It is common for councils to say that a particular piece of evidence has been looked at before and so there has been no discovery of evidence not looked at before. Without such a discovery, an application cannot go ahead.
Assumptions are often made about what was and was not looked at when the definitive map was researched. This is often justified by using the presumption of regularity when looking at first definitive map material.
The purpose of this document is to provide arguments for people who want to challenge decisions by Councils on these issues.
The two issues are technically separate, so I look at each of them individually.
Most of the material on discovery of evidence is taken from an appendix to a submission the Planning Inspectorate which was written by Hampshire Council and obtained by Julie Robinson. The material on the presumption of regularity is from Eugene Suggett of the Ramblers.
DISCOVERY OF EVIDENCE
The Queen v SSE ex p. Riley [1989] JPEL 921
In this case the applicant had requested that Wiltshire County Council reclassify two bridleways as Byways Open to All Traffic. The application was rejected and an appeal to the Secretary of State for the Environment was dismissed on grounds that he was not satisfied that the applicant had provided any material, which would justify upgrading the highways. The court held that “the County Council and the Secretary of State erred in their approach to section 53 of the 1981 Act. The words of the section must be given their ordinary and literal meaning. If evidence is discovered which is different from evidence originally relied upon…, it does not matter that such evidence does not really add to the weight of the original evidence… The new evidence was sufficient to trigger off the right to apply for modification of the highway”.
The Queen v SSE ex p. Burrows and another, The Queen v SSE ex p. Simms [1991] 2QB 354
The cases of Burrows and Simms were cases that involved a footpath that had erroneously been given the status of bridleway in a definitive map and statement, and the deletion of a bridleway that had been included in a map due to an administrative error. Both cases concerned the status of the definitive map and its modification through ‘discovery’ of evidence’, the construction of Sections 53 and 56 of the Wildlife and Countryside Act 1981, and the justification of the Secretary of State to refuse to hear their appeals because of the case of Rubenstein v Secretary of State for the Environment (1989). The court held that s53 and s56 could be reconciled once the purpose of the legislation as a whole was understood.
LJ Purchase stated that the 1981 Act recognises “the importance of maintaining, as an up-to-date document, an authoritative map and statement of the highest attainable accuracy”. There is a duty to revise and keep the record up to date so that not only changes of status caused by supervening events, but also “changes in the original status of highways or even their existence resulting from recent research or discovery of evidence”, should be taken into account. The passage of time had a part to play, not by way of perpetuating errors but by refining and updating the evidential content of the map and statement. Clearly with the passage of time events within section 53(3)(c) would become less and less frequent.
Mayhew v SSE [1992] 65 P & CR 3441
Mayhew v SSE 1992 65 P & CR 344; Law Review September 1992
In the case of Mayhew v Secretary of State for Environment (1992), Hampshire County Council had upgraded three footpaths to Byways Open to All Traffic. The applicant sought to quash the modification order, the two main grounds being discovery of evidence and suitability. Regarding discovery of evidence, it was argued on behalf of the applicant that the evidence considered was not ‘discovered’ as the County Council had always had it in its archives. The appeal was dismissed, the court held that “…the word “evidence” in section 53(3)(c) of the Wildlife and Countryside Act 1981 must be given its full and natural meaning and should not be restricted to “new evidence” or to evidence “not previously considered”. The “event” in the subsection is concerned with the finding out of some information which was not known to the surveying authority when the earlier definitive map was prepared”.
- Potts J referred to the cases of Burrows and Simms – “…section 53(c) differs from the preceding subparagraphs in that the use of the word “discovery” suggests the finding of some information which was previously unknown, and which may result in a previously mistaken decision being corrected”.
- And R v SSE ex p. Riley – ““To discover,” means to find out or become aware. “Discovery,” means finding out or making known (Concise Oxford Dictionary). It connotes a mental process in the sense of the discoverer applying his mind to something previously unknown to him. In my judgement, the “event” in section 53(3)(c) is concerned with the finding out of some information which was not known to the surveying authority when the earlier definitive map was prepared. Were it otherwise, the surveying authority or a member of the public would be unable to take steps to correct a previously mistaken decision. Such a state of affairs would be at variance with the purpose and scheme of the legislation as well as good sense”.
Page 3 of 14
Burrows v SSEFRA [2004] EWHC 132 (Admin)2
2 Burrows v SSFRA [2004] EWHC 132 (bailii.org)
3 Dorset County Council, R (on the application of) v DEFRA [2005] EWHC 3405 (bailii.org)
In the case of Burrows v Secretary of State for Environment, Food and Rural Affairs (2004), the court held, in paragraph 26, that “a definitive map can be corrected, but the correction… is dependent on the ‘discovery of evidence’. An inquiry cannot simply re-examine the same evidence that had previously been considered when the definitive map was previously drawn up. The new evidence has to be considered in the context of the evidence previously given, but there must be some new evidence which in combination with the previous evidence justifies a modification”.
