Devine & Anor v Welsh Ministers

On judicial review, an inspector’s decision letter should be read as a whole, using a straightforward approach and without excessive legalism. Where the letter is coherent and internally consistent, apparent inconsistencies should not readily be found unless they are obvious. A court should show circumspection when reviewing factual conclusions, particularly where the inspector has resolved conflicting oral evidence with the assistance of physical or documentary material. An inspector may give no weight to a public map of local walks where there is no evidence that it was intended to be comprehensive or how its information was gathered.

The Welsh Ministers appealed against Beatson J’s decision of 27 January 2011, which quashed an inspector’s confirmation of a footpath order. The order concerned the addition of a footpath near Talbot Green to the definitive map. The respondents, who owned parts of the land, challenged the inspector’s findings concerning alleged fences across the route and his treatment of a 1987 local-walks map. The central issues were whether the inspector’s reasoning on the fencing evidence was sufficiently clear and whether he was entitled to give the map no weight under section 32 of the Highways Act 1980.

Appeal allowed. The Court of Appeal unanimously upheld the inspector’s decision.

1. Approach to the inspector’s decision. The court must read an inspector’s report as a whole and adopt a straightforward, down-to-earth approach, without excessive legalism or exegetical sophistication. If the report is coherent and internally consistent, inconsistencies should not readily be found unless obvious. Quashing requires powerful evidence of incoherence or inconsistency. This approach was consistent with Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P & CR 263.
2. Fencing evidence. Section 31(1) of the Highways Act 1980 made a full period of public use as of right and without interruption material to deemed dedication. The inspector had identified a fence south of point B, across the former railway line but not across the order route. Read as a whole, his report coherently preferred the council witnesses and concluded that access had probably not been impeded during the relevant period. The unhappy shorthand in paragraphs 37 and 60 did not justify attributing a different finding to him or quashing the decision. He was also entitled to conclude that the conveyance obligation to erect fencing had not been performed.
3. 1987 map. The inspector was entitled to give no weight to the Community Council’s map. There was no evidence of the criteria used, how the information had been gathered, or that the map was intended as a comprehensive survey. Section 32 did not require weight to be given to the map merely because it had been produced by a public body during the relevant period.

Lord Justice Jackson agreed, although he found the fencing issue more difficult. Lord Justice Gross agreed with Pill LJ’s reasons.

1. Court of Appeal (Civil Division): The appeal by the Welsh Ministers was allowed and the inspector’s decision was upheld.
2. Cardiff Civil Justice Centre: Beatson J quashed the inspector’s decision on the fencing issue and the treatment of the 1987 Community Council map.