O'Keefe & Anor v Secretary of State for Environment & Anor

Judicial review of a modification order under the Wildlife and Countryside Act 1981 is confined to legality: whether the order was within the surveying authority’s statutory powers and whether the required procedure was followed. The court must not rehear the evidence or decide privately whether a public right of way exists.

Once an opposed order has been submitted to the Secretary of State under Schedule 15, withdrawal of the objection does not remove the power to confirm it or require remittal to the council. No inquiry is required when no objection remains. A definitive map statement may consist of survey cards and need not be physically attached to the map. A modification order may be made on evidence amounting to a reasonable allegation that a right of way subsists.

The applicants owned land at Windmill Wood, Chale, over which a public footpath was claimed. The Isle of Wight County Council made a modification order under section 53 of the Wildlife and Countryside Act 1981 to add the footpath to the definitive map. The applicants initially objected, but withdrew their objections after the order had been submitted to the Secretary of State.

An inspector acting for the Secretary of State confirmed the order without holding the proposed local inquiry. Pill J dismissed the applicants’ motion to quash the confirmation and set aside earlier orders granting leave for judicial review. The appeal concerned the Secretary of State’s power to confirm the order, the existence and form of the definitive map statement, the council’s statutory role, and the council’s application of section 31 of the Highways Act 1980.

Mummery LJ delivered the judgment, with which Sir Ralph Gibson and Hirst LJ agreed. The appeal was dismissed.

1. Scope of review. The Court of Appeal’s function was limited to deciding whether the order was within the powers of section 53 of the Wildlife and Countryside Act 1981 and whether the procedural requirements of Schedule 15 had been met. It was not a rehearing on whether a public footpath existed or on the merits of the council’s decision.
2. Confirmation after withdrawal. The council had properly submitted the opposed order to the Secretary of State under paragraph 7(1) of Schedule 15. Withdrawal of the objection did not deprive the Secretary of State of power to confirm the order or require its return to the council. Once no objection remained, there was no practical purpose in holding a local inquiry. The court also noted the procedural context described in R v Cornwall County Council, ex p Huntington [1992] 3 All E.R. 566.
3. Prejudice. Even if a procedural obligation had been breached, paragraph 12(2) required substantial prejudice. Any loss of an opportunity to challenge the evidence at an inquiry resulted from the applicants’ considered withdrawal of their objections.
4. Definitive map statement. Sections 27(4) of the National Parks and Access to the Countryside Act 1949 and 53(2) of the 1981 Act did not prescribe a particular documentary form or require physical attachment to the map. The survey cards, having been considered, made public and treated as valid for many years, constituted the statement. The map and cards substantially complied with the legislation, and paragraph 10 of the First Schedule to the 1949 Act prevented their validity being questioned in these proceedings.
5. Council’s role and evidence. The council was the statutory body required to decide whether to make the order. Prior judicial determination of the alleged right was unnecessary. The order had no effect until confirmation, when the statutory objection and inquiry procedure provided an opportunity for factual and legal challenge. The court applied the approach reflected in R v Secretary of State for Wales, ex p Emery 9 July 1997 (unreported), and treated the evidence as capable of amounting to a reasonable allegation that the right subsisted.
6. Section 31 issues. The council’s sub-committee was entitled to consider the evidence as a whole. It applied the correct meaning of use as of right, including peaceable, open and non-permissive use, and was entitled to find insufficient evidence of an intention not to dedicate. No misdirection on the burden of proof or the relevant evidential issues was shown.

The appeal, including the challenge to the orders granting leave for judicial review, was dismissed. The Isle of Wight County Council received its costs; the Secretary of State received 50 per cent of his costs. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the appeal against Pill J’s decision; leave to appeal to the House of Lords was refused.
• High Court of Justice, Queen’s Bench Division: Pill J dismissed the motion to quash the Secretary of State’s confirmation of the modification order and set aside the earlier leave orders.
• High Court of Justice, Queen’s Bench Division: Kennedy J had granted leave for judicial review on 2 October 1991.