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JOHN TREVELYAN (SUING ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF RAMBLERS ASSOCIATION) v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS [2000] EWHC Admin 282 (24th January, 2000)
Case No: CO/2206/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday, 24th January 2000
B e f o r e :
MR JUSTICE LATHAM
BETWEEN:
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JOHN
TREVELYAN
(SUING ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE RAMBLERS ASSOCIATION)
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v -
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SECRETARY
OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr George Laurence QC (instructed by Brooke North Solicitors for the
Applicant)
Mr John Hobson (instructed by the Treasury Solicitors for the
Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
JUDGMENT
MR JUSTICE LATHAM:
1. Until recently, the Applicant was the Deputy Director of the Ramblers
Association; and in this appeal he acts on his own behalf, and on behalf of the
Association. The proceedings before me are an appeal brought under the
provisions of Schedule 15 to the Wildlife and Countryside Act 1981 (the 1981
Act) against an order made by the Respondent of the 1st April 1999 deleting a
substantial proportion of a bridleway known as bridleway 8 from the definitive
map of the area around Sawley in Lancashire. The bridleway forms part of a
path designated by the County Council as Ribble Way. The Association is
concerned not merely because of the consequent disruption of the path, but also
because, it is said, important issues arise in relation to the powers given to
relevant authorities under the 1981 Act to delete rights of way from definitive
maps.
2. The definitive map in question was prepared pursuant to the provisions of
the National Parks and Access to Countryside Act 1949 (the 1949 Act). Section
27 required the relevant authority, in this case Lancashire County Council, to
survey land over which a right of way was alleged to subsist and to prepare a
map showing such a right of way whenever in its opinion such a right of way
subsisted, or was reasonably alleged to have subsisted, at the relevant date.
For the purposes of the present case, the relevant date was the 22nd September
1952. In order to carry out this duty, Section 28 required the County Council
to consult with Rural District Councils. Section 29 then required a draft map
to be prepared and advertised, and made provision for objections and
determination by the County Council of such objections. In the light of such
objections, the County Council was empowered to modify the map. A right was
then given by Section 29(5) for objections to any such modification to be dealt
with by way of appeal to the Secretary of State, who was, in turn, empowered to
hold a local inquiry under Section 29(6). At the completion of that process,
Section 30 provided for the preparation of a provisional map; and Section 31
entitled any person aggrieved to appeal to quarter sessions. By Section 32,
the County Council was then obliged to prepare the definitive map. By Section
32(4), designation of a right of way on such a map was deemed to be conclusive
evidence that there was at the relevant date the right of way so designated.
Section 33 required the County Council to keep the definitive map under review,
and provided for amendment by way of addition or modification, but not
deletion.
3. The relevant authorities were first given power to delete a right of way
in limited circumstances by schedule 3 to the Countryside Act 1968. The power
to delete with which I am concerned was however given by Section 53 of the 1981
Act which provides as follows:
"(2) As regards every definitive map and statement, the surveying authority
shall:
(a) as soon as reasonably practicable after the commencement date, by
order
make such modifications to the map and statement as appear to them to
be
requisite in consequence of the occurrence, before that date, of any of the
events specified in sub-section (3); and
(b) as from that date, keep the map and statement under continuous review
and as soon as reasonably practicable after the occurrence, on or after
that
date, of any of those events, by order make such modifications to the map
and
statement as appear to them to be requisite in consequence of the
occurrence
of that event.
(3) The events referred to in sub-section (2) are as follows:
......
(c) the discovery by the authority of evidence which (when considered with
all
other relevant evidence available to them) shows:
(i) that a right of way which is not shown in the map and
statement
subsists or is reasonably alleged to subsist over land in the
area
to which the map relates, being a right of way to which this
Part
applies;
(ii) that a highway shown in the map and statement as a highway of
a particular description ought to be there shown as a highway
of
a different description; or
(iii) that there is no public right of way over land shown in the
map
and statement as a highway of any description, or any other
particulars contained in the map and statement require
modification.
......
(5) Any person may apply to the authority for an order under sub-section
(2) which makes such modifications as appear to the authority to be requisite
in consequence of the occurrence of one or more events falling within
paragraph (b) or (c) of sub-section (3); and the provisions of schedule 14
shall have effect
as to the making and determination of applications under this
sub-section."
