High Court Examines Public Footpath Modification Order under Wildlife and Countryside Act

Citation: [2024] EWHC 532 (Admin)
Judgment on

Introduction

The High Court of Justice in the case of Derren McLeish & Anor v The Secretary of State for Environment Food and Rural Affairs & Anor examines the intricacies of a public footpath modification order. The claimants challenged a decision concerning the alignment of a public footpath under the Wildlife and Countryside Act 1981. The case delves into several legal principles involving the interpretation of the Act and the assessment of evidence pertaining to public rights of way.

Key Facts

Mr. and Mrs. McLeish sought to challenge the confirmation of an order modifying the route of public footpath ZR281 in Doddington, which affected their property, Yew Tree House. The original order aimed to rectify a discrepancy regarding the path’s alignment, as shown on the definitive map. The claimants objected to the realignment, which would reroute the path to run through the courtyard of their property rather than through a neighboring property known as Victoria Bungalow.

Several significant legal principles and statutory provisions were applied and discussed in this judgment, outlined as follows:

Definitive Map and Statement

Under Section 53 of the Wildlife and Countryside Act 1981, the definitive map is deemed conclusive evidence of public rights of way. However, modifications can be made upon discovering new evidence. The case explored the weight and presumption of correctness attributed to the definitive map within the modification process.

Presumption Against Change

The principle established in Trevelyan and the Leicestershire case — that there is a presumption against changing the definitive map unless there is cogent evidence on a balance of probabilities to warrant such a change — was a critical aspect of this case.

Conclusiveness of Definitive Map Upon Review

Section 57(3) clarifies that a modified definitive map and statement supersedes the original and assumes the mantle of ‘definitive,’ upon which section 56(1)‘s presumption of conclusiveness then applies. The court addressed which version of the definitive map and statement the presumption of correctness applied to.

Weight of Historical Evidence

Under Section 32 of the Highways Act 1980, the court or tribunal must consider maps, plans, history, or other relevant documents to determine the dedication of a way as a highway. This case underscores the significance of such historical documents when reconstructing a path’s historical footprint.

Scope of Statutory Challenge

Paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 sets the boundaries for challenging the validity of orders. The judgment referenced Elveden Farms Limited to outline the scope of review, emphasizing judicial restraint in the face of specialized inspectors’ expertise.

New Points Raised Post-Decision

The principles established in Trustees of the Barker Mill Estates were used as a guideline to consider whether new arguments not presented to the initial decision maker could be entertained by the High Court.

Outcomes

The court dismissed the claim. It found that:

  • The inspector’s decision letter should be read fairly and as a whole, following the approach in South Bucks v. Porter (No.2).
  • The inspector correctly approached the evidence and employed the necessary presumption against change.
  • The standard of proof that the inspector applied aligned with the balance of probabilities as established in Leicestershire.
  • The inspector considered all relevant historical maps and documents, satisfying the requirement of Section 32 of the Highways Act 1980.
  • The claim that the inspector’s conclusion was irrational was rejected, as the inspector’s findings were supported by the evidence considered.

Conclusion

The High Court judgment in Derren McLeish & Anor v The Secretary of State for Environment Food and Rural Affairs & Anor reaffirms the principles guiding the modification of definitive maps under the Wildlife and Countryside Act 1981. It emphasizes the presumption against change to the definitive map and statement and the weight given to historical records in such reviews. The case also illustrates the limits of statutory challenges to inspector’s decision letters, including the non-admissibility of arguments not raised before the decision-maker, aligning this principle with the broader context of planning law in the UK. This judgment thus serves to clarify the approach that should be taken in similar future disputes over the alignment of public rights of way.