective, there is provision for objections to be raised to such a Modification Order and those objections are to be heard at a public local inquiry. There may, accordingly, be successive considerations of the same issue by two different Inspectors. In this case, there was one at the behest of the Claimants which resulted in the inspector agreeing with them that the council should be required to make an order and the Secretary of State accepting the Inspector’s recommendations. There was then a second, at the behest of the interested parties to this claim, objecting to the Modification Order then proposed by the Council upon which the Inspector came to the opposite conclusion and refused to confirm the order which the Secretary of State had caused the council to be required to make.[6]In exercising his function under Schedules 14 or 15 the decision-maker is required to have regard to Department of Environment circular 18/90 which has been approved by the Court of Appeal. Paragraph 4 of that circular states:
“In making an application for an order to delete or downgrade a right of way, it will be for those who intend that there is no right of way or that a right of way is of a lower status than that shown, to prove that the Map is in error by the discovery of evidence, which when considered with all the other relevant evidence, clearly shows that a mistake was made when the right of way was first recorded….It is not for the authority to demonstrate that the map is correct, but for the applicant to show that an error was made.”
And at paragraph 7:
“Authorities will be aware of the need, as emphasised by the Court of Appeal, to maintain an authoritative Map and Statement of the highest attainable accuracy. The evidence needed to remove a public right from such an authoritative record, will need to be cogent.”
[7]In Department of Environment circular 2/93 at Annex B paragraph 13 advice is given 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 as at the relevant date of the definitive map on which the way was first shown….”
[8]In Trevelyan v Secretary of State for the Environment Transport and the Regions 2001 1 WLR 1264 the Court of Appeal identified the correct approach in law to be followed by the Defendant in relation to a modification order made under section 53(2)(b) and 53(3)(c)(iii) of the 1981 Act. The court said:
“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…”
The background facts of this matter[9]The claimants are the freehold owners of Rowan Close, Throwleigh Road, South Zeal, Devon. The Definitive Map for Devon shows part of bridleway 57, South Cawton running from Brian’s Lane to Blackaton Brook (“the order route”). The order route passes through the claimant’s property. It was added to the Definitive Map and Statement on 4 August 1967. On 14 October 1998 the claimants applied to Devon County Council, as surveying authority, for an order modifying the Definitive Map and Statement by deleting the order route. The claimants based their application upon sections 53(2)(b) and (3)(c)(iii) of the Act. They made no application under section 53(3)(c)(ii) so as to raise the limited question whether such highway as there was ought to be described as a footpath rather than as a bridleway. The issue they raised was “all or nothing” namely that there was no public right of way over land shown as a bridleway.[10]The claimant’s case was and remains that the order route was added to the Definitive Map in error. They say they have produced evidence which, when considered with all other relevant evidence, shows that there is no bridleway, nor any other public right of way, over the order route and that an order should be made deleting the order route from the Definitive Map and Statement.[11]On 17 September 2002 the County Council refused the claimant’s application for an order modifying the Definitive Map and Statement. The claimants appealed to the Secretary of State pursuant to schedule 14 and the defendant appointed an Inspector to report on the appeal. On 3 February 2004 the Inspector reported to the defendant having considered the documents, not having visited the site, but, apparently having had access to the records of the County Council evidencing the decision taking process leading to the inclusion of the bridleway on the definitive map in 1967; though, if he did so, it does not appear that he had regard to it. That Inspector came to the following conclusions “43. On balance the evidence presented, though not conclusive, is consistent with the view that no right of way exists along the route. Nevertheless it is shown on the Definitive Map to which it was added as a result of proper procedures being followed and it must therefore be assumed that some reasonable evidence of its existence was available at that time. Unfortunately, the nature of the evidence put forward in 1961 is not now known. However, we do know that the addition to the map of an adjoining section of the same bridleway was successfully challenged by the landowners and deleted. It may be reasonable to assume that the evidence for this section, which was supplied by the same person, Mrs Wonnacott was similar to that supporting the section now in question. 45.In the light of the evidence now presented when considered in totality and the uncertainty about the evidential basis of the inclusion of this route on the definitive map, it is my view that, on the balance of probabilities, no public right of way exists over this route.” That Inspector accordingly recommended that an order should be made deleting the order route from the Definitive Map and Statement.[12]In the Secretary of State’s decision letter of 29 March 2004 the defendant concluded that she:
“Accepts the Inspector’s overall conclusion and for the reasons he gives is satisfied, on the balance of probabilities, the section of bridleway number 57 South Cawton from its junction from Bryans Lane to Blackaton Brook was incorrectly marked as a public right of way on the Definitive Map. She considered that the requirements of DOE circular 18/90 have been met and that your clients have provided sufficient evidence to support their application for the deletion of the section of bridleway number 57 South Cawton from its junction with Brian’s Lane to Blackaton Brook as required by section 53(3)(c)(iii) of the Wildlife and Countryside Act 1981 to show that on the balance of probabilities a mistake was made when the bridleway was first recorded on the Definitive Map.”
