David Moore & Anor v The Secretary of State for the Environment, Food & Rural Affairs

1. This case is about the correct location of a public bridleway in Little Berkhamsted, Hertfordshire.

2. The claim is brought pursuant to paragraph 12, Schedule 15 Wildlife and Countryside Act 1981 (“ the 1981 Act ”), to question the validity of the Hertfordshire County Council (Little Berkhamsted 18) Modification Order 2021 (“the Order”).

3. The Claimants own a property known as Breach House which is No 8 Little Berkhamsted Lane (“LBL”).

4. The Second Defendant is the surveying authority responsible for maintaining the definitive records of public rights of way in its area.

5. The First Defendant’s Inspector confirmed the Order following a public inquiry.

6. The Third Defendant is a local resident who participated at the inquiry and was joined as a party to these proceedings by consent.

7. The Order dated 23 September 2021 proposed to modify the Definitive Map (“DM”) and Statement (“DS”) (referred to together as “DMS”) for the area by deleting part of a bridleway and adding it in a different location. The effect of the Order was to amend the DM to relocate Bridleway 18 so that it ran over the land owned and occupied by the Claimants. The original route was shown broadly in the location A-B and the amended route is shown in the location C-D-E-B on the Order map. Route A-B joins LBL to the south of No 12 LBL. Point C is to the west of Breach House.

8. The focus of the Claimants’ challenge is the Inspector’s decision to confirm the Order.

9. This judgment addresses matters in the following order (a) the statutory scheme, (b) background, (c) the approach to the discovery of evidence, (d) the Inspector’s decision and (e) the Claimants’ four grounds of challenge. The Statutory Scheme

10. Section 56 of the Wildlife and Countryside Act 1981 (“ the 1981 Act ”) provides for the conclusive evidential effect of a DMS.

11. Section 53 of the 1981 Act imposes a duty on the Second Defendant to keep a DMS under continuous review. Section 53(2) and (3) provide that where, amongst other things, the surveying authority discover evidence “which (when considered with all other relevant evidence available to them) shows— (i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates… (ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or (iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification”, then they shall “make such modifications to the map and statement as appear to them to be requisite in consequence”.

12. The legislative scheme was recently considered by the Court of Appeal in McLeish v Secretary of State for the Environment, Food and Rural Affairs [2024] EWCA Civ 1562 . By way of overview, Males LJ observed at paras 12-13: “[T]he legislation contemplates that modifications to a definitive map and statement made as a result of a review pursuant to section 53 should be made by order. That degree of formality is consistent with the conclusive effect afforded to the definitive map and statement (or revised definitive map and statement, as the case may be) by section 56 ………….The definitive map and statement provide certainty to the public, showing them where they are entitled to go, while the legislation also provides for the map and statement to be kept up to date and for errors in its preparation to be corrected through the review process.”

13. Males LJ explained the relationship between s.56 and s.53 of the 1981 Act as follows in para 36: “It is firmly established by two decisions of this court, Burrows and Trevelyan , that the conclusive evidence provision in section 56 does not apply to the review process itself. Indeed, this must be so. If it were otherwise, modifications to correct mistakes could never be made pursuant to section 53(3) (c) as it would always be conclusively presumed that the existing definitive map was correct. Or as Lord Justice Glidewell put it in Burrows , 'on a review the conclusive provisions that were in section 32 of the Act of 1949 and are now in section 56 of the Act of 1981 did not and do not operate so as to prevent what proves to have been a mistake of any kind in the definitive map from being rectified'.

14. The Court of Appeal noted the relevant legislative history in McLeish . As discussed further below, the National Parks and Access to Countryside Act 1949 (“ the 1949 Act ”) introduced a requirement on county councils to prepare a definitive map of public rights of way in their area. Background to the Order (a) The DMS

15. The first definitive map in Hertfordshire was issued in 1959. This was the culmination of the process under Part 4 of the 1949 Act .

16. Bridleway 18 (“BR 18”) was plotted broadly on the alignment A-B on the first DM which was issued on 16 April 1959. It remained broadly on that alignment in various re-issues of the DM, the most recent of which was published in 2015.

17. The DS (describing BR 18) states as follows: “Commences at Berkhamsted Lane at the extreme southern corner of OS 124 passing between Breach House and two Cottages to the W across O.S.124 till it reaches the bridleway gate in the fence by the pond; thence along hedge dividing O.S. 124 from 129 and 105 from 100 to join BR 19”. (b) The First DM

18. The process which led to the publication of the first DM was in summary as follows.

19. Pursuant to s.27 and s.28 of the 1949 Act , which provided for the Second Defendant to survey land in its area over which public rights of way subsist and consult district and parish councils, Little Berkhamsted Parish Council undertook a survey. The Second Defendant relied on that survey (as was permitted under guidance published by the Ministry of Town and Country Planning in 1950).

20. A draft map was published on 24 July 1953. The relevant date pursuant to s.27(3) of the 1949 (which fixes the relevant date as a date no earlier than 6 months prior to the preparation of the draft map) is agreed to have been 2 February 1953.

21. The Second Defendant duly published notice (pursuant to s.29(1) of the 1949 Act ) of the draft DMS in the London Gazette. The draft map to which that advertisement relates is not now available but the draft statement is.

22. An objection was made in respect of Bridleway 18 by Mrs Cole-Hamilton pursuant to s.29(3) of the 1949 Act .

23. A site inspection and hearing were conducted in the summer of 1956 to consider that objection.

24. The Second Defendant determined Mrs Cole-Hamilton’s objection on 26 March 1957. The 1949 Act provided for an appeal against the determination of the objection ( s.29(5) of the 1949 Act ). There is no indication that any appeal was made.

25. Notice was given of the production of the Provisional Definitive Map and Statement in the London Gazette on 15 November 1957 pursuant to s.30 of the 1949 Act . The provisional map and statement are not now available.

26. Section 31(1) of the 1949 Act provided for disputes in respect of the Provisional Map and Statement to be made to the Quarter Sessions and then for appeal by way of case stated to High Court. There is no evidence of any claim being made.

27. Pursuant to s.32(1) of the 1949 Act (duty to prepare a DMS and advertise), the first DMS was published on 16 April 1959.

28. As is apparent from the above summary, incomplete evidence is available as to the process which led to the publication of the first DMS. This is, I was told, a common situation. Part of the Second Defendant’s task (and the Inspector’s task at the inquiry) was to navigate through an imperfect evidence base to determine which public rights of way were established. (c) The DM

29. The base OS map onto which the first DM was plotted was of 1924 origin. The cottages at 10 and 12 LBL were not shown on this OS. However, they physically existed on 2 February 1953 (as above, the relevant date). The cottages date from circa 1926.

30. To the west of point A are two houses, Rose Cottage (No 14 LBL) and Danes Cottage which is further west.

31. The OS plot numbers are not shown on the DM (either in its original form or in the 2015 version). (d) The Current Dispute

32. The Claimants purchased Breach House on 18 December 2015. In their pre-purchase enquiries, they consulted the DMS.

33. A dispute arose as to whether there was a public bridleway from point C which went through the grounds of Breach House.

34. On 12 January 2020, Dr Wadey applied for an order under s.53(2) of the 1981 Act to modify the DMS by “Adding the bridleway from Little Berkhamsted Lane to Bridleway 18 Little Berkhamsted” as shown on the map attached to the application. His application relied on supporting user information. He contended that, pursuant to s.31 of the Highway Act 1980 , the additional bridleway had been in use for over 20 years. The map produced showed the proposed additional bridleway joining LBL at a point identical to point C but joining the A-B route at a point to the south of point B.

35. This application triggered an investigation by the Second Defendant.

36. A decision report was published by the Second Defendant on 9 February 2021. This was quashed by consent by the High Court following a judicial review challenge brought by the Claimants (who were granted permission to proceed with their judicial review by Lang J). The consent order reflected an acceptance that the Second Defendant had erred in its decision (at that time) to issue an order under delegated powers.

