AC-2025-LON-000298 - [2025] EWHC 2435 (Admin)

Dr Stedman Jones, for the Claimants, contends that the Inspector misdirected himself as to the correct legal test, and the application of that test, having regard to the evidence in this case. He points to the Inspector’s conclusions in the IOD that, because the full width between the boundaries had been available for people to use since the date of the Tithe Map, he concluded in the IOD that, irrespective of whenever the public acquired the rights, people have been able to use the width between the boundaries since that date. Consequently, in the absence of evidence to the contrary the Inspector concluded that the boundary-to-boundary principle applied.

Dr Stedman Jones submits that the FOD expressly adopts the reasoning of the IOD and there is nothing in the FOD to suggest that the Inspector has resiled from his reliance on the boundary-to-boundary presumption. Furthermore, Dr Stedman Jones contends that the Inspector erred in applying the presumption in the circumstances of this case. The presumption was not open to him given that he had not made a prior finding that the relevant boundary features were laid out by reference to the highway. Due to his finding at IOD28 to the effect that a specific date of dedication cannot be proven, the boundary presumption could have no application.

Mr Streeten, for the Secretary of State, contends that the Claimants have misunderstood the FOD, which makes it clear that the boundary-to-boundary principle was not relied upon by the Inspector in his final determination. Rather, he says, the Inspector concluded that the full width between the boundaries had been dedicated as a result of (1) the intention to make the full width available for public use, as evidenced by the bypass gates adjacent to the cattle grids; and (2) the statutory declarations of local residents as to use of the verges.

Mr Streeten acknowledges the Inspector’s conclusion as to the boundary-to-boundary principle in the IOD but contends that this was not carried forward into the FOD given that the Inspector had acknowledged the Claimants’ objections to the effect that the boundary-to-boundary principle did not apply and had made findings in his FOD as to the area dedicated for public use. The FOD, Mr Streeten says, did not rely on a finding that the boundaries were laid out by reference to the highway and that the boundary-to-boundary principle applied.

Mr Wilmshurst, on behalf of Mr Lewis, submits that this was a case which had an unsurprising outcome given that the highway between the fences has historically existed since the date of the Tithe Map and that finding of fact is not subject to challenge. Mr Wilmshurst says that it is highly material that the Court is dealing with a route which has been unchanged in layout since the mid nineteenth century. Mr Wilmshurst contends that this is a case which falls into the third category described in the Hale case:

“43 Third, the presumption of dedication of all the land running between hedges or fences can only arise if there is reason to suppose that the hedge or fence was erected by reference to the highway: that is, to separate the land over which there was to be no public right of way from the land over which there was to be such a right. Where matters are lost in the mists of time, it must often be possible to draw such an inference from the layout on the ground. In a conventional road running between hedges or fences, even if the verges are of varying widths and shapes, this may well be the obvious conclusion. It is not surprising, therefore, that the cases regarded this as the prima facie position. But that is not the same as elevating this preliminary factual question into a presumption of law.”

In essence, Mr Wilmshurst says that in this situation, where matters are lost in the mists of time, where there are longstanding boundary features and dedication, the primary position will be that the width of the dedicated highway was the width between the longstanding boundary features. That however is not a presumption in law, the legal presumption in the boundary to boundary principle arises where the highway already exists and there is a finding that the landowner has fenced up to it.

Mr Wilmshurst adopted the submissions of Mr Streeten and contends that the Claimants mischaracterise the approach taken by the Inspector in his FOD since, on a proper reading of the FOD, it is clear that he did not rely on the boundary-to-boundary presumption. Mr Wilmshurst submits that the Inspector specifically acknowledged the Claimants argument that it was impossible for any structure shown to exist before 1929 (for route A-B-C), or before 1910 for route C-D-E-F-G-H, to have been set out with reference to the highway because the highway did not exist before that date. That was a direct challenge to the boundary-to-boundary presumption being applied.

Mr Wilmshurst contends that, after this acknowledgment, the Inspector then sets out his analysis and makes findings within paragraph 8 of the FOD. That paragraph only makes sense on the basis that the Inspector was approaching the question of dedication. The final conclusions, Mr Wilmshurst argues, do not rely on the automatic presumption that the highway extended to the boundary structures but rather it points to an evaluation of the physical and historical evidence supporting the extent of dedication.

