Piers Monckton & Anor, R (on the application of) v Staffordshire County Council

Judicial review is ordinarily a remedy of last resort. Where Parliament has created a specialist statutory procedure capable of determining the dispute, the court should normally refuse permission unless exceptional circumstances create a compelling need to intervene, such as a serious error of law or defiance of the rule of law.

Under section 53(3)(c)(i) of the Wildlife and Countryside Act 1981, a surveying authority need only decide whether it is reasonable to allege that an unrecorded right of way subsists. It must not decide the issue on the balance of probabilities or anticipate the outcome of the later confirmation inquiry.

Challenges involving disputed historical evidence, maps and factual inferences are ordinarily for the specialist inspector and any subsequent statutory review.

The claimants sought permission to apply for judicial review of Staffordshire County Council’s resolution to make a modification order adding a claimed public footpath to the definitive map and statement under the Wildlife and Countryside Act 1981.

The Council had not yet made the modification order. The claimants argued that the Council had misunderstood historical orders, statutory materials and evidence concerning the route. The Council relied on the statutory procedure in Schedule 15 as a suitable alternative remedy and undertook to reconsider its resolution in light of new evidence and submissions.

The central issues were whether judicial review was available and appropriate before the order-making process had progressed, and whether the Council had committed a serious and obvious error of law requiring intervention.

1. Permission refused. The statutory procedure under Schedule 15 to the Wildlife and Countryside Act 1981 was a suitable, and in this case more suitable, alternative remedy. It provided for objections, a public inquiry before a specialist inspector, confirmation by the Secretary of State and statutory review by the High Court on a point of law.
2. The ouster clause in paragraph 12(3) did not exclude the High Court’s jurisdiction before a modification order had been made. The refusal of judicial review rested instead on the discretionary principle that judicial review is ordinarily a remedy of last resort. Intervention before completion of the statutory process required exceptional circumstances, such as a serious error of law creating a compelling public-interest need for immediate relief.
3. The authority’s task under section 53(3)(c)(i) was to decide whether the alleged right of way was reasonably alleged to subsist. It was not required to decide whether the right subsisted on the balance of probabilities or to anticipate the inspector’s decision at confirmation. The order-making and confirmation stages involved different evidential standards.
4. The challenges concerning the 1827 and 1828 orders, historical maps, Finance Act material, Parish Surveys and an evidential gap raised factual disputes, questions of judgment and matters suitable for investigation by the specialist inspector. Errors in the officer’s report, including incorrect reliance on Parish Survey material and the lost modern grant doctrine, did not establish a serious and obvious error requiring intervention.
5. The declaration made under section 31 of the National Parks and Access to the Countryside Act 1949 did not prevent the operation of the comprehensive and self-contained code introduced by the 1981 Act. The later statutory scheme could permit correction of a previously mistaken decision where new or previously unconsidered evidence emerged.
6. The Council’s undertaking to refer the matter back to the Panel for reconsideration meant that the later decision would effectively supersede the resolution under challenge. The Court therefore declined to determine the alternative submission under section 31 of the Senior Courts Act 1981.

First instance judicial review claim. The Council’s resolution was not quashed, and the Court refused permission to apply for judicial review.