Jenkins v Welsh Assembly Government [2009] EWHC 1089 (Admin)

[2009] EWHC 1089 (Admin)Case No CO/10911/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT IN WALES
Civil Justice Centre,
2 Park Street,
Venue CARDIFFDate 27/02/2009
CF10 1ET
Before
HIS HON. JUDGE CURRAN QC,SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Between
LYN JAMES JENKINSClaimantWELSH ASSEMBLY GOVERNMENTDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Kevin Leigh and Philip Williams (instructed by John Collins & Partners LLP) for ClaimantClive Lewis QC (instructed by the Treasury Solicitor) for DefendantHearing Hearing dates: February 2, 2009
JudgmentHis Hon. Judge Curran QC :Introduction
[1]Mr Lyn Jenkins and his wife have a farm called Clyn-yr-ynys, at Gwbert in Ceredigion. The farm, which has been in the family since late in the nineteenth century, occupies some 350 acres of land of great natural beauty right up to the very edge of the coast. The boundary of some of the land consists of sheer cliffs, falling away to the sea below. It is close to Cardigan Island, of which it has an uninterrupted view. A colony of Atlantic grey seals may be seen on the coastline below, and dolphins may occasionally be sighted in Cardigan Bay. Sea birds of different kinds and other forms of wildlife are among the other attractions of the farm.[2]Through many years of hard work, and heavy public and private investment, Mr & Mrs Jenkins have developed a business at the farm which exploits the obvious attractions of the land, the coast, and its natural history, to tourists, whilst retaining some agricultural use of the land. They have established a “Farm Park” which members of the public may visit on payment of an entry charge. Within, in addition to the views of the coast and the wild life, there are various attractions such as rides, refreshments, amusements and a shop.[3]The relevant part of the farm and of the coastline, and the proposed route of the path are all shown upon a number of plans which are contained in the trial bundle. To avoid confusion I shall make reference only to the plan at p. 201 of the trial bundle, which was prepared by the Claimant. This shows various points which have been given letters of the alphabet: for example, point “B” is the point on the western side of Mr & Mrs Jenkins’ farm closest to Cardigan Island; point “L” is the point at which the proposed path is closest to the island; and point “F” is the most distant point to the north-east.

History of the proceedings

[4]These proceedings arise as the result of a proposals by Ceredigion County Council (“the Council”) for an Order to create, under compulsory powers granted by section 26 of the Highways Act 1980 (“the Act”), some nineteen new sections of public footpath to extend the Ceredigion Coastal Path. One of these sections is on land which includes the Jenkins’ farm, and others are close to it. Mr Jenkins was one of those who made objections to the original proposals. Despite such objections the Council made the Order on 1st March 2006.[5]Mr Allan Blackley, an inspector appointed by the National Assembly for Wales, was duly authorised to hold a public enquiry into the matter and authority was granted to him to make a final decision. The inspector’s interim decision was made on 22 March 2007 following a three-day public enquiry in January and February 2007. The order was confirmed by a final decision dated 13th September 2007.[6]Mr Jenkins makes application under paragraph 2 of Schedule 2 to the Act for an order quashing the decision of the inspector on grounds of alleged defects in its reasoning.[7]It is, I think, common ground that the Coastal Path has been adopted as local policy since 2000 as part of the Ceredigion Coast and Countryside Strategy. Measures to support coastal access were also national policy within Wales, which culminated in an announcement by the First Minister in June 2006 in respect of plans to improve access to the Welsh coastline.