The application by the Claimants was for a modification to the DMS to add a width to the restricted byway. The dispute regarding the Order before the Inspector related to the OMA findings in relation to the date of dedication of the RB; the widths of sections of the RB; and whether it was appropriate to scale off OS Maps. The Inspector’s task was to see whether the DMS should be modified in relation to the width of the highway having regard to the available evidence and applying legal principles.

The core issue is whether the Inspector fell into error in determining the extent of the highway. The primary submissions of all parties hinge on whether the Inspector applied the boundary-to-boundary principle in his final decision within the FOD. It is useful to bear in mind that the IOD was an interim decision, which sets out initial findings, a conclusion and some minor modifications to the Order. Following the issue of the IOD all parties had the opportunity to submit objections and comments on the IOD.

Paragraph 3 of the FOD records the Claimants’ firm and continued objection on the basis that the Inspector had made an error in applying the legal presumption in the boundary to boundary principle. The Inspector was therefore clearly aware that the Claimants said that the presumption in relation to the boundary-to-boundary principle did not apply on the facts of this case. His reasons at paragraphs 6 onwards are essentially speaking to the objector and setting out his position and analysis, making findings and drawing a conclusion.

The two decisions need to be read side by side but it is only the FOD which makes a final determination. The main issue set out in the FOD is set out in the following terms:

“5…The main issue is whether there is any evidence or argument which has a bearing on the modifications proposed in paragraph 50 of my IOD and which might indicate that those modifications should be amended or not pursued. ”

The framing of that main issue is essentially casting the FOD as an opportunity for the Inspector to revisit matters in relation to the proposed modifications after he has considered evidence and arguments following the issue of the IOD.

The IOD itself needs to be understood in the context of the issues in dispute as outlined in the Claimants’ objections and the representations of others. Paragraphs 1-8 of the IOD set out the background, issues and positions of the OMA and that of the Claimants as objectors. Paragraphs 9-18 set out the historical evidence in the form of maps, photographs and statutory declarations. There are a series of comments on that evidence: such as at IOD12 that the 3^rd Ed. OS Map shows the Order route in a very similar manner to that depicted on the 1^st Ed. Map and IOD13 an observation that the County Maps are consistent in terms of depicting enclosures on both side or one side of sections of the restricted byway.

At IOD19 the Inspector begins his conclusions on the evidence, setting out the previous findings of Inspector Small. IOD20 sets out the OMA position as recorded in the delegated committee report. IOD22 records the agreement that the metalled surface on the Order route was laid down sometime after public rights had come into existence and as such, the made up surface may or may not be the same width as the extent of public use.

IOD23 records the OMA position and a clear reference to the boundary to boundary principle, namely the OMA acceptance that the principle only applies where boundary features were laid out by reference to the highway. That is a clear and correct summary as to the relevant principle. The Inspector records the OMA position that there is no clear answer to the question as to whether or not the features were laid out by reference to the highway.

At IOD24-25 the objectors arguments are recorded, namely that the date of dedication of the Order route is the one decided by Inspector Small. The Claimants, as objectors, had further pointed out that the boundary features were in place for a significant period before the public rights of way had been established.

At IOD26 the Inspector returns to the OMA position on the boundary to boundary principle, noting that the OMA believed that the principle could still apply if the public had the use of the full width of the way when public rights were dedicated and the OMA contended that there was no evidence to suggest that the public did not use the full width. That appears to be an incorrect application of the presumption. It seems to me that what the OMA were effectively trying to say was that the full width of the highway between the two boundaries could be deemed to have been dedicated on the basis that that was the extent of the use at the time of dedication.

IOD27 references the evidence regarding the cattle grids which meant that users had to bypass the grids by utilising the grass verges.

The Inspector’s own findings and conclusions commence at IOD28. He makes the following findings:

After the IOD was issued the Claimants submitted objections to the Inspector and Ms Rumfitt submitted representations on behalf of Mr Lewis. The Claimants’ objections are set out at FOD3 and record the allegation that the Inspector had made an error in defining the boundaries of the highway. At FOD7 the Inspector records the Claimants’ contention that it is impossible to for any structure shown to exist between either 1929 or 1910 to have been laid out with reference to the highway and that the boundary to boundary principle cannot apply. A clear rebuttal of the boundary to boundary presumption.

At FOD8 the Inspector is conducting his own analysis and embarking on an exploration as to the extent of the highway width which had been dedicated and as part of that analysis, the nature and extent of the actual use. He noted the finding of Inspector Small and the position of the OMA that dedication occurred around the time of the Tithe Map. His second sentence says that, irrespective of Inspector Small’s conclusions as to the possible date of dedication, he had concluded that the full width between the boundaries have been available for people to use since the Tithe Map date and that was the width as depicted on the 3^rd ED. OS Maps. That is neither an agreement nor a disagreement with the prior finding of Inspector Small.

