Derren Mcleish & Anor v The Secretary of State for Environment Food and Rural Affairs & Anor

Derren Mcleish & Anor v The Secretary of State for Environment Food and Rural Affairs & Anor

The appeal is dismissed because the evidential presumption against change does not derive from section 56 but from common sense and case law; the presumption applies to the current definitive map, but was rebutted by clear evidence of copying errors. The inspector correctly determined, on the balance of probabilities and without the assistance of any presumption, that the correct route of the footpath was A-B-X-C, not the route shown on the erroneous definitive map.

Parties
Appellant/claimant: Derren McLeish; Appellant/claimant: Kathryn Joan McLeish; Respondent/defendant: Secretary of State for Environment Food and Rural Affairs; Respondent/defendant: Kent County Council
Jurisdiction
England and Wales
Judgment Date
13 December 2024
Procedural Posture
Civil Appeal / Appeal From High Court (planning Court) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Definitive Map Modification Orders, Public Rights of Way, Statutory Interpretation, Evidential Presumption, Wildlife and Countryside Act 1981
Administrative Law Planning Law Property Law Definitive Map Modification Orders Public Rights of Way Statutory Interpretation Evidential Presumption Wildlife and Countryside Act 1981

Case Brief

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Parties

Derren McLeish

Appellant/claimant

Kathryn Joan McLeish

Appellant/claimant

Secretary of State for Environment Food and Rural Affairs

Respondent/defendant

Kent County Council

Respondent/defendant

Procedural Posture

Civil Appeal / Appeal From High Court (planning Court) to Court of Appeal

Legal Issues

  1. 1 Whether the evidential presumption in section 56(1) of the Wildlife and Countryside Act 1981 applies to the original 1952 definitive map or to the later modified map
  2. 2 Whether the inspector and judge erred in law in applying the presumption to the modified map when errors in copying were established

Ratio Decidendi

The appeal is dismissed because the evidential presumption against change does not derive from section 56 but from common sense and case law; the presumption applies to the current definitive map, but was rebutted by clear evidence of copying errors. The inspector correctly determined, on the balance of probabilities and without the assistance of any presumption, that the correct route of the footpath was A-B-X-C, not the route shown on the erroneous definitive map.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.