Lea & Anor, R (on the application of) v Secretary of State for Environment, Food and The Regions & Anor

An appeal under Schedule 15 to the Wildlife and Countryside Act 1981 is confined to public law grounds. The High Court reviews legality, including error of law, failure to apply the correct test, procedural or substantive unfairness, failure to consider relevant matters, improper consideration of irrelevant matters, inadequate reasons and Wednesbury irrationality.

Findings of fact and the weight given to evidence remain matters for the inspector unless one of those review grounds is established. Health and safety concerns about shared use of a bridleway cannot justify setting aside an order where the statutory test has been correctly applied. Allegations that evidence was fabricated should generally be pursued through the statutory process for seeking variation of the definitive map.

The claimants challenged an inspector’s decision following an inquiry held on 18 April 2012. The inspector had ordered that a route in Rochdale, previously classified as a pedestrian way, be recorded as a bridleway.

The challenge concerned the evidence of 20 years’ use by horses, barriers on the route, alleged trespass, health and safety risks arising from shared use by horses and pedestrians, and an allegation that supporting evidence had been exaggerated or fabricated. The central issue was whether the inspector’s decision disclosed any recognised public law error under Schedule 15 to the Wildlife and Countryside Act 1981.

1. The appeal was dismissed. The court’s jurisdiction under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 was a narrow review jurisdiction. The court could intervene for error of law, failure to apply the correct test, consideration of irrelevant matters or failure to consider relevant matters, procedural or substantive unfairness, inadequate reasons, or Wednesbury irrationality.
2. The inspector had correctly identified the statutory test under section 31 of the Highways Act 1980. That test required qualifying public use on horseback or leading a horse, as of right and without interruption, throughout the relevant 20-year period, subject to rebuttal by evidence of the landowner’s lack of intention to dedicate the way.
3. The inspector’s conclusion that there had been significant regular use by horses was a finding of fact. The inspector was entitled to assess the evidence, giving greatest weight to evidence given in person. The court could not substitute its own view of the evidence or the weight to be given to it.
4. The inspector was also entitled to find that barriers did not interrupt continuous use. The alleged unlawfulness of horse use did not answer the statutory question. Health and safety concerns were genuine, but they were not matters which could be taken into account in determining whether the statutory conditions for recording a bridleway were met. They might be relevant to future management by the local authority.
5. The allegation that evidence had been fabricated was unsupported and did not fall within the scope of the appeal. If pursued, it could be raised in an application to the local authority under section 53(5) of the Wildlife and Countryside Act 1981 seeking variation of the definitive map, followed, if necessary, by the statutory appeal to the Secretary of State.
6. The Secretary of State was entitled to costs. Under CPR 44.3 the court applied the two-stage approach identified in Lowndes v Home Office: first assessing proportionality and reasonableness in the aggregate, and then, where necessary, assessing individual items by reference to necessity. The claimants were ordered to pay the costs, with Mr Ross’s liability confined to the costs of the hearing at which he was joined.

The judgment itself describes the matter as an appeal from the decision of an inspector following a public inquiry. No citation for the inspector’s decision is stated.