Lea & Anor, R (on the application of) v Secretary of State for Environment, Food and The Regions & Anor [2013] EWHC 1401 (Admin)

Case No CO/9682/2012[2013] EWHC 1401 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Tuesday, 2 April 2013
M3 3FX
Before
HIS HONOUR JUDGE PELLING(Sitting as a High Court Judge)
Between
THE QUEEN ON THE APPLICATION OFClaimantLEAClaimantROSSClaimant--and--
Between
SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND THE REGIONSDefendantROCHDALE METROPOLITAN BOROUGH COUNCILDefendant
DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
The Claimants appeared in person for in personMr Charles Banner (instructed by the Treasury Solicitor) appeared for First Defendant for The Second Defendant did not appear and was not represented
JUDGMENTHIS HONOUR JUDGE PELLING QC:
[1]This is an appeal brought originally by Mr Lee, but also, by joinder, Mr Ross as well, from a decision of Miss SM Arnott FIPROW, who after holding an inquiry on 18 April 2012 declared a way to be a bridleway. This is an appeal brought pursuant to Schedule 15 of the Act against that decision.[2]The relevant statutory framework is contained in the Wildlife and Countryside Act 1981. The duty of the local authority in relation to a definitive map which records the various ways over the area for which the local authority is responsible is contained in section 53 of the Wildlife and Countryside Act 1981. Section 53(2) imposes a duty on the relevant authority to the following effect: “(2) As regards every definitive map and statement ...(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in subsection (3); and(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event."[3]The events which are referred to in subsection (2) of section 53 are set out in section 53.

(c) the following:

