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| Western slopes of Dumpdon Hill Footpath 61 runs along the hedge identified by the arrow Photo © Derek Harper cc-by-sa |
Looking back now, from the perspective of the 2020 pandemic, the ‘Devonian disease’ (blog, 10 May 2019) does not seem the most apposite expression to describe the subject of that blog. But it is too late now — and besides, the Devonian disease has struck again. Fortunately, this is one outbreak which it has proven possible to control.
As the original blog explains, Devon County Council made two definitive map modification orders to add to the definitive map and statement three footpaths in the parish of Luppitt, in east Devon: the Devon County Council (Footpath No. 62, Luppitt) Definitive Map Modification Order 2017 (‘order A’) and the Devon County Council (Footpaths Nos. 60 and 61, Luppitt) Definitive Map Modification Order 2017 (‘order B’). The orders are available embedded with the start notice here (at the bottom of the Devon list). The paths had been omitted from the definitive map drawn up under Part IV of the National Parks and Access to the Countryside Act 1949. In addition to the evidence that was available at the time of the 1949 Act process, new material had been discovered arising under the Finance (1909–1910) Act 1910 which lent further support to the public status of the paths. The Ramblers therefore argued that, taking the evidence as a whole, there was sufficient evidence that the footpaths had long existed, and should be added to the definitive map.
The matter came before an inspector (acting on behalf of the Secretary of State) in 2018, who was tasked with deciding whether to confirm the orders. The inspector’s decision is here (scroll down to the relevant decision). You can read about the detail of the evidence in the original blog, and in the inspector’s decision. The inspector decided not to confirm the orders. He said, among other things, that the decision to omit the paths from the definitive map drawn up under the 1949 Act process (the paths were identified, but a decision subsequently was taken to omit them, though by who and on what authority was unclear) was itself evidence that no right of way was believed, by the parish council, to exist at the time. That evidence should be weighed in the balance, and was sufficient to outweigh the existing and new evidence that a right of way did subsist.
The Ramblers, with support from the Open Spaces Society, sought to challenge the inspector’s decision, primarily on the ground that the inspector had placed excessive reliance on the probity of the decision to omit under the 1949 Act. The decision was undocumented (save for the terse instruction on record cards to ‘omit’ the paths), and it could not now be known on what considerations the conclusion had been reached, still less that there had been a thorough evidential analysis. And even if there had, who could say whether, in the light of the new Finance Act evidence — not then publicly available — a different conclusion might have been reached? Leave was granted by the High Court for the Ramblers to seek judicial review, and at that point, the Secretary of State decided to consent to the decision being quashed.
Fast forward around eighteen months, and a second inspector was appointed to make a fresh determination of the orders, in the light of the original determination being quashed. You might think that, on appointment as an inspector to determine orders where a previous decision had been quashed by consent order, you would be informed of the history and seek to avoid making the same mistake again. But no: the inspector rehearses a similar analysis to that done the first time around — you can see the decision letter here. In his consideration of order A, at para.43, he reviews the evidence about the omission of the paths from the draft map, and concludes: ‘The absence of any objection to the omission of the map from either the draft or provisional map stages of the process is in my view a significant factor which sits in the balance in favour of the objectors to the Order.’ At para.52, he concludes that, ‘there is evidence of reputation in one side of the scale which supports the Ramblers contention that the Order route is a public right of way. However, much of that evidence (save for the tithe and Finance Act records) is likely to have been considered and rejected at the time of the 1949 Act survey. In the opposite scale is the fact that, despite this supposed reputation, no challenge was made to the omission of the path at either the draft or provisional map stage.’ The inspector concludes that the claimed path has not been shown to exist and refused to confirm the order.
In respect of order B, the analysis goes the same way. But there is more. Part of the land crossed by the paths was claimed to be in settlement between 1824 and 1920, and the objectors said this excluded the possibility of dedication because the tenant for life had no capacity to dedicate (it was not, as it happens, entirely clear that capacity was absent). You might think that this was of little moment, for the paths might well have been dedicated at any point in the last millennium (or even further back), as so many of our country paths were. But the inspector concludes that: ‘An inference of dedication prior to [1824] cannot be drawn as no evidence has been submitted to show that OR60 or OR61 existed or were in use by the public prior to that date.’ Which was quite correct — but equally, there was no suggestion that the paths had come into use or been dedicated after 1824. In such a case, where an objector seeks to show that some exception applies to prevent dedication, one would expect the onus to lie with the objector to show that the alleged dedication must have occurred during the period of settlement — not for the applicant for the order to show that it did not.
