Thould & Ors v Secretary of State for the Environment Food and Rural Affairs

For deletion of a public right of way from a definitive map, the decision-maker must begin with a presumption that the recorded right exists. That presumption is not irrebuttable. It may be displaced by evidence of sufficient substance, considered with all other relevant evidence, showing on the balance of probabilities that the map was recorded in error. The evidence may include the material supporting the original inclusion of the route. A decision-maker must address the principal controversial issues and give reasons sufficient to explain the conclusion. Where the application concerns deletion of the entire right of way, evidence concerning use on foot may remain relevant, even where the recorded route is a bridleway. A separate application to downgrade a bridleway to a footpath raises a different question.

The claimants sought judicial review of an Inspector’s decision not to confirm an order deleting part of Bridleway 57, South Cawton, from Devon’s Definitive Map and Statement. The route had been included in 1967 following earlier evidence and inquiries. A previous Inspector had recommended deletion, and the Secretary of State had directed the County Council to make a modification order. Following objections and a further public inquiry, the second Inspector considered the historical evidence, the route’s physical condition, evidence of use and documentary material, and refused confirmation. The claimants alleged an error of law, inadequate reasons and perversity. The central issue was whether the Inspector had lawfully applied the presumption governing a recorded right of way and had adequately assessed whether the map had been made in error.

1. Application dismissed. The Inspector’s decision not to confirm the modification order was lawful.
2. Under section 53 of the Wildlife and Countryside Act 1981, the decision-maker had to consider whether the available evidence, taken as a whole, showed that there was no public right of way over the route. The approach in Trevelyan v Secretary of State for the Environment Transport and the Regions [2001] 1 WLR 1264 required an initial presumption that a recorded right existed. The standard for deletion remained the balance of probabilities, but evidence of substance was required to overcome that presumption.
3. The Inspector had not treated the presumption as irrebuttable. Reading his decision letter as a whole, he had considered both the claimants’ new evidence and the evidence available when the route was added to the map. That historical evidence included surveys and witness evidence supporting the original inclusion. His statement that it was not appropriate simply to re-examine the old evidence did not prevent him from evaluating its quality and weight.
4. The Inspector was entitled to infer from the absence of an objection to the order route, and from the specific evidence explaining deletion of the adjoining section, that the two sections were not necessarily supported by identical evidential circumstances. The inference was not one which every decision-maker would necessarily draw, but it was open to him and was not perverse.
5. The Inspector’s reasons sufficiently addressed the route’s physical characteristics, lack of recent use, documentary evidence, the historical evidence and the effect of the presumption. His conclusion that the claimants had not shown an error in the definitive map was reasonably open to him.
6. The judge observed that an application under section 53(3)(c)(ii) to downgrade the bridleway to a footpath might have been compelling on the evidence concerning equestrian use. That issue was not before the Inspector, whose task was to decide whether any public right of way existed.

The judgment itself records earlier administrative stages:

• First Inspector: recommended deletion of the route after the claimants’ appeal against Devon County Council’s refusal to make an order.
• Secretary of State: accepted that recommendation and directed the County Council to make a modification order.
• Second Inspector: following objections and a public inquiry, refused to confirm the order.
• High Court (Administrative Court): dismissed the claim for judicial review.