Introduction

The case of McLeish & Anor v Secretary of State for Environment Food and Rural Affairs & Anor ([2024] EWCA Civ 1562) centers on a dispute over the precise routing of a public footpath depicted in the definitive maps maintained by Kent County Council. The appellants, Mr. and Mrs. McLeish, challenged a Definitive Map Modification Order that altered the footpath’s route from Victoria Bungalow to their property, Yew Tree House, in the village of Doddington, Kent. This commentary delves into the intricacies of the judgment, exploring the legal principles, precedents, and potential implications for public rights of way in England and Wales.

Summary of the Judgment

The appellants contested the modification of the definitive map, which repositioned footpath ZR281 from Victoria Bungalow to Yew Tree House, alleging that the change was based on copying errors rather than deliberate realignment. The initial challenge was dismissed by the Planning Court, prompting the appellants to seek appellate review. The Court of Appeal, led by Lord Justice Males, upheld the lower court's decision, affirming that the modification was warranted due to evident errors in the mapping process. The court clarified the distinct roles of legislative provisions and case law in handling errors within definitive maps, ultimately dismissing the appeal and reinstating the corrected footpath route.

Analysis

Precedents Cited

The judgment heavily referenced prior case law to delineate the boundaries between legislative provisions and judicial interpretations concerning definitive maps:

• Trevelyan v Secretary of State for Environment, Transport and the Regions [2001] EWCA Civ 266: Established that the conclusive evidence provision in section 56 does not apply during the review process, allowing for corrections to be made based on evidence.
• R v Secretary of State for Environment, Ex parte Burrows [1991] 2 QB 354: Clarified that mistakes in definitive maps could be rectified through modifications under section 53(3)(c).
• R (Leicestershire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWHC 171 (Admin): Supported the approach of assessing the existence of public rights of way through evidence rather than solely relying on map provisions.
• R (Norfolk County Council) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWHC 119 (Admin): Distinguished the evidential presumption against change from the conclusive evidence provision.

Legal Reasoning

The crux of the court's reasoning rested on the interpretation of sections 53 and 56 of the Wildlife and Countryside Act 1981. While section 56 renders the definitive map conclusive evidence of public rights of way, section 53 empowers surveying authorities to modify the map based on specific events, including the discovery of errors.

The court emphasized that the conclusive nature of the map under section 56 does not preclude its review and modification under section 53. Instead, a "presumption against change" operates, requiring appellants to provide substantial evidence to overturn the existing map. In this case, the court found that the inspector correctly identified copying errors that necessitated the map’s modification, thereby justifying the alteration of the footpath’s route.

Furthermore, the judgment clarified that the evidential presumption against change is separate from the conclusive evidence provision. The former is a common law principle ensuring that changes to the map are not made lightly, while the latter pertains to the map’s authoritative status in legal disputes.

Impact

This judgment reinforces the importance of maintaining accurate and up-to-date definitive maps for public rights of way. It underscores the judiciary's willingness to rectify errors in these maps to uphold the integrity of public access rights. Potential impacts include:

• Enhanced Scrutiny: Local authorities may face increased scrutiny in their map preparation and modification processes to avoid errors.
• Legal Precedent: The clear distinction between legislative provisions and case law provides a robust framework for future disputes regarding public rights of way.
• Public Confidence: The decision may bolster public confidence in the system's ability to correct administrative mistakes, ensuring fair access rights.

Complex Concepts Simplified

Definitive Map and Statement

A Definitive Map and Statement is an authoritative record detailing public rights of way within a specific area. It includes maps and accompanying statements that describe the exact routes of footpaths, byways, and other public paths. These maps are crucial for both the public and landowners to understand and respect access rights.

Section 56 vs. Presumption Against Change

Section 56 of the Wildlife and Countryside Act 1981 stipulates that the definitive map is conclusive evidence of public rights of way. This means that, in legal terms, what the map shows is taken as an accurate representation of these rights.

On the other hand, the presumption against change is a legal principle derived from case law, not statute. It implies that while the map is initially presumed to be correct, this presumption can be overturned if substantial evidence suggests an error. This ensures that the map remains adaptable to corrections while maintaining overall reliability.

Conclusion

The McLeish v Secretary of State for Environment judgment reaffirms the critical balance between legal certainty and administrative accuracy in managing public rights of way. By upholding the modification of the definitive map in light of proven copying errors, the Court of Appeal emphasized the necessity of maintaining accurate records to prevent disputes and ensure correct public access. This decision not only clarifies the interplay between statutory provisions and judicial oversight but also sets a precedent for future cases, enhancing the robustness of public right of way administration in England and Wales.