[13]Accordingly, the defendant directed the County Council to make an order deleting the order route from the Definitive Map and Statement. On 2 August 2004 the County Council made the order. There were four objections to the confirmation of the order which remained outstanding as at 15 June 2005. On that date an Inspector appointed by the defendant, pursuant to schedule 15 of the Act, held a public inquiry. At the public inquiry the County Council adopted a stance of neutrality. The claimants supported the making of the order and the second and third named interested parties opposed the making of the order. This inspector held an oral hearing at which he heard from the claimants and the interested parties. He also had access to, and took fully into account, the County Council documentation evidencing the decision process which led to the making of the definitive map in 1967. On 28 July 2005 the Inspector issued his decision letter notifying his decision not to confirm the order. He stated his overall conclusions as follows:
“46. Having considered the evidence as a whole it would seem that the proper procedures were followed when the Definitive Map was compiled and that therefore there is a presumption that bridleway rights exist. The evidence used in support of bridleway rights was provided for by witness statements and a plan prepared prior to the commencement of the Definitive Map process. The order route was added to the draft map following representations from a Mrs Wonnacott and the evidence to support the addition was considered at a subsequent inquiry. Opportunities were available for objections to be made against the addition of the route onto the draft map but none were made, an objection was however made to the inclusion of the northern end of bridleway 57. 47. On balance the evidence provided by the applicants does not support the contention that an error was made when the route was first recorded on the Definitive Map. Whilst there is evidence that the route has not been used this does not demonstrate that an error was made and does not disprove the existence of a bridleway. The physical characteristics of the route currently make it impossible to use. However, I cannot be satisfied that, although there is no record of use provided by the appellants’ witnesses the route could not have been used in the past. Evidence considered when the Definitive Map was compiled would suggest that the route was indeed available and used. 48. Other documentary evidence submitted by the applicants including maps, conveyances and publications do not show the order route and were not compiled with a view to show public rights. Statements made by certain individuals that the route had been included in error are not supported by any evidence and can only be taken as personal opinions given some considerable time after the route was recorded on the Definitive Map. Conclusion 49. Having regard to these and all other matters raised at the inquiry and in written representations I conclude that the order should not be confirmed.”

