Emery, R (on the application of) v Secretary Of State For Wales [1997] EWCA Civ 2064 (9th July, 1997)

Emery, R (on the application of) v Secretary Of State For Wales [1997] EWCA Civ 2064 (9th July, 1997)

The Secretary of State failed to properly weigh the conflicting evidence between the landowner's statement and the user evidence, and did not apply the correct legal test for whether a right of way was reasonably alleged to subsist. The decision was therefore unreasonable and should be quashed.

Citation
[1997] EWCA Civ 2064
Parties
Applicant/respondent: Gordon Michael Emery; Respondent/appellant: Secretary of State for Wales
Jurisdiction
England and Wales
Procedural Posture
Judicial Review / Appeal From High Court to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Public Rights of Way, Judicial Review, Procedural Fairness, Legitimate Expectation, Modification of Definitive Map, Statutory Interpretation
Administrative Law Property Law Public Rights of Way Judicial Review Procedural Fairness Legitimate Expectation Modification of Definitive Map Statutory Interpretation

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Parties

Gordon Michael Emery

Applicant/respondent

Secretary of State for Wales

Respondent/appellant

Procedural Posture

Judicial Review / Appeal From High Court to Court of Appeal

Legal Issues

  1. 1 Whether the Secretary of State applied the correct legal test in refusing to direct a modification of the definitive map to show a public right of way.
  2. 2 Whether the Secretary of State failed to consider relevant evidence and acted unreasonably in the face of conflicting evidence.
  3. 3 Whether procedural fairness required a public inquiry at the appeal stage under Schedule 14 of the Wildlife and Countryside Act 1981.

Ratio Decidendi

The Secretary of State failed to properly weigh the conflicting evidence between the landowner's statement and the user evidence, and did not apply the correct legal test for whether a right of way was reasonably alleged to subsist. The decision was therefore unreasonable and should be quashed.

Court Disposition

Appeal dismissed

Orders

  • Order of the High Court quashing the Secretary of State's decision upheld
  • Secretary of State's decision refusing the appeal is quashed