4. Schedules 14 and 15 to the 1981 Act make complicated provision for the
procedures to be adopted in the event of any issues arising under Section 53.
By Schedule 14, an authority to whom any application is made for an order under
Section 53 is to investigate the matter and come to a determination. If the
authority decides not to make an order, the applicant may appeal to the
Secretary of State who is to give such directions as appear to him necessary in
the light of his decision on the appeal. By Schedule 15, where an authority
has made an order, but there are objections, the order is to be submitted to
the Secretary of State, who may appoint an inspector to hold an inquiry and to
determine whether or not to confirm the order. If the order is confirmed, but
with modifications, and there are objections to the modifications, the
Secretary of State is again required to hold a local inquiry or give the
objectors an opportunity to be heard by an inspector before coming to a final
decision. Paragraph 12 of the Schedule entitles any person aggrieved by the
making of an order on the grounds that it was outside the powers of Section 53
or 54, to appeal to the High Court. This is the jurisdiction invoked in the
present proceedings.
5. The right of way in question was not delineated on any maps before the
coming into force of the 1949 Act. The survey of the relevant area for the
purposes of that Act was carried out by Mr W Proctor, who was the Sawley parish
representative on the Bowland Rural District Council, which was responsible for
the survey on behalf of the Lancashire County Council. This was done between
December 1950 and February 1951. He recorded a right of way running from the
public highway in Sawley, along the drive leading to Sawley Lodge, and then
across open fields, generally following the line of the River Ribble, through
woods, eventually returning to the public highway. Its length was
approximately 3 miles. It was identified on the definitive map as bridleway 8.
The survey form delineating the route of the right of way did not include any
explanation as to the nature of the evidence supporting the claim.
6. The land over which it ran had originally formed part of the Sawley
Estate, which had, until 1949, been owned by Mr Fattorini. After his death it
was split up. The land over which the western half of the claimed bridleway
passed was purchased in August 1950 by Mr and Mrs Hindley. When, as a result
of the survey, the County Council produced the draft definitive map in 1953,
including bridleway 8, Mr and Mrs Hindley objected to the map on two grounds.
First they objected to the alignment of bridleway 8, on the grounds that it
should have been shown running closer to the river; second, they objected to
the inclusion of part of another bridleway, bridleway 20. These objections
were accepted by the County Council; and, eventually, the requisite amendments
were duly recorded in 1965 in the notice given by the County Council of
proposed modifications to the draft definitive map.
7. In 1967, Mrs Fernie bought Sawley Lodge; and in 1970 Mr Fernie bought the
remainder of the land which had been owned by Mr and Mrs Hindley across which
part of the claimed bridleway ran. In July 1970 the provisional map was
published, retaining the modifications to bridleway 8 to which I have already
referred. Mr Fernie applied to quarter sessions under Section 31(1) of the
1949 Act on the grounds that there was no public right of way along part of
bridleway 8, and another bridleway, number 16. He also applied on the same
grounds in relation to parts of two footpaths, numbered 11 and 17. He withdrew
his objection in relation to bridleways 8 and 16; and the County Council
accepted that there was no right of way over the relevant parts of the two
footpaths, which were deleted. The definitive map was accordingly published on
the 10th August 1973, including bridleway 8.
8. In 1976, Mr and Mrs Fernie sold the land to Mr and Mrs Lord. The latter
became concerned about the bridleway when it was included on the first Ordnance
Survey Map published after the definitive map, in 1979. The use of the
bridleway increased, with instances of trespass and vandalism. They complained
to the County Council in 1980. The County Council, however, had in mind a long
distance footpath to be known as the Ribble Way which, it was proposed, should
include bridleway 8. It was concerned that walkers would be put at risk by the
use of the bridleway by horse riders, and suggested that the right of way be
downgraded to a footpath. Mr and Mrs Lord were not prepared to agree.
Nonetheless, they reluctantly accepted the positioning of Ribble Way signs
along bridleway 8, on the understanding that that would be entirely without
prejudice to their contention that no public right of way of any description
existed along the route.