At FOD9 he is reiterating his IOD finding that the physical layout of the Order route does not appear to have changed significantly since the date of the Tithe Map and that of the 3^rd Ed. OS Map. The second sentence then makes findings which are not found in the IOD as to the actual use of the space between the boundaries, dealing specifically with the point about walkers using the grass verges around the cattle grids. The Inspector notes that the provision of bypass gates indicated acceptance by previous landowners that the verges formed part of the highway. Whilst I accept that the gates were installed in the 1970s after the relevant date, the Inspector is entitled to draw an inference from those actions when piecing together all of the historical evidence.

The Inspector’s findings as to the actual use are drawn in part from the statutory declaration of Mrs Evelyn Luck dated 7 September 2020. Mrs Luck was born in 1939 in the local area. She provides evidence, including photographs, as to actual use of the route over time, including use by horse and cart and pony and trap; the lack of cattle gates when she was growing up and the surfacing of the route. Her evidence is detailed and supported by photographs and other evidence. There was also the statutory declaration of Mr Ronald Beach dated 24 September 2019 before the Inspector. That declaration is again detailed evidence as to the use of the route from the 1930s onwards.

I do not accept the Claimants’ assertion that the Inspector elided the availability of the width between boundary features, with the dedication of the width between boundary features. The Inspector goes on at FOD9 to assess the evidence in terms of actual use by the public and the later conduct of the landowner in providing bypass gates which are intrinsic to the question of dedication. This is repeated in his overarching conclusions in FOD15 which refer to there being no substantive evidence to suggest that the public did not, or could not, use the whole width between the boundary features as shown on the 3^rd Ed. OS Map. Again the reference is to actual use as well as possible use.

At FOD10 the Inspector comes to the conclusion that, in light of his prior findings as to the consistency of boundary features on the historical maps, and because of his conclusion that scaling up from the OS Maps was the most accurate way of determining the width of the route, it was not necessary to consider the principle of a reasonable width. There is no reference to reliance on the boundary-to-boundary principle, there was no need for the Inspector to rely upon it given that he had concluded that the public did use the full width between the boundaries, which had been consistent over time, at the point of implied dedication.

I agree with Mr Wilmshurst that the Inspector’s analysis in his FOD might have been more clearly expressed but I remind myself that the final decision must be read fairly and as a whole, without an unduly legalistic approach and that it is written to address the arguments of the principal parties who are familiar with the arguments and issues.

The Inspector could have said, in terms, in his FOD that he was not relying the boundary-to boundary presumption. Instead in the FOD he does not refer to the presumption at all and goes on to make the necessary findings to support an overall conclusion that the extent of implied dedication was as he had determined. The Inspector had assessed all of the available evidence in the form of the historical maps, photographs and statutory declarations as to use, as well as the conduct of the landowners over time. His analysis of these matters was clearly leading to the conclusion on implied dedication.

The Claimants contend that the Inspector failed to conclude that the route should have a reasonable width. The relevant DEFRA guidance confirms that widths in DMMOs should be based on the available evidence. Similarly the PINS advice note says that where there is no sufficient evidence as to the highway width, the correct approach is to determine a width which is reasonable.

The IOD examined the historical maps and the extent to which they depicted boundary features and the extent to which the width of the highway as depicted on the maps was consistent. There is a detailed analysis in relation to these matters leading to a conclusion in IOD30 that it is reasonable to scale off measurements from OS Maps for the reasons he set out. He came to the judgment that there was sufficient evidence to define the width and therefore it was not necessary for him to resort to applying a reasonable width. The Inspector maintained those conclusions in his FOD and found that scaling up would allow for the most accurate way to determine the width of the route.

The Inspector came to a reasoned and rational conclusion as to his ability to determine the width of the highway. As such he did not depart from the guidance which advocates that a width should be determined with regard to the evidence in the first instance and only if there is insufficient evidence should one resort to a reasonable width judgment.

For all of the above reasons the Inspector did not misdirect himself in law and ground 1 fails.

Dr Stedman Jones cites R v Cardiff CC, ex p. Sears Group Properties Ltd [1998] PLCR 262 for the proposition that where a decision has been made by a competent authority on a particular issue affecting private rights, then that decision will be binding on other authorities directly involved unless and until circumstances change in a way that can reasonably be found to undermine the basis of the original decision.

