Wright & Anor v Secretary of State for Environment, Food and Rural Affairs

For a public right of way to arise under Highways Act 1980, s 31, use must be sufficient in quantity and quality to demonstrate public assertion of a continuous right over the route. The evidence must establish user throughout the entire relevant twenty-year period, and each route must be considered separately. The inquiry may take account of the character and destination of the path, evidence from the landowner, challenges to user, and the absence of contrary evidence. An inspector may reach a rational conclusion from unchallenged oral evidence and need not give extensive reasoning on an issue that was not materially advanced at the inquiry.

The claimants, trustees owning woodland in Cumbria, challenged the Secretary of State’s confirmation of a definitive map modification order. The order recorded public footpaths through the woodland, following an inspector’s inquiry into evidence of public use between 1987 and 2007.

The challenge concerned the path from A to C and the inspector’s assessment of use during the early part of the twenty-year period. The claimants argued that the inspector had relied on evidence covering a longer period than it actually covered and had failed properly to assess the user evidence forms. The central issue was whether the inspector’s conclusion that the statutory conditions for dedication were met was irrational or legally inadequately reasoned.

1. The claim was dismissed. The inspector had a rational evidential basis for confirming the path from A to C and its continuation. The relevant test under Highways Act 1980, s 31, required sufficient public use as of right and without interruption throughout the whole twenty-year period, in relation to each route.
2. Use had to be sufficient to bring home to the mind of a reasonable non-absentee landowner that the public were asserting a continuous right. The required number of users could vary according to the circumstances, and the same users need not use the route throughout the period. The quality of user, the path’s character and destination, the landowner’s evidence, and any evidence of interruption or challenge were relevant. This reflected Mann v Brodie (1885) 10 App. Cas. 378 and R (Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11.
3. The inspector was entitled to rely on the evidence of witnesses whose evidence was unchallenged. That evidence extended beyond their own use and supported an inference of wider public use. Evidence that the route was well established by about 1990 or 1991, together with the absence of any event explaining a later increase in use, rationally supported use during the earlier years.
4. The claimants had not focused before the inspector on the sufficiency of use on route A to C or on the early years as distinct issues. The inspector was therefore not required to provide a separate or more extensive analysis of them. His reference to the oral evidence did not amount to a legally material mischaracterisation.
5. The inspector had probably considered the user evidence forms but attached little or no weight to them. The claim could be resolved on the oral evidence alone, so no ruling on their admissibility was necessary. The application was dismissed.

The judgment describes an administrative decision-making history rather than an appeal. Cumbria County Council made a definitive map modification order in June 2013. Following a public inquiry, the inspector issued an interim decision on 20 May 2015 and a final decision in September 2015. The judicial review claim challenging the interim decision was dismissed.