Relevant statutory provisions

[8]The relevant compulsory powers and consequential provisions are as follows. “Highways Act 1980: s. 26 Compulsory powers for creation of footpaths “(1) Where it appears to a local authority that there is need for a footpath or bridleway over land in their area and they are satisfied that, having regard to -(a) the extent to which the path or way would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of persons resident in the area; and(b) the effect which the creation of the path or way would have on the rights of persons interested in the land, account being taken of the provisions as to compensation contained in section 28 below, it is expedient that the path or way should be created, the authority may by order made by them and submitted to and confirmed by the [Secretary of State,] or confirmed by them as an unopposed order, create a footpath or bridleway over the land. Section 28 - Compensation for loss caused by path creation order “(1) …if, on a claim made in accordance with this section, it is shown that the value of an interest of a person in land is depreciated, or that a person has suffered damage by being disturbed in his enjoyment of land, in consequence of the coming into operation of a public path creation order, the authority by whom the order was made shall pay to that person compensation equal to the amount of the depreciation or damage.” …. [Schedule 2, paragraph 2, which provides for a right of appeal to this court is included in full in the trial bundle at p. 229.] (a) the extent to which the path or way would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of persons resident in the area; and (b) the effect which the creation of the path or way would have on the rights of persons interested in the land, account being taken of the provisions as to compensation contained in section 28 below, it is expedient that the path or way should be created, the authority may by order made by them and submitted to and confirmed by the [Secretary of State,] or confirmed by them as an unopposed order, create a footpath or bridleway over the land. Section 28 - Compensation for loss caused by path creation order

The inspector’s approach

[9]The Inspector approached his task as follows:
“21. The main issues which I must address are the requirements of section 26 of the 1980 Act, namely whether there is a need for footpaths along the lines indicated on the plans attached to the Order and whether it is expedient to create them having regard to: (a) the extent to which the paths would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of persons resident in the area; and (b) the effect which the creation of the paths would have on the rights of persons with an interest in the land, account being taken of the provisions as to compensation. “22. The considerations to which the National Assembly for Wales is to have regard in determining whether or not to confirm a public path creation order include any material provision of a rights of way improvement plan prepared by any local authority whose area includes land over which the proposed footpath would be created. “23. I shall start by considering the need for the Order paths followed by the joint issues of convenience and enjoyment. I shall then consider whether to confirm those sections of path which are not subject to objections and one with a limited objection. This will be followed by an examination of the impact on the owners of land over which three sections of path would run. “24. The standard of proof to be applied to this case is the balance of probabilities.”
[10]Mr Leigh, who now appears with Mr Williams of counsel for Mr Jenkins, conceded in his submissions at the hearing of this application that “there is no criticism of the way in which the inspector approached his task” in respect of the matters set out immediately above. When I raised the question of the accuracy of paragraph 24 of the decision, counsel on both sides agreed that there was an evidential burden upon any party asserting an affirmative case upon a particular point, and that while the standard for discharge of such a burden could be characterised as probability, in essence whether such a burden had been discharged was a matter for the overall judgment of the inspector, rather than the result of strict application of a legal burden of proof. It seems to me that counsel are right to approach the matter in this way, as the proceedings before the inspector were more inquisitorial than adversarial in character. No criticism was made of the way the inspector phrased his references to such burden as Mr Jenkins may have assumed in making the assertions upon which he relied.

The issues before the Court

[11]The ways in which counsel for Mr Jenkins, the Claimant, now seek to criticise the decision are divided into four headings:(1) rejection upon inadequately-reasoned grounds of a sound business-case objection to the footpath;(2) inadequate consideration and decision-making in respect of issues of safety in respect of the proposed route of the coastal path which were raised before the inspector;(3) similar inadequacy in respect of legitimate objections based upon vehicle parking issues;(4) failure by the inspector to take into account objections based upon adverse effects on Mr & Mrs Jenkins’ agricultural business through the impact of the proposed footpath, with particular reference to drainage ditches. (A further point based upon alleged infringement of Mr & Mrs Jenkins’ human rights was not pursued at the hearing.) I shall deal with each of the live issues in turn, but will first consider the legal principles relevant to challenges to a decision such as this.