9. In 1985 Mr and Mrs Lord applied to the Lancashire County Council under
Section 53(5) of the 1981 Act for an order deleting bridleway 8 from the
definitive map on the grounds that it had never been a right of way. The
County Council considered that there was insufficient evidence of use by horse
riders to justify its designation as a bridleway, but that there was sufficient
evidence of use on foot to justify it being included on the definitive map as a
footpath. The applicants appealed to the Secretary of State for the
Environment. Before the appeal was considered, Taylor J in Rubinstein v
Secretary of State for the Environment (1987) 57 P&CR 111 held that
because of the conclusive nature of inclusion of a right of way on the
definitive map as at the relevant date, Section 53(3)(c)(iii) could only
involve consideration of evidence relating to matters after the relevant date,
for example the physical destruction of the land over which the right of way
was said to exist. The Secretary of State accordingly dismissed Mr and Mrs
Lord's appeal.
10. However, the decision in Rubenstein was overruled by the Court of
Appeal in R v Secretary of State for the Environment ex parte Burrows and
Simms [1991] 2 QB 354. The Court held, in effect, that if evidence comes
to light to show that a mistake had been made in drawing up the definitive map,
then such a mistake can be corrected in either of the three ways envisaged in
Section 53(3)(c) of the 1981 Act. The objective of these provisions is to
ensure that the definitive map provides as accurate a picture as possible of
the relevant rights of way. The Court gained assistance from the speech of
Lord Diplock in Suffolk County Council v Mason [1979] AC 705 where, at
page 714, he said that an entry on a definitive map does not necessarily remain
conclusive evidence for ever, but is subject to the powers of review. Those
powers are now the powers set out in Section 53 of the 1981 Act.
11. Mr and Mrs Lord were advised that they could submit a new application to
delete bridleway 8, which they did. The County Council, on considering the
evidence, again concluded that a right of way existed, but that it was a right
of way on foot and not on horseback. Mr and Mrs Lord exercised their right of
appeal under Schedule 14 to the Secretary of State, who allowed the appeal on
the 21st December 1994 and directed the County Council to make an order to
delete bridleway 8 from the definitive map. The County Council duly made such
an order in compliance with that direction.
12. The County Council, however, having received further evidence in
relation to the use of the right of way as a footpath, concluded that the order
should be modified to delete the right of way as a bridleway, but proposing
that it be delineated instead as a footpath. Mr and Mrs Lord objected, in
consequence of which the County Council submitted the order to the Secretary of
State, who delegated the decision to an inspector. The inspector held an
inquiry and gave his first decision on the 18th December 1997, in which he
concluded that there was no right of way of any description as claimed, save
for a stretch from the public highway along Sawley Lodge Drive to the junction
with another bridleway, bridleway 16. He therefore proposed to make the order
with modifications. This triggered the right to make further objections, which
were considered at a further public inquiry, as a result of which the inspector
upheld his original decision in a letter of the 1st April 1999. Although the
latter is the final order, in respect of which the Applicants apply to this
Court, the relevant reasoning is contained in the original decision letter of
the 18th December 1997.
13. In support of the deletion order at the inquiries, Mr and Mrs Lord
submitted a substantial body of evidence of those who lived and worked on the
Sawley Estate before 1950 to show that there had been no public right of way
over the drive to Sawley Lodge, nor had there been any rights of way over the
fields. There certainly had been no bridleway, it was said, because of the
presence of stiles. It was pointed out on their behalf that the evidence of
user on foot came essentially from people who either worked for or on the
estate or for a tenant farmer. In particular there was evidence from Mr
Fattorini's head gamekeeper and butler to the effect that there had been no
exercise of any right of way by the public along Sawley Lodge Drive. This was
supported by the occupier of a neighbouring farm. There was other evidence
from those in the vicinity to the same effect. Particularly significant was
the evidence of the Yorkshire Fly Fishers Club (the Club) which owned the
fishing rights along the whole of the riverbank. Its evidence was to the
effect that the stiles and walkways along the route had been for the sole use
of the club and its members, and that in 1963, when the fishing rights were
purchased by the Club, the conveyance had provided for specific rights of
access to the riverbank which would not have been necessary if public rights of
way had been available.