37. Subsequently, the outcome of the investigation was recorded in a report dated 3 September 2021 recommending the modification of the DMS due to the discovery of evidence by the authority pursuant to s.53(3) (c) of the 1981 Act . The Second Defendant did not take the steps which Dr Wadey had proposed but instead sought to relocate Bridleway 18 from the line A-B to C-D-E-B. (e) The Order and its confirmation

38. The Order was made on 23 September 2021.

39. The Claimants objected to the Order on 17 November 2021.

40. Pursuant to schedule 15 of the 1981 Act , the Second Defendant referred the question of whether the Order should be confirmed to the Secretary of State.

41. The confirmation process then moved rather slowly.

42. The Second Defendant’s statement of case dated 9 September 2024 contended that there had been the discovery of evidence (pursuant to s.53 of the 1981) sufficient to necessitate modification, that the DM and DS were in irreconcilable conflict and that there was sufficient evidence on the balance of probabilities that the map and statement for Bridleway 18 were incorrect and required modification such that Bridleway 18 should be shown on the line C-D-E-B.

43. The Claimants’ statement of case dated 21 October 2024 contended (a) there had been no discovery of new evidence, (b) there was no irreconcilable conflict between the DM and DS and the DM should be presumed to be correct, (c) the evidence relied upon by the Second Defendant was not sufficient to outweigh the evidential presumption that the line on the DM is correct and (d) even without the presumption the evidence was insufficient to support the modification on the balance of probabilities. Appended to the statement of case was a report of Mrs Sue Rumfitt FIPROW dated 21 October 2024 supporting the Claimants’ objection to the modification.

44. Proofs of evidence were exchanged on 12 November 2024. The Second Defendant’s evidence was contained in a proof of evidence of Mr Gavin Harbour-Cooper, Senior Definitive Map Officer (who is an associate member of the IPROW). The Claimants filed a proof of evidence from Mrs Rumfitt which appended her report.

45. On 25 November 2024 further to the Inspector’s directions, the Claimants filed a Supplementary Statement of Case and proof of evidence from the First Claimant (Mr David Moore).

46. An inquiry was held before the appointed Inspector. It opened on 10 December 2024 and heard evidence for three days. At the inquiry, the Claimants and the Second Defendant were represented by Counsel. Mrs Rumfitt and Mr Moore gave evidence for the Claimants. Mr Harbour-Cooper gave evidence for the Second Defendant. Twelve individuals (including the Third Defendant, Mr Barrett) gave oral evidence. Extracts from the Inspector’s notes which cover the cross examination of the expert evidence of Mr Harbour-Cooper and Mrs Rumfitt were disclosed by the First Defendant in these proceedings.

47. The Inspector undertook two unaccompanied site visits.

48. Closing submissions were delivered on 21 January 2025 and produced in writing.

49. The Inspector (Claire Tregembo BA (Hons) MIPROW) confirmed the Order in her Order Decision dated 13 March 2025 (“OD”).

50. The Second Defendant gave notice of the confirmation of the Order on 3 April 2025.

51. The Claimants challenged the Order in these proceedings. There is no permission stage for this statutory challenge. Approach to the Discovery of Evidence

52. Under s. 53(3) (c) of the 1981 Act there must be “the discovery by the [surveying] authority of evidence which (when considered with all other relevant evidence available to them)” shows that an error has been made for an event to have occurred for the purposes of section 53(2) (b) of the 1981 Act .

53. As Simon J explained in Kotarski v Secretary of State for Environment, Food and Rural Affairs v Devon County Council [2010] EWHC 1036 (Admin) at para 24 a ‘precondition for the exercise of the statutory power of review is the discovery of evidence which (when considered with all other relevant evidence) shows that particulars contained in the DMS require modification. The discovery that there is a divergence between the two is plainly the discovery of such evidence, and it is necessary to that it should be characterised as ‘new evidence’’.

54. In Roxlena Limited v Cumbria County Council [2019] EWCA Civ 1639 Lindblom LJ stated at para 62 gave further guidance on the approach to a discovery of new evidence as follows: “ Section 53(2) refers to the occurrence of any of the “events” specified in subsection (3). The potentially relevant event in this case is the event described in subsection (3)(c), which is “the discovery … of evidence which (when considered with all other relevant evidence available to them) shows …” any of the matters referred to in subsection (c)(i), (ii) and (iii). In each case the occurrence of the specified “event” is not simply the “discovery” of the evidence in the sense of its being physically found. It also requires a consideration of that evidence, together with any other relevant evidence available to the surveying authority, which actually “shows” the circumstance in subsection (c)(i), (ii) or (iii) – in effect, therefore, a composite event. That consideration of the evidence must surely be a consideration of its substance, by the surveying authority, rather than its merely being received from the applicant with the application. It involves the surveying authority undertaking that “mental process” on the evidence discovered. If the evidence has not been “considered”, a relevant event for the purposes of section 53(3) (c)(i), (ii) or (iii) will not have occurred. The event cannot occur until one of those three circumstances has actually been shown”.

55. The applicable approach when a review is carried out is set out by Lord Phillips MR in Trevelyan v Secretary of State for the Environment, Transport and the Regions [ 2001] EWCA Civ 266 at para 38 as follows: 'Where the Secretary of State or an inspector appointed by him has to consider whether a right of way that is marked on a definitive map in fact exists, he must start with an initial presumption that it does. If there were no evidence which made it reasonably arguable that such a right of way existed, it should not have been marked on the map. In the absence of evidence to the contrary, it should be assumed that the proper procedures were followed and thus that such evidence existed. At the end of the day, when all the evidence has been considered, the standard of proof required to justify a finding that no right of way exists is no more than the balance of probabilities. But evidence of some substance must be put in the balance, if it is to outweigh the initial presumption that the right of way exists. Proof of a negative is seldom easy, and the more time that elapses, the more difficult will be the task of adducing the positive evidence that is necessary to establish that a right of way that has been marked on a definitive map has been marked there by mistake.'

56. As the Court of Appeal explained in McLeish at para 38, the presumption against change is not derived from s.56 of the 1981, it is a rule of common-sense presumption against change.

57. In McLeish , the Court of Appeal cited with approval the analysis of Mr Justice Pitchford in R (Norfolk CC) v Secretary of State for the Environment [2006] 1 WLR 1103 . In Norfolk, Pitchford J gave the following guidance on the approach to the interpretation of the definitive map and statement. At para 38, he said: “the correct approach to interpretation of the definitive map and statement must be a practical one. They should be examined together with a view to resolving the question whether they are truly in conflict or the statement can properly be read as describing the position of the right of way. If they are in conflict, then the map must take precedence since the discretionary particulars depend for their existence upon the conclusiveness of the obligatory map. Unless the statement can properly be interpreted as describing the same footpath as that shown on the map, then the statement cannot be regarded as conclusive evidence of the position of the footpath shown on the map. The question whether the statement does describe the position of a footpath shown on the map is, I accept, a matter of fact and degree”. At para 73, Pitchford J encapsulated the approach as follows: “(1) For the purposes of section 56 of the Wildlife and Countryside Act 1981 , the definitive map is the primary and source document. If the accompanying statement cannot be read as supplying particulars of the position of the footpath shown on the map then the position as shown on the map prevails over the position described in the statement. It is conclusive evidence unless and until review under section 53(2) . As the absence of authority in this fertile area of litigation demonstrates, the number of occasions when the statement cannot be regarded as compatible with the map will be rare. The question whether they are in irreconcilable conflict is a matter of fact and degree. In reaching a conclusion whether the statement can be reconciled with the map, a degree of tolerance is permissible, depending upon the relative particularity and apparent accuracy with which each document is drawn. Extrinsic evidence is not relevant to this exercise save for a comparison between the documents and the situation on the ground at or about the “relevant date”. (2) At review, neither the map nor its accompanying statement is conclusive evidence of its contents. In the case of irreconcilable conflict between the map and the statement, there is no evidential presumption that the map is correct and the statement not correct. The conflict is evidence of error in the preparation of the map and statement which displaces the Trevelyan presumption. Each should be accorded the weight analysis of the documents themselves and the extrinsic evidence, including the situation on the ground at the relevant date, demonstrates is appropriate”.

