Emery, R (on the application of) v Secretary Of State For Wales

At the preliminary stage of an application to modify a definitive map, the question is whether, on all available evidence, a reasonable person could allege that an unrecorded right of way subsists. This is a lower threshold than proving the right on the balance of probabilities. Credible evidence of 20 years’ public use, coupled with conflicting credible evidence on the landowner’s intention to dedicate, ordinarily satisfies that threshold unless documentary evidence must inevitably defeat the claim. The decision-maker must assess all relevant evidence. The statutory documentary procedure is not intrinsically unfair where parties know and can answer each other’s cases. A court must not impose an ad hoc oral hearing. Legitimate expectation requires an express promise, undertaking, representation or published policy directed to the relevant person or group.

Gordon Michael Emery applied to Clwyd County Council for modification of the definitive map and statement to record a claimed public footpath. The council refused, and the Secretary of State for Wales dismissed Mr Emery’s appeal after considering written evidence and visiting the site. Mr Emery sought judicial review. Sir Louis Blom-Cooper QC, sitting as a deputy judge of the Queen’s Bench Division, quashed the Secretary of State’s decision on procedural fairness grounds.

The Secretary of State appealed. Mr Emery relied on the alleged failure to apply the correct statutory test, failure to consider conflicting evidence, and perversity. The central issues were the proper approach under Schedule 14 to the Wildlife and Countryside Act 1981, and whether legitimate expectation or procedural fairness required a public inquiry.

Roch LJ gave the judgment of the court. Nourse LJ and Phillips LJ agreed. The appeal was dismissed with costs.

1. Legitimate expectation. A legitimate expectation enforceable in public law requires an express promise, undertaking, representation or published policy statement emanating from the decision-maker and directed to a particular individual or group. The doctrine cannot be extended to the public at large. No legitimate expectation of a public inquiry arose here.
2. Procedural fairness. The court may supplement a statutory procedure where fairness requires it, but it must not supplant the statutory scheme. The ordinary Schedule 14 procedure, based on documentary evidence, written representations and a site visit, is not inherently unfair at the preliminary filtering stage if each interested party knows the opposing case and can comment on it. A requirement for an oral hearing only in cases selected by an ad hoc judicial assessment of peculiar facts would be wrong in principle and impractical.
3. Statutory threshold. Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 distinguishes between evidence that a right of way subsists and evidence that it is reasonably alleged to subsist. The latter requires the lower threshold identified in R -v- Secretary of State for the Environment ex parte Bagshaw and Norton 68 P & CR 402: whether a reasonable person, having considered all relevant evidence, could reasonably allege that the right exists. Where credible evidence establishes 20 years’ public use and other issues under section 31 of the Highways Act 1980 are supported by conflicting credible evidence, the allegation is ordinarily reasonable unless documentary evidence must inevitably defeat it.
4. Application. The Secretary of State treated Mr Diggory’s statement as decisive and failed to weigh it against the questionnaires showing that users had not been challenged. That conflict made it unreasonable to conclude that a right of way was not reasonably alleged to subsist. The court accepted the logical exposition in Jaques -v- Secretary of State of the Environment [1995] JPL 1031, that sufficiently overt acts may disprove an intention to dedicate even if they did not make the public aware of the objection. On the evidence, however, the alleged constant refusals conflicted with the user evidence.

1. Court of Appeal (Civil Division): [1997] EWCA Civ 2064. The appeal was dismissed with costs, and the order quashing the Secretary of State’s decision was upheld.
2. High Court of Justice, Queen’s Bench Division: Sir Louis Blom-Cooper QC, sitting as a deputy judge, quashed the Secretary of State’s decision on procedural fairness grounds.