Mr Bagshaw sought an order modifying the definitive map and statement to show a former mine track as a public right of way.
Held: A claimant seeking to establish a public path had to show evidence in support or that it was reasonable to make the allegation.
Owen J, referring to 53(3)(c)(i) said: ‘It is necessary to give some meaning to all the words used. Accordingly, there must be a difference between showing ‘that a right of way which is not shown in the map and statement subsists’ and showing that a right of way which is not shown in the map and statement ‘is reasonably alleged to subsist’. Accordingly the questions for the council and subsequently for the Secretary of State were: does the evidence produced by the claimant together with all the other evidence available show that either– (a) a right of way subsists? (I shall call this test ‘A’), or (b) it is reasonable to allege that a right of way subsists? (I shall call this test ‘B’). To answer either question must involve some evaluation of the evidence and a judgment upon that evidence. For the first of those possibilities to be answered in the affirmative, it will be necessary to show that on a balance of probabilities the right does exist. For the second possibility to be shown it will be necessary to show that a reasonable person, having considered all the relevant evidence available, could reasonably allege a right of way to subsist.’
Judges:
Owen J
Citations:
Times 06-May-1994, [1994] 68 P and CR 402
Statutes:
Wildlife and Countryside Act 1981 53(3)(c)(I)
Jurisdiction:
England and Wales
Cited by:
Cited – Todd, Bradley v The Secretary of State for Environment Food and Rural Affairs Admn 22-Jun-2004
Application was made to quash an order modifying the Council’s definitive map of public rights of way.
Held: Before the Secretary of State could confirm a Council’s modification of a right of way shown on the definitive map, where that . .
Cited – Regina v Secretary of State for Wales Ex Parte Emery CA 9-Jul-1997
The applicant had sought to have included in the definitive map, a local footpath, and now challenged refusal to include it.
Held: A public right of way may be created by dedication or it may be deemed after actual use by the public over . .
Lists of cited by and citing cases may be incomplete.
Environment, Land
Updated: 26 May 2022; Ref: scu.87786