Challenges to planning decisions of Ministers or Inspectors

[12](1) Well-known statements of the general principles in such cases as these are to be found in Ashridge v. Minister of Housing & Local Government [1965] 3 All ER 371 CA (Lord Denning MR, Harman & Winn LJJ) at 374 D. In briefest summary, Lord Denning MR, speaking for all members of the Court, said that the court could only interfere (1) if the [inspector] had acted on no evidence; or(2) if he has come to a conclusion on the evidence to which he could not reasonably come; or(3) if he has given a “wrong interpretation” to the words of the relevant statute; or(4) if he has been (in effect) Wednesbury unreasonable; or(5) if he is otherwise guilty of an error of law. In a much-quoted passage from his judgment in Clarke Homes Ltd v. Secretary of State for the Environment & Anor (1993) 66 P & CR 263 CA (Sir Thomas Bingham MR, Rose and Waite LJJ.) Sir Thomas Bingham MR, as he then was, said at pp 271-272, “…the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.” (2) I also bear in mind the observations of Lord Brown of Eaton-under-Heywood in South Bucks DC v Porter (No.2) [2004] 1WLR 1953, HL. At paragraphs 35 and 36 of his speech in the South Bucks case, Lord Brown summarised the relevant principles as follows. The reasons for a decision must be intelligible and they must be clear. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached upon the principal important controversial issues. Although the reasons given may be brief the reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter. (3) I have also considered the cases of Seddon Properties v. Secretary of State for the Environment (1978) 42 P & CR 26, and Reg. (Sagar House Chelsea Ltd) v. First Secretary of State and the Royal Borough of Kensington & Chelsea [2005] EWHC Admin. 1251.

