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

When deciding whether to make a definitive map modification order under section 53(3)(c)(i) of the Wildlife and Countryside Act 1981, a surveying authority asks whether a right of way subsists or is reasonably alleged to subsist. A reasonable allegation requires less evidence than proof on the balance of probabilities. The authority need not anticipate the outcome of confirmation proceedings.

Its duty to investigate is proportionate to that preliminary stage and does not require every evidential conflict to be resolved. Previously discovered evidence may be considered when resubmitted if it was never substantively considered. A defective or discontinued application does not displace the authority’s continuous review duty.

Cumbria County Council resolved to make a definitive map modification order adding 34 footpaths and extending a bridleway over woodland owned by Roxlena Ltd and another landowner. The claimed routes were supported by user evidence and historical documents, but their location, continuity of use during the 2001 foot-and-mouth outbreak and evidential history were disputed.

Kerr J dismissed Roxlena’s judicial review claim in [2017] EWHC 2651 (Admin). Roxlena appealed, contending that the evidence could not support the order, that the council had inadequately investigated the user evidence, and that previously submitted material had not been validly “discovered” under section 53(3)(c) of the Wildlife and Countryside Act 1981. The central issue was the evidential and investigative standard governing the preliminary order-making stage.

1. Appeal dismissed. The council had lawfully decided to make the modification order. Its committee was entitled to disagree with the officer’s recommendation and its assessment was neither irrational nor affected by a material error of fact (per Lindblom LJ, Irwin and Simon LJJ agreeing).

2. The making and confirmation of a definitive map modification order are separate statutory stages. At the order-making stage, section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 offers two alternatives: the right of way subsists, or it is reasonably alleged to subsist. Applying the balance of probabilities to the second alternative would remove the distinction chosen by Parliament. The authority need not predict whether an inspector will later confirm the order. Conflicting evidence may properly be tested at an inquiry, unless the allegation is plainly unsustainable or inevitably defeated by incontrovertible evidence.

3. The precision with which a claimed route must be identified depends on the available evidence. There is no requirement to depict a route more precisely than that evidence justifies. The committee could reasonably find that the historical map, route markings and user material identified the footpaths sufficiently for an order, notwithstanding the absence of a site survey. The documentary evidence likewise supported a reasonable allegation that the bridleway extended to the quarry.

4. The duty to investigate under paragraph 3(1)(a) of Schedule 14 does not require investigation beyond the depth reasonably considered necessary at the preliminary stage. The council could take the 40 users’ evidence of uninterrupted use at face value without asking each whether the response concerning the foot-and-mouth outbreak was inadvertent. Its reliability could be tested at confirmation.

5. For section 53(3)(c), the relevant event is composite. Evidence must be discovered and substantively considered with the other available evidence so that it shows one of the prescribed circumstances. Material previously received but never considered in substance may therefore be considered when submitted again. No fresh evidence is required merely because an earlier application failed procedurally.

6. The continuous review duty under section 53(2)(b) remains free-standing. It is neither suspended nor displaced by an application under section 53(5), its withdrawal, or non-compliance with Schedule 14.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2019] EWCA Civ 1639. The court upheld the council’s decision and Kerr J’s dismissal of the judicial review claim.

2. Administrative Court, Planning Court: Kerr J dismissed the judicial review claim in [2017] EWHC 2651 (Admin). He held that the council could reasonably make the definitive map modification order and had complied with its investigative obligations.