Paton v Devon County Council & Anor

On an appeal by way of case stated, the court may intervene only for an error of law. It cannot reopen findings of fact where the lower court had evidence on which it was entitled to rely. The burden lies on the claimant to establish the existence of a highway maintainable at public expense. A definitive map and statement may provide conclusive evidence of the particulars recorded in it under the Wildlife and Countryside Act 1981. Where the evidence supports an existing public footpath on one route, but does not establish the additional route claimed, the claim may be dismissed. A mistaken expression in the lower court’s judgment will not justify intervention where its intended meaning is clear and the mistake did not affect the decision.

The claimants appealed by way of case stated against a decision of Mr Recorder Abbott in the Exeter Crown Court dated 19 January 2012. Their original challenge had been brought by judicial review, but they proceeded with the case-stated appeal after the Recorder stated a case.

The dispute concerned whether a claimed route between points B and C in North View, Devon, formed part of a highway maintainable at public expense. The Recorder accepted that a public footpath existed on a route running from Kimber Road through points F, E and D to A, but was not satisfied that the further B–C route existed. The central issues were whether there was evidence capable of supporting that conclusion and whether the Recorder had erred in law by treating the route from A to B as a public footpath.

1. The appeal was dismissed. An appeal by way of case stated required the claimants to identify an error of law. They could not use it to reopen the Recorder’s factual assessment after a three-day hearing. The claimants bore the burden of proving that the B–C route was a highway maintainable at public expense.
2. The Recorder had evidence on which he was entitled to rely. The historical maps were capable of supporting the claimants’ case, but they were ambiguous and there was no evidence of actual user of the B–C route. The Recorder was entitled to prefer the evidence indicating that the admitted footpath ran westwards from B through G to A.
3. Under section 56(1) of the Wildlife and Countryside Act 1981, the definitive map and statement were conclusive evidence of the particulars recorded. The 1950 Parish Council documents described a footpath beginning opposite the chapel and running westwards through the Glebe Yard towards Kimber Road. That evidence supported the conclusion that the relevant public route ran from A to B and onwards, rather than from B to C.
4. The Recorder was not required to establish the A–B route in order to dismiss the claim, since the essential question was whether B–C had been proved. In any event, the conclusion that A–B was a public right of way was not legally impermissible. A highway maintainable at public expense must be dedicated to the public, but the statutory evidence and surrounding circumstances provided a sufficient basis for the Recorder’s conclusion.
5. The Recorder’s statement that dedication had to be by the public was a clear slip. He intended to refer to dedication to the public, and that mistake did not affect the result. Order: appeal dismissed.

• Exeter Crown Court: Mr Recorder Abbott dismissed the claimants’ case on 19 January 2012 and initially considered that no point of law arose. He subsequently stated a case following permission concerning the failure or delay in doing so.
• High Court (Administrative Court): The appeal by way of case stated was dismissed: [2013] EWHC 1539 (Admin).