Factual and Procedural Background
This opinion concerns an application for judicial review of the decision by the defendant's inspector dated 17 February 2004 refusing to confirm a modification order relating to a public footpath known as Pentney Footpath No. 12 ("FP12") in Norfolk County. The claimant is the surveying authority for Norfolk, responsible for maintaining the definitive map and statement recording public rights of way.
FP12 is recorded on the definitive map and statement as running from Back Lane in the village of Pentney northwards through residential and agricultural land to join Footpath No. 11 at a footbridge in the Parish of East Winch. There was an inconsistency between the definitive map and the accompanying statement regarding the exact starting point of FP12 on Back Lane.
In August 2000, owners of a property adjacent to FP12 requested the claimant to modify the definitive map to align with the definitive statement. The claimant made a modification order in March 2003 under section 53(2)(b) of the Wildlife and Countryside Act 1981, removing part of the footpath and adding an alternative route. Objections were raised, leading to a public local inquiry in December 2003.
The inspector refused to confirm the modification order, concluding that the evidence did not show on the balance of probabilities that the map was in error or that the statement was correct. The claimant sought judicial review of this decision. Permission to proceed was granted in July 2004.
Legal Issues Presented
- When there is a conflict between the definitive map and its accompanying statement, which should prevail as a matter of law?
- In the event of conflict, what evidential weight should be accorded to the map and the statement by the surveying authority and/or the inspector?
- Did the inspector err in her approach to the question whether the claimant's order should be confirmed?
- If there was an error in the inspector's approach, should her decision be disturbed?
Arguments of the Parties
Claimant's Arguments
- The definitive statement should have precedence over the definitive map as a matter of statutory construction.
- There is no statutory mechanism specifically resolving conflicts between the map and statement; thus, a presumption should exist that the statement prevails due to its greater particularity.
- Section 56(1)(e) of the Wildlife and Countryside Act 1981 provides that particulars in the statement are conclusive evidence as to the position of the footpath, which supports the statement prevailing over the map when in conflict.
- The inspector wrongly failed to accord evidential weight to the statement and applied an unwarranted presumption favoring the map.
- The inspector should have considered the possibility of confirming parts of the modification order even if some parts were unsubstantiated, exercising powers under Schedule 15 of the 1981 Act.
Defendant's Arguments
- The definitive map prevails in cases of irreconcilable conflict because it is prepared under a statutory duty and is the primary document.
- The statement depends on the map for its existence and can only be conclusive as to particulars of footpaths shown on the map.
- Section 56(1)(a) and (e) of the 1981 Act mean the statement cannot prevail if it describes a footpath not shown on the map.
- The map provides a simpler and clearer reference for the public; the statement is ancillary and cannot override the map.
- The inspector correctly applied the evidential presumption established in case law (notably Trevelyan) favoring the map as accurate unless displaced by cogent evidence.
- The inspector was not invited to consider partial confirmation of the order modification and acted within her factual discretion.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v. Secretary of State for the Environment, ex parte Burrows & Simms [1991] 2 QB 354 |
Interpretation of section 53(3)(c) provisions for modification of definitive maps and statements. |
Used to explain statutory mechanisms for modifying definitive maps and statements and the relation between map and statement. |
| L.E. Walwin & Partners Ltd. v. W. Sussex CC [1975] 3 All ER 604 |
Definitive map and statement must be read together; statement can provide particulars missing from the map. |
Supported claimant’s argument that the statement can clarify or supplement the map, and should be considered alongside it. |
| Suffolk County Council v. Mason and Others [1979] AC 705 (HL) |
Purpose of definitive map and statement is to provide an easy and conclusive way for ramblers to prove rights of way. |
Emphasized the primacy of the map for clarity, supporting defendant’s argument on the map’s precedence. |
| R v. Secretary of State for the Environment ex parte Kent County Council [1995] 93 LGR 322 |
Application of section 53 and evidential presumption that rights of way shown on the map exist unless cogent evidence disproves. |
Discussed limits of deletion powers under section 53 and evidential standards for modification orders. |
| Trevelyan v. Secretary of State for the Environment, Transport and the Regions [2001] 1 WLR 1264 |
Presumption that a right of way marked on a definitive map exists unless disproved on balance of probabilities. |
Key authority establishing evidential presumption favoring the map, applied by the inspector and discussed extensively by the court. |
| Todd and another v. Secretary of State for the Environment, Food and Rural Affairs [2004] 1 WLR 2471 |
Standard of proof for confirming modification orders is the civil standard; "reasonably alleged to subsist" is sufficient for making an order. |
Used to clarify the evidential standard applicable to modification orders and the role of the inspector in weighing evidence at inquiry. |
| Simplex G.E. (Holdings) and another v. Secretary of State for the Environment and the City and District of St. Albans District Council [1988] 57 P & CR 306 |
Principle that a decision should not be disturbed unless based on incorrect law or irrationality. |
Applied to assess whether the inspector’s decision should be quashed for legal error or irrationality. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the statutory scheme governing definitive maps and statements under the National Parks and Countryside Act 1949 and the Wildlife and Countryside Act 1981. It acknowledged that the definitive map is the primary and conclusive document showing public rights of way, with the accompanying statement providing particulars such as position and width. However, the court recognized that the statutory framework does not explicitly address how to resolve conflicts between the map and the statement.
The claimant argued that the statement, being more precise in words, should prevail over the map in cases of conflict. The defendant argued that the map must prevail because it is the primary statutory document and the statement depends on it.
The court found that the map and statement should be read together practically to determine whether they are truly in conflict or whether the statement can be interpreted as describing the footpath shown on the map. If irreconcilable conflict exists, the map prevails because the statement's particulars depend on the map’s conclusiveness.
Regarding evidential weight, the court rejected the application of an evidential presumption favoring the map over the statement at the review stage under section 53. The conflict itself indicates an error in preparation, displacing the usual presumption that the map is correct (as established in Trevelyan). Instead, the inspector must weigh the evidence, including the terms of both documents and extrinsic evidence, to decide on the balance of probabilities which description is correct.
The inspector had applied the Trevelyan presumption to the map, requiring cogent evidence to displace it, and thus gave no evidential weight to the statement. The court held this was an error of law because no such presumption should apply to the statement in a conflict situation.
Further, the court noted that the inspector was not invited to consider whether the statement could be reconciled with the map, nor to exercise her powers to confirm part of the order modification. The inspector’s factual conclusions may have been affected by the erroneous application of the evidential presumption.
Holding and Implications
The court's final decision was to QUASH the inspector’s decision refusing to confirm the modification order.
The holding clarifies that:
- The definitive map is the primary conclusive document, but the accompanying statement must be interpreted practically to determine if it properly describes the footpath shown on the map.
- In cases of irreconcilable conflict between the map and statement, the map prevails as a matter of law.
- At the review stage under section 53, no evidential presumption applies in favor of the map over the statement; both must be weighed alongside extrinsic evidence.
- The inspector erred in applying an evidential presumption favoring the map and failing to consider the statement’s particularity.
The direct effect is that the inspector’s decision is set aside and the matter is remitted for reconsideration without the erroneous presumption. No new precedent beyond this case’s specific context is established, but the ruling provides guidance on the interpretation and evidential treatment of definitive maps and statements in modification proceedings.