14. The objectors, including the Applicant, and the County Council, who
supported the view that there was at least a footpath over the route, relied
upon the fact that Mr Proctor had, so far as it was possible to ascertain,
carried out all the correct procedures when delineating the bridleway on his
survey. This was supported by evidence of use of the route by foot. In
particular, emphasis was placed on the fact that Mr and Mrs Hindley had not
objected to the existence of the bridleway, but merely the route, whilst they
had objected, successfully, to the existence of part of another bridleway over
the land. Further evidence and support of the existence of the bridleway was
the fact that Mr and Mrs Fernie, having taken objections to the quarter
sessions, withdrew their objections in relation to the bridleway, whilst
maintaining them successfully in relation to footpaths. It was further argued
that deletion of the bridleway would produce anomalies, in that the length of
the bridleway which was to be deleted was not its full length, but left a
significant proportion at the eastern end unaffected. Further, deletion of the
bridleway would result in certain footpaths being essentially cul de sacs.
Finally, it was said, deletion of the bridleway along the Sawley Lodge Drive
would result in bridleway 16 being unable to connect with the public highway,
thereby resulting in yet another cul de sac.
15. The inspector concluded that there was nothing to suggest that there was
anything wrong with the procedures which had been adopted in including
bridleway 8 in the survey, and that he should assume that Mr Proctor included
the bridleway because he thought that it was the right thing to do. He noted
that there was no documentary evidence of the existence of the bridleway before
1952, and that two walking guidebooks published prior to 1952, whilst
describing walks in the vicinity, did not describe any walks along the southern
side of the River Ribble along the route of bridleway 8. He noted that the
only evidence of use before him was confined entirely to footpath use, and that
evidence of such use before 1952 was limited. He accepted that there had been
"Private" notices on Sawley Lodge Drive which may have inhibited use of the
drive. Nonetheless, in the light of the evidence as to bridleway 16, he was
satisfied that it was not there to prevent access to the drive, despite the
evidence to the contrary, but to deter access to the fields; his conclusion
was that the drive did carry bridleway rights so as to provide access from the
public highway to bridleway 16. However, although he accepted that this
detracted from the evidence of those who denied the existence of public access
to the drive, and therefore to the evidence in relation to public access
generally, he considered that the evidence of those working for or on the
estate, and in particular the evidence from the Club compelled him to the view
that there was no right of way of any sort over bridleway 8 apart from the
length to which I have already referred.
16. He directed himself that the evidence needed to remove a public right of
way from a definitive map, needed to be clear and cogent and demonstrate that a
mistake had been made in the original claim. Having so directed himself, he
concluded that he was not persuaded on the balance of the evidence that a
public bridleway existed from the junction of bridleway 16 on the route
originally claimed and was accordingly persuaded that a mistake had been made
during the survey. He did not consider that the fact that Mr and Mrs Hindley
in 1953, and Mr and Mrs Fernie in 1970 appeared to have accepted the existence
of the bridleway amounted to any more than an acceptance on their part of the
fact of its delineation on the definitive map, rather than any considered view
as to the existence or otherwise of the bridleway. He was, accordingly,
satisfied that a mistake had been made in the recording of the right of way.
Hence his confirmation of the order, save as to the stretch over Sawley Lodge
Drive.
17. The first point that Mr Laurence QC takes on behalf of the Applicant is
that the inspector approached the matter wrongly as a matter of principle. He
submits that where an application is made to delete a right of way, a very
heavy burden is undertaken by the applicant. In order to give proper effect to
the preparation of the definitive map and the conclusive nature of entries on
it, it should be assumed that the entry was made in accordance with a statutory
requirement that the County Council was to be satisfied that the right of way
in question subsisted or was reasonably alleged to have subsisted. Either,
therefore, there was sufficient evidence to establish its existence, or at the
very least, there was evidence to show that it could properly be argued to
exist. He submits, in other words, that the relevant authority has to approach
an application for deletion on the premise that at the time of the original
entry, there was sufficient evidence to justify the inclusion of the right of
way, even if that evidence is not available at the time of the application for
deletion, and, in parenthesis, even if it cannot be shown than any such
evidence did in fact exist. Thus, it is said, it can only be in very limited
circumstances that an application for deletion can succeed. Mr Laurence QC
identified such circumstances as clear administrative error, the physical
impossibility of the right of way existing, documents coming to light that
clearly establish that there could be no right of way, and evidence to show
that whatever use was made of the claimed right of way, there was no
dedication. He submits that none of these matters has been established in the
present case.