The Tourist/Leisure Business point

[13]Mr Jenkins made forceful representations to the inspector that the proposed path would have an inevitable and very harmful effect upon his business. Mr Leigh, in his skeleton argument at paragraph 12 summarised it thus:
“Apart from its splendid setting on the Welsh coastline and its facilities for catering and play activities, the unique selling point of the Farm Park is the view available of the immediately adjacent shore line and in particular the animals that can be seen, especially seals and dolphins.”
[14]An important feature of the splendid setting is said to be the view from point “L” on the plan which is the westernmost point of the path close to the sea. Whilst Mr Leigh conceded in argument that the inspector had recognised the significance of point L, he submitted that “he had not put that together with the claimed deleterious effect” on the business, and failure to put the two matters together has the result that the decision is unreasonable or irrational. Nowhere, Mr Leigh submitted, did the Inspector say that unique selling point of the business was point L, and that if he now took away that unique selling point, by permitting the path, it would obviously destroy or harm the business. The Inspector did not accept that there was going to be such an adverse effect on Mr & Mrs Jenkins’ leisure business. At paragraph 44 of his decision he said:
“44. I agree that both Mrs Thomas and Mr Jenkins believe that the path would have an adverse effect on their tourist-based businesses and that view was strongly expressed. The key issue is that Mr Hutchings [their solicitor] has not claimed that either submitted one jot of evidence that their business would be adversely affected. Had there been any concrete or even peripheral evidence of an adverse effect I do not doubt that Mr Hutchings would have presented it in evidence. In other words the claim of adverse business effects is an unsupported assertion.”
[15]As to that, Mr Leigh submits that the deleterious effect on the Farm Park business is too obvious for words. Evidence of it is unnecessary. The Inspector visited the site and was well able to see the setting for himself. He said, “48. Both farms contain a strong tourist business and both have clearly been built up successfully. At one point Mr Hutchings noted that the starting point for any business was ‘Location, Location, Location.’ Indeed, so it seems perverse to me that both Mrs Thomas and Mr Jenkins see the development of a major tourist attraction on their doorsteps as a threat rather than an opportunity. Further there was no evidence that it has ever been the intention of the Council, who Mr Jenkins acknowledged had been helpful in the development of the Farm Park, to place two successful businesses in jeopardy. Nevertheless, the issue concerns the livelihood of two families so it seems essential to me to consider other factors as I believe that valid concerns do exist. 16. …… “54. …. Mr Jenkins believed that the path would give free entry to his Farm Park. The Park lay very largely to the west of point L and it was only in 2002, after the path consultation had taken place, that some additional land to the east of point L was added. Use of this land by the Park was limited by planning condition to tractor/trailer rides. The proposed path would allow path users to see what the paying visitors may see from the trailer at the Park extension. This was the limited extent of the direct intrusion of the proposed path on Mr Jenkins’ business. …… “56. However, path users approaching from Mwnt and close to the end of their walk could be drawn to the Farm Park to view the attractions or enjoy refreshments. The land at point L is higher than the main area of the Farm Park and so gives a panoramic view of it. While I doubt that many would consider actually trespassing, nevertheless the Farm Park clearly forms a substantial part of Mr & Mrs Jenkins’ livelihood and it seems to me that it would be unacceptable to take avoidable chances with that. I believe that it would be wise to create a significant obstacle to trespass into the Farm Park from this area. “57. A stout fence would seem a suitable obstacle. It should start near the existing point K and run on the landward side of the part boundary bank which runs between point L and K (plan xviii) until joining the proposed path on the south side of the boundary bank from the proposed point L. The fence should continue to point M….. The Council agreed that fencing could assist in preventing trespass and I believe that this proposal should act as a deterrent to trespass in the area of point L. It should also ensure physical separation between Farm Park paying visitors and path users, which would not occur under the Council proposals, and which seems necessary to me in terms of maintaining the integrity of the Farm Park business. Finally, as Mr Jenkins noted that he drives the tractor rides himself on its journey to the east of point L he should be able to maintain a degree of oversight whether any path users attempt to enter the Farm Park by this back door. “58. This minor re-alignment of the path across Mr Jenkins’ land may not be welcome by all path users but both main parties at the inquiry agreed that the application of the test of expediency in s26 of the 1980 Act required the beneficial right for the public to be balanced against the impact on the private landowner. It seems to me that this re-alignment proposal would be just such a balance.”[16]Despite such express references to the Jenkins’ Farm Park business, Mr Leigh submitted that wholly inadequate consideration was given by the Inspector to the inevitable commercial damage which would be caused as the result of members of the public being able to walk to point L, or to the Pen Tew headland at points T to F, without payment. As to this point however, it is clear from the plan at p. 201 there are much better viewpoints on Mr Jenkins’ land than point L: Point C, and especially point B, which is the closest to Cardigan Island (as Mr Jenkins pointed out at p. 3 in his Claim Form.) Non-trespassing users of the path would be unable to go to these points without payment, and it may be significant that the paying customers’ tractor-and-trailer ride route includes point C, and continues in land parallel to a line between points B to A. As to this, Mr Leigh submits that the inspector erroneously ignored, or failed to give proper weight to, the opportunity “for so many people using the proposed path to obtain views across the Farm Park from points that they would not otherwise be lawfully allowed to stand on.” In one go, it is submitted, the creation of the path will remove a unique feature upon which the business depends.