"(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows— (i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates ... (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."
[4]The locus of any party affected by what is set out in the definitive map to apply to the relevant local authority for orders that vary what is contained in the definitive map is set out in section 53(5), which is to the following effect:
"(5) Any person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection."
[5]So far as Schedule 14 is concerned, that provides at paragraph 4:
"(1) Where the authority decide not to make an order, the applicant may, at any time within 28 days after service on him of notice of the decision, serve notice of appeal against that decision on the Secretary of State and the authority. (2) If on considering the appeal the Secretary of State considers that an order should be made, he shall give to the authority such directions as appear to him necessary for the purpose which may include a direction as to the time within which an order is to be made."
[6]The effect of these last mentioned provisions enable a person affected by a previous decision of the authority concerning public rights of way to invoke section 53(5) for the purpose of seeking an order from the local authority varying what appears on the definitive map and, if dissatisfied with the outcome of that process, to appeal to the Secretary of State exercising the powers contained in paragraph 4 within Schedule 14 of the Act.[7]There is no dispute as to the relevant principles that arise on an appeal of the sort I am now hearing, which is an appeal governed by paragraph 12 of Schedule 15 of the relevant Act. Paragraph 12 of Schedule 15 provides:
"If any person is aggrieved by an order which has taken effect and desires to question its validity on the ground that it is not within the powers of section 53 or 54 or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 11 make an application to the High Court under this paragraph."
[8]Counsel appearing for the Secretary of State has summarised the relevant principles applicable to appeals of this sort, as identified in the applicable case law, in paragraphs 12 to 14 of the skeleton submissions. I do not understand that any of the appellants dispute the correctness of that analysis. In summary, however, the process is a review process such as is familiar in other areas of judicial review. The principles were summarised by Charles J in Elveden Farms Limited v the Secretary of State for Environment, Food and Rural Affairs [2012] EWHC 644 in these terms:
"... In summary, those are well known and they are: was there an error of law; did the decision maker fail to apply the correct test; did the decision maker take all and only relevant factors into account, the weight to be given to them being a matter for the decision maker; fairness, both procedural and substantive; and a failure to give proper reasons. Additionally, there is a Wednesbury challenge in the sense of perversity, namely, absent the other grounds, and in particular when a decision maker has applied the correct legal test and taken all and only relevant factors into account, is the decision nonetheless perverse?"
[9]In relation to findings of fact made by inspectors in situations such as that which I am concerned with, my attention has been drawn to Tesco's Stores Limited v Secretary of State [1995] 1 WLR 759, where at page 780 Lord Hoffmann set out, in terms which are now almost trite in planning disputes, the following very clear principle:
"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process. This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."
This was echoed by Sales J in Paterson v Secretary of State for Environment, Food and Rural Affairs [2010] EWHC 394 in the pithy statement that "the assessment of and weight to be attached to each item of evidence is a matter for ..." the Inspector.[10]It is against that background that I now turn to the present dispute. Mr and Mrs Lea live at 15 Durnford Close. The plan which most clearly shows the way in dispute appears in the bundle at page 14 and is an extract from the definitive footpath map RocAfp1. The way with which I am concerned starts in the northeast quadrant of the plan at Durnford Close between 13 and 15 Durnford Close. Mr and Mrs Lea own 15 Durnford Close, which is the property which appears shown in the plan at the west of the start of the way. The way then runs southeast, then southwest, then south and south-southeast to the junction with Heap Road.[11]Until the decision of the Planning Inspector, the relevant way was classified as a pedestrian-only way. The issue which arose and which the Inspector had to determine is whether the way should be reclassified as a bridleway and thus available lawfully for the use of people on horseback. The evidential issue between the various parties that appeared before the Inspector came to this. Mr Lea tells me that an ongoing problem for some years had been the use of the way by horses unlawfully, when in truth the way was one which was reserved or was lawfully one that could be used only by pedestrians. Mr Ross supports that analysis, although he was not a participant in the proceedings before the Inspector, for reasons that I explained in an earlier judgment giving him permission to be joined as a co-claimant. I gave permission to Mr Shackleton, who is not a party to these proceedings but nonetheless attended before the Inspector, to address me. He made broadly similar points to those made by Mr and Mrs Lea. All of the participants in the hearing before me emphasise a concern about health and safety issues, stemming from the possible interaction between human beings and horses on the very narrow bridleway.[12]Against that background I now turn to the order made by the Inspector. That appears in the bundle starting at page 4. She deals with procedural matters at paragraphs 1 through 10, before turning to what she describes as “the main issues” at paragraphs 11 to 13 where she summarises them. The issue which had to be determined was whether or not the way that I have identified earlier in this judgment was to be treated as a bridleway or not. She identified the questions that had to be determined in order to resolve that issue, at paragraph 13, in these terms:
"The case in support of the Order is based primarily on the presumed dedication of a public right of way under statute, the requirements of which are set out in Section 31 of the Highways Act 1980 (the 1980 Act). Firstly there must have been use of the claimed route by the public on horseback or leading a horse, as of right and without interruption, over the period of 20 years immediately prior to its status being brought into question so as to raise a presumption that the route had been dedicated as a public bridleway. This may be rebutted if there is sufficient evidence that there was no intention on the part of the relevant landowner(s) during this period to dedicate the way for use by horses; if not, a public bridleway will be deemed to subsist."
[13]Having identified the relevant legal test, the Inspector then turned to the evidence and to her findings of fact based upon that evidence. Having concluded that the relevant period for deciding whether the 20 years user had been established as being between 1988 and 2008, she said this at paragraph 23 of the decision letter:
"23. If a presumption of dedication is to be raised, qualifying use by the public during the relevant period must be shown to have been actually enjoyed as of right, without interruption, and to have continued throughout the full twenty years. 24. The evidence of use on which the applicant relied consists of the written evidence of 25 riders, 4 of whom gave evidence in person and were cross-examined at the inquiry... 25. Although none of the objectors disputed that the claimed use had actually taken place, they criticised some of the written evidence forms supplied by the claimants, some being unsigned, undated or omitting to answer certain questions. Mr Lea submitted that these faults invalidated many of the forms. Whilst the absence of certain details may prevent me from placing a great deal of weight on the evidence of that individual ... it does not invalidate the form or cause me to disregard it altogether. 26. Having given the greatest weight to evidence given in person at the inquiry, I conclude that there has been a significant level of regular usage by horses and their riders during the relevant period."
[14]That conclusion was a finding of fact, and unless it can be challenged on Wednesbury grounds or on any of the other grounds identified by Charles J in the decision of his from which I quoted earlier in this judgment, then that is a finding that is not capable of being overturned on an appeal such as that I am now considering.[15]Having made the essential finding of fact concerning regular user, the Inspector then turned to two specific contentions made by the objectors. The first concerned the presence of what had been called variously “barriers” or “chicanes”, which it was contended by the objectors had the effect of obstructing the use of the way by either those riding or leading horses.[16]The Inspector identified that issue at paragraph 27 of the decision in these terms:
