Hampshire County Council Item 9

Regulatory Committee

5 September 2007

Report on an Inspector's decision following a public inquiry into a Map Modification Order to delete Baughurst Footpath 10

Report of the Director of Recreation & Heritage

Contact: Ian Austin Ext. 7623 [email protected]

Colin Piper Ext. 6043 [email protected]

WILDLIFE AND COUNTRYSIDE ACT 1981

53. Duty to keep definitive map and statement under continuous review

(2) As regards every definitive map and statement, the surveying authority shall -

(b) .... keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence.... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of that event.

(3) The events referred to in sub-section (2) are as follows -

(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows -

(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.

1. Summary:

1.1 Following a recent public inquiry an Inspector decided not to confirm a Map Modification Order, made by the County Council, to delete Baughurst Footpath 10 from the definitive map. The Order was made on the basis that there was evidence that the path had been recorded in error in the 1950s.

1.2 Two landowners, whose properties are affected by the path, have written to the Council to express their extreme disappointment with the decision and the manner in which it has been reached. They have asked the Council to appeal against the decision. The only avenue open to aggrieved parties at this stage is to make an application to the High Court for Judicial Review to seek to have the decision quashed. Further, the local MP, Sir George Young Bt., has written on behalf of his constituent asking that legal advice be sought on the possibility of challenging the Inspector's decision.

1.3 Officers are also disappointed with the decision and take the view that the Inspector's arguments are challengeable. However, such an action would be expensive to pursue and the outcome would not be certain. It is recommended that the Inspector's decision is not appealed as it is not in the wider public interest to spend a significant sum of money in pursuing the deletion of a public right of way. This course of action would not prevent others appealing against the Inspector's decision.

2. Recommendation:

2.1 That the County Council does not initiate Judicial Review procedures against the Inspector's decision regarding Baughurst Footpath 10.

3. Judicial Review process:

3.1 Once a decision letter is issued, the Planning Inspectorate have no power to amend or change it. Decisions are therefore final unless successfully challenged in the High Court. A decision cannot be challenged merely because someone disagrees with the Inspector's judgement. For a challenge to be successful it is necessary to show that the Inspector had misinterpreted the law or that some relevant criteria had not been met. An aggrieved person can only challenge a decision to not confirm an Order (as here) by applying for judicial review of the decision by the Courts. If the challenge is successful the Court will either quash the Order, or quash the decision and ask the Inspectorate to re-determine the case. Applications for judicial review must be received by the Administrative Court within three months of the date of the Order Decision, unless the Court extends this period.

3.2 Anyone aggrieved by the decision letter can make a challenge. This includes statutory objectors, interested parties and Order Making Authorities. A relatively small administrative charge is made by the Court for processing a challenge, but the legal costs involved in preparing and presenting a case in Court can be considerable. If the challenge fails then the challenger will have to pay the Inspectorate's legal costs on top of their own expenses. If the challenge is successful then the Inspectorate will meet the legal costs of the challenger. If the Order is quashed the Council will have to re-make the Order if it wishes to pursue the deletion of Baughurst Footpath 10 and that will in turn probably lead to another public inquiry.

3.3 At this stage, it is almost impossible to give any detailed indication of what the likely legal costs for the County Council would be should authority be given to Judicially Review the decision. A figure of £8,000 should be budgeted for at this early stage to cover the cost of Counsel, but this is very much an approximate figure. To this should be added the cost of time for officers involved in the preparation of the proceedings. However, officers do advise that costs implications should not deter the County Council from pursuing a Judicial Review in this matter if the merits of making such an application outweigh the impact of the likely costs.

4. Background:

4.1 At a meeting on 7^th September 2005, members of the Regulatory Committee considered a report that recommended the deletion of Baughurst Footpath 10 on the grounds that it was incorrectly recorded as a public right of way on the definitive map. The issue arose because of a dispute about the precise route of the path and grew as research in to the history of the path cast doubt on its existence as a public right of way. Members approved the making of an Order to delete the path and this was advertised in the summer of 2006. The Council received two objections in response to the advertisement of the Order, one from Baughurst Parish Council and the other from a resident of Goddards Green in Berkshire. The Ramblers Association and the Open Spaces Society did not object to the Order.

4.2 The opposed Order was referred to the Planning Inspectorate and they in turn called a local public inquiry which was held in Kingsclere over two days in June of this year. The Inspector heard the evidence from the County Council as well as representations from the two statutory objectors and other interested parties. At the end of the Inquiry the Inspector conducted a site visit in the company of a council officer, landowners and objectors. The Inspector's decision letter was issued on 12 July.

4.3 In her letter the Inspector concluded that: "Having considered the evidence as a whole I do not consider, on the balance of probabilities, that the evidence provided supports the contention that an error was made when the route was first recorded and, therefore, I conclude there is a presumption that public rights existed at the relevant date of 15 December 1952. In the absence of evidence of any subsequent legal change to the route I consider that the public rights still existed at the relevant date of the current Definitive Map and Statement, 1 January 1964."

4.4 In a letter dated 2^nd August a local resident and landowner, Mr Chapman, made the following points:

"In making an Order for the route HCC will have been convinced of its case. You will have been disappointed and surprised that the Inspector did not confirm the Order. The assumption must be that HCC will not pursue the matter of Footpath 10 beyond a public Inquiry. However, the decision is so contrary to the evidence that I believe the Inspector's decision, and the correctness of Footpath 10, must be examined at a higher level whatever the financial politics..."

4.5 Another landowner, Mr Browning, made the following points in a letter dated 6^th August:

"...the Inspectorate has either not understood or misunderstood the facts put forward by Hampshire County Council in this case and therefore the decision should be challenged as a matter of urgency...I appreciate that HCC in pursuing this issue further may initially have a cost consideration, however I feel that unless a successful challenge is made to this extremely poor decision the numerous hours spent by all parties (and costs to date) will undoubtedly be wasted..."

4.6 Whilst officers remain convinced that the evidence presented to the local public inquiry supported the decision of this Committee to make an Order deleting Baughurst Footpath 10 from the Definitive Map, the Inspector took a contrary view. Case law has established that a decision to not confirm an Order following a local public inquiry is a matter for the Inspector. Further, a decision to not confirm an Order (as here) is one which is reasonably open to an Inspector provided all relevant considerations have been taken into account - "R (on the application of Macintosh and Ors)" [2006] EWHC 2703 (Admin).

4.7 In this particular instance, it could be argued that a different Inspector faced with the same evidence may have reached a decision to confirm the Order deleting Baughurst Footpath 10 from the Definitive Map. But, the test to be applied is not whether another or different Inspector would or might have concluded that there was cogent evidence to delete Baughurst Footpath 10 from the Definitive Map, but whether any reasonable Inspector would have so concluded. The weight to be attached to and drawn from the evidence is, again, a matter for the Inspector alone - "Macintosh".

4.8 At the local public inquiry, officers presented to the Inspector the full extent of the evidence that had been discovered during the investigation into the status of Baughurst Footpath 10. This evidence was considered by the Inspector and analysed in her decision letter. She explains why she reaches her decision; she has applied the appropriate law; and detailed what weight she attaches to the evidence in coming to her decision. In this light, whilst disappointed with the decision, officers cannot advise that it is flawed in law, or that it should be appealed.