Dr Stedman Jones relies upon the finding of Inspector Small that “public rights for the majority of the route AB27 did not exist prior to 1910 and for the section D-C prior to 1929.” He contends that in his IOD and FOD the Inspector concluded that “irrespective” of Inspector Small’s finding, “the full width between the boundaries has been available for people to use since at least the time of the Tithe Map (1843)”.

Dr Stedman Jones submits that the Order Inspector had the same documentary evidence before him as was before Inspector Small and the two statutory declarations which addressed the nature of RB/AB27 from the late 1930s onwards, aerial photographs from 1946 onwards and ground photographs. Essentially, his point is that any additional evidence post-dated the date of dedication identified by Inspector Small and the Inspector Spencer-Peet should have followed the previous Inspector’s findings of fact. Mr Streeten disputes this on the basis that, unlike Inspector Small, the FOD Inspector visited the site and had additional material in the form of the cases of the respective parties before him.

Mr Streeten for the Secretary of State contends that the FOD is entirely consistent given the use of the word “irrespective” of the conclusions of the previous Inspector in FOD8 which indicate that the conclusion he came to was arrived at irrespective of whether he agreed with Inspector Small or not. He has referred me to the Court of Appeal’s decision in R (Manchester CC) v St Helens Metropolitan BC [2009] EWCA Civ 1348 to the effect that the decision in Sears was no more than an application of Wednesbury principles. Mr Streeten argues that the correct question in relation to this matter is whether the approach taken by the Inspector on the facts of this case was Wednesbury irrational.

In any event, as is well established, and as Mr Streeten submits, the previous Inspector’s decision was not binding, Inspectors are entitled to part ways with the previous findings of other Inspectors when there is a reasonable explanation for doing so.

On behalf of Mr Lewis, Mr Wilmshurst points out that Inspector Small was not only determining the historic limitations application but also had to make a recommendation in terms of whether the route should be downgraded to a footpath. It was in that context that he made findings at to the likely date of dedication.

The two Inspectors were making decisions in relation to different applications. As such they made the findings necessary to reach a conclusion on the particular issue before them. In addition, the Order Inspector did have evidence in the form of the statutory declarations as to the extent of use of the highway width and his own observations on the site inspection. The submissions before him were also directed at a different question and issues.

The Claimants contend that, had the Inspector considered the evidence on the proper legal basis, he would have followed the findings of Inspector Small that the boundaries have been in place since at least the Tithe Map 1843, and the Order route did not become a public highway in part until 1910 and in full until 1929. Those findings did not preclude a later finding that, at the point whenever dedication occurred (1910-1929) the full width between those boundaries had been in actual use at the date of dedication such that the highway from boundary to boundary had been dedicated.

In Inspector Spencer-Peet’s case, he was aware of, and took into account the findings of Inspector Small. That finding did not settle upon a specific date of dedication, rather it came to a conclusion that public rights for the majority of RB/AB27 did not exist prior to 1910 and for the section D-C they did not exist prior to 1929. That is a conclusion about the likely date when the public rights came into existence.

In his FOD8 the Inspector is noting these findings about the likely date of dedication, he then reiterates his IOD finding that the full width between the boundaries had been available for use since at least the time of the Tithe Map. Using that conclusion, and his conclusion on the consistency between the Tithe Map and the 3^rd Ed. OS Map, he then puts those two findings together to come to the conclusion that people have been able to use the width between the boundaries as they are depicted on the 3^rd Ed. OS Map. That is not making a finding contrary to that of Inspector Small.

FOD9 then goes on to make findings about the actual use of the width during the likely period of dedication and otherwise. Using his previous conclusions that scaling up from OS maps would allow the most accurate way to determine the width, he is satisfied that he is able to determine the width of the restricted byway. The Inspector in this claim was determining a different issue and made findings accordingly.

Essentially the Inspector came to the simple conclusion that the boundary locations had not changed since the Tithe Map and in particular between 1929 and 1960; at some point the highway had been dedicated but throughout the likely period of dedication the boundaries had been the same and the full width had been in actual use. There was no disagreement with the conclusions of Inspector Small and no inconsistency.

For the above reasons ground 2 is rejected.

This ground relates to the Claimants’ contention that the conclusion in the IOD that the boundary-to-boundary presumption applied was upheld and relied upon in the FOD.

