“(3)(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 in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path…..”
“12 (1) 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. (2) On any such application the High Court may, if satisfied that the order is not within those powers or that the interest of the applicant have been substantially prejudiced by a failure to comply with those requirements, quash the order, or any provision of the order, either generally or in so far as it affects the interests of the applicant. (3) Except as provided by this paragraph, the validity of an order shall not be questioned in any legal proceedings whatsoever.”
“53. The principle that judicial review will be refused where a suitable alternative remedy is available is not in doubt. However, Mr Grodzinski submits that the section 101 review, taken with an appeal under section 102, is not a suitable alternative remedy, in particular because of one or more of the following features of the case. Under the statutory regime, GENUK has had to pay in excess of£21 million as DPT charged as set out in the Charging Notice and will be out of its money (without the possibility of appealing) for the 12 months of the review period under section 101 and then for the further period of any appeal, even though it may transpire as a result of the appeal that no sum of DPT was due at all. If a court can see in judicial review proceedings that there was an error (or at any rate what could be regarded as a “fundamental” error) on the part of the Designated Officer in issuing the Charging Notice, the reviewing court should step in immediately to quash the notice without waiting for the review and appeal procedure to be followed. Further, the complaints made by GENUK under grounds (1) to (3) only affect the issuing of the Charging Notice in the first place, which triggered the obligation of GENUK to pay the sum claimed in it, and do not go to the ultimate question whether that amount of DPT was or was not due from GENUK. The FTT on an appeal will address that ultimate question, but it has no jurisdiction to exercise a review function in relation to the issue of the Charging Notice in the first place. Instead, the review court should be prepared to step in to address the distinct complaints about the lawfulness of issuing the Charging Notice in the first place and to quash it if they are made out. 54. In order to evaluate these submissions, it is necessary to consider the basis for the suitable alternative remedy principle. The principle does not apply as the result of any statutory provision to oust the jurisdiction of the High Court on judicial review. In this case the High Court (and hence this court) has full jurisdiction to review the lawfulness of action by the Designated Officer and by HMRC. The question is whether the court should exercise its discretion to refuse to proceed to judicial review (as the judge did at the permission stage) or to grant relief under judicial review at a substantive hearing according to the established principle governing the exercise of its discretion where there is a suitable alternative remedy. 55. In my view, the principle is based on the fact that judicial review in the High Court is ordinarily a remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective. However, since it is a matter of discretion for the court, where it is clear that a public authority is acting in defiance of the rule of law the High Court will be prepared to exercise its jurisdiction then and there without waiting for some other remedial process to take its course. Also, in considering what should be taken to qualify as a suitable alternative remedy, the court should have regard to the provision which Parliament has made to cater for the usual sort of case in terms of the procedures and remedies which have been established to deal with it. If Parliament has made it clear by its legislation that a particular sort of procedure or remedy is in its view appropriate to deal with a standard case, the court should be slow to conclude in its discretion that the public interest is so pressing that it ought to intervene to exercise its judicial review function along with or instead of that statutory procedure. But of course it is possible that instances of unlawfulness will arise which are not of that standard description, in which case the availability of such a statutory procedure will be less significant as a factor. 56. Treating judicial review in ordinary circumstances as a remedy of last resort fulfils a number of objectives. It ensures the courts give priority to statutory procedures as laid down by Parliament, respecting Parliament’s judgment about what procedures are appropriate for particular contexts. It avoids expensive duplication of the effort which may be required if two sets of procedures are followed in relation to the same underlying subject matter. It minimises the potential for judicial review to be used to disrupt the smooth operation of statutory procedures which may be adequate to meet the justice of the case. It promotes proportionate allocation of judicial resources for dispute resolution and saves the High Court from undue pressure of work so that it remains available to provide speedy relief in other judicial review cases in fulfilment of its role as protector of the rule of law, where its intervention really is required. 