Perkins & Anor v Secretary of State for Environment, Food and Rural Affairs [2009] EWHC 658 (Admin)

[2009] EWHC 658 (Admin)Case No CO/2675/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 th March 2009
Before
SIR GEORGE NEWMAN(Sitting as a Deputy High Court Judge)
Between
(1) MR ALAN W D PERKINSClaimants(2) MRS PAULINE PERKINSClaimantSECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRSDefendantHERTFORDSHIRE COUNTY COUNCILInterested Party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Alan Perkins for ClaimantsMr Tim Buley (instructed by The Treasury Solicitor) for DefendantHearing Hearing date: 4 February 2009
Judgment

Sir George Newman :

[1]This is a statutory appeal made pursuant to paragraph 12 of Schedule 15 to the Wildlife and Countryside Rights of Way Act 1981. The claimants seek to challenge the decision of an Inspector, Ms Helen Slade, appointed by the defendant to hold a public inquiry to determine whether or not to confirm two footpath orders made by the Hertfordshire County Council (“the Council”). The orders in question were the Hertfordshire County Council (Ridge 20 and Shenley 23a) Modification Order 2005 (“Order A”), and the Hertfordshire County Council (Shenley 23a and Ridge 20) Modification Order 1995 (“Order B”). The Inspector decided to confirm Order A and not to confirm Order B. The instant challenge is to the decision to confirm Ordera. A. The claimants have not complained of the decision not to confirm Orderb. B. On the contrary, they have prayed it in aid of their submissions, which Mr Perkins presented to the court courteously and carefully. The issue at the heart of the appeal is whether the Order adequately and accurately identifies the route of the footpath over the claimants’ land.[2]The Inspector confirmed Order A subject to modifications which necessitated giving publicity to those modifications and holding a further public inquiry to consider whether to make them or not. It is the First Order Decision which contains most of the substantive reasoning of relevance to this claim.

Factual Background

[3]Order B was made in 1995. Its broad effect was similar to the effect of Order A which was made in 2005. Its existence as an unconfirmed order had apparently been forgotten by all involved until it surfaced during the present inquiry process. The Inspector, in my judgment sensibly, took the view that it was appropriate for her to consider whether to confirm Order B at the same time that she considered Order A, so as to be in a position to consider which order more accurately reflected the routes of any footpaths and so as to provide finality. The Inspector concluded that Order A more accurately reflected the true routes of the various footpaths in question and hence chose to confirm that order. Between the making of Order B and Order A the Council made a further order in 1997 (Ridge 20 and Shenley 23a). It was quashed and the result of the quashing of the 1997 Order was that the Council made Order A in 2005. That in due course led to the inquiry before the Inspector.[4]The claimants place considerable emphasis upon the proceedings before Collins J in February 2002 which proceedings were adjourned and were then settled by consent to include the quashing of the 1997 Order. The claimants submit that the Order confirmed by the Inspector is equally not within the Act being incapable of interpretation and lacking in definition. In particular, it is submitted that the plan fails to locate the proposed footpath Shenley 23a in the correct location. The Consent Order recorded that the Order map had failed to attain the necessary degree of accuracy as required by the Wildlife and Countryside Act 1981.[5]Section 55(3) of the 1981 Act provides for the preparation of a Definitive Map and Statement by local authorities showing the rights of way recognised as subsisting in their area. In some cases such Maps and Statements may have been prepared under earlier provisions, namely the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”).[6]The effect of the Definitive Map and Statement is prescribed by section 56 of the 1981 Act:
“(1) A definitive map and statement shall be conclusive evidence as to the particulars contained therein to the following extent, namely— (a) where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover a right of way on foot, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than that right; (b) where the map shows a bridleway, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover at that date a right of way on foot and a right of way on horseback or leading a horse, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than those rights; (c) where the map shows a byway open to all traffic, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover at that date a right of way for vehicular and all other kinds of traffic; (d) where the map shows a [restricted byway], the map shall [, subject to subsection (2A),] be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover at that date a right of way on foot and a right of way on horseback or leading a horse [together with a right of way for vehicles other than mechanically propelled vehicles] , so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than those rights; and (e) where by virtue of the foregoing paragraphs the map is conclusive evidence, as at any date, as to a highway shown thereon, any particulars contained in the statement as to the position or width thereof shall be conclusive evidence as to the position or width thereof at that date, and any particulars so contained as to limitations or conditions affecting the public right of way shall be conclusive evidence that at the said date the said right was subject to those limitations or conditions, but without prejudice to any question whether the right was subject to any other limitations or conditions at that date.”
[7]This section was considered in R v SSE, ex p Burrows and Simms [1991] QB 394. In Burrows Purchas LJ stated that the 1981 Act recognises “the importance of maintaining, as an up-to-date document, an authoritative map and statement of the highest attainable accuracy”. The claimants draw particular attention to this dictum. The Definitive Map and Statement is declaratory of what rights exist but questions can and do arise, in the context of decisions under section 53, as to whether it should be modified in the light of new evidence, changes in the law, etc. as well as because of merely prospective changes such as modification orders.[8]The structure of section 56(1) of the 1981 Act shows that, in broad terms, the purpose of the map is to confirm the existence of the route and the purpose of the statement is to provide greater detail as to the particulars of its position or width. In R (Norfolk CC) v SSEFRA [2006] 1 WLR 1103, Pitchford J had to consider the position that arose where there is a conflict between the Definitive Map and the Statement. The Inspector considered the effect of the case and concluded that the map and the statement being “… legal documents”, it was clearly “… in the interests of everyone that they” were “… produced to the highest degree of accuracy possible”. Pitchford J observed that: “... the purpose of the discretionary particulars was to provide detail and clarity as to the position of a right of way shown no the map ...”. (para 40)[9]Regulation 2 of the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (“the 1993 Regulations”) states:
“2. Scale of definitive maps A definitive map shall be on a scale of not less than 1/25,000 but where the surveying authority wishes to show on a larger scale any particulars required to be shown on the map, in addition, an inset map may be used for that purpose.”