Conclusion

The Claimants’ case

[14]The first ground relied upon by the claimants is that it is said that the Inspector failed to make a determination in accordance with section 53(3)(c)(iii) as indicated in the case of Trevelyan. The claimants say that three propositions can be elicited from that case. They are not disputed and are as follows: 1. The initial presumption that the disputed right of way exists and its addition to the Definitive Map was based upon reliable evidence of its existence following the proper procedures is capable of being displaced or rebutted by evidence which shows the contrary to have been the case. 2. The defendant must properly consider all the relevant available evidence in order lawfully to decide whether it has been shown that no right exists over the disputed route. 3. Such consideration must logically embrace evidence now produced by the claimants to the defendant which tends to show that all, or a material element of, the evidential material upon which was founded the original decision to add the disputed route to the Definitive Map, was unreliable for that purpose.[15]At its heart this ground focuses on the sequence of events which led to the bridleway being added to the Definitive Map in 1967.[16]That sequence of events is as follows. The published draft map in 1957 omitted the order route. In 1958 a Mrs Wonnacott objected to that omission claiming that a bridleway existed over the order route. Mrs Wonnacott also objected to the omission of eleven other alleged public rights of way from the published draft map. In 1961 an Inspector heard evidence in relation to Mrs Wonnacott’s claims as to those alleged public rights of way, including the order route, and recommended that they be added to the draft map. Thereafter objections were raised to the addition of some of Mrs Wonnacott’s alleged routes which had been added to the draft map. There was no objection to the order route, but a Miss Milne objected to the addition of a section of bridleway 57 immediately to the North of the order route. In 1963 the same Inspector heard evidence in relation to those of Mrs Wonnacott’s alleged routes which were the subject of objections including Miss Milne’s section of bridleway 57. In each case he recommended that the alleged right of way be deleted from the draft map. Mrs Wonnacott then appealed against the Inspector’s objection of her claim in relation to those alleged routes. In November 1965, the Minister of Housing and Local Government rejected her appeal. In relation to Miss Milne’s section of bridleway 57 the Minister rejected Mrs Wonnocott’s claim on the ground that the evidence did not support the existence of a bridleway.[17]The claimants say that, as the evidence of Mrs Wonnacott in relation to the order route was substantially the same as the evidence in relation to that part of bridleway 57 immediately to the North of the order route where her claim was rejected, it must therefore follow that a question is raised as to the reliability of her evidence in relation to bridleway 57. The claimants say that the way in which the Inspector addressed this issue of reliability discloses an error of law. In particular they focus on a passage in paragraph 16 of the decision letter in which the Inspector says:
“Whilst the applicants have questioned the quality of the evidence relating to the order route it cannot be right after such a period to re-examine that evidence.”
[18]The claimants say that the substantial new evidence which they have adduced, which tends to undermine the reliability of her claim and of her previous evidence, requires that her evidence must be revisited and re-evaluated. The claimants say that, by apparently refusing to address that issue in the terms of the passage in paragraph 16, the Inspector has erred in law.[19]They also say that the Inspector has erroneously given greater weight than he ought to the fact that there was no objection at the time to the addition of the order route to the draft map. They say that he wrongly used the lack of any objection as the basis for implying that there must have been evidence of use of the order route section in 1963 at the time of the appeal by Mrs Milne resulting in the removal of the bridleway over her land immediately to the North. The inspector does appear to have drawn this implication in the last sentence in paragraph 14(b) of his decision. He appears to draw an inference from a passage in the note of the appeal hearing in May 1963 which reads “Mrs Wonnacott did not attend the hearing. Evidence was given by a number of witnesses as to non user in respect of all these paths with the exception of the branches of bridleway 57 running south and west from the point marked ford…to which no objection was raised to their inclusion on the map” The inspector in the present case says in paragraph 14(b) of the decision letter: 20. …the inspector made his decision based on non user in respect of the paths identified with the exception of the branches running south and west from the ford to which it was noted that there had been no objections raised. This would appear to imply that there was evidence of use of the order route section.

The inspector in the present case says in paragraph 14(b) of the decision letter:

[20]The second, or alternative, ground is that the Inspector failed to give proper, adequate, or intelligible reasons and/or that his decision was perverse. In particular the claimants rely upon the fact that the available evidence demonstrates that it has always been impracticable to pass along the route on horse back due to its physical characteristics, that there was no evidence of actual use of the order route as a bridleway within living memory nor did the record show any such use of the order route prior to August 1967. They say that, taken together with the questionable reliability of the evidential basis in 1967 for marking the order route as a bridleway on the definitive map and the lack of any reference to it on any other relevant document, the decision of the Inspector to reject their application was perverse or that he has failed adequately to articulate his reasons for coming to such a decision.[21]In support of this proposition the claimants rely on the Inspector’s main conclusions on the physical characteristics of the order route as set out in paragraphs 38 and 39 of his decision letter. Those paragraphs read as follows:
“…I think that, with respect to the section leading to the boundary of the moor, any such route could not follow the Eastern side of the leat since there is clearly insufficient width to carry a bridleway, in many places the wall rising from the leat. There is, however, sufficient width to accommodate a bridleway along the western side of the leat although currently unavailable due to vegetation. The surface along this section is also rocky and would be difficult to use on horseback in its current condition. On entering the moor the north western side of the leat is found at the base of a steep embankment which is clearly unavailable for equestrian use, the south eastern side of the leat is formed by a narrow ridge which again would be difficult to use at present on horse back. In my opinion the current physical condition of the order route does not demonstrate that the route would have been impossible to use when the route was first shown on the definitive map but shows that at present access would not be possible for equestrians.”
