Dorset County Council, R (on the application of) v DEFRA

For a modification order under section 53 of the Wildlife and Countryside Act 1981, the surveying authority must have discovered evidence. A change of mind or reinterpretation of evidence already considered is not itself a discovery. Whether an apparent cartographical error occurred is a question of fact for the inspector. Where the inspector considers the documentary evidence, including historical maps, and reaches a conclusion reasonably open to him, the court will not substitute its own assessment. The statutory conclusive status of the definitive map also means that cogent evidence is required to justify modification.

Dorset County Council, as surveying authority, sought permission to challenge an inspector’s refusal to confirm a modification order concerning Bridleways 3 and 11 at Edmondsham. The Council argued that section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 permitted correction of a cartographical error made when the definitive map was compiled, even where the underlying material had previously been available and considered.

Permission had been refused on the papers by Ouseley J. The renewed application alleged an error of law, inadequate reasoning and failure to consider historical maps. The central issue was whether the inspector had lawfully treated the Council’s case as a reinterpretation of existing evidence rather than the discovery of evidence.

1. Application refused. The Council had not shown an arguable error of law in the inspector’s decision.
2. Section 53(2)(b) of the Wildlife and Countryside Act 1981 requires a relevant event before the definitive map can be modified. Under section 53(3)(c)(i), that event includes the authority’s discovery of evidence which, considered with all relevant available evidence, establishes or reasonably alleges a right of way. The statutory requirement is therefore a discovery of evidence, not merely a new interpretation of evidence already before the authority.
3. The Council’s case involved a reinterpretation of material that had been available to it throughout. A different interpretation is not discovered. Treating a process of changing one’s mind as discovery would permit the issue to be reopened indefinitely.
4. Even if a mistaken interpretation could constitute the relevant error, it remained a factual issue for the inspector. The evidence was conflicting. The inspector was entitled to prefer the evidence indicating that the route shown on the later map had been deliberately selected, rather than inserted by cartographical mistake.
5. The 1989 definitive map was conclusive evidence of the rights of way shown on it under section 56(i). The inspector correctly required cogent evidence to justify alteration. His decision letter showed that he considered the competing documentary evidence, including the historical maps and aerial photographs, and gave adequate reasons for rejecting the Council’s case.
6. The approach was consistent with the discussion of discovery in Trenchard v the Secretary of State [1997] EWCA Civil 2670. The renewed application was refused.

• High Court (Administrative Court): Ouseley J refused permission on the papers on 23 May 2005. Mr James Goudie QC, on renewal, refused permission and upheld the inspector’s decision.