18. Secondly, he submits that the inspector failed to pay any or any proper
regard to the fact that Mr and Mrs Hindley and Mr and Mrs Fernie appeared to
have accepted that bridleway 8 existed. He sought to amend his notice of
motion by adding an allegation that the actions by Mr and Mrs Hindley and Mr
and Mrs Fernie either individually or collectively could properly be said to
have amounted to dedication of the route as a bridleway, so that the evidence
of its use, in other words acceptance by the public, would be sufficient to
establish the existence of the bridleway independently of its inclusion on the
definitive map. This matter was not argued before the inspector. It
therefore formed no part of the issues which he had to determine. In any
event, such an argument would have required careful consideration, in order to
determine the extent to which at the relevant time either couple could properly
be said to have had the requisite intention, particularly bearing in mind such
matters as the physical obstruction to use of the riverside bridleway proposed
by stiles and gates, and the existence of signs on certain parts of the route
which were inconsistent with any intention by either couple to dedicate the
route as a right of way. For these reasons I refused leave to amend. However,
Mr Laurence QC made the point that, whether or not their actions amounted to
dedication, they were strong, if not conclusive, evidence in support of the
existence of the bridleway. In his submission, it was a wholly inadequate
answer to this point for the inspector to say, in effect, that both couples
were really accepting the fact of its delineation on the definitive map, and
not the existence of a bridleway itself. He submits that both had ample
opportunity to make inquiries in order to determine whether or not it was
included in error and that the inspector should have concluded that they had
obviously been unable to obtain any evidence to support such an
assertion.
19. Third, Mr Laurence QC submits that the inspector failed to deal either
adequately or at all with the problems presented by the anomalies resulting
from deletion of bridleway 8. He failed, it is said, to appreciate that an
anomaly produced by deletion would be strong evidence of the fact that the
deletion must be inappropriate. Mr Laurence QC elevated this point into an
issue of principle. In an amendment to the notice of motion which I allowed,
he submits that no deletion should, in effect, occur if the result would be an
anomaly. He points to the anomalies in relation to the footpaths, and in
particular the eastern length of the bridleway which is not deleted, and
therefore, he submits, has no function.
20. Fourthly, Mr Laurence QC submits that the inspector was perverse in his
approach to the evidence. He expressly relied upon evidence from those who
worked for Mr Fattorini to show that there was no right of way, yet rejected
that evidence in relation to the stretch of bridleway between the public
highway and bridleway 16. He submits that the evidence relied upon by the
applicants was therefore hopelessly flawed, and could not and should not have
been capable of being relied upon in relation to the remaining length of the
bridleway.
21. I am sympathetic to the concerns of the Applicant in this case. The
bridleway has been properly recorded, in the sense that it is not suggested
that there was any procedural or other impropriety in the recording of the
bridleway. Two successive landowners, who certainly had the opportunity to
make appropriate inquiries, effectively accepted the existence of the
bridleway, not by default, but by positive action. And there was evidence of
its use, albeit not as a bridleway, at least as a footpath, which could have
supported a claim based on use alone. In general, the Applicant is rightly
concerned about the opportunities for landowners to obtain deletion of rights
of way where they have been able obtain evidence suggesting there was in truth
no right of way, at a time when it may be difficult or impossible to establish,
or re-establish, the evidential basis upon which the original entry was made.
As Lord Denning said in R v Secretary of State for the Environment ex parte
Hood [1975] 1 QB 891 at page 899 when there were only limited grounds for
reclassification:
"The definitive map in 1952 was based on evidence then available, including,
no doubt, the evidence of the oldest inhabitants then living. Such evidence
might well have been lost or forgotten by 1975. So it would be very unfair to
reopen everything in 1975."
It was probably with that sentiment in mind that the department, when giving
guidance to County Councils in relation to the exercise of their powers under
Section 53, said, in circular 18/90, that cogent evidence would be required to
support any application for deletion.
22. Sympathetic though I am to the Applicant's concerns, I accept Mr
Hobson's submission that this case raises no issue of principle. The question
for the relevant authority, be it the County Council, the inspector or the
Secretary of State is that posed by Section 53(3)(c): is there evidence which,
when considered with all the other relevant evidence available, shows that
there is no public right of way over the relevant land? This requires a
careful evaluation of all the evidence which is available to determine whether
or not, on the balance of probabilities, the applicant has established that
there is no right of way. It seems to me that there is no room for any
assumptions or presumptions. The Act specifically refers to evidence. I have
no doubt that any relevant authority will be alive to the possible problems
presented to those seeking to defend the definitive map because of the passage
of time which may make it difficult to identify, or evaluate, the evidence
which originally supported the entry of the right of way. But provided that
the relevant authority carries out a proper evaluation of the evidence in the
context of the burden of proof to which I have referred, and comes to a
rational conclusion, it cannot be said to have acted outside the powers given
by the Act.
