David Moore & Anor v The Secretary of State for the Environment, Food & Rural Affairs

On a statutory review of a definitive map and statement, the initial presumption is that a recorded right of way exists. That presumption is a presumption against change, not a consequence of the conclusive-evidence provision in the Wildlife and Countryside Act 1981.

The presumption may be displaced where the map and statement are irreconcilable. Whether they are irreconcilable is a practical question of fact and degree. The documents may be read with reference to the physical circumstances at the relevant date, but other extrinsic evidence is considered only after the presumption has been displaced. An inspector’s historical and mapping assessment is primarily factual and is reviewable only on public law grounds such as irrationality, procedural unfairness or inadequate reasons.

The claimants challenged the Secretary of State’s Inspector’s confirmation of an order made under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981. The order deleted the recorded alignment of Little Berkhamsted Bridleway 18 between points A and B and added an alignment between points C, D, E and B across the claimants’ land.

The challenge concerned the statutory discovery of evidence, the relationship between the definitive map and statement, the treatment of historical and photographic evidence, procedural fairness, alleged irrationality and the adequacy of the Inspector’s reasons. The central issue was whether the Inspector lawfully concluded that the map and statement were irreconcilable and that the alternative route was established on the balance of probabilities.

1. Claim dismissed. Each ground of challenge failed.
2. The statutory review scheme required a discovery of evidence which, considered with all other relevant evidence, showed that modification was required. A divergence between the definitive map and statement could constitute such a discovery.
3. The recorded route attracted an initial presumption of existence. That was a common-sense presumption against change arising from the careful statutory procedure used to prepare the map. It was not derived from section 56 of the Wildlife and Countryside Act 1981.
4. Whether the map and statement were irreconcilable was a practical question of fact and degree. The Inspector was entitled to construe the statement by reference to the known physical layout at the relevant date and to ask how a reasonable person would understand it. It was insufficient that the documents could be reconciled by a merely possible or strained interpretation.
5. Once irreconcilability was established, neither document enjoyed an evidential presumption of correctness. The Inspector was entitled to consider the available documentary, photographic and user evidence and determine the route on the balance of probabilities.
6. The Inspector lawfully separated the irreconcilability issue from the subsequent assessment of all evidence. Her later consideration of historical and extrinsic material did not establish that she had used that material impermissibly at the earlier stage.
7. The inquiry was not wholly adversarial. Under the Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007, written evidence could stand as evidence in chief. The Inspector’s finding that the original alignment passed through a building was consistent with the Second Defendant’s unwithdrawn written case. There was no breach of fairness.
8. The Inspector’s observations on aerial photographs were not an objectively verifiable error of fact and were not irrational. Her reasons adequately addressed the principal controversial issues. She was not required to rebut every evidential argument or refer expressly to each expert by name.

First-instance statutory challenge in the High Court (Administrative Court). The judgment states that an earlier decision report by Hertfordshire County Council had been quashed by consent following a separate judicial review, but that decision was not the decision under challenge.