[17]Mr Lewis QC, for the Welsh Assembly Government, submitted that all that the Inspector has decided is that there is no evidence of detriment to the business. He considered the “point L issue” and decided that such concerns as he recognised were capable of resolution by means of re-routing the path to the south and the provision of a stout fence. It is therefore wrong to assert that the Inspector has not dealt with such matters as were in evidence. He did deal with them. I accept Mr Lewis’s submission.[18]The Inspector’s comments in his final decision upon the absence of evidence of adverse effects on the business were made in fairly trenchant terms: see the quotation set out at paragraph 28 below, in the section of this judgment dealing with the parking issue. Having reviewed the inspector’s decision in the light of all the material placed before him and before me, and the submissions made upon it, I consider that his comments were entirely justified. Safety.[19]In dealing with safety, the inspector said at one point, “I believe that it would be wise to leave the judgement of safety and risk to those who have responsibility for the paths, the Council, …” (paragraph 68.)[20]Mr Leigh submits that in putting the matter in this way the Inspector has “ducked the issue” and that the way he deals with it, by effectively saying it is all a matter for the council, undermines his whole decision. It is for the inspector and not for the council to make a decision about such matters. The inspector has, it is submitted, plainly failed to consider and failed to make a decision upon an important matter.[21]In my view the Inspector’s conclusions on the safety issue have to be considered in the light of the whole section of his written decision which deals with safety. If that is examined with care it may be seen that he considers, for example, the following points:(1) The submission made on behalf of Mr Jenkins that pinch points were a greater risk than normal even for a coastal path. Given the height of the cliffs, it was submitted that “there was no margin for error.” He specifically referred to this submission at paragraph 67, and considered pinch points later on at paragraph 69.(2) Having addressed the issue of safety with this specific site in mind, he took account of the fact that the Council were unable to see anything that would give rise to greater safety issues along this path than in many other locations: paragraph 67.(3) In paragraph 68 the inspector made it clear that whilst the draft Safety Statement and Risk Assessment submitted by the Council referred to general ways to manage risk on all footpaths, (a) the Coastal Path was “addressed separately” in a number of areas; (b) the Council had made it clear to the inspector that they had given separate consideration to the issue of safety on the Coastal path; (c) the Council had detailed knowledge of the land over which the path would run and of the weather conditions to be expected from time to time; and (d) the Council were the authority with responsibility for the paths.(4) The inspector considered, at the end of paragraph 68, the implications of the fact that large sections of other stretches of coastal path were already in use: this seems to have been regarded as providing something of a test for the reliability of point (2) above. In other words, the inspector considered that the Council’s view as to the safety issues for this section of path was to that extent not merely a theoretical or hypothetical one, but empirical, in the sense that it was informed by actual experience of other sections.(5) He recorded the fact that no evidence was put before him that there had been any safety problems along the large sections of Coastal path already in use: ibid.(6) As to one particular safety consideration, several of the pinch points were little more than the minimum required for safety under paragraph 3a of the draft Safety Statement, which provided that a path would be closed should a cliff “advance to less then two metres from the path edge.” He said that he was content that his proposal at paragraph 57 to bring the path to the landward side of the fence line nearest the sea (and a similar proposal at paragraph 64 in respect of land owned by a Mr and Mrs Thomas) would result in a greater width than the minimum required for safety: see paragraph 69.[22]Mr Leigh says that this mention of the proposal in paragraph 57 demonstrates an illogical approach, as he has singled out this section (between points L and M) and has not considered similar factors at other points between points J and F. This criticism seems to me to overlook the fact that the Inspector expressly refers to “several of the pinch points” in paragraph 69, where this matter is dealt with, and also to pinch points more generally at paragraph 67. The emphasis he gave to the particular point between L and M seems to me to reflect the emphasis given to it by the parties during the enquiry, for a variety of reasons including safety. I do not accept that he failed to have regard to other seaward sections of path.[23]This is a coastal path, which is in places a cliff-top path: where it runs along the top of the cliffs it is self-evidently on the seaward side of the land over which it runs. Cliff-top paths carry the obvious risk that they are at the top of a cliff. That is part of their attraction, and the public can use them in safety provided they are not so narrow as to become precarious. A minimum width of two metres cannot possibly be regarded as so narrow as to be unsafe in this sense. The inspector demonstrated, in my judgment, that he had considered the safety issues for the whole path, and that he was satisfied that the Council had also properly considered them: see paragraph 68. Provided that a minimum width was accepted for safety purposes, which, as he pointed out, the Council had done in paragraph 3a of their draft, he considered the matter had been dealt with adequately. He cannot be said to have abrogated his responsibility by “leaving matters to the council” as it is put in paragraph 42 of Mr Leigh’s skeleton argument. It was for the council to put forward draft safety proposals. They had done so. Other interested parties had the right to challenge those proposals or to put forward alternative or additional proposals. They had also done so, and the challenges and suggestions were aired at the enquiry. Far from washing his hands of the issue, the Inspector demonstrated that he had considered such matters: see the examples I have set out as points (1) to (6) above. The practical implementation of the policy was a matter for the Council.