23. It follows that I reject the first submission made by Mr Laurence QC.
The fact of the inclusion of the right of way on the definitive map is
obviously some evidence of its existence. But the weight to be given to that
evidence will depend upon an assessment of the extent to which there is
material to show that its inclusion was the result of inquiry, consultation, or
the mere ipse dixit of the person drawing up the relevant part of the map. In
the present case, there was nothing to suggest that any significant probative
material existed at the time to support Mr Proctor's survey; he did not seek
to suggest that there was in any of the contemporaneous documents.
24. There is no doubt that the actions of Mr and Mrs Hindley and Mr and Mrs
Fernie were strong evidence of the fact that relevant landowners in 1953 and in
1970 were prepared to accept delineation of the bridleway, and by inference,
the fact that the bridleway did indeed exist. That was, however, only part of
the material before the inspector. The evidence as to the state of the route,
particularly the existence of stiles, was strong contrary evidence, although
consistent with the existence of a footpath. Indeed, there is some material
to suggest that the evidence relating to Mr and Mrs Hindley merely showed that
they were prepared to accept the existence of a footpath. Nonetheless it was
open to the inspector to conclude that the other evidence was such as to
satisfy him that there was in truth no right of way by bridleway or footpath;
and that Mr and Mrs Hindley and Mr and Mrs Fernie were merely prepared to
accept a fait accompli, rather than their action amounting to some positive
evidence of the existence of a right of way. It is perhaps relevant to note
that it was not until the right of way appeared on the Ordnance Survey Map in
1979 that any significant use was made of it.
25. There is no doubt that in rejecting the evidence of those who denied any
right of public access to Sawley Lodge Drive, but accepting it insofar as the
evidence was to the effect that there was no right of way over the fields, the
inspector could be said to have been inconsistent. However, he gave adequate
reasons for concluding that the evidence overall was inconsistent with there
being any right of way over the fields. It is not irrational to accept part of
the evidence and reject another part, so long as there is some justification
for so doing. The justification in the present case came from the evidence to
which I have referred.
26. Finally, I cannot accept the argument that the production of anomalies
in the event of deletion of any right of way precludes as a matter of principle
an inspector from concluding that the right of way did not, on the evidence
before him, exist. Clearly, the existence of anomalies is a matter which has
to be taken into account by the inspector in cases such as this. And the
inspector expressly recognised that there were apparent anomalies. But he was
charged with answering the question posed by the order in question. If that
evidence, despite the resulting anomalies, satisfied him that no right of way
exists, it was his duty to say so. This is particularly so in relation to
anomalies produced in respect of rights of way overland which is not owned by
the applicant for an order. He could be required to confirm a right of way
which the evidence shows did not exist at the relevant date because of the
existence of another right of way, or another part of the right of way, which
had it been before him for consideration could well have been shown not to
exist at the relevant date as well. I am not persuaded, therefore, that the
anomalies identified by the appellants before me were such as to justify the
conclusion that the inspector came to an irrational conclusion in relation to
the length of bridleway 8 with which he was concerned.
27. For these reasons, I dismiss this application.
---------------------------------------------
Monday, 24th January 2000.
MR JUSTICE LATHAM: For the reasons set out in the judgment, which I will
now hand down, copies of which have been made available to the parties, I
dismiss this application.
MR HOBSON: I am much obliged, my Lord. Would your Lordship also make an
order for costs in favour of the Respondent, those costs to be decided by
detailed assessment.
MR LAURENCE: I cannot resist that. My Lord, one or two other matters
arise. First of all, I have had a brief opportunity to speak with my learned
friend before your Lordship entered court this morning to see whether he had
any observations on the small suggested amendments that I included in the draft
which I faxed on Friday. I can tell your Lordship he had none.
MR JUSTICE LATHAM: I assumed he did not have.
MR LAURENCE: I do not know if your Lordship has accepted them?
MR JUSTICE LATHAM: I have accepted most of them. There is only one that
I have not accepted and that is the part where I talked of the right of way,
the use of a small part....
