Kotarski & Anor v Secretary of State for Environment, Food and Rural Affairs

On a review of a definitive map and statement, the statutory conclusive-evidence provision does not prevent review under section 53 of the Wildlife and Countryside Rights of Way Act 1981. Where the map and statement conflict, neither attracts an automatic evidential presumption over the other. The decision-maker must assess all relevant evidence and determine, on the balance of probabilities, what particulars are correct. Discovery of a divergence between the map and statement may satisfy the statutory precondition for review; it need not be characterised as “new evidence”. A late challenge to the width of a route will not ordinarily justify quashing an order where the issue was not properly raised before the inspector.

The claimants challenged an inspector’s decision confirming the Devon County Council (Footpath No. 7 Woolfardisworthy) Definitive Map Modification Order 2007. The order added to the definitive map a spur already described in the definitive statement. The claimants argued that the map took precedence, that the statement was not relevant evidence absent depiction on the map, and that section 53 required newly discovered evidence. They also raised a late objection to the route’s width. The central issues were whether the inspector had erred in evaluating the conflicting map and statement, whether the statutory review power had been engaged, and whether the width issue required the order to be quashed.

1. The claim was dismissed. The inspector had been entitled to confirm the order.
2. Sections 53 and 56 of the Wildlife and Countryside Rights of Way Act 1981 must be read together. Section 56 gives the definitive map and statement conclusive evidential effect, but does not inhibit a review under section 53.
3. Where the definitive map and statement conflict, neither document enjoys an evidential presumption at the expense of the other. Both may be relevant evidence. The inspector was entitled to attach substantial weight to the definitive statement while declining to treat that evidence as a presumption rebuttable only by substantial contrary evidence.
4. The statutory precondition for review is discovery of evidence which, considered with all other relevant evidence, shows that particulars in the map and statement require modification. Discovery of a divergence between the two documents was sufficient. It was unnecessary to label that discovery “new evidence”.
5. The challenge to the width of the route had not been properly raised before the inspector. Although the judge was concerned that the width might be too broadly described, the council’s willingness to reconsider and, if appropriate, seek a further modification was the proper response. The court had no power to modify the order itself.

First-instance judicial review proceedings. The judgment records that the claimants sought to quash the inspector’s decision dated 30 January 2008 confirming the footpath order.