Todd & Anor v Secretary of State for Environment Food & Rural Affairs Rev 2

At the confirmation stage under section 53 and Schedule 15 to the Wildlife and Countryside Act 1981, the Secretary of State must determine whether a disputed public right of way exists on the balance of probabilities. The lesser reasonable-allegation test applies at the preliminary order stage, not when an opposed order is finally confirmed. An inspector also errs in law by treating a landowner’s acquiescence in Finance Act valuation documents as an express dedication of a highway without evidence capable of supporting that conclusion. A decision founded on such an error is unlawful. Procedural fairness requires parties to be given an opportunity to address material obtained or researched by an inspector after the inquiry.

The claimants challenged the Secretary of State’s confirmation of a Hampshire County Council order modifying the definitive map under section 53 of the Wildlife and Countryside Act 1981. The order recorded Sandy Lane as a byway open to all traffic. The Inspector had initially proposed confirmation as a bridleway, but after further written submissions confirmed the order as originally made.

The claimants alleged that the Inspector applied the wrong burden of proof, made an error of law concerning dedication arising from Finance Act 1910 material, acted procedurally unfairly by relying on research and material not put to them, and reached an unsupported conclusion. The central issues were the standard of proof at confirmation and the legality of the Inspector’s reasoning and procedure.

1. Burden of proof. Section 53(3)(c)(i) contains two tests. At the preliminary Schedule 14 stage, an authority may make an order where the evidence establishes that a right of way is reasonably alleged to subsist. At the Schedule 15 confirmation stage, where the order is opposed, the Secretary of State must determine the disputed existence and extent of the right on the ordinary civil standard, namely the balance of probabilities. The reasonable-allegation test is insufficient at that stage.
2. The statutory scheme records and preserves existing public rights of way. The preliminary record is intended to invite objections; the confirmation procedure finally resolves the disputed rights. The scheme of the National Parks and Access to the Countryside Act 1949, the Countryside Act 1968 and the 1981 Act supports applying the civil standard to the final determination. The contrary reasoning in R (on the application of Leicestershire County Council) v Secretary of State for Environment Food and Rural Affairs [2003] EWHC 171 (Admin), to the extent inconsistent with that conclusion, was not followed.
3. Dedication. The Inspector’s change of mind rested on the conclusion that, by allowing Sandy Lane to be excluded from the 1910 Finance Act valuation, Sir Anthony Cope had dedicated it as a public carriageway. The evidence could not support an express dedication, and the Inspector’s reasoning was inconsistent with the legal distinction between dedication by the landowner and acceptance by public user. His conclusion was therefore based on an error of law.
4. Procedural fairness. The Inspector had researched the Finance Act plans and their use without giving the parties notice or an opportunity to comment. Since that material and the resulting dedication reasoning materially affected the decision, the procedure was unfair. The principle in Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 applied.
5. It was unnecessary to determine the fourth ground concerning the evidential support for the Inspector’s findings. The confirmation order dated 15 September 2003 was quashed.

not stated in the judgment.