MR LAURENCE: My Lord, I did want to apologise in case it was necessary
for my temerity in making those changes, some of them----
MR JUSTICE LATHAM: You should never feel that the judge is anything
other than grateful. This really does help.
MR LAURENCE: May I also say, this is one of the first occasions on which
I have been present where there has been an opportunity to do this exercise
before the handing down of the judgment. I must say it strikes me as eminently
helpful to give us an opportunity to do this so the judge himself can take a
view and perhaps even have a discussion about it, if it should be necessary at
this stage. My Lord, that was the first thing.
My Lord, the other reason was, I did hand in a copy of the Smith -v-
Cosworth Casting Processes Ltd, a case which your Lordship has in front of
you. This is pursuant to my application which I would now like to make for
leave to appeal. My Lord, can I just remind you of what the Master of the
Rolls said, particularly in paragraphs 1 and 2:
"1. The Court will only refuse leave if satisfied that the applicant has no
realistic prospect of succeeding on the appeal. This test is not meant to be
any different from that which is sometimes used, which is that the applicant
has no arguable case. Why however this court has decided to adopt the former
phrase is because the use of the word 'realistic' makes it clear that a
fanciful prospect or an unrealistic argument is not sufficient.
2. The court can grant the application even if it is not so satisfied. There
can be many reasons for granting leave even if the court is not satisfied that
the appeal has any prospect of success. For example, the issue may be one
which the court considers should in the public interest be examined by this
court or, to be more specific, this court may take the view that the case
raises an issue where the law requires clarifying."
What I am not entirely sure about is whether paragraph 2 is meant to guide
the judge at first instance as much as paragraph 1 is. I am bound to say, on a
literal reading of the way Lord Woolf is putting it there, it might perhaps be
said that it is for the Court of Appeal to decide whether the case is one which
the court considers in the public interest should be considered. I would
respectfully suggest that that is not a sensible way of approaching it, in that
the judge's own views at first instance on that matter are views which the
Court of Appeal is entitled to have in the sense of knowing what the judge's
reaction was to the application. My Lord, I think it would be wrong if I were
to say to your Lordship that the only ground upon which I ought to be granting
leave to appeal is that your Lordship could not say, in my respectful
submission, that this is a case in which there is a really fanciful prospect of
success. Your Lordship could not say that there was an unrealistic prospect of
succeeding on this appeal. I will develop that, if I may, very shortly in a
moment but, my Lord, even if you were against me on that, I would respectfully
suggest that this is eminently a case in which it is in the public interest
that the issue which was before your Lordship, namely the issue "what are the
circumstances in which an application can be made to delete a way from the
definitive map should be considered at a higher level?" My Lord, that is
because, however carefully your Lordship has framed his decision in this case -
and I am conscious you have framed it carefully - there is, in the end, a
difference in approach which is manifest in your Lordship's judgment from the
approach which I suggested to you was the right approach. Given that the law
now is that it is simply a question of evaluating the actual evidence which is
before the Court and, on your Lordship's approach, no guidance as to the weight
that is to be attached to the original designation of the way on the definitive
map, save only what your Lordship has said in paragraph 23, that is a fact that
is of some weight. It is inevitable that your Lordship's decision is going to
lead to renewed enthusiasm, if I can put it that way, on the part of those who
believe a mistake was made when the map was originally drawn up, for making
applications and pursuing them to inquiry. I would respectfully suggest it
will be important, is important, that that issue in the public interest be
examined at a higher level so that if your Lordship thought there was no
realistic prospect of success on the appeal here, there is the opportunity of
guidance at that level.
However, my Lord, that is very much my second stream. I do respectfully
suggest in paragraphs 22 and 23 one finds the heart of your Lordship's reason.
Do you agree with that, my Lord?
MR JUSTICE LATHAM: Yes.
MR LAURENCE: You say at paragraph 22:
"It seems to me that there is no room for any assumptions or presumptions. The
Act specifically refers to evidence."
You then express the believe that the relevant authority will be alive to the
problems. Then, at the end of paragraph 22:
"But provided that the relevant authority carries out a proper evaluation of
the evidence in the context of the burden of proof to which I have referred,
and comes to a rational conclusion, it cannot be said to have acted outside the
powers given by the Act."