57. In my judgment the principle is applicable in the present tax context. The basic object of the tax regime is to ensure that tax is properly collected when it is due and the taxpayer is not otherwise obliged to pay sums to the state. The regime for appeals on the merits in tax cases is directed to securing that basic objective and is more effective than judicial review to do so: it ensures that a taxpayer is only ultimately liable to pay tax if the law says so, not because HMRC consider that it should. To allow judicial review to intrude alongside the appeal regime risks disrupting the smooth collection of tax and the efficient functioning of the appeal procedures in a way which is not warranted by the need to protect the fundamental interests of the taxpayer. Those interests are ordinarily sufficiently and appropriately protected by the appeal regime. Since the basic objective of the tax regime is the proper collection of tax which is due, which is directly served by application of the law to the facts on an appeal once the tax collection process has been initiated, the lawfulness of the approach adopted by HMRC when taking the decision to initiate the process is not of central concern. Moreover, by legislating for a full right of appeal on fact and law, Parliament contemplated that there will be cases where there might have been some error of law by HMRC at the initiation stage but also contemplates that the appropriate way to deal with that sort of problem will be by way of appeal. 58. For reasons of this kind it has long been established at the highest level that “Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision”: In re Preston[1985] 1 AC 835 , 852D per Lord Scarman; see also p. 852F (“I accept that the court cannot in the absence of special circumstances decide by way of judicial review to be unfair that which the commissioners by taking action against the taxpayer have determined to be fair”
“I would approve what Brooke J. said to substantially the same effect in the Cornwall application ([1992] 3 All ER at 576): “it is quite clear, in my judgment, that Parliament intended to prescribe a comprehensive programme of the events which should happen from the time the relevant authority sets in motion the consultation process mentioned in para 1 of Sch. 15, and that once the order is made the prescribed procedure then follows, without any interruption for legal proceedings in which the validity of the order is questioned, until the stage is reached, if at all, when notice of a decision is given pursuant to the procedure prescribed in para 11. It is then, and then only that Parliament intends that a person aggrieved by an order which has taken effect shall have the opportunity of questioning its validity in the High Court provided that he takes the opportunity provided for him by para 12(1) of Sch 15 …..” “it is quite clear, in my judgment, that Parliament intended to prescribe a comprehensive programme of the events which should happen from the time the relevant authority sets in motion the consultation process mentioned in para 1 of Sch. 15, and that once the order is made the prescribed procedure then follows, without any interruption for legal proceedings in which the validity of the order is questioned, until the stage is reached, if at all, when notice of a decision is given pursuant to the procedure prescribed in para 11. It is then, and then only that Parliament intends that a person aggrieved by an order which has taken effect shall have the opportunity of questioning its validity in the High Court provided that he takes the opportunity provided for him by para 12(1) of Sch 15 …..”
“The council had resolved to make a compulsory purchase order, but had not made it. Woolf J held that the court was not deprived of jurisdiction by reason of section 25. He then went on to consider whether he should exercise his discretion to grant judicial review. He said that in the majority of cases, notwithstanding his interpretation of section 25, it would be wrong for the court to hear an application for judicial review. In the normal situation, it would be preferable for the court to defer any application to the court until after the matter had gone before the Secretary of State. Nevertheless, on the facts of that case, he did exercise his discretion in favour of granting relief. He regarded it as a clear case. He said, at p 426: “The difficulties with regard to evidence make it clear that whereas the court should intervene when it is necessary to do so, it also must bear in mind the danger of intervening in those situations where there is no obvious and clear requirement that it should do so. In my approach to the matters which are before me, I propose to bear very much in mind the desirability as a matter of discretion of the court not intervening and dealing with matters where it is not clear that it is necessary to do so, and in particular where it is not clear that all the material which could be put before the court has been put before the court.”” “The difficulties with regard to evidence make it clear that whereas the court should intervene when it is necessary to do so, it also must bear in mind the danger of intervening in those situations where there is no obvious and clear requirement that it should do so. In my approach to the matters which are before me, I propose to bear very much in mind the desirability as a matter of discretion of the court not intervening and dealing with matters where it is not clear that it is necessary to do so, and in particular where it is not clear that all the material which could be put before the court has been put before the court.””
