Kotarski & Anor v Secretary of State for Environment, Food and Rural Affairs

Kotarski & Anor v Secretary of State for Environment, Food and Rural Affairs

The Inspector did not err in law by treating the definitive statement as strong evidence despite the absence of the route on the definitive map. Both documents are relevant and must be weighed together. The discovery of a drafting error (divergence between map and statement) is sufficient to justify modification under s.53(3)(c) without the need for 'new evidence.' The appeal is dismissed.

Parties
Claimant: Janusz Kotarski; Claimant: Georgina Kotarski; Defendant: Secretary of State for Environment, Food and Rural Affairs; Interested Party: Devon County Council
Jurisdiction
England and Wales
Judgment Date
13 May 2010
Procedural Posture
Judicial Review / Judgment
Outcome
Appeal dismissed
Legal Topics
Definitive Map Modification, Wildlife and Countryside Act 1981, Evidence in Rights of Way Proceedings
Administrative Law Public Rights of Way Definitive Map Modification Wildlife and Countryside Act 1981 Evidence in Rights of Way Proceedings

Case Brief

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Parties

Janusz Kotarski

Claimant

Georgina Kotarski

Claimant

Secretary of State for Environment, Food and Rural Affairs

Defendant

Devon County Council

Interested Party

Procedural Posture

Judicial Review / Judgment

Legal Issues

  1. 1 Whether the Inspector erred in law in confirming the modification order to add a footpath to the definitive map despite its absence from the map but presence in the statement
  2. 2 Whether the definitive statement can be treated as strong evidence in the absence of depiction on the definitive map
  3. 3 Whether 'new evidence' is required under s.53(3)(c) of the 1981 Act to modify the definitive map and statement

Ratio Decidendi

The Inspector did not err in law by treating the definitive statement as strong evidence despite the absence of the route on the definitive map. Both documents are relevant and must be weighed together. The discovery of a drafting error (divergence between map and statement) is sufficient to justify modification under s.53(3)(c) without the need for 'new evidence.' The appeal is dismissed.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed
  • The County Council to consider further modification regarding the width of the path if necessary