The final sentence in IOD28 makes a clear reference to the boundary to boundary principle applying in the absence of any evidence to displace the presumption. However, the Inspector was aware of the Claimants’ contentions in relation to the principle not applying in their response to the IOD and his FOD makes no reference to the presumption, rather it goes on to make the necessary findings to determine whether the DMS should be modified in terms of its width. The Inspector’s final decision was not contingent on the principle for the reasons I have already set out and it was not irrational.

In their skeleton argument the Claimants also contend that the decision to scale off from the OS Maps was irrational. Mr Streeten, objected to this argument being raised given that it was not pleaded. However, I accept that paragraphs 4, 47 and 82 of the statement of facts and grounds do make allegations as to the scaling off from OS Maps, notwithstanding that it was not fully particularised or referred to in ground 3 set out later. To the extent that the submissions rely on the inadmissible evidence of Mr Carr, I shall not comment on those submissions.

Dr Stedman Jones submits that the scaling off approach produces absurd results and was not a conclusion that any reasonable Inspector could reasonably have come to. Further, it was submitted that none of the parties had suggested that the public right of way followed any other alignment than the metalled road. Dr Stedman Jones criticises the Inspector for eliding the question of the accuracy of the 3^rd Ed. OS Map in terms of physical features and layout with the question of whether scaling off would produce an accurate width for the Order route.

Mr Streeten notes that the DEFRA guidance provides that OS Maps may be an appropriate way to identify highway widths and that the Claimants accept that the OS Maps have a reputation for excellence with the 3^rd Ed. OS Map containing an accurate depiction of physical features along the route. As such he submits it is not tenable to suggest that identifying the width route with reference to OS Map features is irrational.

Mr Wilmshurst, on behalf of Mr Lewis, reminds me that the Inspector had the benefit of expert mapping evidence from Mr Rocks who is a chartered land surveyor. The Inspector had taken account of the Claimants objections with regard to the accuracy of scaling off OS Maps but had concluded that the level of accuracy was greater than that contended by the Claimants and that the OS Maps represented the best evidence to determine the width of the route.

The Inspector sets out the historic evidence from various maps in his IOD9-16. That is a careful exposition of the features shown on maps and a comparison as to the consistency between maps. He then uses other photographic evidence at IOD17 to provide additional information as to the situation at the date of each photograph but he does not rely on them to precisely determine the width of the route. At IOD23 he noted the consistencies in the depiction of the Order route on OS Maps and approved of the logical approach taken by the OMA to scaling off measurements using the 1^st and 3^rd Ed. OS Maps and giving preference to the 3rd Ed. OS Map where there were differences.

At IOD29 the Inspector concludes that the physical layout of the Order route had not changed significantly between the date of the Tithe Map (1843) and the 3^rd Ed. OS Map. He sets out his conclusion that it was reasonable and appropriate to scale up from the 3^rd Ed. OS Map as it had been published following a survey of physical features and because this edition was used as the base mapping for the Finance Act 1910 maps. At IOD30 he sets out his reasons for not relying on recently obtained on ground survey measurements. At IOD31 and 32 he sense checks the OMA methodology and deals with the objectors’ submissions regarding the existing fencing between points A-B but again finds that there is no substantive evidence as to when the fencing was erected and he refers to 3^rd Ed. OS Map in that regard.

In IOD33 he considers other independent evidence in relation to the narrowing of the section C-D and finds that it is consistent with the evidence in the statutory declarations and would, importantly, reflect the noticeable changes in the Tithe Maps and the 1^st, 2^nd and 3^rd Ed. OS Maps. At IOD34-38 he considers all other evidence in relation to widths but sets out his conclusions at IOD39 that preference should be given to the 3^rd Ed. OS Map. Those are plainly judgments as to the factual interpretation to be placed on the historical maps before him in light of all of the evidence. They are fully reasoned.

The Inspector continues his explanation and justification for using the 3^rd Ed. OS Map and scaling off it. In FOD11 the Inspector acknowledges the Claimants representations with regard to the accuracy of the measurements of width but at FOD 12 for the reasons set out, he explains why he concludes that the level of accuracy would be significantly greater than is alleged by the objector. The Inspector did not merely rely on the excellent reputation of the OS Maps but he looked at the evidence in this particular case and using his judgment, he concluded that the 3^rd Ed OS Map represented the best evidence as to the width of the route and that scaling off the map was not inappropriate.

For all of the above reasons ground 3 is rejected.

The claim for statutory review is dismissed.