Garland & Anor v The Secretary of State for Environment, Food And Rural Affairs

A challenge to a confirmed definitive map modification order under Wildlife and Countryside Act 1981 is judicial review. The court may intervene only for public-law error, including application of the wrong legal test, failure to consider relevant matters, procedural unfairness, inadequate reasons or irrationality.

Whether a route has been dedicated as a bridleway at common law, and whether its use would constitute a public nuisance or be incompatible with statutory functions, depends on the evidence and the facts reasonably foreseeable at the relevant date. The objective question in assessing lack of intention to dedicate is what a reasonable user would have understood from barriers and signs. A court reviewing an inspector must not re-try factual disputes.

The claimants applied under paragraph 12 of schedule 15 to the Wildlife and Countryside Act 1981 to quash an order changing the recorded status of a route in Surrey from footpath to bridleway. The order had been made by Surrey County Council under section 53 and confirmed by an inspector after a public inquiry.

The claimants challenged the inspector’s decision on the grounds that the route’s underpass made dedication as a bridleway legally impossible, that the inspector applied the wrong objective test to barriers and signs, that he inadequately evaluated user evidence, and that the original order-making process was defective. The central questions were whether the inspector had erred in law or acted irrationally, and whether later statutory procedures had remedied any earlier investigative deficiencies.

1. Disposition. The claim was dismissed. The court treated the challenge under paragraph 12 of schedule 15 to the Wildlife and Countryside Act 1981 as a judicial review challenge, applying the principles summarised in R (Elveden Farms Ltd) v Secretary of State for Environment, Food and Rural Affairs [2012] EWHC 644 (Admin) at [3].
2. Public nuisance and physical character. Whether use of a route by horse riders and cyclists would constitute a public nuisance to pedestrians was a factual question for the inspector. The inspector identified the correct question and was entitled, on the evidence and his site inspection, to conclude that the underpass did not make designation as a bridleway a public nuisance. The case was factually distinguishable from Sheringham UDC v Holsey (1904) LGR 744.
3. Statutory incompatibility. The relevant issue was whether use of the underpass was incompatible with the strategic highway authority’s duties concerning the safe and efficient operation of the M25, assessed by reference to facts as they were and could reasonably be foreseen at the date of the inquiry. There was no evidence of material impact on the motorway, so the inspector’s conclusion was not perverse.
4. Objective intention. Under section 31 of the Highways Act 1980, the question was what a reasonable user would have understood the landowners’ intention to be. Evidence from individual users could inform that objective assessment. The inspector was entitled to find that earlier barriers and signs were directed principally at motor vehicles and antisocial activities, rather than cyclists or horse riders. He properly distinguished R v Secretary of State for the Environment, ex parte Blake [1995] JPL 101.
5. Evidence and review. The inspector had carefully evaluated the written and oral user evidence. The court was not hearing an appeal on the facts and could not substitute its own assessment for findings reasonably open to the inspector.
6. Human rights and order-making process. Any safety concerns capable of engaging article 2 were capable of consideration through the common-law public-nuisance principle and traffic-regulation powers. Complaints about investigation at the order-making stage had been remedied through the confirmation process, public inquiry and opportunity to present evidence.