58. In summary therefore, the position is:- a. A person deciding whether a right of way marked on a map exists must start from the initial presumption that it does (see Trevelyan at para 38) . b. That presumption is a presumption against change which arises from the fact the Map was the product of a careful and elaborate statutory procedure, which should be presumed to have been conducted conscientiously and correctly (see the Court of Appeal’s judgment in McLeish at paras 36-40) . c. The evidential presumption may be disapplied where the DM and DS are “irreconcilable”. d. Whether the DM and DS are irreconcilable is a question of fact and degree (see Norfolk at para 38 and 73). e. The evidence which can be used to determine whether there is an irreconcilable conflict is restricted. Extrinsic evidence is not relevant save for a comparison between the documents and the situation on the ground at the “relevant date” (see para 73 of Norfolk ). (As noted above, in the present case, the relevant date is 2 February 1953). f. If the DS and the DM are irreconcilable, this is evidence of error in the preparation of the DM and DS which displaces the Trevelyan presumption (see para 73 of Norfolk). g. In that eventuality, the relevant standard for determining whether a right of way exists becomes the balance of probability (see Trevelyan at para 38).

59. Where an Inspector is considering all of the available evidence on the balance of probabilities, the following guidance is relevant. As the Court of Appeal made clear in Whitworth v Secretary of State for Environment, Food & Rural Affairs [2010] EWCA Civ 1468 at paras. 26-27 the review and analysis of historical mapping is not a matter of interpretation of legal instruments, which would naturally be appropriate for review by the courts, but of factual inferences to be drawn from a range of disparate material, including maps, sale plans, local history and guidebooks etc., a challenge to which can only be mounted on grounds of Wednesbury irrationality” (see also [2010] EWHC 738 (Admin) at paragraphs 11 and 70).

60. This was followed in McLeish v Secretary of State for Environment, Food & Rural Affairs [2024] EWHC 532 (Admin) (which was upheld by the Court of Appeal) where the Court explained, at paragraph 46, that “as is clear from Whitworth the interpretation of maps, and the conclusions drawn as a result of that interpretation are matters for an inspector”. The Inspector’s Decision to Confirm the Order

61. The focus of the challenge in this case is the Inspector’s conclusions and reasoning in the Order Decision (“OD”).

62. In para 10 of OD, the Inspector identified the main issue as “ the clarification of the alignment of LB18 at its southern end and the addition of a description in the statement for the section north of Little Berkhamsted Bridleway 19 (LB19). It was accepted by the parties that a bridleway exists between LBL and the Hatfield-Hertford Road (the HHR)”. I have underlined the part of her main issues which was the focus of proceedings in this statutory challenge.

63. Having referred to the applicable circular guidance (para 4.33 of Defra’s Rights of Way Circular (1/09)), the Inspector set out the applicable law in paras 12-17 of OD. It is common ground before me that these paragraphs accurately encapsulated the law.

64. In para 12, she cited paragraph 38 of Lord Phillips in Trevelyan. In para 13 she extracted the critical parts of para 73 of Pitchford J’s judgment in Norfolk. At para 14, she encapsulated how this applied in the present case as follows: “Given the above, the starting point is that the route in the DMS is presumed to exist. Therefore, anyone contending a mistake has been made needs to provide evidence to demonstrate that, on the balance of probabilities, an error has been made. An error could be demonstrated by establishing that the map and statement are in irreconcilable conflict. If they are, the evidence needs to be examined with appropriate weight given to the documents and the situation on the ground at the relevant date to resolve the conflict. If this is the case, when reviewing the evidence, neither the DM nor DS should be considered to be conclusive”.

65. In para 15, the Inspector referred to McLeish in the Court of Appeal, in respect of other evidence that may indicate an error in the DMS.

66. In para 16, the Inspector stated that : “ Section 32 of the Highways Act 1980 ( the 1980 Act ) requires me to take into consideration any map, plan or history of the locality, or other relevant document provided, giving it such weight as is appropriate, before determining whether or not a way has been dedicated as a highway”.

67. In para 17, the Inspector set out the approach to user evidence under s.31 of the 1980 Act noting that the Second Defendant was not relying on user evidence to support the case for confirmation of the Order.

68. Under the overall heading of “reasons”, the OD has a sub-heading “Discovery of Evidence”. In this section, the Inspector described the legal framework in paras 20-23. She set out the requirement under s.53(3) (c) for there to be “the discovery by the authority of evidence which (when considered with all other relevant evidence available to them)” showed that an error had been made for an event to have occurred for the purposes of section 53(2) (b) of the 1981 Act . She referred to the applicable caselaw in respect of how discovery of evidence by the authority should be approached (including Kotarski and Roxlena) .

69. Having so directed herself, the Inspector encapsulated the Claimants’ contentions. In para 24, she stated: “The objectors argued there has not been a ‘discovery of evidence’, and they do not consider there to be an ‘irreconcilable conflict’ between the DM and DS. They considered the DS could be plainly read to describe the way shown on the DM having regard to the evidence of the state of the land at the relevant date. They believed HCC failed to read the DS with the necessary ‘degree of tolerance’ and considered extrinsic evidence when concluding that the DM and DS were in conflict”. In para 28, she stated: “The objectors suggested the two cottages mentioned in the statement do not have to be read as Nos. 10 and 12 LBL, particularly as they were not shown on the OS base map. Furthermore, Nos. 10 and 12 LBL were originally in the same ownership as Breach House. They considered that ‘Breach House’ could refer to the Breach House Estate including Nos. 10 and 12 LBL rather than Breach House only. They considered the two cottages to the west could be Rose Cottage, particularly as it was allocated two numbers, or the two cottages could have been Rose Cottage and Danes Cottage. The objectors also considered the ‘extreme southern corner of O.S. 124’ to be the southwestern corner of No. 12 LBL at point A which is slightly further south than point C”.

70. In para 29, the Inspector recorded the position of the supporters of the Order who had stressed that Nos 10 and 12 LBL had existed since 1926 and are shown on aerial photos from 1946 and 1947.

71. In para 30, the Inspector stated as follows: “Documents relevant to the layout of the land at the time of the production of the original DMS include the 1946 and 1947 Aerial Photographs, the Parish Survey and map, early drafts of the DS, a 1954 objection to LB18 being shown on the Draft map, a hearing report, site inspection report, and Decision in relation to the objection, other correspondence, UEF, and the original DMS”.

72. In para 32 she stated: “Taking into account the investigation at the time, I consider Rose Cottage would have been referred to in the statement if LB18 ran between No. 12 LBL and Rose Cottage or between Rose Cottage and Danes Cottage. I also do not consider Breach House would have been mentioned if LB18 did not run alongside it. Any reasonable person reading the DS would take it to mean that LB18 went past Breach House and Nos.10 and 12 LBL. Therefore, I consider there is sufficient evidence, on the balance of probabilities, of an irreconcilable conflict between the DM and DS. The discovery that there is a difference between the DM and the DS is, in accordance with Kotarski , a discovery of new evidence”

73. In para 34, she stated: “The line of LB18 shown on the original DM also ran through a building that had existed ‘for some twenty years’ in 1954 and is visible on the 1947 Aerial photograph. I consider this amounts to a discovery of evidence of an error in the line of LB18 shown on the original DM. This may have been noticed when the Special Review map was produced, but nothing indicates any consideration was given to its correct alignment in accordance with Roxlena” .

74. Accordingly, the Inspector concluded at para 35: “I am satisfied there has been a discovery of new and cogent evidence of errors in the original and current DMSs. This evidence undermines the evidential value of both DMSs. As I consider there is irreconcilable conflict between the DM and the DS, there is no presumption that the map is correct. Therefore, I will need to consider all the available evidence to determine, on the balance of probabilities, the correct line of LB18”.

75. Paras 36-107 of OD contain the Inspector’s evaluation of Documentary Evidence. This is structured as follows: a. Paras 36 to 88 contain a survey of documents and other material organized broadly in chronological order from 1766. b. Under the heading “Conclusions on the Documentary Evidence”, the Inspector draws the relevant threads together. Paras 92-107 address the alignment of LB 18 between LBL and point B. Her conclusions set out at paras 106-107 are: “Taken as a whole, I consider the evidence indicates, on the balance of probabilities, that LB18 exists on the route shown on the Order Plan as the ‘Bridleway to be Added’ along the line C-D-E-B. I do not consider the evidence indicates, on the balance of probabilities, any public rights over the route shown on the Order Plan as the ‘Bridleway to be Deleted’ along the line A-B”. I will refer in more detail below to certain paragraphs within that assessment when addressing the grounds of challenge.