The Queen on the application of Dorset County Council [2005] EWCH 34053
The court held, in paragraph 5, that “The Secretary of State and the interested party submit that modification on the ground in question may indeed be made where there is the discovery by the authority of evidence; however, that the reinterpretation of evidence previously before the authority is not a ground for modification and that the claimant’s case was based upon the interpretation of evidence previously before the authority which is not the discovery of evidence. The Secretary of State and the interested party further submit that this interpretation is consistent with authorities, including the decisions of the Court of Appeal in R v Secretary of State for the Environment ex parte Simms and Burrows [1991] 2 Queen’s Bench 354, per Purchas LJ at 380, who refers to the discovery of new evidence, per Glidewell LJ at page 388, who refers to the finding of some information which was previously unknown, and per Russell LJ at 392; Fowler v Secretary of State for the Environment & Devon County Council [1992] 64 Property and Compensation Reports 16 per Farquharson LJ at 22, who referred to fresh evidence; and Trenchard v the Secretary of State [1997] EWCA Civil 2670 per Pill LJ, referring to further evidence becoming available and approving a definition of discovery as connoting a mental process in the sense of the discoverer applying his mind to something previously unknown to him. In my judgment, the Council has wholly failed to show that it has discovered any evidence. What it has done is to reinterpret the evidence that had been before it all along. I cannot see that that can arguably come within section 53(3)(c)(i). There must be a discovery, but there has been none. One does not discover a different interpretation and if one could do so, the process of mind changing could go on indefinitely. …””.
Page 4 of 14
Kotarski & Anor v SSEFRA [2010] EWHC 1036 (Admin)4
4 Kotarski & Anor v SSEFRA [2010] EWHC 1036 (Admin) (13 May 2010) (bailii.org)
5 Roxlena Ltd, R (On the Application Of) v Cumbria County Council [2019] EWCA Civ 1639 (09 October 2019) (bailii.org)
The case of Kotarski (2010), relates to a footpath and where there was divergence between what was recorded on the definitive map and what was recorded within the definitive statement. Although there was no new evidence, the court held, in paragraph 26 that “In my view it is sufficient in the present case that the Council had recently discovered that there was divergence between the definitive statement and definitive map to bring the case within s.53(3)(c)(iii)”.
In paragraphs 24 and 25, the court had concluded that “…The discovery that there is a divergence between the two is plainly the discovery of evidence, and it is unnecessary that it should be characterised as ‘new evidence’. It is sufficient that there was the discovery of what the Inspector described ‘as a drafting error’, which was itself the result of what the Court of Appeal in ex. p. Burrows and Simms characterised as ‘recent research’”, and that “…this approach is consistent with (a) the general approach of the Court of Appeal in ex. p. Burrows and Simms… and ‘the importance of maintaining an authoritative map and statement of the highest attainable accuracy’; (b) a general beneficial purpose that there should be powers to make definitive maps and statements consistent; and (c) the decision of Potts J in Mayhew v. Secretary of State for the Environment (1993) 65 P & CR 344 at 352-3, in which he specifically rejected the argument that the s.53(3)(c) modifications should be restricted to cases where ‘new evidence had been discovered’”.
The Queen on the application of Roxlena Ltd v Cumbria County Council [2019] EWCA Civ 16395
The case of Roxlena (2019), relates to a case where the Court of Appeal had dismissed an appeal against the High Court’s decision to dismiss a landowner’s claim for judicial review of an order made by Cumbria County Council which added 34 footpaths and extended a bridleway over their land. One of the questions considered in the case was whether the Council had made a discovery of evidence within section 53(3)(c) of the Act.
In January 2011 Mr Horne had made application for a modification order adding a network of footpaths identified on 70 user evidence forms. The application was refused, the county council had decided “not to proceed because it appears that the notification requirements… have not been complied with”. In April 2013 Mrs Tiffin made an application on the same terms as Mr Horne.
The Court held that “there is no obstacle in the statutory provisions to the surveying authority taking into account previously discovered but unconsidered material in discharging its free-standing duty under section 53(2)(b) … Where the surveying authority, because of a failure by an applicant to comply with the procedural requirements of Schedule 14, has decided that an application should not be proceeded with, that decision does not disapply the free-standing duty. Again, to reach the opposite conclusion, one would have to read into the statutory provisions a qualification Parliament did not insert. The free-standing duty in section 53(2)(b) is not suspended or displaced by the making of an application under section 53(5). It is a continuous duty”.
