Trevelyan v Secretary of State for the Environment, Transport and the Regions

A right of way recorded on a definitive map is presumed to exist when an application is made to delete it. The applicant must displace that presumption on the balance of probabilities by evidence of substance. The evidence must be clear and cogent enough to show that the right was recorded by mistake.

Under Wildlife and Countryside Act 1981 procedures, an inspector may modify a proposed deletion order to record a right of way of a different status, subject to the prescribed opportunities for objection and any further inquiry. An error about that power does not invalidate the decision where it had no effect on the inspector's dispositive factual finding.

A landowner applied under section 53 of the Wildlife and Countryside Act 1981 to delete most of a bridleway from the definitive map. Following two inquiries, an inspector found that no public right of way existed over the disputed route and confirmed the deletion order, subject to retention of a short section.

Latham J dismissed a statutory challenge to the order. The appellant appealed, contending that the inspector had misunderstood his power to substitute a footpath, had failed to give proper evidential weight to the definitive map, and had inadequately considered anomalies caused by deletion. The central issue was the correct approach to deciding whether a recorded right of way had been entered on the definitive map by mistake.

1. Appeal dismissed unanimously. Lord Phillips MR gave the judgment, with which Simon Brown and Longmore LJJ agreed.

2. The inspector had misconstrued Schedule 15 to the Wildlife and Countryside Act 1981. If evidence emerging at an inquiry shows that the definitive map should differ from the proposed order, the inspector may make an appropriate modification, subject to the statutory procedure for representations, objections and any further inquiry. A deletion order could therefore be modified by substituting a footpath for the recorded bridleway. The contrary construction would preserve a bridleway which the evidence showed should not remain and would frustrate the statutory scheme.

3. That error did not affect the decision. The inspector expressly found that it would be erroneous to portray any right of way over the disputed route. His misunderstanding of the available modification power was therefore immaterial.

4. The approach adopted below, and subsequently in R v National Assembly for Wales, ex parte Robinson, to the evidential weight of a definitive map was wrong in principle. An inspector considering deletion must begin with a presumption that the recorded right exists. In the absence of contrary evidence, it should be assumed that the proper original procedures were followed and that evidence reasonably supporting the entry existed.

5. The ultimate standard remains the balance of probabilities. Evidence of substance must nevertheless be placed in the balance to overcome the initial presumption. The older the entry, the more difficult it may be to produce positive evidence showing that the original recording was mistaken. The inspector had directed himself that clear and cogent evidence was required and had found the asserted right beyond the bounds of credibility. Read as a whole, his reasoning applied the correct standard.

6. The inspector considered the anomalies caused by leaving adjoining paths as cul-de-sacs and was entitled to find that they did not outweigh the remaining evidence. He had also addressed evidence explaining the isolated eastern section. Those anomalies did not invalidate the order.

1. Court of Appeal: Dismissed the appeal unanimously and upheld the deletion order. Leave to appeal to the House of Lords was refused.
2. High Court, Queen's Bench Division (Administrative Court): Latham J dismissed the statutory challenge to the Secretary of State's order. No citation is stated in the judgment.
3. Secretary of State's inspector: Following two local inquiries, confirmed the deletion order with a modification retaining a short section of the bridleway.