Over the page, picked up at paragraph 23:
"But the weight to be given to that evidence will depend upon an assessment of
the extent to which there is material to show that its inclusion was the result
of inquiry, consultation, or the mere ipse dixit of the person drawing up the
relevant part of the map. In the present case, there was nothing to suggest
that any significant probative material existed at the time to support
Mr Proctor's survey; he did not seek to suggest that there was in any of the
contemporaneous documents."
My Lord, I would respectfully say that the question is whether, in
carrying out "the evaluation of the evidence" to which you refer in paragraph
22, you do or do not place on the Applicant the burden of proving that there
was not material upon which the county council was entitled to accept the
original allegation of a right of way as being a reasonable one. In the
context of how your Lordship puts it in paragraph 23 and putting it in another
way, we say that it is for the Applicant to prove, on the balance of
probabilities, the absence of, in your Lordship's words, "significant probative
material" and not for the Respondent to prove the presence of such material.
We say that if it cannot be proved that significant probative material was
absent on the bounds of probabilities, then its presence must be assumed. If
its presence must be assumed, a full valuation exercise takes on a different
complexion. My Lord, that is the....
MR JUSTICE LATHAM: I understand.
MR LAURENCE: My Lord has the point. I would respectfully suggest, it
must be open to reasonable argument that that point might remit itself to the
Court of Appeal. Under those circumstances, I would invite your Lordship,
having regard to the other points that I make about public interest, to give me
leave to take this matter further.
MR JUSTICE LATHAM: Mr Hobson?
MR HOBSON: I oppose my learned friend's application for leave to appeal.
He has implied to your Lordship this morning - restated his approach. My Lord,
it is quite evident now as it was in argument last week that my learned
friend's case is currently upon making assumptions or presumptions. My Lord
has held clearly and unequivocally that there is no room for making any such
assumptions or presumptions on a proper application of the statutory
approach.
My Lord, your Lordship has made it perfectly plain that you have held that
this case raises no wider issue of principle. My Lord, my learned friend
referred again this morning, as he did last week, to the prospect of a
decreasing number of applications. My Lord, this did not result from the Court
of Appeal's decision in Burrows -v- Simms and there is no reason to
suppose that your Lordship's judgment will end the floodgates after today.
My Lord, it is my submission that there is no wider public interest in
this matter and there is no basis for it being pursued further. I would invite
your Lordship to dismiss the application for leave.
MR LAURENCE: My Lord, can I remind you that Mr Trevelyan at page 64 in
the bundle referred in his statement of Mr Andrews (?) case to the fact that
these deletion orders are regarded by the association as being of such
importance that a direction has been given that they be dealt with centrally
and, at a time when this matter came before the Inspector in 1997, he said in
paragraph 2 of his statement at page 64, "at least 30 such orders have been
dealt with by the association centrally", that is not to say there might not
have been others or others that the ramblers themselves were not so concerned
with, but it is plain in the light of the jurisdiction, recognised by the
Burrows -v- Simms case, what is said on the basis of that evidence that
there has been a mere trickle of attempts to secure deletion orders. I would
therefore say to my learned friend that he cannot view with equanimity and your
Lordship could not view with equanimity the prospect of your judgment not
leading to a renewed -- I will not say state, but a renewed trickle verging on
more than a trickle of applications to delete.
My Lord, I should just say, while I am on my feet, that I intend my
application for leave to comprehend also an application for leave in relation
to your Lordship's refusal of the interlocutory application, and I am going to
amend my Notice of Motion to add the additional ground. I take it your
Lordship is content if we just lodge in due course and amend the originating
notice of motion, comprehending the paragraph your Lordship gave me leave to
make.
MR JUSTICE LATHAM: Mr Hobson?
MR HOBSON: I have nothing to say.
MR JUSTICE LATHAM: In this matter I have come to the clear conclusion
that the issue is answered by the wording of the Act and the question is simply
its application to the facts of the case. As a result, I do not think that
this raises an issue of principle in the way that is thought by the Applicants.
For those reasons, I do not think there is a reasonable prospect of success, I
refuse leave to appeal.
If the Court of Appeal considers there is an issue of importance, then Mr
Laurence is obviously able to seek to persuade them of that by way of further
application.
MR LAURENCE: I thought I would try here first.
MR JUSTICE LATHAM: Absolutely. Thank you very much.
© 2000 Crown Copyright
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