“In my judgment, the court does have jurisdiction to entertain the application in the instant case. No good reason has been advanced against the existence of such jurisdiction. The existence of the statutory regime alone, in circumstances where it is accepted that the ouster clause does not bite, is not enough ... It might be said that the fact that the ouster clause deals with certain situations gives rise to the inference that Parliament did not intend to exclude the availability of judicial review in other situations. I prefer, however, to rest my decision on wider considerations. There has to be a good reason to deny jurisdiction. Prima facie, a party is entitled to have recourse to the courts. It seems to me that the existence of the statutory remedy of public inquiry by an inspector and statutory appeal thereafter is relevant to the question of whether I should refuse relief in the exercise of my discretion. I do not consider that it goes to jurisdiction. I find it difficult to detect any material distinction between the present case and ex parte Comyn Ching (supra). Mr Gordon did not identify any such distinction. His argument involves the proposition that, where a council is threatening to commit a plain error of law (as I have found to be the position in the present case), an aggrieved party cannot seek the intervention of the court. Instead, he or she is obliged to embark on the often time consuming and costly procedure of a public inquiry, in which objectors can make representations, possibly involving detailed factual investigations, with the risk that the inspector may repeat the council's error of law. Mr Gordon did not seek to justify this, save by reference to the existence of the statutory regime. There is nothing in Isaac (supra) which supports the proposition that errors of law made by a council ought not to be reviewed by the court in advance of the council acting on its decision by making an order. That case is distinguishable from the present case, in that it was not concerned with a prospective, but with a retrospective challenge to the making of an order. Mr Gordon did not seek to argue that if the jurisdiction exists I should not exercise my discretion to quash the council's decision. I propose, therefore, to grant judicial review. It is important to add that, in my view, the discretion should be exercised cautiously, and only in clear cases where there has been a plain error of law. In any case where the position is uncertain, and especially where the issues raised involve questions of fact, it is most unlikely that it would be appropriate to exercise the court's discretion in favour of granting relief. That is not, however, this case.”
“For the reasons given above, I consider that the judge was correct to hold that there was a suitable alternative remedy in this case and to refuse to grant permission to apply for judicial review. If I had been in his position I would have done the same. Since permission to apply for judicial review has been granted by the order of Hickinbottom LJ, we are considering the claim for judicial review at the substantive hearing stage, but the same reasoning leads me to conclude that this court should exercise its discretion to refuse to grant any relief by way of judicial review on the grounds that a suitable alternative remedy exists.”
“(3)(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 in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path…..”
“Was there sufficient evidence to justify making the order for the footpaths? 31. Before the judge, and again before us, Mr Laurence argued that there was insufficient evidence to justify adding the claimed footpaths to the definitive map and statement. The clear, and correct, advice in the officer’s report in December 2016 was that the county council should not make an order for the footpaths because the officers were not satisfied they could mark the routes on the draft order map precisely enough. In reaching this conclusion the officers had departed from the view they had expressed in the March 2016 report. They had done so in the light of the argument presented by Roxlena’s solicitors’ letter dated22 March 2016 . Their revised view was rejected by the committee for no obvious or good reason. Their advice that the committee did not need to follow their recommendation was tantamount to saying, wrongly, that even though the footpaths could not be accurately drawn on the draft order map without a site survey, it would still be reasonable to allege they subsisted - as the officers had advised in the March 2016 report. 32. Mr Laurence submitted that the “reasonably alleged to subsist” test in section 53(3)(c) of the 1981 Act could not be satisfied, for the purposes of making an order, if the evidence would be insufficient to demonstrate, on the balance of probabilities, that the asserted right does in fact subsist. In this case the evidence was insufficient to demonstrate that. At its January 2017 meeting the committee should have been advised that the uncertain evidence about the position and alignment of the claimed footpaths was insufficient to justify confirmation. That advice was not given, nor did the committee consider the question. This was fatal to the county council’s decision to make the order. It was a “plain error of law” (see the judgment of Dyson J., as he then was, in R. v Wiltshire County Council, ex p. Nettlecombe Ltd. [1998] 96 L.G.R. 386, at p.394). 