[22]They also rely on the fact that, as the Inspector found, the southern end of the order route is a dead end. It stops at Blackaton Brook which has no recognised crossing points and there is no evidence to show that there ever was such a crossing point. Furthermore, there was no evidence before the Inspector to indicate that there had been any material change in the physical characteristics of the order route or its immediate surroundings in living memory, which in the case of one witness, went back to 1936. He also had found in paragraph 37 that there had been a stone wall shown across the route as early as the 1889 map, though he does say that he cannot be satisfied that at the time when the definitive map was being prepared there was not a gap through which equestrians could pass.[23]They also rely on his conclusion, as set out in paragraph 33 of the decision letter, that the evidence shows that the route was not used or seen to be used by the witnesses prior to 1957, when the draft map was published, or during the period up to 1967 when the Definitive Map was published. Though he goes on in that paragraph to say:
“I cannot be certain that the route was not used mindful of the fact that there is evidence that the route was used when the survey under the direction of Major Underhill was carried out. Evidence of use also led the Inspector in 1961 to conclude that bridleway rights existed . However, the lack of use, the lack of reputation and the inability to use the route does not necessarily indicate the absence of bridleway rights nor does it demonstrate that the route was included on the Definitive Map by mistake. Whilst use has taken place since 1967 this does not assist in determining whether or not the route was included on the Definitive Map in error.”
[24]The claimants also rely on the fact that the Inspector, at paragraph 17, accepted that there was no indication of the existence of the order route or any public right of way on the order route in any available title deed or conveyance and that, whilst both the leat and stone walls appear as physical features in successive features of the ordnance survey map, the order route has never done so (paragraphs 18-20 of the decision letter). They also rely on his acceptance at paragraphs 21 to 22 of the lack of any reference to the order route or any public right of way on the order route in the available relevant publications.[25]The claimants say that, taken together, those factors comprise a substantial body of cogent evidence to show that, on the balance of probabilities, the order route had been shown as a bridleway on the published Definitive Map in error. In particular there was no evidence before the Inspector to show that the order route had ever been used for passage on horse back. There was no evidence before him to show that it was reputed to be passable on horse back. There was clear, positive, evidence, which he accepted, that it was physically impassable on horse back and that no one had any knowledge of it having ever been used for passage on horse back or as a public right of way. The claimants contend that, faced with these facts which arose from his own findings, the Inspector was required to give proper, adequate and intelligible reason for concluding, nevertheless, that the claimants had failed to show on the balance of probabilities that a bridleway had never existed on the order route. The claimants contend that the Inspector in his decision letter failed to give any such reasons and/or that the reasons that he did give amount to perversity or evidence of failure to apply the correct approach. In effect it is said that the approach of the Inspector is such as to convert the initial presumption into an irrebuttable presumption of law. This is on the basis that the Inspector is said to have rejected the claimants’ case upon the mere possibility, unsupported by any available evidence, that the order route may have been physically passable on horse back and may actually have been used for that purpose at some time in the past. The Secretary of State’s contentions and my conclusions:[26]The Secretary of State acknowledges that the Inspector has to consider all the relevant evidence together with the new evidence which has been discovered though the Inspector has to start from an initial presumption that the right of way marked on the Definitive Map does exist. The Secretary of State contends that, provided his conclusion is one to which an Inspector could reasonably come, his decision is not susceptible to challenge. The reasons which must be given must be sufficient to enable the parties to understand on what grounds the appeal has been decided and in sufficient detail to enable the parties to know what conclusions the Inspector has reached on the principal controversial issues.[27]The Secretary of State contends that the Inspector asked himself the correct questions. Paragraphs 4, 5 and 45 of the decision letter are relied upon. It is not contended by the claimants that the Inspector has failed to address to the correct question in these paragraphs.[28]The Secretary of State says that the Inspector has, in paragraphs 7-16 recited accurately the history of the inclusion of bridleway 57 on the Definitive Map. In paragraph 16 he states:
