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

For the purposes of the Wildlife and Countryside Act 1981, the definitive map is the primary document. If its accompanying statement can properly be read as describing the mapped footpath, the documents should be read together. If they are irreconcilable, the map prevails until modified.

At the review stage, however, neither document is conclusive. Where the map and statement conflict, there is no evidential presumption that the map is correct and the statement is wrong. The decision-maker must assess both documents, together with relevant extrinsic evidence, and determine on the balance of probabilities whether modification is required. A decision reached by applying the map presumption at the expense of the statement is legally flawed.

Norfolk County Council, the surveying authority, sought judicial review of an inspector’s refusal to confirm an order modifying the definitive map and statement for Pentney Footpath No 12. The order proposed deleting part of the route shown on the map and adding a route corresponding more closely with the accompanying statement.

The inspector treated the map and statement as irreconcilable. She applied an evidential presumption in favour of the mapped route and required cogent evidence that the map was wrong and the statement correct. The central issues were the relationship between the map and statement, the evidential approach required on review under section 53 of the Wildlife and Countryside Act 1981, and whether the inspector’s approach justified quashing her decision.

1. Map and statement. The definitive map is the primary and source document for the purposes of section 56 of the Wildlife and Countryside Act 1981. The accompanying statement supplies particulars of the position of the footpath shown on the map. The documents must be read together as a practical exercise. Whether the statement describes the mapped footpath is a question of fact and degree, and some tolerance is permissible.
2. If the statement cannot properly be interpreted as describing the same footpath as the map, the mapped position prevails for the purposes of section 56. The map remains conclusive evidence unless and until modified under section 53. In the present case, however, the difference between the mapped and stated points was within a permissible tolerance, so the statement could potentially be read as particularising the mapped route.
3. Review under section 53. At the review stage neither the map nor the statement is conclusive evidence of its contents. The statutory scheme requires the decision-maker to consider whether the map or statement requires modification on the balance of probabilities. The conflict itself indicates that an error may have occurred in the preparation of one or both documents. It displaces any evidential presumption in favour of the map derived from Trevelyan v Secretary of State for the Environment, Transport and the Regions [2001] 1 WLR 1264.
4. The decision-maker must assess the map, the statement, relevant documentary and oral evidence, and the situation on the ground at or about the relevant date. The greater particularity of the statement may be important evidence, but either document may be undermined by the physical features or other evidence.
5. The inspector wrongly applied a presumption in favour of the map and against the statement. That error affected her assessment of the competing routes and it could not be said that the outcome would necessarily have been the same without it. The decision was therefore quashed. Consequential relief was to be addressed by further submissions.

This was a first-instance judicial review application. The judgment records no prior appellate decision in the present proceedings.