[24]The inspector dealt with further concerns raised by Mr Jenkins under this heading at paragraphs 70 - 72 of his decision. In the circumstances, I conclude that the inspector approached the matter both logically and comprehensively and I do not accept Mr Leigh’s submissions on this point. Parking[25]A point also arises over the way in which the Inspector dealt with parking considerations. “78. A more likely scenario seems to me to be that anyone without a detailed knowledge of the local area will in all probability arrive at the start of the Coastal Path in a vehicle. There are then two practical options, the first being to park at the side of the narrow public road which could soon lead to congestion and road safety concerns. Others may be tempted to take the private access road to the Farm Park which leads from the same spot as the start of the Coastal Path and looks exactly like the public road. It seems entirely possible to me that the public could then park along the private access and it would only take a few cars to cause congestion and confusion as suggested by Mr Jenkins. Either way, it would not assist in presenting the Farm Park in an attractive light. I accept that Mr Jenkins has insufficient personnel to monitor the car park and the access road. “79. It is difficult to judge how many people may arrive at the start of the path in a vehicle but it seems most unfortunate that car parking facilities have not been included in the Coastal Path project. This problem could jeopardise the integrity of the Farm Park and may not permit the desirable separation of paying visitors and path users at the Farm Park entrance as already provided for in the area of point L, see paragraphs 56 and 57. In the wider sense this seems likely to suppress the full potential of the Coastal Path in terms of attracting more people to the area until parking facilities are provided and in the narrower sense is likely to impact adversely on the Farm Park for which realistic compensation would seem appropriate.”[26]Whilst Mr Leigh placed this point within the ambit of his submissions on general adverse effects on the business, some discrete consideration of it was necessary in respect of the question of compensation under section 26 (1) (b). The Inspector found that Mr Jenkins had “failed to discharge the burden of proof upon him” in respect of his general business case. However, he found (in effect) that until parking facilities are provided the creation of the path is likely to impact adversely on the Farm Park in that particular respect. It was therefore open to him take account of the provisions for the making of compensation to Mr Jenkins.[27]The provisions regarding compensation set out in section 28 provide that, “(1) … if … it is shown that the value of an interest of a person in land is depreciated,” [or] “that a person has suffered damage by being disturbed in his enjoyment of land” [as the result of a public path creation order, the authority which made the order] “shall pay to that person compensation equal to the amount of the depreciation or damage.”[28]In his final decision (pp 143ff) the Inspector said, “7. …Farm Park business. This was also addressed during the inquiry as recorded at paragraphs 42-48 of the interim decision. No evidence of business detriment has been submitted in the objections to the proposed modifications and neither was it during the inquiry. “8. On a point such as this, it is not for the Council or anyone else to prove that there would be no adverse effect on the business but rather the burden falls to Mr Jenkins to demonstrate that there would be business detriment. Paragraph 46 of the interim decision makes it clear that not only did Mr Jenkins submit no evidence of business detriment to the inquiry but he attempted to deflect questions directed to his reasons for declining a Council offer to seek independent specialist advice on the effect of the proposed path on Farm Park business. “9. All submissions by Mr & Mrs Jenkins and the objectors concerning public trespass and the effect of the path on Farm Park business consist entirely of assertions. Repetition of such assertions does not disguise the absence of any evidence to support their case, indeed in my view after a time it serves merely to highlight the lack of evidence. There is no substitute for hard evidence and unsupported assertions fall a long way short of that.”[29]The inspector was plainly of the view that the general case advanced on business detriment consisted of pure speculation, not merely unsupported by evidence, but deliberately made after the rejection of an offer of independent specialist advice at public expense. He appears to have considered that such speculation was, if anything, less valid than the tenable (although also speculative) view that the making of the order was more likely to result in increased business for the Farm Park. In the absence of evidence, however, it was impossible to take make any judgment other than that the general deleterious effect suggested by Mr Jenkins, of which there was no evidence, should have no weight.[30]The parking point, by contrast, was a discrete issue. If the arrival of numbers of cars as the result of the creation of the order results in blocked access to the Farm Park, for example, measurable loss is likely to occur, for which a claim for compensation may be made. Such loss is likely to continue for so long as no adequate provision is made for parking. But if such provision is made, the loss is likely to cease.[31]In those circumstances I conclude that the inspector reached his decision taking all relevant matters, including the availability of compensation, into account, in accordance with the relevant statutory provisions. He was entitled, on the evidence before him, to reach the conclusion he came to.