"... the objectors asserted that the claimed use had been interrupted by the presence of the barriers located near the Heap Road end of the alleyway ..."
[17]In relation to the effect on horse riding, she recorded the objectors' contentions at paragraph 28 as being:
"... the barriers were not compatible with horse-use, they clearly demarcate the route as one for pedestrians, that horses had to deviate to get around them and that they should be considered an obstruction insofar as horses were concerned ..."
[18]She referred to a submission made by Mr Shackleton, who had appeared before the Inspector, made by reference to the dictionary definition of "obstruction". She recorded a submission made by Ms Reid, counsel appearing for the local authority in support of the decision that the way be declared a bridleway, that a view concerning obstruction was to be arrived at by reference to the authorities that she identified. The Inspector then said this: “Most importantly, all the witnesses at the inquiry described exactly how their horses negotiated the barriers with ease and that they had never regarded the barriers as a problem or understood them to be aimed at deterring their use. Thus she argued that the evidence clearly showed that the barriers did not deter horse riders or prevent use with a horse (even had that been intended). I agree with her submission."[19]The finding that the Inspector made in relation to barriers is set out in the first sentence of paragraph 30 in these terms:
"I further accept that the barriers did not interrupt the otherwise continuous use of the way by horse riders."
Those conclusions are binding and not challengeable in proceedings such as this, unless it can be challenged on one or more of the grounds identified by Charles J in the judgment cited earlier in this judgment.[20]The Inspector next turned to a contention by the objectors that in using the way with horses, those doing so trespassed and committed either a criminal or civil wrong by so doing. The Inspector concluded that was not an answer to the point which had to be addressed for the purpose of dealing with the Highways Act test identified by the Inspector at the outset of the decision letter. This conclusion is not challenged in these proceedings.[21]Finally, the Inspector turned, under the heading "Other matters", to a health and safety issue, which has been the main focus of the submissions made by the appellants in the proceedings before me. The essence of the submission made by each of Mr and Mrs Lea, Mr Shackleton and Mr Ross is that it is inherently unsafe to have a narrow way which can be used by both horses and pedestrians, in circumstances where, for at least part of that way, it is walled at its side so as to prevent the escape of pedestrians from a horse that is, or has become, out of control when passing along the bridleway.[22]The point which is made is that the way had been used historically by children and pedestrians generally as a means of accessing both schools and, I think, a bus station as well and that, in consequence, if horses were to come into contact with pedestrians in such circumstances, there is a manifest risk of injury resulting. This was an issue which the Inspector considered at paragraph 46 of her decision letter, where she ruled in these terms:
"All those who objected to the Order, including those who signed the petition, were concerned about the practical effects of horses sharing the Order route with pedestrians. Some fear an increase in use by horses leading to a “super-horseway” and increased conflicts with other users. Mr Lea made the point strongly that no health and safety assessment had been carried out to consider the risks of combining use by pedestrians and horse riders, particularly in view of the ‘Safe Routes to Schools’ initiative. Mr Newnham referred to the safety of residents in the community using this route to walk to village shops and bus stops, children walking to school, families with buggies and wheelchair users. Whilst I fully understand these concerns, they cannot be taken into account in determining an order of this nature. They may, however, be very relevant to the future management of this bridleway but that would be a matter for RBC."
[23]The final point which is made by the claimants before me, principally by Mr Ross but adopted by Mr Lea as well, is that the evidence in support of use by horses was exaggerated, or possibly fabricated, in order to obtain the result that was eventually obtained from the Inspector. It was alleged that the evidence was fabricated or exaggerated as a result of an orchestrated attempt by an interest group concerned to maximise the use that horses can make of the public way system, particularly in and around this particular area of Rochdale. I emphasise that the point is one that is advanced only by way of assertion. There is no evidence to support it before me. In any event, it seems to me that even if I was otherwise satisfied factually that it was correct, it is not something that could properly be taken into account on an appeal of this sort, for reasons that I have already outlined: that is to say, that this is a court of review. Its terms of reference are necessarily very narrow, being limited to those public law review routes identified by Charles J in the judgment I referred to a few moments ago.[24]Likewise, it seems to me (with regret, I have to say) that the health and safety points which are relied upon, entirely genuinely, by each of the claimants before me do not constitute an issue which could be taken into account for the reasons that the Inspector identifies, and thus it is not open to me to set aside the decision of the Inspector by reference to that point, for the Inspector made no error of law in the way she resolved the point, nor could she be said to have acted irrationally in a public law sense in coming to the conclusion she did. I have to say however that I am less sanguine than counsel for the Secretary of State, or for that matter the Inspector, in thinking that the issue can effectively be addressed by management because, once it is decided that a way is a bridleway, it can be used coextensively by those on and not on horseback, and thus the degree to which the use of the way can be managed is limited to subsidiary matters such as notices and the like, and that is likely to be of limited effect. However those concerns do not entitle me to set aside the Inspector’s decision for the reasons already given.[25]So far as the assertion that the evidence that was used in support of the application that was heard by the Inspector being fabricated is concerned, I make no finding one way or the other in relation to the allegation, for, as I have said, there is no evidence before me which enables me to arrive at such a judgment, and in any event such a judgment is unnecessary for the decision that I have to reach. I am satisfied, however, that there is a mechanism available to the appellant in the event they wish to assert that the order obtained from the Inspector was obtained fraudulently, being the mechanism I outlined at the outset of this judgment, which is a mechanism that enables them as interested residents to apply to the local authority to vary the status of the way in question from bridleway to footway and relying upon any evidence available to them that supports the contention that the evidence previously placed before the Inspector was fraudulently obtained.[26]In the event that they are dissatisfied with the outcome of that process, then there is an appeal process to the Secretary of State, which enables any decision in relation to those allegations to be reviewed.[27]On the evidence that was available to the Inspector, she was plainly entitled to come to the conclusions of fact that she did. It is impossible to say that the Inspector acted irrationally in the public law sense in arriving at the conclusion that she did, having accepted the evidence that was placed before her. No errors of law were made such as applying the wrong test, for she identified correctly in paragraph 13 and 23 the correct test to be applied in resolving the question that was placed before her. It cannot be said, and is not said, that there was either a failure on the part of the Inspector to take into account evidence that was properly before her, or that she took into account evidence that was not relevant to the question that had to be considered. In those circumstances, with regret, I am unable to assist the claimants in the way that they seek.[28]As I emphasised at the outset of this process, the appeal before me is one which is capable of being advanced only on the very narrowest of public law grounds, and if, as they assert, the evidence that has been used to obtain the declaration concerned for the Inspector is evidence which has been exaggerated or fabricated, then the proper course is to seek a variation of the definitive map using the process that I outlined at the outset of this judgment. Costs Judgment 29. HH JUDGE PELLING QC

