Roxlena Ltd, R (On the Application Of) v Cumbria County Council [2019] EWCA Civ 1639 (09 October 2019)

Roxlena Ltd, R (On the Application Of) v Cumbria County Council [2019] EWCA Civ 1639 (09 October 2019)

The Court held that the statutory test for making a modification order under s.53(3)(c) of the Wildlife and Countryside Act 1981 is whether it is reasonable to allege that a right of way subsists, not whether it is proven on the balance of probabilities. The Council's committee was entitled to make the order based on the evidence before it, even if that evidence might ultimately be insufficient for confirmation. The Council did not fail in its duty to investigate, nor was there any legal error in relying on previously submitted evidence. The committee's decision was not irrational or unlawful.

Citation
[2019] EWCA Civ 1639
Parties
Appellant: Roxlena Ltd.; Respondent: Cumbria County Council; Interested Party: Peter Lamb
Jurisdiction
England and Wales
Judgment Date
09 October 2019
Procedural Posture
Judicial Review Appeal / Court of Appeal Judgment on Appeal From Administrative Court
Outcome
Appeal dismissed
Legal Topics
Definitive Map Modification Orders, Wildlife and Countryside Act 1981 S.53, Highways Act 1980 S.31, Standard of Evidence for Rights of Way, Procedural Duties of Surveying Authorities
Administrative Law Planning Law Public Rights of Way Definitive Map Modification Orders Wildlife and Countryside Act 1981 S.53 Highways Act 1980 S.31 Standard of Evidence for Rights of Way Procedural Duties of Surveying Authorities

Case Brief

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Parties

Roxlena Ltd.

Appellant

Cumbria County Council

Respondent

Peter Lamb

Interested Party

Procedural Posture

Judicial Review Appeal / Court of Appeal Judgment on Appeal From Administrative Court

Legal Issues

  1. 1 Whether sufficient evidence existed to justify making an order to add footpaths to the definitive map under s.53 of the Wildlife and Countryside Act 1981
  2. 2 Whether Cumbria County Council failed to properly investigate evidence of use during the 2001 foot and mouth outbreak
  3. 3 Whether there was a relevant 'discovery' of evidence under s.53(3)(c)

Ratio Decidendi

The Court held that the statutory test for making a modification order under s.53(3)(c) of the Wildlife and Countryside Act 1981 is whether it is reasonable to allege that a right of way subsists, not whether it is proven on the balance of probabilities. The Council's committee was entitled to make the order based on the evidence before it, even if that evidence might ultimately be insufficient for confirmation. The Council did not fail in its duty to investigate, nor was there any legal error in relying on previously submitted evidence. The committee's decision was not irrational or unlawful.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed. The order of the Administrative Court is affirmed.