76. In para 109-110, the Inspector addressed “user evidence”. She noted that given her conclusion that on the balance of probabilities, that LB runs along the route C-D-E-B it was not necessary to consider if the user evidence demonstrates a presumption of dedication under s.31 of the 1980 Act .

77. In paras 109-110, the Inspector noted: (para 109) “However, one person who gave evidence at the Inquiry had used LB18 prior to the production of the DMS in the 1940s until 1959. Another person had used it in the 1950s. Both were clear the route they used was C-D-E-B, and neither recalled being challenged when using this route. One stated that [the then owner of Breach House] would give them cake if he saw them. Neither had used section A-B or recalled the existence of a route there. (para 110) I consider the user evidence from these two people indicates the route used prior to and around the time of the first DMS was along the line C-D-E-B. This supports my conclusions on the documentary evidence”.

78. The Inspector stated her overall conclusions in paras 111-112 as follows: “I consider there has been a discovery of cogent evidence of errors in the alignment of LB18 as shown on the original and current DM. I also consider there has been a discovery of cogent evidence of an error in the current DS. This discovery undermines the evidential value of the DMS. Having considered all the available evidence, I have concluded, on the balance of probabilities, that a public bridleway exists on the line C-D-E-B. I have also concluded, on the balance of probabilities, that there is no evidence of a public bridleway on the line A-B…..”

79. The Inspector accordingly concluded that the Order should be confirmed. The Claimants’ Challenge

80. Dr Bowes on behalf of the Claimants advanced four grounds of challenge. a. Ground 1: the Inspector adopted a legally erroneous approach to the construction of the Definitive Map and Statement, in particular, she had regard to immaterial considerations and failed to have regard to an obviously material consideration. b. Ground 2: the Inspector made a material error of fact in respect of the lack of gaps along the route A-B; alternatively, the Inspector came to a conclusion not reasonably open to her on the evidence and/or failed to supply legally adequate reasons for her conclusion. c. Ground 3: the Inspector acted in breach of the rules of basic procedural fairness by concluding that the line on the original Definitive Map (A-B) went through a building. d. Ground 4: the Inspector failed to supply legally adequate reasons for her conclusions on the documentary material, such as to demonstrate that she had had regard to the obvious material consideration of the expert report of Sue Rumfitt and the Claimants’ case made in respect of that report.

81. Mr Streeten together with Mr O’Brien O’Reilly appeared for the First Defendant. They argued that the Claimants’ case mischaracterized how the Inspector had dealt with the issues. Mr Streeten argued that there was no unfairness and the Inspector had given legally adequate reasons.

82. Mr Thorold appeared for the Second Defendant. He, like Dr Bowes had appeared at the inquiry. Mr Thorold supported Mr Streeten’s submissions and sought to provide relevant context as to what had occurred at the inquiry.

83. Mr Barrett represented himself and made short submissions on various background points of context. He became a party to the proceedings at his request and with the consent of the other parties. Ground 1

84. The focus of the first ground of challenge is the Inspector’s conclusion in OD para 35 that there was an irreconcilable conflict between DM and DS which displaced the presumption that the DM is correct.

85. There are two limbs to this challenge. I consider them in turn. The First Limb of Ground 1

86. The first limb was that the Inspector took account of legally irrelevant considerations.

87. Dr Bowes argued that the Inspector wrongly took account of extrinsic evidence in deciding that there was an irreconcilable conflict between the DM and the DS. He supported his argument by reference to OD para 101 where the Inspector referred to the material from 1956 which led to the first definitive map and statement.

88. Dr Bowes argued that, contrary to the approach in Norfolk, the Inspector allowed herself to be influenced by extrinsic material, which went beyond the physical state of the land at the relevant date, when asking herself whether the DS could be read as supplying particulars of the position of the bridleway shown on the Map.

89. Para 101 of OD (on which Dr Bowes relied) states: “The hearing report recommended the LB18 be shown as ‘ leaving Berkhamsted Lane at the extreme southern corner of O.S. 124’ . There was considerable discussion at the Inquiry about whether this was point A or point C. The OS maps at this time did not show Nos. 10 and 12 LBL. Therefore, the most southerly corner of OS parcel 124 as shown on the maps is point A. However, Nos. 10 and 12 LBL did exist at this time and this area is referred to in the objection letter, hearing report, and site inspection report as two cottages, their grounds and gardens with the walled garden also being referred to. OS parcel 124 was also referred to as Field 124, suggesting the cottages and walled gardens were not considered to be the same parcel number. Section C-E provided access to OS Parcel 124, although it was described as being the driveway to Breach House or Mrs Cole-Hamilton’s property, it could also be described as part of OS parcel 124. If this were the case, the ‘extreme southern corner’ of the field would be point C, with point A being the southwestern corner of No. 12 LBL. I consider this view is supported by Mrs Cole-Hamilton’s description of her drive as ‘a narrow neck of land shown on the Ordnance Map as being the southern portion of O.S. 124.’ I consider this suggests the ‘extreme southern corner’ and the start of LB18 is more likely to be point C”. (emphasis added)

90. Dr Bowes argued that the underlined passages showed that the Inspector was influenced by extrinsic material in making her critical decision that there was an irreconcilable conflict between the DM and the DS. He contended that the Inspector erred by relying on evidence of the subjective understanding (and potential misunderstanding) of the author of the inspection report, and/or Mr Rawlinson (who was the Mrs Cole-Hamilton’s gardener), that the cottages and walled gardens were extracted from the south-western portion of OS 124, leaving point C as the “extreme southern corner” of the residual parcel of the OS 124.

91. Dr Bowes argued that it was “inescapable” that there had been an impermissible reliance on material that would not have been discoverable by the public looking at the DMS or the state of the land at the relevant date. This was, he argued, extrinsic material which should have been excluded from the exercise of considering whether there was an irreconcilable conflict between DM and DS.

92. Dr Bowes argued that this reliance on extrinsic material undermined the Inspector’s analysis that there was an irreconcilable conflict between the DM and the DS. He emphasised that OD para 101 was the only part of the Inspector’s decision which addressed the meaning of the term “extreme southern corner of OS 124” (words used in the DMS).

93. Further, Dr Bowes argued that OD para 30 contained a positive indication that the Inspector had (erroneously) relied on material such as the hearing report and the site inspection report in deciding that there was an irreconcilable conflict between DM and DS.

94. Dr Bowes also referred to the Inspector’s reference to “extrinsic” evidence in OD para 100 as indicating her misunderstanding of that term and the role it played in decision making. In para 100, the Inspector referred to documents as to the ownership of property over time and stated, “some of these documents would not have been available at the time and could be described as “extrinsic”. Dr Bowes submitted that this was reflective of the Inspector’s misunderstanding of what extrinsic evidence was. He submitted that that sentence, read in context, meant that the Inspector had equated extrinsic with availability at the time.

95. In response, Mr Streeten’s primary contention was that Dr Bowes’ argument failed to respect the essential structure of the OD.

96. Mr Streeten submitted that in para 32 and 35 of OD, the Inspector set out her decision as to why there is an irreconcilable conflict between DM and DS. She did so, he submitted, focussing on what the DM and the DS indicated taking account of the known facts as to the layout of the land at the relevant time in 1953.

97. Mr Streeten further submitted that there was no error in OD para 30. The Inspector referred to a range of documents as being informative as to the layout of the land. This respected and applied the guidance in Norfolk as to the limited range of evidence that was relevant to the question of whether there was an irreconcilable conflict.

98. The Inspector’s conclusion on irreconcilable conflict was, Mr Streeten submitted, apparent from para 32 of OD. She took account of the known facts as to which properties existed at that time and expressed her view as to the inherent implausibility that a route from point A would have been described as being between Breach House and two cottages to the west.

99. In my judgment Mr Streeten’s submissions about how OD should be read fairly and as a whole are correct.

100. The Inspector was careful to structure her reasoning as to whether there had been a discovery for the purpose of s.53 of the 1981 Act . She considered whether there was an irreconcilable conflict as part of this analysis. Her conclusions on this question were set out in OD para 32.

