County council defeats Court of Appeal challenge over designation of rights of way

The Court of Appeal has rejected a case brought by a landowner against Cumbria County Council over the designation of public rights of way.

Lindblom LJ said the case of Roxlena Ltd, R (On the Application Of) v Cumbria County Council [2019] EWCA Civ 1639 concerned how a surveying authority should approach the evidence said to justify adding a footpath to its definitive map and statement of public rights of way under section 53 of the Wildlife and Countryside Act 1981,

Roxlena appealed against an order by Kerr J in November 2017, dismissing its claim for judicial review of Cumbria’s decision to extend a bridleway over its land.

There were four main grounds of appeal:

  • Kerr J was wrong to conclude that there was sufficient evidence to justify making the order;
  • he was wrong to conclude that Cumbria had not failed properly to investigate the evidence of the 40 people who had said they used the footpaths;
  • he was wrong to conclude Cumbria had made a relevant and effective discovery of evidence within section 53(3)(c) (ground 3)
  • there was insufficient evidence to justify making an order extending the bridleway.

Lindblom LJ said the matters involved had a “long and tortuous history”.

Hayton Woods has not been surveyed by Cumbria because successive owners refused to allow this.

Nor were there aerial photographs showing any paths beneath the trees. Evidence of those routes and their use, much of it contentious, was in various maps, records, witness statements and responses to questionnaires, the judge noted.

Lindblom LJ said: “I agree with the judge that the evidence of interruption of use within the relevant 20-year period, contentious as it was, did not have to be more deeply investigated than it was before the county council decided to make the order.

“The county council did not have to go behind the user evidence forms and send letters to the 40 users who had said they did use the paths.”

He added: “That evidence could reasonably be taken at face value at the order-making stage…it might or might not withstand questioning at the confirmation stage. But it did not have to be investigated more fully before the order could lawfully be made.”

Roxlena argued that if the evidence before Cumbria was not enough to demonstrate on the balance of probabilities that the claimed bridleway subsisted on the alignment shown on the draft order map, it could not have been reasonable to make the order.

Lindblom LJ said: “I disagree. I do not accept the submission that because the map…showed a route that was not the claimed bridleway, the evidential basis for adding the stretch of bridleway to which the application related fell apart, and that the allegation of the subsistence of the bridleway on that alignment and to that extent could not be reasonable.”

Mark Smulian

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