Trail Riders Fellowship v Secretary of State for Environment, Food and Rural Affairs & Anor.

Judicial review of a definitive map modification order is confined to public-law error. The court must not re-evaluate historical evidence or substitute its own view of the merits. A decision involving maps and other historical documents should be read fairly and as a whole, without excessive legalism. A mistake-of-fact challenge requires an established and objectively verifiable mistake, for which the claimant is not responsible, that materially influenced the decision. Specialist inspectors are entitled to respect for their expertise. Whether historical evidence establishes a public highway, including a rural cul-de-sac, is ordinarily a fact-sensitive evaluative judgment. A cul-de-sac may be a public highway where the evidence identifies a reason for public access, such as access to several properties.

The claimant challenged under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 an order confirming modifications to the definitive map and statement for Northumberland. The inspector confirmed the route as a byway open to all traffic at its tarmacked ends, but modified the section between Greenhill and Fowberry to a public footpath, later reducing its width to 2.5 metres.

The challenge alleged an error concerning a 1951 highway map, inadequate weight given to early maps and the description of the route as “cross roads”, and an erroneous approach to the improbability of two rural vehicular cul-de-sacs. The issue was whether the inspector’s decisions contained an error of public law justifying quashing the modification.

1. The claim was dismissed. The inspector’s modifications to the order were not quashed.
2. The applicable principles were those of ordinary judicial review. Under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981, the court could intervene only for an error placing the order outside the statutory powers or for substantial prejudice caused by non-compliance with the statutory requirements.
3. The three order decisions had to be read together and fairly. The court should avoid excessive legalism and ask whether the decision, read straightforwardly, left genuine doubt about what had been decided and why.
4. The alleged mistake concerning the 1951 map was not established. Read with the earlier decisions, the inspector had understood that the map showed a route from X towards S, together with a short pencilled line from Y, but lacked a documented explanation for the subsequent alignment changes. In any event, the alleged error was neither an established, objectively verifiable fact nor material in the required sense.
5. The weight given to the early commercial maps and to Greenwood’s description of “cross roads” was for the experienced inspector. She had considered the maps, increased the weight given to Greenwood’s map, and balanced that evidence against the handover map, later records and definitive-map surveys. The court could not re-perform that factual balancing exercise.
6. There was no rule that a country cul-de-sac could not be a public highway. The inspector was entitled to regard access to several properties as a reason for public use and to conclude, on the historical evidence, that the tarmacked sections were public highways while the intervening section was not proved to carry a public vehicular right.

Any consequential matters not agreed were to be dealt with by written submissions and an agreed draft order filed within 14 days of hand-down.