Leicestershire County Council, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs

When a definitive map records a public right of way but the correct route is disputed, the question is not whether an alternative route can reasonably be alleged in isolation. The authority must consider whether the recorded route should be removed and whether the alternative route is sufficiently established. The definitive map is conclusive as to the particulars it records, so the presumption is against changing it. Cogent evidence will normally be required to remove a recorded route. A finding that an alternative route is reasonably alleged to exist will ordinarily be insufficient without more. Section 53(4) concerns additions to the statement of particulars and does not provide the procedure for changing the route shown on the map itself.

Leicestershire County Council sought judicial review of an inspector’s refusal to confirm an order modifying the definitive map. The proposed modification would move public footpath B19 from the curtilage of Glebe Cottage to the curtilage of Manor Cottage.

Permission had been refused on paper by Cooke J. Permission was renewed and the substantive claim was determined at the same hearing. The existence of a public footpath was undisputed. The issues were which route was correct, how section 53(3)(c)(i) and (iii) of the Wildlife and Countryside Act 1981 operated where alternative routes were proposed, and whether the Council had used the correct statutory procedure.

1. Claim dismissed. The inspector had been entitled to conclude that the evidence did not establish, on the balance of probabilities, that the Manor Cottage route was the correct route, while also concluding that a right of way over that route was reasonably alleged to subsist.
2. Under section 53(3)(c)(i) of the Wildlife and Countryside Act 1981, Test A requires the decision-maker to be satisfied, on all the evidence, that the right of way is more probably than not established. It is unnecessary and potentially unsafe to restate that test as requiring clear evidence and no credible evidence to the contrary. Test B requires consideration of whether a reasonable person, having considered all relevant evidence, could reasonably allege that the right of way subsists. The evidence required for Test B is less than that required for Test A.
3. Where the dispute concerns alternative routes and an existing route is recorded on the definitive map, sections 53(3)(c)(i) and (iii) cannot be treated in isolation. The recorded route should remain unless there is sufficient, normally cogent, evidence to show that it is not the correct route. The presumption is against changing the map. A finding satisfying Test B will ordinarily not by itself provide sufficient evidence to remove the recorded route.
4. The inspector was wrong to regard section 53(4) as the applicable procedure. That subsection is limited to adding particulars to the statement, including position, width, limitations or conditions. The Council correctly proceeded under section 53(3), considering both the possible addition of the alternative route and removal of the recorded route. The procedural error therefore caused no prejudice because the inspector decided the matter under section 53(3).
5. The inspector’s factual findings were open to him and were not challenged as perverse. The existing route accordingly remained on the definitive map. Costs were awarded to the Secretary of State in the sum of £4,005.74.

Permission for judicial review was refused on paper by Cooke J on 2 December 2002. The Administrative Court granted renewed permission and abridged the usual procedural steps so that the substantive claim could be determined immediately. The claim was dismissed.