101. The Inspector encapsulated her conclusions on the relevant discoveries and whether there was an irreconcilable conflict in OD para 35.

102. The remainder of the Inspector’s decision addressed what the totality of the evidence showed on the balance of probabilities. By this stage, she had already concluded that (a) there were relevant discoveries for the purpose of s.53 of the 1981 Act and (b) there was an irreconcilable conflict between the DM and the DS.

103. In reaching her decision on the irreconcilable conflict issue, the Inspector construed the DM and DS in the light of the known facts as to the “lay of the land” at the relevant date (2 February 1953).

104. In OD para 32, the Inspector noted that point A was not next to Breach House. By contrast, the description in DS was, in her assessment, entirely apt as a description of a route from point C. Such a route was between Breach House and two cottages (namely No 12 and No 10). So, as she put it, “any reasonable person reading the DS would take it to mean that LB 18 went past Breach House and Nos 10 and 12 LBL”. Her simple point is that the description obviously fitted a route from point C and would not have been a sensible way of describing a route from point A.

105. Given that it is known that 10 and 12 LBL existed at that time, the Inspector arrived at the clear conclusion that the DS was not describing a route which starts at point A but rather is describing a route which starts at point C. She did so by interpreting the words used in the DS and applying them to the known physical circumstances in 1953. That approach applied the guidance in Norfolk.

106. The Inspector’s subsequent analysis at OD para 101 was not part of her reasoning on the existence of an irreconcilable conflict.

107. At that stage of her analysis, the Inspector was assessing all of the available evidence on the balance of probabilities. This is apparent from the structure of her decision and the conclusions which she expressed in OD para 35.

108. At the second stage of her analysis, the Inspector had to grapple with the relevant evidence including extrinsic evidence. This is made clear in Norfolk at para 73 (proposition (2)).

109. Furthermore, there was no error in the Inspector’s approach at OD para 100 in referring to extrinsic evidence. She did not equate extrinsic evidence with evidence that was not available at the time. She commented that the evidence referred to was “not available at the time and could be described as extrinsic”. I do not accept the premise of Dr Bowes’ argument that “and” means “so”. The OD should be read in a straightforward way; not with excessive legalism (see St Modwen v SSCLG [2017] EWCA Civ 1643 at para 7). A fair reading of the Inspector’s decision must respect the way in which the Inspector structured her decision. She was careful to follow the guidance in Norfolk , which it is agreed, she correctly set out in para 13.

110. There is an inherent implausibility to the Claimants’ argument. They accept that the Inspector set out the law correctly; yet assert that she misapplied it. The established approach is that the Court will start from the position that the Inspector is familiar with the relevant statutory framework and will take them to have understood it unless there are strong positive indications to the contrary (see R (Tarian Hafren Severn Shield CYF) v Marine Maritime Organisation [2022] PTSR 1261 at paragraph 158). Here, there are unchallenged positive indications that the Inspector properly understood the law (given that it is common ground that she correctly set it out in OD paras 12-17). Moreover, as I have found, there are no indications to the contrary when the decision is read fairly and as a whole.

111. Reading the OD fairly necessarily requires understanding the way in which the Inspector consciously structured the decision in two parts. The first part addressed whether the statutory basis for a review was established (and whether any presumption applies). The Inspector stated her conclusions on this in OD para 35. The second part addressed what the evidence showed on the balance of probability (without any presumption that DM was correct).

112. For completeness, I record that Dr Bowes sought to bolster his argument that the Inspector had erred in law by relying on paragraph 38 of the First Defendant’s summary grounds of defence which had referred to OD para 101. In so doing, I consider that Dr Bowes took this reference out of context. The First Defendant was responding to the proposition that there had been a failure to give adequate reasons and that the Claimants’ arguments based on the meaning of the phrase “the southern corner of OS 24” had been left out of account. The First Defendant’s pleaded case did not contend that OD para 101 was a material part of the Inspector’s decision in respect of irreconcilable conflict. In any event, I do not accept the contention that the Inspector relied upon para 101 as part of her conclusion that there was an irreconcilable conflict between DM and DS. That is not consistent with a fair reading of OD. As I explain above, such a contention fails to reflect the way in which the OD was structured. It is clear that the Inspector’s conclusions as to why there is an irreconcilable conflict between DM and DS are contained in para 32 of OD. In so deciding, as I have concluded, the Inspector correctly applied the guidance in Norfolk .

113. Dr Bowes stressed that para 32 of OD did not address the question of the meaning of the extreme southern corner of OS 124 as part of determining whether there was an irreconcilable conflict. I agree that the Inspector did not address this in para 32 of OD but I do not consider that this reflects any legal flaw in the Inspector’s analysis. The Inspector set out adequate reasons in OD para 32 as to why the DS could not reasonably be read as consistent with the DM. She did so by focusing on how the path was described and relating it to the known facts as to the location of properties in 1953. This was a sufficient basis for her conclusion.

114. Accordingly, I reject the first limb of the Claimants’ case on ground 1. The Second Limb of Ground 1

115. The second limb of Dr Bowes’ argument is that the Inspector failed to have regard to an obviously material consideration, namely the concession by Mr Harbour-Cooper in cross examination that it was “possible” to read the DM and DS together.

116. Dr Bowes had asked questions to Mr Harbour-Cooper as to whether it was possible to read the DM and DS in a way that was consistent. The premise of the questioning (as reflected in the Inspector’s notes) was that you could understand the two cottages to the west to be Rose Cottage and Danes Cottage. Mr Harbour Cooper is recorded as first saying that this was not his reading of DS but accepting, when pressed, that it was a possible reading.

117. Based on that exchange, the Claimants put their case in closing (para 15j) as follows: “When asked to exclude the extrinsic material to the Map and Statement, Mr Harbour-Cooper said it is “feasible” and “possible” to read the Map with the Statement. That was fatal to his case that the Map and Statement are in “irreconcilable conflict””.

118. The Claimant’s expert witness Mrs Rumfitt had opined that DM and DS were not in irreconcilable conflict. Thus, Dr Bowes submitted in this Court that the Inspector was faced with two experts who agreed on this central issue. Whilst she was not bound to follow this, it was, Dr Bowes submitted, an obviously material consideration which the Inspector was required to address in her decision.

119. The premise of Dr Bowes’ argument was that there had been a meeting of minds between experts on a central issue which the Inspector had ignored.

120. However, the position was in truth not so straightforward.

121. The Second Defendant dealt with this point in its closing submissions (in paras 26 and 27) as follows: “The correct legal approach to the question of “irreconcilable conflict” is a point of difference between the Council and objectors in this case. On behalf of the objectors, Mr Bowes put questions to Mr Harbour-Cooper to the effect that it was “feasible” or “possible” to read the Map and Statement together, and therefore they could not be in “irreconcilable conflict”. The position of the objectors appears to be that if there is any possible way that the words in the Statement can be interpreted to cohere with the Map, then they are not irreconcilable and the evidential presumption persists. In the Council’s submission, this is not the correct approach to “irreconcilability” and flies in the face of the High Court’s decision in Norfolk . In Norfolk , Mr Justice Pitchford made clear (at [73(1)] that “[t]he question of whether [the Map and Statement] are in irreconcilable conflict is a matter of fact and degree. In reaching a conclusion whether the statement can be reconciled with the map, a degree of tolerance of permissible, depending upon the relative particularity and apparent accuracy with which each document is drawn”. The permissible “degree of tolerance” described in Norfolk evidently does not extend to straining the meaning of words in the manner suggested by the objectors. As such, questions were put to Mr Harbour-Cooper on a false premise. The correct approach is the one advocated for by Ms Rumfitt during cross-examination, namely that one must consider whether, on a reasonable reading, the map and statement can be reconciled, bearing in mind the “degree of tolerance” which should be afforded”.

122. Thus, it seems to me, that there was legal controversy as to the correct approach to determining whether there was an irreconcilable conflict.

123. Dr Bowes’ argument both at the inquiry and in this Court was that, as a matter of linguistics, if it is possible to read the DM and DS together then there cannot be an irreconcilable conflict.