Costs Judgment

[29]This is an application by the Secretary of State to recover the costs of and occasioned by this appeal. Under CPR 44.3 the court is required, subject to discretionary matters there outlined, to award costs to the party who is successful in the circumstances of the case. In the circumstances of this case, plainly the Secretary of State is the successful party, for the Secretary of State has succeeded in the result and has also succeeded on all the material points that were deployed before me. There is therefore no basis for departing from the general rule by, for example, attempting an issue-based assessment. This is a case where, in truth, all issues have gone a long way and therefore there must be an order for costs in favour of the Secretary of State. Costs As Against Mr Ross31. MR BANNER: Thank you, my Lord. The second point before getting to the figures is that as there are now two claims, the order would be that they are jointly and severally liable for such sum as your Lordship orders. In relation to the quantum –32. HIS HONOUR JUDGE PELLING: You say that on the assumption, I suppose, if Mr Ross wanted to do so, what he might say in support of his own case is that he came into this process late and therefore perhaps ought to be exposed at most only to the costs of today's hearing.33. MR BANNER: He might say that.34. HIS HONOUR JUDGE PELLING: Why would he be wrong about that?35. MR BANNER: The court might want to have regard to the degree of involvement he had before he formally became a party today.36. HIS HONOUR JUDGE PELLING: But he was not a party on record.37. MR BANNER: He was not a party today. My Lord, there is some force in that.38. HIS HONOUR JUDGE PELLING:39. The direction I make is that Mr Ross's exposure to costs is to be confined to the costs of and occasioned by today. My reasons for reaching that conclusion is that he applied and was joined as a party only today, and thus it is fair and just that he should be responsible only for the costs of the hearing which has taken place, rather than the costs which have been incurred anterior to that. Assessment of Costs40. HIS HONOUR

JUDGE PELLING:

[30]This is the assessment of the costs other than the costs of today, which, by reason of the orders I have already made, are going to be exclusively the responsibility of Mr and Mrs Lea. The question that I have to ask myself on an assessment of this sort, which did not arise in relation to the assessment I carried out of the hearing costs, is one which has to take place in two stages, as is mandated by the decision of the Court of Appeal in Lowndes v Home Office. The first question I have to ask myself is whether, in the aggregate, the costs that are claimed for the work that has been done are proportionate and reasonable. If I come to the conclusion that they are not, then it is necessary that each of the items which make up the bill have to be assessed on grounds of necessity on a bottom up basis.

