Derren Mcleish & Anor v The Secretary of State for Environment Food and Rural Affairs & Anor

The conclusive evidential effect of a definitive map under section 56 is distinct from the rebuttable evidential presumption applicable when the map is reviewed. Under section 53 of the Wildlife and Countryside Act 1981, an error in a definitive map may be corrected on the balance of probabilities.

The presumption against change attaches to the current definitive map, which is ordinarily the sole definitive map. It may be rebutted by evidence of substance. If both the current map and an earlier map are shown to be erroneous, neither presumption determines the route; the decision-maker must decide the correct route on all the evidence.

A public footpath was shown on Kent County Council’s 2013 definitive map as crossing Victoria Bungalow. Following evidence that successive map re-drawings had moved the route eastwards through copying errors, an inspector confirmed an order which relocated the path along the appellants’ land at Yew Tree House.

The appellants’ challenge was dismissed by the Planning Court: [2024] EWHC 532 (Admin). They appealed on the sole ground that the rebuttable presumption against changing a definitive map should have applied to the original 1952 map, rather than the later map as modified.

The central issue was the relationship between the conclusive effect of a definitive map and the evidential presumption applied during a statutory review.

1. Appeal dismissed unanimously. Lord Justice Males, with whom Lord Justice Holgate and Lord Justice Coulson agreed, held that the inspector was entitled to conclude that the correct route was A-B-X-C.

2. Section 56 of the Wildlife and Countryside Act 1981 gives a definitive map conclusive effect in disputes external to the review process. It does not apply when an authority considers whether an error should be corrected under section 53. Otherwise a mistake could never be rectified. This followed the established approach in [1991] 2 QB 354 and [2001] EWCA Civ 266.

3. The review process instead involves a rebuttable evidential presumption that the existing definitive map is correct. The presumption reflects the care normally taken in preparing such maps and becomes weaker in the face of contrary evidence. The ultimate question is decided on the balance of probabilities, taking account of all the evidence; evidence of substance is required to displace the initial presumption.

4. Following a lawful modification, or preparation of a copy under section 57(3), the map as modified is the definitive map. There can be only one definitive map at a time. In principle, where a current map is shown to contain a copying error, it may be sensible to consider the presumption in relation to the preceding version.

5. That possibility did not assist the appellants. The 2013 route had plainly drifted through copying errors, while the 1952 route passed through buildings already in existence. Both presumptions were therefore rebutted. The inspector properly determined the correct route from all the available evidence and her conclusion was open to her.

6. Section 53ZA, if brought into force with regulations, may provide a streamlined means of correcting obvious administrative errors. It did not affect the appeal.

• Court of Appeal (Civil Division): Appeal dismissed. The court affirmed the dismissal of the challenge to the definitive map modification order.
• High Court, Planning Court: The appellants’ statutory challenge was dismissed by Neil Cameron KC, sitting as a Deputy High Court Judge: [2024] EWHC 532 (Admin).