124. I do not accept that this formulation is supported by the relevant caselaw. I say this for the following reasons.

125. First, it is clear from Pitchford J’s analysis in Norfolk that the question involves a judgment of fact and degree (see para 73). The approach must be a practical one (see para 38). At paragraph 41, Pitchford J frames the essential concept, in the course of his reasoning, in terms of what a statement could reasonably be held to be describing.

126. Second, if the correct approach is to consider (practically) what the meaning of a statement realistically is, this corresponds to the established construction of public documents in closely analogous field. As Mr Streeten helpfully drew attention to in his submissions, the Supreme Court in DB Symmetry v Swindon BC [2023] 1 WLR 198 approached the construction of planning conditions in a way that was similar to other public documents by determining how a reasonable reader would understand the words in context. The Supreme Court upheld the decision of the Court of Appeal as to what was a “realistic” construction of the planning condition in question (see para 23) making it clear that words read in context should not be stretched beyond what is realistic to sustain their validity. If there is a choice between realistic construction, then the Court will choose the one that leads to regularity. But as above, this preference is limited by what is a realistic interpretation.

127. In the present case, OD para 32 should be understood in the context of the submissions made to the Inspector. It is clear that the Inspector accepted, in substance, the approach put to her on behalf of the Second Defendant. The Inspector focussed on what was a reasonable/realistic interpretation. She did not accept the Claimants’ argument that there could not be an irreconcilable conflict if it was “possible” or “feasible” to read the two documents together (implicitly no matter how unrealistic it might be to do so). The Inspector’s approach was grounded in how a reasonable person would understand the references to properties in the DS taking account of the known position on the ground.

128. In my judgment that was a legally permissible approach to take to resolving this question of fact and degree. It aligns with the judgment of Pitchford J in Norfolk and is consistent with the accepted approach to interpreting public documents endorsed by the Supreme Court in DB Symmetry . It was grounded in the way that the Second Defendant advanced its submission at the inquiry (which the Inspector plainly accepted in her decision).

129. I therefore do not accept that the Inspector overlooked any obviously material consideration by failing to treat Mr Harbour-Cooper’s “concession” as decisive of the question of whether there was an irreconcilable conflict. Neither was she obliged to refer to that exchange of evidence. Her decision makes it clear what her conclusion was on the issue of whether there was an irreconcilable conflict with DM and DS. It is readily understandable from her reasoning that she did not regard the “concession” (as to what was possible) as fatal to the Second Defendant’s case. The Inspector’s approach was grounded, correctly, in her evaluation of what was a reasonable, realistic and practical way to understand the DS. As I have indicated above, that was a lawful application of the relevant principles.

130. I therefore reject the second limb of ground 1.

131. It follows that I reject ground 1. Ground 3

132. I consider ground 3 next which reflects the way that the case was argued.

133. The focus of ground 3 is on the Inspector’s conclusions in OD para 34 that the line of Bridleway 18 on the first DM ran through a building (No 12 LBL).

134. The Claimants contend that they were taken by surprise by the Inspector’s conclusions that the line A-B ran through No 12 LBL in 1959. The Claimants contend that this conclusion was contrary to the requirements of fairness and caused them substantial prejudice.

135. It is necessary to refer to parts of the evidence before the Inspector in order to evaluate this contention.

136. Paragraphs 73, 152 and 315 of the Second Defendant’s Statement of Case identified evidence which indicated that the line of Bridleway 18 (A-B) went through the building of No 12 LBL prior to its extension.

137. Mr Harbour-Cooper made the same point in his proof of evidence at paras 31 and 51.

138. The Claimants argued that the position had moved on by the inquiry. Dr Bowes relied on the fact that Mr Moore had produced an aerial photograph (from the 1980’s) in his proof of evidence (which was after the initial exchange of proofs of evidence). It was said that this aerial photograph showed the westerly extension of No 12 over the alignment of the Bridleway. It was argued that this photograph showed gaps between the hedge and the wall which Dr Bowes contended indicated that there was a through route in use in this location. The Claimants’ argument drew on evidence which had been given by a member of the public, Mrs Hills in her statement to the inquiry which stated: “I remember a small gap between the walled garden and the hedge at the back garden of Number 12. This is how Mr Rawlinson [who lived at No 12 and was the gardener for Major Soames who lived at Breach House] went to work in the garden and to Breach House”. (I interpose at this stage to comment that the remainder of Mrs Hills statement set out her recollection of a bridleway from point C. Moreover, she did not suggest that this gap at No 12 in the fence was in fact a public right of way or a bridleway).

139. Dr Bowes relied on the fact that the Second Defendant did not deal with the point that the line of the bridleway went through No 12 LBL in its opening submissions, in Mr Harbour-Cooper’s oral evidence or in its closing submissions. Neither did the Second Defendant cross examine Mrs Rumfitt on the basis that her evidence on the correct line of the bridleway was inconsistent with the fact that it went through No 12 LBL.

140. In support of his argument on unfairness, Dr Bowes referred to the decision of the Supreme Court in Griffiths v TUI (UK) Limited [2025] AC 374 at 393 paras 41 and 42 where the Supreme Court emphasised that in the adversarial system of litigation, it is generally incumbent on a party to challenge facts adverse to its case in cross-examination if it is intended to challenge a proposition in closing. In Griffiths , the Supreme Court held that the Defendant’s failure to challenge the Claimant’s medical evidence was critical. The Supreme Court drew upon the long-standing general rule in civil cases that a party was required to challenge by cross-examination the evidence of any witness of the opposing party on a material point if they wished to submit to the court that the evidence should not be accepted. This rule was founded in the need to ensure a fair trial and enabling the judge to make a proper assessment of all of the evidence.

141. Dr Bowes relied on Griffiths to suggest that the Claimants were entitled to proceed on the basis that the contention that line A-B ran through No 12 LBL pre-extension was not in issue.

142. In these circumstances, the Claimants submit the Inspector acted unfairly in making findings in OD para 34.

143. The point is put by the Claimants in two ways.

144. First, the Claimants were entitled to proceed on the basis that it was accepted that DM line was not obstructed until the westerly extension of no.12 in the 1980s. The Inspector therefore improperly took a line of her own motion, contrary to the common ground of the parties at the inquiry, see R (Poole) v. Secretary of State for Communities & Local Government [ 2008] JPL 1774 at para 40.

145. Second, it was incumbent on the Inspector to “flag-up” the issue as one which the parties had not appeared to have fully appreciated or explored, but that nevertheless was a line she wished to explore herself, applying the approach in Castleford v SSETR [2001] PCLR 29 at para 53 and 65.

146. In assessing these contentions, it is necessary, as Mr Streeten submitted, to keep in mind the nature of a rights of way inquiry and specific procedural rules which applied.

147. In Griffith, the adversarial nature of litigation was central to the Supreme Court’s reasoning. In that context, Lord Hodge emphasised at para 70 (vii) that evidential rules should not be applied rigidly and much depended on the overall fairness of the trial including whether limits had been placed on cross examination.

148. As John Howell KC, sitting as a Deputy Judge of the High Court observed in Wokingham BC v Secretary of State for Communities and Local Government [2017] EWHC 1863 (Admin) at para 51, planning inquiries have elements which are inquisitorial and adversarial.

149. In the present case, the applicable procedural rules are contained in the Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 (“the 2007 Rules”). Parties are required to produce statements of case (rule 17). Proofs of evidence are required (rule 20) and there is provision in rule 21 for these to stand as evidence without being read. Rule 21 provides the Inspector with the power to determine the procedure at the inquiry and powers to limit cross examination.

150. In the present case, the relevant context included the following matters.

151. First, the Second Defendant had advanced a positive case that there was a building in the line of A-B in both their statement of case and in Mr Harbour- Cooper’s proof of evidence.

152. Second, the Second Defendant had not indicated that it had withdrawn reliance on that contention.

153. Third, there was no statement of common ground reflecting agreement that line A-B did not pass through No 12 LBL (i.e. moving the evidence on from what the Second Defendant’s statement of case and proof of evidence had contended).

154. Fourth, no positive inference could reasonably have been drawn from the fact that Mr Harbour-Cooper did not deal with this point in his evidence in chief, that this part of his evidence had been abandoned. The rules and practice at the inquiry support the proof of evidence standing as evidence in chief (unless corrected or the Inspector indicates that a different approach should be followed).

