Elveden Farms Ltd, R (on the application of) v Secretary of State for Environment Food and Rural Affairs

A challenge under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 proceeds by judicial review. The court must not reconsider the merits or substitute its own view for that of the statutory decision-maker.

The decision-maker must apply the correct legal test, take account of all and only relevant considerations, act fairly, and give sufficient reasons. Where an inspector introduces a new evidential or legal approach, the reasoning must explain why that approach is preferred over contrary evidence and earlier conclusions. A failure to explain the treatment of material evidence, or to address relevant factors, may justify quashing the decision.

The claimant challenged the Secretary of State’s confirmation of an order adding a byway open to all traffic to Suffolk County Council’s Definitive Map and Statement. The route crossed land owned by the claimant and had previously been considered by an inspector in 1993.

The later inspector considered historical maps, aerial photographs, boundary features and evidence concerning the route’s alignment and width. The claimant contended that the route could not be identified with sufficient precision and challenged the inspector’s reasoning. The central issues were the proper scope of the statutory challenge, the adequacy of the inspector’s reasons, and whether relevant evidence and considerations had been taken into account.

1. Outcome. The claim succeeded. The court quashed the two inspector’s order decisions. The underlying county council order remained to be reconsidered by the Secretary of State under Schedule 15, beginning afresh under the paragraph 7 procedure and, if appropriate, paragraph 8. A different inspector or inspectors should conduct the reconsideration. There was no order as to costs.
2. Paragraph 12 of Schedule 15 provides a judicial review-type challenge. The court was not entitled to reassess the evidence and substitute its own factual decision. The relevant grounds included error of law, failure to apply the correct test, failure to take account of relevant considerations, procedural or substantive unfairness, inadequate reasons and perversity.
3. The paragraph 7 process produced a preliminary decision or proposal. The paragraph 8 process was the later final stage and did not confine objections to the modifications proposed by the inspector. The claimant had misunderstood the scope of paragraph 8, but that did not cure the earlier failure to give adequate reasons.
4. The inspector wrongly treated the claimant’s case as not challenging the route between points D and E. He therefore failed to explain why he preferred the later evidence and submissions to the contrary conclusion reached in 1993. The reasoning did not enable an informed reader to understand why the claimant had won or lost.
5. The inspector also introduced a fence-to-fence presumption without prior notice. The legal approach was capable of being used as a factual exercise based on reasoned inference, but the inspector failed to balance the evidence supporting alternative agricultural or other explanations against the factors supporting his conclusion. His later decision did not adequately revisit the original reasoning in light of the new evidence. The decisions were consequently flawed for inadequate reasoning and, alternatively, failure to take relevant factors into account.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.