McLeish & Anor v Secretary of State for Environment Food and Rural Affairs & Anor

Factual and Procedural Background

Since 1949, county councils have been required to prepare and maintain a definitive map and statement of public rights of way within their areas. This appeal concerns a footpath in the village of Doddington in Kent, initially shown on the 2013 definitive map as passing through a property known as Victoria Bungalow. A Definitive Map Modification Order dated 11th February 2021, confirmed on 2nd December 2022, altered the footpath to run along the eastern frontage of a neighbouring property, Yew Tree House, owned by the appellants.

The appellants challenged the order, but their challenge was dismissed by the Planning Court. They appealed to this court, which concluded that the appeal must be dismissed.

Legal Issues Presented

1. What is the effect of the "conclusive" provision in section 56(1) of the Wildlife and Countryside Act 1981 when the surveying authority considers whether to make modifications under section 53?
2. What is the definitive map and statement to be considered when deciding whether to make modifications pursuant to section 53?

Arguments of the Parties

Appellants' Arguments

• The appellants contended that the evidential presumption created by section 56(1) of the 1981 Act applied to the original 1952 definitive map and statement, not to the later modified map and statement.
• They argued that since there had been no relevant modification under the 1981 Act, but rather an error in copying the route onto later definitive maps, the presumption should apply to the 1952 version, effectively reviving it.

Respondent's Arguments

• The Secretary of State submitted that the conclusive evidence provision in section 56 does not apply to the review process but to the definitive map as it currently stands.
• They argued that the evidential presumption against change applies to the latest definitive map and statement as modified, and that the inspector was entitled to find that the current map was in error due to copying mistakes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Trevelyan v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 266	Clarification that mistakes in definitive maps can be corrected under section 53(3)(c) of the 1981 Act; introduction of the evidential presumption against change during review.	The court followed Trevelyan in holding that the conclusive evidence provision in section 56 does not apply during review and that an evidential presumption against change exists but is rebuttable.
R v Secretary of State for the Environment, Ex parte Burrows [1991] 2 QB 354	Purpose of the legislation to maintain an authoritative definitive map and avoid litigation; conclusive evidence provision applies outside review.	Supported the principle that mistakes in the definitive map can be corrected during review and that the map provides certainty until modified.
R (Leicestershire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWHC 171 (Admin)	Approach to determining correct route when two alternatives exist, starting with presumption that route on map exists unless rebutted.	Adopted to determine that the question of correct route is best answered by considering whether there is no public right of way on the land shown on the map.
R (Norfolk County Council) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWHC 119 (Admin), [2006] 1 WLR 1103	Clarification that the only presumption at review stage is the evidential presumption identified in Trevelyan.	Confirmed that the conclusive evidence provision does not apply at review and that the evidential presumption against change governs.

Court's Reasoning and Analysis

The court began by outlining the statutory framework governing definitive maps and statements, emphasizing that county councils must keep these under continuous review and may modify them upon discovery of evidence showing errors. The conclusive evidence provision in section 56 establishes that the definitive map is authoritative for disputes but does not prevent correction of mistakes through the review process under section 53.

The court distinguished between the conclusive evidence provision and the evidential presumption against change. The former applies outside the review process, providing certainty to the public and landowners. The latter, a rebuttable presumption applied during review, acknowledges the improbability of errors in carefully prepared definitive maps but allows correction where evidence rebuts the presumption.

Applying these principles, the court agreed with the Planning Court judge and the inspector that the current (2013) definitive map had been affected by copying errors resulting in an eastward drift of the footpath onto the appellants' land. This rebutted any presumption of correctness for the current map. However, the 1952 map was also shown to be erroneous as it depicted the footpath running through buildings, also rebutting the presumption of correctness for the original map.

Consequently, the inspector properly assessed all evidence on the balance of probabilities and concluded that the correct route was the one running through the appellants' property (A-B-X-C). The court found no legal error in this approach or conclusion.

The court further noted the potential future application of section 53ZA of the 1981 Act, enabling streamlined correction of obvious administrative errors, though this was not currently in force or applicable.

Holding and Implications

The court DISMISSED THE APPEAL.

The effect of this decision is that the Definitive Map Modification Order, which corrected the route of the footpath to run along the appellants' property rather than through the neighbouring property, stands. The court affirmed the principle that the definitive map as currently modified is the authoritative record, and that errors can be corrected on balance of probabilities through the review process despite the conclusive evidence provision. No new precedent was established; rather, the decision applied established legal principles concerning definitive maps and rights of way.