“Having considered the issues relating to the inclusion of the order route on the Definitive Map, in the absence of any evidence that the correct procedures were not followed, I can only conclude that the decision reached by the Inspector was made on the evidence available to him. This led him to conclude that bridleway rights were presumed to exist. Whilst the applicants have questioned the quality of the evidence relating to the order route it cannot be right after such a period to re-examine that evidence. The route was added to the draft map following an assessment of the evidence which was available to the Inspector. The evidence considered was map evidence from a previous survey and the evidence of use from a number of individuals. If there was indeed no evidence of bridleway rights then the route should not have been marked on the map. In considering the deletion of the order route I must presume therefore that the right of way subsists and that some cogent evidence must be provided by the applicants to demonstrate that a mistake was made.”
[29]The Secretary of State argues that, by focussing on a particular sentence in paragraph 16 of the decision letter, the claimants have taken that sentence out of context. He contends that, if his decision letter is read as a whole, it is clear that the Inspector considered and evaluated the circumstances giving rise to the original decision including the evidence which supported the initial decision. He says it is clear from paragraph 14 (a) and (c) of the decision letter that he considered the quality of Mrs Wonnacott’s evidence and the other evidence supporting her contention in the 1960s in considerable detail. He also considered, in paragraph 14 (b), the issue of her reliability. In paragraph 46 he explicitly considered the nature of the evidence used in support of the original decision in the 1960s. The defendant says that, if one reads paragraph 16 as a whole, the sentence highlighted is simply a mode of expression used in the course of the Inspector reminding himself of the nature of the original evidence and of the fact that there is a presumption that there was sufficient evidence in the 1960s to support the Definitive Map and Plan including the bridleway across the order route.[30]In my judgment the Secretary of State is correct in this contention. It is clear, if one reads the decision letter as a whole, that the Inspector was at pains to identify the nature of the evidence available in the 1960s and had regard to that evidence as well as the evidence put before him on behalf of the claimants. In my judgment, therefore, in expressing himself as he did in a single sentence in paragraph 16 he did not err in law such as the claimants contend as he did consider and evaluate the evidence which supported the inclusion of the bridleway in the Definitive Map.[31]As for the contention that the Inspector acted unlawfully in drawing an inference that there was, in 1963, evidence of use of the order route by reason of the fact that there had been no objection to that part of the order route at the same time as Miss Milne’s objections, the defendant says that he was entitled to draw such inference. In paragraph 11 (c) of the decision letter the inspector recorded that the claimants had contended that:
“There is nothing to suggest that evidence heard at the inquiry in 1961 relating to the order route was different to the evidence rejected in relation to Miss Milne’s section. It is reasonable to surmise that had an objection been made in relation to the order route in 1963 then this section would also have been removed from the map. No objection was raised to the inclusion of the order route on the draft map because the land owner was unaware of the opportunity to lodge an objection; this assertion is supported by the statement of the land owner’s son Mr W. Jordan. The land owner at the time lived outside the parish and it is apparent from correspondence dated 22 February 1962 that even Miss Milne, who lived in the parish, was unaware of the process. The fact that the land owner failed to object does not amount to an acknowledgment of the existence of the route.”
