Roxlena Ltd, R (On the Application Of) v Cumbria County Council

At the preliminary stage of a definitive-map application, a surveying authority asks whether the evidence makes it reasonable to allege that a public right of way subsists. It does not finally determine the right or resolve conflicting evidence. The authority must use the best evidence available and may exercise judgment about route alignment and width. The court ordinarily intervenes only for irrationality or a plain error of law.

A temporary cessation of use remains a question of fact. Its cause, including disease-control measures, does not make it incapable in law of being an interruption. Evidence discovered during an earlier, undetermined application may still be relied on where the authority’s continuing-review duty has not been performed. The claim was dismissed.

The claimant sought judicial review of the council’s resolution authorising orders, subject to confirmation, adding 34 footpaths and extending a bridleway on land at Hayton Woods to the definitive map and statement.

Four grounds alleged inadequate route evidence, failure to investigate alleged interruption of 20 years’ use, unlawful reliance on user evidence forms previously submitted with an undetermined application, and insufficient evidence for the bridleway extension. The central issues were the scope of the council’s preliminary decision-making function under the Highways Act 1980 and Wildlife and Countryside Act 1981, and the proper intensity of judicial review.

1. Preliminary statutory test. The council was required to decide whether the evidence made it reasonable to allege that the rights of way subsisted. It was not required at this stage to make final findings of fact or apply the balance of probabilities. That higher standard applied at confirmation stage where appropriate.
2. Route alignment and evidence. The surveying authority had to make a judgment on the basis of the best evidence available. The law did not require an exacting or unattainable degree of precision, particularly where access for a survey had been prevented. The committee was entitled to prefer the March 2016 report to the December 2016 report and was not required to give separate reasons for departing from the officer’s recommendation. The court would normally require irrationality or a plain error of law before interfering.
3. Uninterrupted enjoyment. Whether non-use amounted to an interruption was a question of fact; the cause of non-use was not determinative. The court rejected the proposition that disease-control measures could never produce an interruption. Nevertheless, the 40 user evidence forms asserting uninterrupted use supplied evidence on which the council could reasonably allege the rights of way, without making further enquiries about the foot-and-mouth outbreak. Any detailed evidential dispute belonged to the inspector at a public inquiry.
4. Previously discovered evidence. The user evidence forms were discovered when the earlier application was made and were not discovered again when the later application relied on them. However, the council’s continuing duty under section 53(2)(b) of the Wildlife and Countryside Act 1981 survived the earlier application’s failure. The council could therefore act belatedly on evidence discovered earlier, and the later applicant could rely on it. Schedule 14 procedural requirements remained applicable; relief could be granted for resulting unfairness, but none occurred.
5. Bridleway. The historical material and maps provided a basis on which the committee could reasonably allege the extended bridleway. Criticism of the evidence and route was for the inspector to evaluate. The court would not substitute its own assessment absent irrationality or a plain error of law.
6. All four grounds failed. The claim was dismissed.