Costs As Against Mr Ross

[31]In my judgment, the sum which is claimed, although the rates are modest because they are Treasury Solicitor rates, nonetheless contain numbers of hours worked which are significantly in excess of what is reasonable for the task that had to be undertaken in this case. To put the case in perspective, the appellant's bundle contains about 86 pages of material. A relatively small amount of that material has had to be referred to in the course of the hearing, and although a fairly formidable bundle authorities were put before me, in the end it has been necessary to refer to only four cases, and in each of those cases to specific statements of principle contained in them and to a consideration of the statutory framework within which this appeal takes place.[32]Against that background it is necessary now to consider the sums which are properly recoverable. The statement of costs which has been prepared on behalf of the Treasury Solicitor, as is usual, breaks down the sums claimed into attendances of various sorts: work done on documents and there is one fee claimed on behalf of counsel in relation to the preparation of skeleton argument and/or the giving of advice prior to the hearing. That is claimed in the sum of £450. I allow that as asked.[33]The much more troubling aspects come in relation to the various attendances and the work done on documents. So far as attendance on client is concerned, a total of 5.2 hours is claimed for attending on the client. The client for these purposes is the Secretary of State, and thus officials within the Department and the Inspector. Given the relatively simple and straightforward issues that arise in this case, namely whether or not the material that was before the Inspector entitled the Inspector to conclude that the relevant way should be declared to be a bridleway rather than a mere footway, the idea that it would take in excess of five hours of chargeable time, tested on a necessity basis, to obtain the relevant instructions to resist this appeal is, in my judgment, fallacious. That being so, the question I have to ask myself is what, on a broad brush approach, tested by reference to necessity rather than reasonableness, is the time that would be taken or ought to be taken for getting initial instructions to deal with this relatively simple planning case. The answer, in my judgment, is two hours charged at £160 per hour.[34]So far as attendances on counsel are concerned, that has been charged at a total of 3.2 hours. This is said to be initial discussions concerning advice. Again, given that it would appear that written advice was given in relation to this case, I do not at the moment see why it is that 3.2 hours of discussions with counsel can be necessary to conduct what is a straightforward case, involving very well-established principles and authorities that are regularly cited in planning appeals of this sort and more generally in relation to planning cases.[35]I fully accept, however, that there would have to be some discussion with counsel as to the way to proceed and I allow that at 1.25 hours.[36]So far as attendances on opponents is concerned, that is rightly accepted not to be recoverable, being discussions with Mr Ross before he became a party, therefore not properly to be described as an attendance on an opponent.[37]So far as attendance on others is concerned, this is claimed at 11 hours in total and appears to be principally attendances on Rochdale Borough Council in relation to the issues that have arisen, and some attendances on the court in relation to managing this case to hearing. I am prepared to accept that there would have to be some contact with the court in order to ensure that the case proceeded on an even keel. But I cannot think that in the total that ought to exceed 1 hour.[38]So far as attendances on Rochdale Borough Council are concerned, again I am unable to see what would have taken some 10 hours of time in talking to Rochdale about. The appeal is from a decision of the Inspector. The Inspector is someone to whom the Secretary of State has direct access. Rochdale was a party to the appeal, but one that was not active, and was a party before the Inspector. The issue which arises concerns principally rectifying or confirming the contents of a definitive plan maintained by the local authority. Whilst I am prepared to accept that there would have to be some discussion, I cannot at the moment understand how in excess of ten hours can be properly recoverable when tested on necessity basis. I am prepared to allow for attendances on others a total of three hours.[39]I then come to work on documents. This is the heading under which solicitors are entitled to recover for the work done professionally in assessing the merits of the particular piece of litigation they are concerned with, be it an application or a trial, and incidental costs of preparing documents for use by the court. In those circumstances, it is somewhat surprising, given that the operative bundle in this case runs to 84 pages, to see that a total of 14 hours has been claimed for work on documents.

Assessment of Costs

[40]I am unable to see how that can be justified on a necessity basis. It seems to me that on any view the solicitors concerned are entitled to recover for some hours work in preparing the material for consideration by counsel, for considering advice from counsel, and for the preparing of the bundle. However, on a necessity basis I am unable to see how that could possibly exceed five hours, which is the figure that I permit, doing the best I can on the limited information available. Again, I would allow that at £160 per hour, being the median rate that had been adopted amongst the various fee earners. MR BANNER: So just to be clear, for Mr Lea totally it is £2,250; then the element for the hearing, which is jointly and severally, is £2,379.91. HIS HONOUR JUDGE PELLING: Right. MR BANNER: Thank you. HIS HONOUR JUDGE PELLING: Any other business? MR BANNER: No, my Lord, thank you. HIS HONOUR JUDGE PELLING: Thank you very much.