Turner & Anor, R (on the application of) v Minister for Environment Sustainability & Housing, One of the Welsh Ministers & Anor

Where a public right of way appears on a definitive map, its recorded status attracts a rebuttable presumption that the right exists. Deletion requires evidence of substance, considered on the balance of probabilities, showing that the route was wrongly recorded. The decision-maker must address the principal controversial issues and disclose, at least briefly, how material evidence was resolved. Judicial review does not permit the court to reweigh evidence or substitute its own view. Intervention is justified where material evidence is ignored, conclusions lack evidential support, or the reasoning is irrational. A decision may be quashed where those errors could have affected the central issue.

The claimants owned land crossed by Footpaths 1 and 17, recorded on the definitive map for the communities of Cyffylliog and Efenechtyd. Following the claimants’ application, Denbighshire County Council made a modification order proposing deletion of the routes under the Wildlife and Countryside Act 1981. After a public inquiry, the Welsh Minister’s inspector declined to confirm the order.

The claimants sought judicial review on the grounds that the inspector applied the wrong evidential test, failed to consider relevant matters or considered irrelevant matters, and reached an irrational conclusion. The central issue was whether the inspector’s reasons demonstrated a lawful application of the statutory and evidential approach.

1. The claim was allowed to the extent that the inspector’s decision of 14 April 2008 was quashed. The court declined to order confirmation of the modification order because the inspector had not considered whether public rights of way arose after 1954.
2. The inclusion of a right of way on the definitive map gives rise to a rebuttable presumption that it exists. Under section 53 of the Wildlife and Countryside Act 1981, deletion required evidence of substance which, on the balance of probabilities, showed that the routes had been mistakenly recorded. The inspector stated the correct approach and, viewed generally, applied it.
3. The court could not substitute its assessment of the historical evidence for that of the inspector. Weight was a matter for the inspector. Nevertheless, reasons had to be intelligible and adequate, and had to disclose how the principal controversial issues of fact and law were resolved.
4. The inspector had failed to deal adequately with material matters. She misunderstood the significance of correspondence concerning Mr Burdon’s path, failed to address the evidence that the routes might have been selected from Ordnance Survey maps, and gave no adequate reason for rejecting or failing to confront Dr Hodson’s evidence concerning private paths and double hedges during Miss Bremner’s occupation.
5. Those matters went to the central question whether the initial survey was accurate and whether the routes were private rather than public. The deficiencies were therefore not merely matters of weight or wording. They amounted, in that respect, to irrationality or Wednesbury unreasonableness.
6. The decision not to confirm the order was quashed. The residual issue whether public rights of way had arisen after 1954 remained for determination, preferably without a further public inquiry if practicable.