Council defeats challenge to decision to add 34 footpaths to definitive map

A county council has successfully defended a judicial review challenge to a committee decision authorising the making of a statutory order which, subject to confirmation, would add at least 34 footpaths and a bridleway to the definitive map and statement for the area.

The case of Roxlena Ltd, R (On the Application Of) v Cumbria County Council [2017] EWHC 2651 concerned a decision taken by Cumbria’s Development Control and Regulation Committee on 4 January 2017.

The footpaths and bridleway were over land owned by the claimant company and an interested party.

The judge, Mr Justice Kerr, stressed that the Planning Court was only concerned with the question whether the decision of the council challenged in this case, was taken in accordance with the law.

The challenge was brought on four grounds:

1. It was not lawful for the council to reject the view of the Corporate Director, Economy and Highways, in his December 2016 report, that there was insufficient evidence of the alignment of the new rights of way on the map. The claimant submitted that it was not possible to discern from the available evidence and with sufficient precision where the routes would run on the ground and, thus, on the definitive map.
2. Without a further enquiry which it was Wednesbury unreasonable not to make, there was insufficient evidence to support the committee's decision that it was reasonable to allege that there had been uninterrupted enjoyment of the footpaths in question…..for a 20 year period from 1990 to 2010, applying the test in section 31(1) of the Highways Act 1980 (the 1980 Act).
3. The council was barred from making the decision challenged because it took account of written evidence of uninterrupted enjoyment of the routes produced in an application which had not been determined because of a supposed procedural defect (absence of proper service of the application); which meant that the council was, applying the relevant provisions in the Wildlife and Countryside Act 1981 (the 1981 Act), precluded from taking that evidence into account.
4. The evidence to support the decision to add the bridleway to the definitive map by statutory order was misinterpreted and was manifestly insufficient to support the making of such an order, even if the making of the order were unopposed; and that it was not legally open to the committee to decide to include the bridleway in the order on the strength of that evidence.

Inviting the court to quash the committee's resolution, the claimant said that there was no need for it and the council to incur the expense of a public inquiry, which would be the next stage in the process if the decision to make the order was upheld and the claimant exercised its statutory right of objection to the confirmation of the order by the Secretary of State.

However, Mr Justice Kerr did not find the claimant's arguments persuasive, concluded that none of the four grounds was made out and he dismissed the claim.