The Inspector dealt with this contention in paragraph 14 (c) as follows:
“Whilst the evidence from Mrs Wonnacott may have been the same for the two sections it is clear from the evidence submitted by the land owners in relation to her later appeal in 1965 that additional evidence relating to “private” notices led the Inspector to conclude that no public rights extended over Miss Milne’s fields. These notices, it was accepted, had been in place for a number of years and may offer an explanation of the non user referred to by the Inspector in 1963. In view of my comments above I cannot conclude that, had the land owner objected to the order route being included on the draft map, the Inspector in 1963 would have reached the conclusion that no rights existed. In any event the land owner did not object indicating that either he accepted public rights over this section or he was unaware of the process relating to the Definitive Map. I find it difficult to conclude that the latter was the case since many other land owners were aware of the opportunities afforded to them to object. Miss Milne was clearly aware of the process having seen a notice in the Western Morning News. Had the land owner been unaware, as the applicants suggest, then I accept that this does not amount to an acknowledgment of public rights along the route.”
The defendant contends that the Inspector was entitled to take the view which he did in paragraph 14(c) that the successful appeal by Mrs Milne was on specific grounds related to the clear evidence before the then Inspector that “private” notices had been in place and indeed the route barred by locked gates for many years. This did not apply to the order route section of the alleged bridleway. Furthermore, the defendant contends, he was entitled, the issue having been raised, to express the view that it was unlikely that the owner of the order route land was unaware of the rights of appeal when his near neighbour was actively pursuing such a right of appeal. In those circumstances the inference which he chose to draw from the absence of any objection or evidence relating to non user of that part of the route was an inference which it was open to the Inspector to draw. In my judgment the defendant is correct in this contention. Whilst it is not necessarily an inference that everyone would draw from those base facts in my judgment it cannot be characterised as a perverse conclusion for the Inspector to come to.[32]As for the arguments of perversity and want of adequate reasoning the defendant says that if one looks at the decision as a whole it comprises a clear and comprehensive statement not only of the history, the factual issues, the nature of the evidence called by the claimants, the relevant law and legal approach, but also contains, in paragraphs 46 to 48, a clear and concise statement why it is that, applying the correct approach, the Inspector did not agree with the claimants.[33]Some emphasis is placed by the defendant on the material to which this Inspector plainly had regard concerning the nature of the evidence which was before the Inspector on the various occasions on which he dealt with the matter in the 1960s. That material comprised: the letter of Mrs Wonnacott dated 2 June 1958, objecting, in various respects, to the omission of what she said were public rights of way from the draft Definitive Map. In that letter she refers to the fact that those public rights of way were surveyed and the schedules prepared by the Parish Council under the chairmanship of the late Major G. Underhill and followed an earlier survey with deposited maps to which no objections were registered. She then set out the particular omitted paths including the one in question. The second source of evidence was the notes of the Inspector on the hearing which took place on 20 July 1961. The notes of Mrs Wonnacott’s evidence were full. They recount how she was elected to the parish council in 1934, giving her an opportunity of examining parish maps and ordnance survey maps and of inspecting parish history and parish rights particularly footpaths. She indicates that they undertook surveys for Okehampton Rural District Council and all their parishes before receiving circulars from the Ministry of Town and Country Planning pursuant to the then statutory scheme. They were asked to do a survey and they completed it under the chairmanship of Major Underhill. She records that the paths were walked by Major Underhill the chairman, and by Mr Reece and Mr Woods. Mr Counter walked some of the paths and she and her husband walked most of the paths. They were walked between 1949 and 1952. On certain paths they came across obstructions which they marked and put on the Schedules and sent them to the County Council. The obstructions were barbed wire, a gate and a bull in a field. She then set out in considerable detail the history of the matter and she gave evidence concerning what she said was this particular bridleway which she said she had used for over 60 years. She is the only witness to explicitly state that it is a bridleway but she says she has used the path hundreds and hundreds of times. In addition to this evidence there was evidence from Mr Wonnacott, Mrs Osborne, Mr Counter and Mrs Stone. Each of them in their own ways gave consistent evidence of having used this pathway. In particular Mrs Osborne indicated, apparently in relation to Miss Milne’s property, that they were not allowed in those two fields. There was a notice marked private which had been put up about 12 years previously. It was on the basis of this evidence that the Inspector, in 1961, made his recommendations.