155. Fifth, the Claimants’ advocate could have asked Mr Harbour-Cooper about those parts of his proof of evidence but did not do so. It is true that there was cross examination about a visible gap in the hedge line as shown in the aerial photos and of some evidence from Mrs Hills who had recalled that it was possible to walk through the gap between the wall and the edge at No 12 LBL. However, the fact that it was possible to walk through a gap, visible on aerial photos, just indicated that there was a space there. It did not demonstrate that there was public access to such a route, or that it was a bridleway. Neither did this directly address the question about whether route A-B (as depicted on the map) ran through a building.

156. Moreover, and in any event, I consider that there are good reasons to be cautious about acceding to arguments about what conclusions can be drawn from the absence of cross-examination on a particular point in a case such as this. Public rights of way inquiries tend to involve a large amount of evidence from a variety of sources. This is a materially different situation from Griffiths where what was at issue was one of the ingredients of the cause of action (causation). In the present context, how far an advocate goes in questioning any particular witness may depend on their judgment, the demeanour of the witness, the pressures of time, the interventions (or even body language) of the Inspector. There are obvious dangers in trying to unpick the rationale for any such choices after the event with necessarily limited information as to the precise dynamics in which any exchange in cross-examination did or did not occur. The need to avoid rigidity, noted by Lord Hodge in Griffiths, applies more forcefully in the context of a rights of way inquiry where the issues and number of participants may be diffuse.

157. Taking account of all of this context, I am not satisfied that there was any unfairness to the Claimants. The Inspector made findings in para 34 of OD which were consistent with the case that had been put in written evidence by the Second Defendant. That evidence had not been retracted. There was no relevant concession set out in any statement of common ground.

158. I conclude that there is no analogy with Poole . Quite simply, in this case there was no statement of common ground that was departed from.

159. The Castleford decision makes it clear that the application of fairness is always contextual (see Ouseley J’s reasoning in paras 52- 53 of Castleford which makes this clear). In the light of the factors which I have highlighted above, I am not satisfied that there was any unfairness in the Inspector making a finding that was consistent with Mr Harbour-Cooper’s written evidence.

160. In para 65 of Castleford , Ouseley J stated: “Whilst an Inspector can reasonably expect parties at an inquiry to explore and clarify the position of their opponents, if an Inspector is to take a line which has not been explored, perhaps because a party has been under a misapprehension as to the true position of its opponents, as in my view happened here, fairness means that an Inspector give the party an opportunity to deal with it. He need not do so where the party ought reasonably to have been aware on the material and arguments presented at the inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed”.

161. As Mr Streeten submitted on behalf of the Secretary of State, in the present case, we are in the territory of the qualification stated by Ouseley J in this part of his judgment. The Claimants ought reasonably to have been aware that the Inspector may have accepted the contentions in Mr Harbour-Cooper’s proof of evidence (and the Second Defendant’s statement of case). It was neither reasonable nor realistic for them to assume that this part of Mr Harbour-Cooper’s evidence no longer stood. This was essentially so because it was not directly contradicted by the aerial photographs, the existence of a gap between the hedge and the wall at No 12 LBL or the evidence of Mrs Hills (which were the matters which Dr Bowes relied on in his submissions to this Court).

162. I therefore conclude that there was no breach of fairness in the Inspector reaching the conclusion that she did in OD para 34. Her conclusion was consistent with evidence which was before her at the inquiry.

163. I mention for completeness two further points.

164. First, the issue of conflict between a route at A-B and the physical location of No 12 LBL was raised by members of the public including Mr Barrett. However, on the material I have seen, it is not sufficiently clear that this raised the question of conflict with No 12 LBL prior to its extension. Mr Barrett’s presentation to the inquiry indicated that the line A-B went through the “middle of No 12” which suggests that he may well have been referring to the original house. However, this statement is expressed in the present tense (which tends to suggest he was focussed on the current situation). I therefore do not base my conclusion as to fairness on the proposition that the conflict was raised by members of the public.

165. Second, in order to succeed on this ground, the Claimants would need to establish substantial prejudice. In the present case, there is no evidence from the Claimants as to what they would have said on this issue had the Inspector invited them to address it. The absence of such evidence was commented on by Ouseley J in R (Midcounties Cooperative Limited) v Wyre Forest District Council [2009] EWHC 964 (Admin) at paras 104-116. In the absence of such evidence, I do not consider that the Claimants would have been able to establish that they were substantially prejudiced by any unfairness, had there been any (which I have concluded there was not). Rationality Challenge

166. Dr Bowes also argued (in the context of responding to points advanced on behalf of the Defendant) that the Inspector’s conclusion that line A-B ran through No 12 LBL pre-extension was irrational. In my judgment, there is no merit in this argument. As I have explained above, the aerial photos relied on do not establish that there was any public right of way in that location. The gaps between the hedge and the wall and evidence that a few individuals (including Mr Rawlinson, as explained by Mrs Hills in her statement) used them to get to Breach House is not evidence that a public bridleway existed in that location. Neither is it evidence that goes to the relationship of the line A-B on the DM with the siting of No 12. The conclusion which the Inspector reached in OD para 34 was one which was lawfully open to her on the evidence before her. The Claimants’ disagreement with that conclusion falls well short of the high hurdle that a rationality challenge would have to surmount – see R (Newsmith Stainless) Ltd v Secretary of State [2017] PTSR 1126 at para 7 and R (Finch) v Surrey County Council [2024] PTSR 988 at para 56). I reject the Claimants’ argument that it was irrational. Duty to Give Reasons

167. The focus of grounds 2 and 4 is primarily the Inspector’s reasons. Before addressing those grounds, I set out the approach which the Court takes to reviewing reasons challenges.

168. It is common ground that the Inspector was under a statutory duty to give reasons for her decision pursuant to rule 26(2) of the 2007 Rules.

169. The leading case is South Bucks DC v Porter (No 2) [2004] 1 WLR 1963 (HL). At para 34, Lord Brown drew on the speech of Lord Lloyd in Bolton Metropolitan DC v Secretary of State for the Environment (1995) 71 P&CR 309 (HL) at 314-315 who emphasised: “What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the “principal important controversial issues”. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden…” Lord Brown then encapsulated the law at para 36 as follows: “The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision”. Ground 2

170. The focus of ground 2 is para 98 of OD which states as follows. “The 1940s aerial photographs show what appears to be a wide drive between points C and E. There does not appear to be a drive through the garden of No. 12 LBL along section A-B, although there are some shadows in this area. There appears to be a narrow path through the middle of the walled garden with a gap in the middle of its northern but not southern boundary. Aerial photographs taken in 1970 and 1980 show a wide drive along section C-E but not along section A-B. They also show several boundaries along section A-B which do not appear to have gates or gaps. Although the later aerial photographs postdate the original DMS, they indicate the situation on the ground remained largely unchanged from the 1940s until the extension to No. 12 LBL. There is sufficient width for a car to park here, but they do not indicate a driveway or vehicular access. Based on the aerial photographs from the 1940s, I consider the route described in the Ramblers Survey and Parish Schedule is more likely to be along section C-D-E-B rather than on the line shown on the current or original DM”.

171. Dr Bowes advances three inter-related points about this part of the Inspector’s decision. He contends (a) that it contains a material error of fact, (b) the conclusions are irrational and (c) the Inspector did not give reasons for her decision.

172. The Claimants’ challenge as advanced orally was focussed on the last sentence of para 98. In their written argument, the target was the alleged finding by the Inspector that there were no gaps in the hedge at No 12.

173. To assess this ground of challenge, the basic structure of OD needs to be reiterated. This paragraph comes within the part of the Inspector’s analysis where she is marshalling the documentary evidence to address the alignment between LBL and point B. As set out above, the Inspector’s discussion of the documentary evidence starts with a survey at paras 36-88 of OD. She then moves towards expressing her conclusions and does so, in paras 92 and following, by drawing out what she considers are the relevant points from the evidence that she has surveyed. There is some duplication in OD, but this structure allowed the Inspector to set out what material she considered and draw out how it informed her conclusions (and to what extent). The Inspector’s overall conclusions are paras 106-107 and paras 111-112 where she takes account of the evidence as a whole.

