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

On a review of a definitive map under the Wildlife and Countryside Act 1981, the existing recorded route is presumed to be correct, but that presumption is rebuttable on the balance of probabilities. Where an alternative route is proved to be the correct route, that will ordinarily establish that the recorded route is wrong. The relevant definitive map is the map as modified under the statutory scheme, not an earlier underlying version. A statutory challenge is confined to public-law errors. An inspector’s decision letter must be read fairly and as a whole, with appropriate respect for the inspector’s factual expertise. A new factual point which was not advanced before the inspector may be refused where it would require further findings or prejudice affected persons who had no opportunity to respond.

The claimants, owners of Yew Tree House, challenged under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 an inspector’s decision confirming a definitive map modification order concerning Footpath ZR281 in Doddington, Kent.

The order deleted the recorded route through Victoria Bungalow and substituted a route through the claimants’ property. The claimants argued that the inspector had misunderstood the evidential effect of the definitive map and statement, failed to address the correct primary question, failed to consider relevant map evidence, and reached an irrational conclusion. The central issues were the applicable presumption, the relevant version of the definitive map, the adequacy of the inspector’s reasoning, and whether a new point about the status of part of the path could be raised for the first time in the High Court.

1. The claim was dismissed. The inspector’s confirmation of the modification order was within the statutory powers and disclosed no public-law error.
2. Section 56(1) of the Wildlife and Countryside Act 1981 makes the definitive map and statement conclusive as to the particulars recorded. That conclusiveness cannot prevent a review under section 53, since otherwise the modification provisions would have little or no effect. On a section 53 review, the decision-maker must begin with a presumption that a recorded right of way exists. Where both addition and deletion are in issue, the deletion question under section 53(3)(c)(iii) will generally be the starting point, and the presumption is against change.
3. The presumption applies to the definitive map and statement as modified. Under section 57(3), once a modified copy has been prepared in accordance with the statutory scheme, that modified map and statement is the definitive map for Part III purposes. The inspector was therefore not required to treat the unmodified 1952 map as the relevant definitive record.
4. The inspector adopted the approach in Leicestershire. Her finding, on the balance of probabilities, that the alternative route through Yew Tree House was the correct route was sufficient to rebut the presumption and establish that the recorded route through Victoria Bungalow was wrong.
5. The inspector had considered the historical maps and records required by section 32 of the Highways Act 1980, including the third-edition Ordnance Survey map and the 1910 Finance Act map. Their interpretation and the factual inferences drawn from them were matters for the inspector. The decision letter, read fairly and as a whole, gave a rational analysis and identified the evidence supporting its conclusion.
6. The proposed argument that the path between point X and the junction of Footpaths ZR281 and ZR283 was not public was not raised before the inspector. Applying the principles in Barker Mill, it was not permitted to be advanced in the High Court because it raised factual issues, might require further evidence and findings, and could affect persons who had no opportunity to make representations.
7. The statutory challenge therefore failed on all grounds.