[34]The documentation also included the notes of evidence of the same Inspector on the occasion of the hearing of Miss Milne’s appeal. The present inspector also had available to him the letter of appeal by Mrs Wonnacott against the decision to exclude Miss Milne’s land from the bridleway as well as the decision of the Secretary of State dated 26 November 1965 rejecting Mrs Wonnacott’s appeal. That letter recorded the various contentions: on the part of Mrs Wonnacott that there had been no “private” notices on the path until some 10 years previously and of Miss Milne and a number of other witnesses that there had long been “private” notices and that the fields had always been padlocked. The conclusion of the Secretary of State on that appeal was that it appeared that there had been a locked gate and a notice board at the south of Gauls Lane leading into Miss Milne’s two fields and that the evidence of Mr Wedlake and Mr Holman showed that this had been so for almost 60 years. That disposed of the suggestion that a public right of way had been acquired by presumed dedication. The only other argument that a way existed depended entirely on the evidence of an ancient mill leat the existence of which was admitted. Whilst such persons as were interested in the mill leat no doubt had legal rights of access to it for maintenance of the flow of water there was no evidence of a general use of this way by the village at large. Thus, he concluded that the theory that there was an ancient public way on the line of the mill leat seemed to be based entirely on supposition without evidence to support it.[35]The defendant accepts that the evidence presented by the claimants to the present Inspector can properly be described as cogent and sufficient to raise the question whether, on the balance of probabilities, and notwithstanding the presumption that the Definitive Map was accurate, nonetheless the Definitive Map was drawn in error in this respect. The defendant says that the Inspector was fully entitled to take fully into account in the balance the nature and extent of the evidence upon which, in 1961, the Inspector had concluded that there was such a bridleway. That evidence was not simply the evidence of Mrs Wonnacott but it included evidence of the survey which had been conducted on more than one occasion under the chairmanship of Major Underhill as well as the direct oral evidence of four witnesses in support. Whilst it is right to say that the only direct evidence of a bridleway, as opposed to a footpath, was that of Mrs Wonnacott, the defendant says that the question for the present Inspector was not a question of downgrading the bridleway to a footpath but the question of whether there was any public right of way at all. In those circumstances, whilst the arguments and the evidence no doubt was focussed on the question of passage on horseback or the use of the route by equestrians, the Inspector was entitled, in considering whether to confirm the modification order, to have regard to all evidence of passage whether on foot or on horseback. The defendant, therefore, contends that the Inspector was entitled to conclude, on the balance of probabilities, that the nature and extent of the evidence in the 1960s, together with the specific reasons why the “Miss Milne” section of the bridleway was deleted, entitled the present Inspector to conclude that the claimants had not shown on the balance of probabilities that the definitive map and statement had been made in error in including as a public right of way the order route as part of a bridleway.[36]In my judgment the defendant is correct in this contention. Unlike the schedule 14 inspector, the present inspector took advantage of the access to the 1960s papers to assess and evaluate the quantity of evidence which supported the inclusion of the order route and which persuaded that Inspector to exclude upon appeal the Miss Milne land from the map. Having considered that evidence, as well as the cogent evidence presented by the claimants, he concluded that the claimants by their evidence had not, on the balance of probabilities, displaced the presumption that the original definitive map and statement had been correctly made. In my judgment, whilst he could lawfully have decided the other way, it was open to him to come to this conclusion and it is not a conclusion which can accurately be characterised as perverse. Furthermore his reasons for coming to the conclusion he did are sufficient to enable the claimants to know why he so concluded.[37]I may add this, given the fact that the only explicit evidence of there being a bridleway was that of Mrs Wonnacott, the remaining evidence being apparently only of passage on foot, an application under section 53(3)(c)(ii) for a downgrading of the highway from a bridleway to a footpath might well have been irresistible given the wealth of evidence the claimants have accumulated from interested parties on that issue. That, however, wasn’t the decision the inspector was called upon to make. Accordingly, for the reasons I have given, this application must fail.