Leicestershire County Council, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs

Factual and Procedural Background

The case concerns a renewed application by the Plaintiff, a County Council, seeking judicial review of a refusal by an inspector appointed on behalf of the Secretary of State to confirm an order modifying the definitive map and statement for a public footpath in a particular area. The modification proposed transferring part of footpath B19 from the curtilage of one residential property ("Property A") to that of a neighboring property ("Property B"), both located on Main Street in a town. Permission for judicial review was initially refused on paper but was later granted by the presiding judge to hear the substantive application. The dispute centers on the correct route of the footpath as shown on the definitive map, which has statutory significance under the Wildlife and Countryside Act 1981.

Legal Issues Presented

1. Whether the inspector correctly applied the statutory provisions under section 53 of the Wildlife and Countryside Act 1981 in deciding the proper route of the public footpath.
2. Whether the evidence presented satisfied the tests under section 53(3)(c)(i) and (iii) concerning the existence or removal of a public right of way.
3. Whether the procedural approach taken by the Plaintiff in using section 53(3)(c)(iii) was appropriate or whether section 53(4) should have been used instead.
4. The proper interpretation and application of the balance of probabilities and reasonable allegation tests in the context of modifying the definitive map.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contended that the inspector should have found that the evidence satisfied the test under section 53(3)(c)(i), establishing on the balance of probabilities that the footpath route through Property B was correct and thus the map should be amended accordingly.
• The Plaintiff argued that the procedural use of section 53(3)(c)(iii) by the inspector was incorrect and that section 53(4) should have been used because the dispute concerned the correct route rather than the existence of a right of way.
• The Plaintiff challenged the inspector’s finding that there was insufficient cogent evidence to remove the existing route shown on the map, submitting that this was a perverse conclusion.

Respondent's Arguments

• The Respondent, represented by counsel, accepted that no new evidence was necessary and that the matter could be fully argued on the papers.
• It was submitted that the inspector correctly applied the statutory tests and that the definitive map should be treated as conclusive unless cogent evidence justified alteration.
• The Respondent maintained that the inspector was correct to consider both the balance of probabilities test and the reasonable allegation test but ultimately concluded that the existing route should remain on the map.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework under the Wildlife and Countryside Act 1981, focusing on section 53 which governs the modification of definitive maps and statements. The court emphasised the importance of the definitive map as conclusive evidence of public rights of way and the statutory duty to keep it under continuous review.

The court noted the unusual nature of the dispute, which concerned the precise route of an acknowledged public footpath rather than its existence. The inspector correctly applied the statutory tests: Test A required clear evidence on the balance of probabilities that the new route existed, while Test B allowed for modification if it was reasonable to allege the route existed.

The inspector found that while there was credible evidence supporting the alternative route through Property B, it was not sufficiently clear-cut to satisfy Test A. However, Test B was met, meaning the alternative route was reasonably alleged to subsist. Despite this, the inspector also considered whether there was cogent evidence to remove the existing route under section 53(3)(c)(iii) and found there was insufficient evidence to justify removal.

The court agreed with the inspector's approach, explaining that in cases involving alternative routes, the presumption is to retain the existing definitive map unless cogent evidence on the balance of probabilities justifies change. The court rejected the Plaintiff’s argument that the procedural use of section 53(3)(c)(iii) was incorrect, clarifying that subsection (4) only applies to additions to statements and not to modifications of the map itself.

Ultimately, the court held that the inspector’s findings and application of the statutory tests were open to him on the evidence and that there was no perversity in his conclusions.

Holding and Implications

The court DISMISSED the Plaintiff’s application for judicial review.

The direct effect of this decision is that the existing definitive map, showing the footpath route through Property A, remains unaltered. The court’s ruling underscores the high evidential threshold required to modify definitive maps and the presumption in favour of maintaining established public rights of way unless cogent evidence to the contrary is presented. No new precedent was set beyond affirming the correct application of the statutory tests in the context of route disputes under the Wildlife and Countryside Act 1981.