Planning Inspectorate Order Decision [2017] FPS/M1900/7/866
6 FPS/M1900/7/86 (www.publishing.service.gov.uk)
7 FPS/PO119/14A/2 (www.publishing.service.gov.uk)
- The principal issue in this order decision was also whether there had been a discovery of evidence. The inspector found that there had been the discovery of some new evidence which include a parish map, Bartholomew’s maps, London gazette notice, Geographia map and an archaeological report. At paragraph 16 the inspector has stated that “There appears to be no judicial guidance on the extent of the new evidence required to trigger the provision in Section 53(3)(c). It therefore seems appropriate to consider the new evidence provided in conjunction with the previously considered evidence. However, the new evidence when taken together with the other evidence would need to be sufficient to find on balance that higher public rights exist over Rolph’s Lane. This issue is not alleged to arise in relation to the other claimed routes”.
Planning Inspectorate Appeal Decision [2018] FPS/PO119/14A/27
The principal issue between the parties in the appeal was whether there had been a discovery of evidence. The Inspector’s view was that the appellant’s case that the County Council misconstrued the evidence in the preparation of the draft map and statement, amounted to the “reinterpretation of evidence previously considered by the County Council…”. Paragraph 12 contains a summary of the caselaw.
Page 6 of 14
Planning Inspectorate Appeal Decision [2021] FPS/G1440/14A/118
8 FPS/G1440/14A/11 (www.publishing.service.gov.uk)
9 Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 (bailii.org)
The principal issue between the parties in the appeal was whether there had been a ‘discovery of evidence’. The appellant had relied principally upon the provisions of the Warmingore Inclosure Act 1841 and the award made under that Act. The inspector has stated in paragraph 41 – “That the Council seemingly failed to act upon the Inclosure Award evidence (for whatever reason) does not however displace the fact that (a) the Council was aware of the existence of the Inclosure Award evidence prior to the publication of the draft map; (b) that the Council had considered such evidence; and (c) had exercised the mental process involved in assessing that evidence in relation to the pre-publication draft map. It is not possible for evidence which has previously been considered to be re-evaluated in the absence of relevant evidence which was not available to the Council when the definitive map was first compiled”.
- In the case of Henderson v Henderson (1843), the above principle (v) was laid down – “…The plea of res judicata applies, except in special cases, not only to points which the Court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward”.
PRESUMPTION OF REGULARITY
Advice from Eugene Suggett
“Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium is more a legal maxim than something established by case law. I think it’s a principle adopted by most legal systems and jurisdictions.
I think the Council are mistaken if they think that the presumption of regularity means that every possible piece of evidence was looked at in a case like this. The presumption of regularity is a presumption merely that actions will have been carried out lawfully, and that statutory procedures will have been followed. The presumption of regularity does not mean that whoever carried out the procedures will have had knowledge of all the relevant facts, or that they will have come to the correct conclusion. In the case of definitive map investigations it must be assumed that statutory procedures will have been followed unless there is evidence to the contrary, i.e that due notice was given of the draft map and that objection procedures were duly followed. It does not follow from the presumption that anybody at the council looked at all the maps they had in their possession, or interpreted them correctly.
If the Council has no information as to what documents (if any) were considered in the 1950s, then it cannot be assumed that they considered documents which they now know they had in their possession at the time, or which existed at the time.
The trouble is that the law is vague in any case, about what constitutes the “discovery of evidence” referred to in section 53(3)(c) of the Wildlife and Countryside Act 1981.
You could argue that since the evidence you have shows that a right of way exists even though the council had the evidence in their possession in the 1950s and decided that no right of way existed, it shows that the evidence had not been properly considered by the Council, or it would have added the way to the definitive map then. So, for the authority to look at the maps now, it could well constitute the “discovery of evidence” referred to in section 53(3)(c) of the WCA 1981.
But on the whole it is better, if at all possible, to find some other piece of evidence which really does constitute evidence which would not have been available to the council at the time of the 1949 Act surveys, such as Finance Act material. However tenuous it may be, it would trigger an investigation of the whole issue including the materials which the council say would have been examined in the 1950s.
If nothing is available which could constitute “new” evidence, then I suggest you make a formal application in any case and see what happens on appeal if they reject it.”
THE EAST SUSSEX FIRST DEFINITIVE MAP SURVEY
In East Sussex we are lucky in that nearly every piece of paper relating to the first definitive map has been saved.
From this evidence we can say that the following documents were not examined
- Tithe maps (except in exceptional cases where there was a dispute)
- Early maps made privately.
- Early ordnance survey maps (except in exceptional cases where there was a dispute.
- Deposited Plans for railways and canals that were not built.
- Deposited Plans and acts of parliament for changes to the railway system after it was built.
It may useful to cite this in cases when there is a dispute about what was examined.
Chris Smith November 2024