Devine and Laverty v Welsh Ministers

On a statutory challenge to an inspector’s decision, the High Court must respect the primary decision-maker’s role in resolving conflicting evidence and assessing weight. It may intervene where relevant evidence was not taken into account, or where the reasoning is irrational or leaves genuine doubt about what was decided. A fact-finder must have regard to relevant evidence, but need not attach positive weight to every item. Where a statute requires a map to be considered, the decision-maker must assess its evidential weight by reference to the prescribed circumstances. Failure to do so may be Wednesbury unreasonable. A railway need not have had its track removed before dedication of a footpath becomes legally possible if reopening was already highly improbable.

The claimants owned land over which an inspector confirmed a definitive map modification order creating a public footpath. They applied under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 to quash the order.

The challenge alleged that the inspector had failed to assess evidence concerning fencing, had irrationally given no weight to a 1987 community map, and had misapplied the principle concerning dedication of land held for railway purposes. The central questions were the limits of statutory judicial review of factual findings and whether the inspector had complied with the evidential requirements of section 32 of the Highways Act 1980.

1. The claim succeeded and the inspector’s decision was quashed. The statutory challenge was confined to recognised judicial-review grounds, including error of law, procedural impropriety, failure to take account of relevant considerations and Wednesbury unreasonableness.
2. The factual issue under section 31(1) of the Highways Act 1980 was primarily for the inspector. A reviewing court must not reassess conflicting evidence or the weight assigned to it. It may intervene only where the decision is perverse, inadequately reasoned, or shows that relevant evidence was not considered. The court applied the approach in Edwards v Bairstow [1956] AC 14 and Seddon v Secretary of State for the Environment [1981] 42 P & CR 26.
3. The inspector had found physical evidence consistent with a fence having crossed the route, but failed to consider its implications when assessing the conflicting witness evidence and related circumstantial evidence. That was a failure to take account of relevant considerations, not an impermissible challenge to the weight of evidence.
4. Although a tribunal must have regard to all relevant evidence, it need not give every item positive weight. Evidence may properly be assigned little or no weight. The court also applied the restrained approach to decision letters stated in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 and Clarke Homes v Secretary of State for the Environment [1993] 66 P & CR 263.
5. Section 32 of the Highways Act 1980 required the inspector to consider the community map and determine its weight by reference to the matters specified in that section. Giving it no weight without addressing those matters, particularly where the issue had not been raised at the inquiry, was Wednesbury unreasonable.
6. The argument based on British Transport Commission v Westmoreland County Council [1958] AC 126 was unnecessary to the result, but the court held that the inspector had not erred. Securing the railway out of use in 1984 supported the conclusion that reopening was highly improbable in 1986. A later single use of the track to remove rails did not make that public-law conclusion unsustainable.
7. The Welsh Ministers were ordered to pay the claimants’ agreed costs of £15,064.94.