33. Kerr J. did not accept those submissions. In his view the “exacting standard of precision” demanded by Mr Laurence was higher than the law requires and would often be impossible to meet - for example where, as in this case, a “determined and hostile landowner” exercises his right not to co-operate in the process by permitting access to the land (paragraph 61 of the judgment). Agreeing with observations made by Sir George Newman in Perkins v Secretary of State for Environment, Food and Rural Affairs[2009] EWHC 658 (Admin) , the judge said the surveying authority must make a judgment on the best evidence it has. Here the county council’s committee was entitled to take the view that the evidence of the alignment and width of the footpaths was sufficient (paragraph 62). It would be a rare case where the court was prepared to “second-guess” the outcome of an inquiry to determine the force of the objectors’ case, when the objection was an attack on the exercise of the surveying authority’s judgment. This would normally only be done where “the high Wednesbury threshold” was reached (paragraph 63). At its meeting on4 January 2017 the committee had accepted Councillor McGuckin’s contention that it was able to “take a reasonable decision that these paths exist” (paragraph 65). The “strength or weakness” of an order, said the judge, is “what the inspector is there to determine” (paragraph 66). The committee had not acted unlawfully by preferring the officers’ view in the March 2016 report to that in the December 2016 report. Roxlena’s attack on the adequacy of the map and other evidence could be made to an inspector in an objection to the order’s confirmation (paragraph 69). 34. Mr Laurence submitted that the judge’s approach was wrong. The judgment in Perkins did not support the proposition he drew from it. The fact that a landowner exercises his right to deny access to his land is wholly irrelevant to the standard of evidence required to support the making of an order under section 53. The judge was also wrong, said Mr Laurence, not to conclude that if the evidence was insufficient to demonstrate on the balance of probabilities that the claimed footpaths did subsist on the alignments shown on the draft order map, and thus to justify the confirmation of the order, it could not have been reasonable to allege their subsistence, to justify making the order. It was not right to conclude, as he did, that the question of whether the evidence would support confirmation could be put off to an inquiry. Every authority faced with an application under section 53(5) must ask itself whether, if the order were unopposed, the evidence taken at its highest in favour of the public would support confirmation. 35. I cannot accept this argument. I think the judge’s approach and reasoning were correct. The court’s role here is to consider whether the county council could lawfully make the order it did. In a more refined form, that question is essentially whether, at its meeting on4 January 2017 , the committee could lawfully decide to take a different course from that recommended to it in the December 2016 report. As the judge recognized, the test by which this question is to be answered is a public law standard of review. Did the committee misdirect itself on the relevant statutory provisions? And if it did not, was its decision unreasonable in the “Wednesbury” sense, or otherwise unlawful? The answer to both questions, in my opinion, is “No”. 36. I see no basis for concluding that the committee misunderstood the relevant statutory provisions. There is nothing in the minutes of its meeting on4 January 2017 , or in either of the officer’s reports, to suggest it did. 37. Under the 1981 Act the order-making part of the process is separate from confirmation, and involves a different approach to the evidence. This has been consistently recognized by the courts. The procedure under Schedule 14 to the 1981 Act was described by Roch L.J. in ex p. Emery (at p.377b) as “preliminary”
“42. The principles on which the court will act when criticism is made of a planning officer’s report to committee are well settled. To summarise the law as it stands: (1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council[2010] EWCA Civ 1286 , at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council[2012] EWHC 3708 (Admin) , at paragraph 15). (2) The principles are not complicated. Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council[2011] UKSC 2 , at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer’s recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council[2016] EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer’s report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee’s decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer’s advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council[2016] EWCA Civ 795 ), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council[2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council[2017] EWCA Civ 427 ). But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.” (1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council[2010] EWCA Civ 1286 , at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council[2012] EWHC 3708 (Admin) , at paragraph 15). (2) The principles are not complicated. Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council[2011] UKSC 2 , at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer’s recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council[2016] EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer’s report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee’s decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer’s advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council[2016] EWCA Civ 795 ), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council[2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council[2017] EWCA Civ 427 ). But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.”
“25. The Finance Act material submitted by the Applicant shows that tax relief was granted for footpaths that crossed the plots referred to. An examination of the maps shows that there are 3 footpaths in lot 610 and the routes are annotated on the accompanying map. 26. ….For plot 610 the landowner did make a claim for footpaths. 27. The valuers did note that there were public footpaths and made a note on the field book. They granted relief for the paths that crossed the land which they would not have done unless satisfied of their existence.”
“1) Without prejudice to section 15, where an Act repeals an enactment, the repeal does not, unless the contrary intention appears,— … (b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment; …”