Martin Wilkins & Anor v Secretary of State for Environment, Food and Rural Affairs

A statutory challenge to a definitive map modification order succeeds only where the decision is outside the statutory powers, including because of legal error. The extent of a highway is a question of fact. The boundary-to-boundary principle is not an automatic presumption whenever a highway lies between fences or hedges. It applies only where the boundary features were erected by reference to the highway.

Decision letters must be read fairly and as a whole. A planning inspector may determine width by reference to reliable historical Ordnance Survey maps where the evidence permits, resorting to a reasonable-width assessment only where the available evidence is insufficient. Earlier findings by another inspector are not binding where the applications and issues differ, provided the later decision is rational and adequately reasoned.

The claimants, owners of land crossed by Restricted Byway AB27 in Kent, challenged the Secretary of State’s confirmation of a definitive map modification order recording the route’s width by reference to specified Third Edition Ordnance Survey maps.

They alleged that the inspector had misdirected himself on the boundary-to-boundary principle, departed unlawfully from findings made by another inspector about the likely date of dedication, and irrationally relied on scaling from Ordnance Survey maps. The Secretary of State and an interested landowner resisted the claim. The court also determined the admissibility of additional evidence from the claimants’ rights-of-way consultant.

1. Statutory framework and admissibility. Under sections 53(2) and 53(3)(c)(iii) of the Wildlife and Countryside Act 1981, the decision-maker had to determine whether the available evidence showed that particulars in the definitive map and statement required modification. Under paragraph 12 of Schedule 15, the court could intervene if the order was outside those powers, including because of legal error. Paragraphs 20–28 of Mr Carr’s witness statement were excluded because they were argumentative expert opinion and commentary on the inspector’s decision, not reasonably required evidence of fact.
2. Boundary-to-boundary principle. The principle is not a presumption of law arising merely because a highway runs between boundaries. Whether boundary features were erected by reference to the highway is a question of fact. The inspector’s final decision did not depend on the interim decision’s reference to the principle. Read as a whole, the final decision assessed historical maps, photographs, statutory declarations, actual use and the provision of bypass gates before concluding that the full width had been dedicated.
3. Earlier findings. The earlier inspector had not fixed a specific date of dedication. The later inspector considered that decision, but was addressing a different application and had additional evidence, including evidence of use and a site inspection. The findings were therefore not inconsistent and did not require the later inspector to adopt the earlier conclusion.
4. Width and mapping evidence. The guidance required width to be determined from available evidence. A reasonable-width judgment was necessary only if the evidence was insufficient. The inspector gave adequate reasons for preferring the Third Edition Ordnance Survey maps and for scaling measurements from them. That was a factual and evaluative judgment, not irrationality or legal error.
5. The claim was dismissed.