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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Trail Riders Fellowship v Secretary of State for Environment, Food and Rural Affairs & Anor [2023] EWHC 900 (Admin) (20 April 2023) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2023/900.html Cite as: [2023] EWHC 900 (Admin) |
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KING'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
Sitting as a judge of the High Court
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TRAIL RIDERS FELLOWSHIP |
Claimant |
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- and - |
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(1) SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS (2) NORTHUMBERLAND COUNTY COUNCIL |
Defendants |
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Mr Ned Westaway (instructed by the Government Legal Department) for the first defendant
The second defendant did not appear and was not represented
Hearing date: 28 March 2023
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Crown Copyright ©
HH Judge Jarman KC:
Introduction
i) The inspector made a mistake in concluding that a 1951 highway authority map did not show a physical feature between X-Y;
ii) The inspector did not accord proper weight to pre-1931 maps showing such a feature or to the description of the order route (including X-Y) as "cross roads" in a commercial map by Greenwood & Co published in 1827-8 (the Greenwood map);
iii) The inspector misdirected herself in law as to the improbability of two vehicular cul-de sacs leading to Greenhill and Fowberry respectively if X-Y is a footpath only.
i) On a fair reading of the ODs the inspector does not say that the 1951 map shows no link between X-Y but rather that the link shown was on a different alignment to the order route;
ii) The inspector dealt with each of the pre-1931 maps and the weight to be attached to each of them were matters for her. There is no clear definition of the term "cross roads."
iii) The inspector gave reasons for concluding that the order route comprised two vehicular cul-de-sacs, namely that they each lead to several properties.
The first order decision
"A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced."
The second order decision
"Returning to the Greenwood map, and given its close correlation with the modern day highway network, I will increase the weight I place on this as evidence of a public highway for vehicles along the order route. But I must nonetheless qualify this insofar as this was a commercial map, albeit one of superior quality, and commercial maps are rarely sufficient in their own right to permit the inference to be drawn that a route was a highway. However, combined with evidence from other sources they can tip the balance of probability in favour of such status."
The third order decision
"29. The objectors argue that the post-1828 records may not support Greenwood but neither do they contradict it. That is true until the 1929 handover map clearly omitted X-Y. If that was a mistake, it was replicated on the map prepared under the restrictions of ribbon development act 1935 that was publicised in 1937 and again on the highway authority map of county maintained roads in 1951." The 'error' remained unaddressed for over 20 years during the transition from district council responsibility to the county when, as the objectors have previously demonstrated, official procedures were diligently observed and despite annual inspections of the road network (as referred to in my first interim Order Decision at paragraph 28).
30. I previously accepted that the 1951 map contained an alignment error that was later corrected to show the Order route and that X-Y has been shown on highways maps and schedules ever since then without challenge. But there is still no documented explanation for this addition.
31. The only evidence of significant weight which supports X-Y being a carriage way is the Greenwood map. The earlier commercial maps endorse a route which possibly does include this section but as part of a much longer road, the majority of which appears to have ceased to exist by the early nineteenth century. In my view that fact lessens the weight I allocate to the Armstrong, Cary and Smith maps. Similarly the Fryer and later Cary maps omit the Fowberry to Greenhill connection which again causes me to question the basis on which Greenwood showed it.
32. Weighing against this is the handover map to which I also attached significant weight together with the publication of this map in 1937 and the acknowledged diligence of the county's highway maintenance engineers over the course of more than 20 years before the 1951 county road record was amended. In addition I gave weight to the evidence from the surveys carried out in the early 1950s in preparation for the first definitive map and statement for the area.
33. I recognise that the matter is finely balanced here but it is my conclusion that the evidence is still not sufficient to tip the scales so as to show that the link between Fowberry and Greenhill (X-Y) carries a public right of way for vehicles."
Statutory framework
"…the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows … 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 …".
"(1) If any person is aggrieved by an order which has taken effect and desires to question its validity on the ground that it is not within the powers of section 53 or 54 or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 11 make an application to the High Court under this paragraph.
(2) On any such application the High Court may, if satisfied that the order is not within those powers or that interests of the applicant has been substantially prejudiced by a failure to comply with those requirements, quash the order, or any provision of the order, either generally or in so far as it affects the interests of the applicant.
(3) Except as provided by this paragraph, the validity of an order shall not be questioned in any legal proceedings whatsoever."
Legal principles
"27. The Inspector's review and analysis of the historic material runs to some 70 paragraphs. This was not a matter of interpretation of legal instruments, which would naturally be appropriate for review by the courts, but of factual inferences to be drawn from a range of disparate material, including maps, sale plans, local history and guide-books."
"First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."
"It is possible, of course, that a public way may end in a cul-de-sac, but it appears rather improbable that part of a continuous thoroughfare should be a public highway and part not."
"The authorities clearly show that there is no rule of law which compels a conclusion that a country cul-de-sac can never be a highway. The principle stated in the authorities is not a rule of law but one of common sense based on the fact that the public do not claim to use a path as of right unless there is some point in their doing so, and to walk down a country cul-de-sac merely for the privilege of walking back again is a pointless activity. However, if there is some kind of attraction at the far end which might cause the public to wish to use the road, it is clear that that may be sufficient to justify the conclusion that a public highway was created."
Ground 1
Ground 2
Ground 3
Conclusion