Macintosh & Ors, R (on the application of) v Secretary of State for the Environment Food and Rural Affairs

When an application seeks to downgrade a right of way recorded on a definitive map, the challenger must establish on the balance of probabilities, by cogent evidence, that the recorded status is wrong. The recorded status carries an initial presumption in its favour.

On judicial review, the question is not whether another inspector might have reached a different conclusion. The question is whether the decision was outside the range of responses reasonably open to the inspector. An inspector may analyse extensive evidence in stages, provided the decision demonstrates that the evidence was considered as a whole. The weight given to individual evidence and the inferences drawn from it are principally matters for the inspector.

The claimants sought judicial review of an inspector’s refusal to confirm an order downgrading Bridleway 31, Brereton, in Cheshire, to footpath status. The order had been made under section 53 of the Wildlife and Countryside Act 1981 after an inquiry.

The claimants argued that the inspector had misapplied the statutory and evidential test, failed to consider relevant matters, and reached a perverse conclusion. The central issues were whether the inspector had applied the approach in Trevelyan v Secretary of State for the Environment and Regions and whether his conclusion was Wednesbury unreasonable.

1. The application for judicial review was refused. The claimants were ordered to pay the defendant’s costs, subject to detailed assessment if not agreed. Permission to appeal was refused.
2. Section 53 of the Wildlife and Countryside Act 1981 required the surveying authority to modify the definitive map where the statutory event was established. The applicable approach to downgrading a recorded bridleway was that stated in Trevelyan v Secretary of State for the Environment and Regions: the recorded status carried an initial presumption, but the ultimate standard was the balance of probabilities and the challenger had to produce evidence of sufficient substance or cogency.
3. The inspector had expressly identified and applied the correct test. His conclusion that the evidence was not cogent enough to demonstrate that the bridleway should be downgraded was legally open to him.
4. The inspector had considered the evidence in considerable detail, including historical documents, statements concerning foot use, parish council material, physical features, landowners’ evidence and expert evidence about equestrian access. Analysing the evidence in separate periods and then drawing the threads together did not demonstrate improper compartmentalisation.
5. The complaints about particular items of evidence concerned the weight attached to them and the inferences drawn. Those were matters for the inspector. The court’s task was not to decide whether another inspector might have reached a different conclusion, but whether no reasonable inspector could have reached this conclusion. The decision fell within the range of reasonable responses and was not perverse.