The Grounds of Challenge

[10]The claimants challenge the decision of the Inspector to confirm Order A in the way that she did on essentially two grounds:(1) Ground 1: Accuracy. The Inspector erred because she elected to delete the additional plan from Order A and/or failed to include a more detailed plan showing the order route with greater precision and/or in other respects because in so doing she failed to comply with the duty to ensure that the map and statement were of the highest attainable accuracy.(2) Ground 2: Breach of Consent Order. The Council, in making Order A, and/or the defendant, in confirming it, were in breach of the High Court Consent Order in respect of the 1997 Order.

Ground 1: Accuracy

[11]The claimants have made a number of complaints relating to lack of precision in the way in which the new footpath, Shenley 23a, is shown in the Order as confirmed. The thrust of the complaints is that the Order should not have been made because, despite efforts to achieve clarity required by law, the route of the footpath is not shown with sufficient accuracy, let alone the highest attainable accuracy.[12]The plan attached to Order A is of a larger scale than the minimum required by regulation 2 of the 1993 Regulations. In that regard, it is clear that it provides a level of detail which is more than adequate for the purposes of the statutory scheme. Regulation 2 and section 56 provide that, as a matter of discretion, a greater level of precision can be supplied where that is possible. The issue, therefore, comes down to a question as to what degree of detail is possible and thus required as a matter of law.[13]The dictum of Purchas LJ in Burrows is helpful, but is not to be taken in substitution for the standard set by the legislation. Purchas LJ can be taken as referring to the general intention of the legislation, namely that the map and statement should be kept under review and modified in the light of the most up-to-date evidence as to what rights of way are in existence so as to show, as accurately as possible, those rights of way. I do not take him to have been purporting to lay down a general requirement that the map and statement should attain some particularly high level of precision in the sense of showing the detail of the route in terms of its precise location on the ground to a manifestly high degree of particularity.[14]I accept that if it is possible, it will generally be desirable to show an order route to a high level of precision, but that will be the position if there is evidence to support such precise delineation actually relating to the right of way in question. Where, as is often the case, the existence of the right of way is shown by historical maps of varying quality, vintage and produced for varying purposes, in my judgment, there is certainly no requirement in law to show the route with a greater degree of particularity than can be justified on the basis of the available evidence.[15]In this case, the claimants do not point to any particular evidence to show that it was possible to be more precise as to the route of Shenley 23a than is achieved by Order A as confirmed. The Inspector concluded that there was not. A “revised plan”, the font of discussion between the claimants and the Council, was produced to the Inspector, but she had no power to include it and she observed:
“33. ... Furthermore, in their recent submission, Mr and Mrs Perkins accept that the route shown on the revised plan is different from that shown on the Ordnance Survey maps dated 1986, 1913 and 1935. As a consequence it would, in any case, be wholly inappropriate to include it as part of the Order – even if I had considered it possible – since the intention of the Order is to show the location of the route at the relevant date of the first Definitive Map and Statement. The best evidence for that is the Ordnance Survey Map 1935 as I indicated in my interim decision. ”
[16]The Inspector dealt with various issues relating to the precision with which the footpath could/should be displayed, the location of the route and the description in the statement. Her conclusions on those various points were a matter of judgment for her on the evidence available and, to a degree, were for her discretion as to how things should be shown within the Order. That said, although criticisms are advanced, the principal issue is whether the Inspector erred in concluding that the “… Definitive Statement” could provide “… the necessary detail” absent from the plan.

Conclusion

[17]The Definitive Statement described the route of the footpath, in the parts material to this case, as continuing “… south westwards along the top of the NW bank of the Catherine Bourne….”. Mr Perkins submits that this takes us right back to where he was before Collins J in 2002. The Inspector gave full consideration to the observations of Collins J (see para 206 of the Decision Letter) but concluded that, on the material available, the description, when read with the map, would enable a “reasonable person” to understand where the footpath was depicted as being. I agree. It is not the task of this court to attempt to better the description. In that regard it could be said Collins J went too far. It was a matter for the planning judgment of the Inspector and I see no grounds for interfering. I can understand why the claimants feel frustrated, but that has been borne of a desire for accuracy which the evidence and the material do not support.

Ground 2: Consent order

[18]The Consent Order provided for the quashing of the 1997 Order and that there should be no order as to costs. It had no bearing on Order A made in 2005 and did not prohibit the making of that Order by the Council or its confirmation by the defendant. Nothing in the agreed Statement of Reasons had that effect or could create an estoppel or legitimate expectation on the part of the claimants. The reasons for the quashing of the 1997 Order related to(a) the fact that the previous inspector apparently took into account the costs of further inquiries when considering whether to make modifications (a point which plainly does not arise here, where the Inspector did make modifications and held a further inquiry) and(b) the consequential fact that that Inspector had chosen to confirm an order where of the view that modifications should be made, so that the order was, in his own view, materially inaccurate.[19]It follows that the appeal is dismissed.

Cited in 4 later judgments