Agricultural business

[32]There is a point made on behalf of Mr Jenkins under this heading which is not made in the Claim Form, which he completed personally. It is said that since the enquiry, “it became apparent that a number of ditches along the edge of the fields where the path will follow had been considerably deepened since the site visit by the inspector ….” (paragraph 9 Claimant’s counsel’s skeleton.) “While the deepened ditches would not by definition have been apparent to the inspector, the likelihood of drainage and existence of ditches used in connection with farming would have been in his mind under the need to take account of the effect on agriculture and their presence on the site visit (albeit much more shallow)” (paragraph 19 of the skeleton.) Three further points are made at paragraphs 45 to 48 of the Claimant’s skeleton. Not merely are none of these matters alluded to by Mr Jenkins himself in the Claim Form, none of them (obviously) was canvassed with the Inspector by him or his solicitor either at the enquiry or the site visit. The Inspector plainly saw the ditches as they were on the date of the site visit, and he says at paragraph 72:
“72. Mr Jenkins was also concerned where a second path fence would be positioned in relation to existing fences and ditches. The Council explained that wherever possible paths would run on the seaward side of the fences closest to the cliff edge. A second fence would rarely be built in parallel with an existing fence unless essential for some purpose as that would give a closed-in feeling along the path, entirely against the open nature of a coastal path. Neither would the path be positioned along a ditch where, for example, it ran beside a fence or line. The path would be placed on the outside the ditch with ample opportunity for ditch clearing equipment to work.”
[33]No complaint is made as to the content of this paragraph, which in my view was as much as the inspector could have been expected to say in the absence of any point whatsoever being made about ditches by Mr Jenkins beyond what he said about the positioning of fences, to which the inspector expressly referred. In my view the complaints which are made in the skeleton argument under this heading are unsustainable, on the admitted basis first that they were not raised before the inspector, and secondly that in part at least they depend upon matters which have arisen since his decision. It would have been irrational for the inspector to have based his decision on matters which were not raised in evidence before him. Neither in law nor in logic is it possible to find fault with his decision by saying that he failed to take such matters into account.[34]As I have already mentioned, the “Human Rights” point raised in the pleadings and the skeleton arguments was not, in the event, pursued at the hearing.

Conclusion

[35]Having considered every matter urged on behalf of the Claimant in his challenge to the decision of the Inspector I consider, for the reasons given under each heading respectively that the Claim fails, and this application is dismissed.[36]I direct (under CPR Part 39 PD 6.1) that no tape-recording need be made of this judgment, and that copies of this version, subject to editorial corrections, may be treated as authentic. It may be released confidentially to solicitors and counsel (as agreed at the hearing) on a confidential basis so that they may consider it(1) to draw to the attention of the court any minor corrections or amendments that should be made to the judgment before it is handed down;(2) to prepare drafts of any consequential orders (whether agreed or not) which may have to be made upon handing down; and(3) to prepare any submissions on costs or for permission to appeal.[37]This judgment will be formally handed down on the date indicated. If the parties are able to agree a formal order to give effect to the terms of the judgment, and to lodge the same before that date, no party need attend upon the handing-down. If this is not done, or if there are any applications to be made, the parties must attend upon the date fixed for handing-down or on such later date as may be agreed with the listing officer. In the latter event, no order will be made upon the handing-down save an order declaring the court’s determination of the issue, all other matters then being adjourned to a later hearing, and all relevant time limits extended to 21 days after that hearing or further order.