174. As was clear from Mr Streeten’s oral submissions (which helpfully invited the Court to read the first five lines of OD para 98 alongside the 1940’s photographs), the Inspector is simply describing what can be seen on the 1940’s aerial photos (which were understandably of poor quality). At this stage, she was not commenting on any other piece of evidence. Neither was she making a “finding” of fact as to the extent of the gaps at No 12. She was describing, as best she could, what was apparent from the 1940’s aerial photographs.

175. The conclusion that she expressed in the last two lines of para 98 is a conclusion based on the 1940’s aerial photograph. It was not an overall conclusion or a finding. She was simply saying that, as far as she was concerned, the photos provide more support to route C-D-E-B than route A-B. She observed in the first five lines of OD para 98 that there is shadow on the photograph. She made this point to be careful not to discount altogether the possibility of a bridleway on A-B due to the limitations of the photographic evidence. She said, in effect, there was no positive support for a bridleway at A-B in the 1940’s photographs but her observations about shadows shows that she has in mind that they have limitations as a piece of evidence.

176. Considering Dr Bowes’ submissions in the light of this context, the points that he made all fall away.

177. First, the jurisprudence relating to errors of fact is simply not in play here. There is no established and verifiable fact against which it can be said the Inspector made an error. There is a discussion of imperfect evidence, which she is seeking to navigate her way through. The Inspector is appropriately careful as to how she expresses herself as to what can be drawn from the photographic evidence and how far it takes the exercise of considering where the bridleway was. The premise of Dr Bowes’ argument that there is an error of fact that vitiates the Inspector’s finding that there were no gaps simply does not arise. There was no finding as to gaps in para 98 of OD (only her observations about what the photographs show). Moreover, the extent of gaps as at No 12 at the relevant time was not an uncontentious and objectively verifiable fact within the scope of the principles of review for error of fact set out by the Court of Appeal in E v Secretary of State for the Home Department [2004] EWCA 49 at para 66.

178. Second, the Inspector’s conclusions were plainly not irrational. She described the aerial photograph accurately. She draws appropriate conclusions from it whilst recognising its limitations.

179. Third, there was no failure to give adequate reasons here. This paragraph is simply a staging point in her chain of reasoning on the documentary evidence. She identifies what she has analysed, describes what it shows and tells the informed reader what she has taken from the material. The proposition that paragraph 98 of the OD gives rise to a challenge for a failure to give adequate reasons is without foundation.

180. I therefore reject ground 2. Ground 4

181. Dr Bowes’ fourth ground of challenge is also a reasons challenge.

182. He contends that the Inspector’s reasons were not adequate to dispel doubt as to whether the decision was taken on relevant and rational grounds. This part of his argument focuses on the Inspector’s lack of explicit reference to the expert evidence of Mrs Rumfitt which was called on behalf of the Claimants.

183. It is correct that Mrs Rumfitt’s name was omitted from the list of appearances at the inquiry. Dr Bowes does not rely on this as a material error of law in itself but he contends that this omission supports his argument that Mrs Rumfitt’s evidence was not properly considered by the Inspector.

184. To seek to make good this submission, Dr Bowes descended into the detail of the arguments which were before the Inspector.

185. He focuses on the Inspector’s discussion of the 19 th century evidence which was analysed at the inquiry. The target of his criticism is paras 95 and 96 of OD. I will set out paras 94-96 of OD which read as follows. (para 94) “The 1820 Parish plan shows a gate onto LBL at point C, none are shown at point A. LB18 north of point B is described as a lane and is listed under the heading ‘wastes’ with other public highways. On the 1838 Tithe map, most of LB18 was listed under the heading ‘Roads Wastes etc.’ as a road or lane, as were other public roads, suggesting it was considered to be a public highway. Section C-B corresponds largely with plot 168, a ‘Road running through Pump field allotment’, but it was not listed under the heading ‘Roads Wastes etc.’ suggesting it was not considered to be a public highway at this time. Section B-A would be within Plot 167 ‘Pump field allotment’ but there is no indication of any way running through it”. (para 95) “Anyone using the route suggested to be a public highway on the 1820 Parish plan and the Tithe map is unlikely to have turned around and retraced their steps at point B. The most obvious route to use is likely to have been along section C-B to either pass through the gate onto LBL shown on the Parish plan or along the route described on the Tithe map as a road. I consider these plans suggest a route along section C-B with no route along section A-B”. (para 96) “The description of parcel 41 in the 1842 Inclosure Award as ‘ bounded… by a road’ would suggest that section C-B is not part of parcel 41. Describing it as a road which connects to LBL also suggests a public highway. Other routes coloured sienna on the Inclosure map are public roads or bridleways today. There are other routes shown uncoloured with double solid edges on the Inclosure map which, with the exception of part of Little Berkhamsted Bridleway 9 and LB19, are not public highways today. I consider the Inclosure Award is suggestive of public rights along section C-B of at least bridleway rights with no route along A-B.”

186. The probative value of these records had been discussed in evidence by both Mrs Rumfitt and Mr Harbour Cooper. Mrs Rumfitt had made two points which are material for present purposes. First, she had said that the fact that tithes were paid was inconsistent with the route having public status. Second, she had argued that the shading of the plans on the Inclosure map was not significant (because it was not the focus of the investigation).

187. Dr Bowes submitted that the Inspector did not explicitly deal with the first point. His complaint in respect of the second point was essentially that the Inspector placed some weight on the shading.

188. The Inspector was required to state her conclusions on the principal controversial issues. Applying the guidance in Porter at paras 34 and 36, she was not required to address every argument that had been advanced before her. In a case such as this where there is an abundance of historic material, such a requirement would put an excessive burden on decision makers.

189. On a fair assessment of this part of the Inspector’s decision, her conclusions were nuanced. She found some support for public rights of way on part of the route C-B and none for A-B. Moreover, this was only a small part of an overall evaluation of a significant amount of historic material.

190. The Inspector explained her conclusions. She found that there was some evidence of a public right of way on part of the route and she did not think it would be realistic to assume that anyone walking part of the route would turn back rather than continue to LBL. In para 94 of OD when she stated that there is no indication that route C-B was a public highway in the 1838 tithe map, she was accepting a point which Mrs Rumfitt had made.

191. The Inspector did not treat the shading as decisive but as an indicator which provided a measure of support. Whilst this reasoning does not adopt the argument made by Mrs Rumfitt and was closer to the emphasis placed by Mr Harbour-Cooper, I am satisfied that it reflects a legally adequate assessment of the question of the extent to which this 19 th century material assisted her assessment of where Bridleway 18 was located.

192. The Inspector did not refer to either expert by name. She focussed on stating her conclusions on the historical material so far as she considered that it assisted her to determine the main issues in the case. It is correct that she reached her own conclusions rather than adopting the analysis of Mrs Rumfitt but that is unsurprising. It was the Inspector’s task to state her conclusions on the main issues. She was not obliged to agree with the evaluation of those who gave evidence at the inquiry or undertake a point-by-point rebuttal of such evidence.

193. The basic premise of Dr Bowes’ argument that Mrs Rumfitt’s evidence was left out of account is far-fetched. I do not consider that this assertion is supported by a fair reading of the substance of the Inspector’s decision.

194. I note that it is apparent from the evidence before the Court, that the Inspector took a careful note of the oral evidence of both Mrs Rumfitt and Mr Harbour-Cooper.

195. The Claimants’ real complaint was that there was not a point-by-point rebuttal of the precise case Mrs Rumfitt advanced. In this respect, his argument does not reflect a realistic framing of the duty to give reasons. The Inspector’s duty was to state her conclusions on the principal important issues. In my assessment, it is clear that she did so adequately. Indeed, her reasoning was thorough, careful and comprehensive.

196. I therefore reject the fourth ground of challenge. Other matters

197. The Claimants’ pleaded case contained a fifth ground of challenge but this was not pursued.

198. Mr Streeten advanced various submissions on the question of whether the decision would necessarily have been the same even if there was an error under grounds 1,2 or 3. Given the conclusions that I have reached that there were no legal errors, it is unnecessary for me to deal with these contentions.

199. I would like to thank the advocates for the considerable assistance that they have given to the Court in their focussed oral and written submissions. Outcome

200. I have rejected each of the Claimants’ grounds of challenge. I therefore dismiss this claim.