Unsurprisingly, the Ramblers again sought to challenge the decision, now of the second inspector, and this time the Secretary of State declined to support the inspector’s decision, but instead submitted to a consent order quashing the decision. The order recites that the “Inspector’s reasoning was inadequate… . In particular, undue weight was given to evidence relating to the outcome of the initial consideration – carried out by Luppitt Parish Council, Honiton Rural District Council and Devon County Council as part of the survey of public rights of way pursuant to the National Parks and Countryside Act 1949 – of the question of whether to recognise the paths covered by the 2017 Orders as public rights of way.’ One might comment that, to lose a decision to a quashing order is evidence of unlawfulness, but to make the same mistake again is evidence of incompetence.
And so the orders are now remitted back to the Secretary of State for a third determination. Let’s hope that the inspector assigned to the orders reads in on their history.
Perhaps he or she ought to read up too on the history of the Luppitt parish survey under the 1949 Act. The original survey by Luppitt Parish Council in 1951 produced a map and details of 53 footpaths and three bridleways submitted to the County Council. Forty-eight of the routes surveyed were proposed to be omitted, with some described as not required [note: not that they were not reasonably alleged to be public rights of way, which was the statutory test] and others were said to be roads or private, or were disputed. The remaining nine footpaths and three bridleways were recorded for consultations at the draft map stage in 1957, and two other additional footpath routes were included on the provisional map, with those 14 routes recorded on the definitive map. Some 56 paths reduced to 14, and yet we struggle to get recognition for just three of those which were omitted, on the grounds that the parish council did such a good job at the time that its decisions should not be revisited.
Postscript: The orders were determined a third time, with decisions issued on 4 November 2021 (references ROW/3188551R2 and ROW/3188550R2, available via here). The order for footpath 62 was confirmed, and the order for footpaths 60 and 61 not confirmed. One out of three being better than none, it was decided not to pursue a further challenge.
Hi, i know this is an old blog, but I was wondering how this turned out? Was there a final decision?
Thanks
Alex
Funnily enough, yes — today. The order for footpath 62 has been confirmed, and the order for footpaths 60 and 61 not confirmed. I hope to write at a bit more length in due course.
Bizarre timing… thanks for the update.
Small point of Order in the second paragraph.
The Council did NOT argue that the paths should be added to the definitive maap. The Council rejected the applications and were subsquently directed to make the Orders, afterwhich they remained neutral.
Quite right Robin: thanks, and corrected.
Para. 41 of the Sept 2018 decision includes, re. the Finance Act evidence : “However in my view, the weight to be attached to this evidence is tempered by the fact that the routes would have been well known to local people, those carrying out the parish survey and where applicable, those involved in the decision to add/remove/omit the routes from the DMS”.
Trying to get my head round this. Does he think that the 1910 Act forms were completed by ‘local people’ and are these the same local people who carried out the parish survey some 40 years later and whose memories were so efficient that they remembered for exactly what private purpose all of the people who were using these paths c.1910 were doing so?
Or am I misunderstanding something?
I believe the inspector is attempting to depreciate the Finance Act evidence by saying that, although this is ‘new’ evidence, the parish council was already fully apprised of the circumstances at the time of the 1949 Act review, and that had the council known of the Finance Act evidence, it would have made no difference to the outcome at that time (i.e. to omit the paths).
It is a further attempt, in his decision, to apply (incorrectly) the principle of res judicata, and to diminish any evidence that might call that principle into question.
Of course, the decision of a parish council to omit the paths (and we do not know who took that decision: it may have been the chairman acting alone) is not the decision of an independent, impartial tribunal — still less in circumstances where the parish council had expressly minuted that: ‘Many of the paths were considered to be now not used and were crossed off’ and that ‘Further footpaths were discussed, many were found to be of no public use and omitted’. Minutes which both inspectors have confirmed were before them in reaching their decisions.
What an enthralling story. Is it possible that these crazy inspectors’ decisions come about due to lack of knowledge of RoW matters on the part of the inspectors?
No: the second decision was taken by a very experienced rights of way inspector. However, it is intriguing that the first decision, taken by a different inspector, pretty new to definitive map modification orders (DMMOs), was so similar in approach to the second — both decisions place great weight on the decision to exclude the paths in the 1949 Act survey — to an extent which — apart from some like recent decisions by the same second inspector in relation to other Devon orders — is virtually unknown in Planning Inspectorate DMMO decisions in recent years. Perhaps the second inspector was mentoring the first, and then was handed the orders for redetermination the second time?