Trail Riders Fellowship v. Secretary of State for the Environment, Food and Rural Affairs. 18 July 2017. CO/762/2017. Mr Justice Holman.
Oakridge Lane, near Radlett, Hertfordshire, is an undisputed ancient public vehicular highway (a ‘main road’), effectively split into two parts by its crossing of The Brook, a meandering and somewhat mobile stream, which now coincides with the road’s northerly course for some distance.
The southern stretch of Oakridge Lane is part sealed unclassified road, part already recorded BOAT, and part BOAT to be added by a 2009 modification order. Those two lengths of BOAT together are about 1430 yards in length (measured crudely from online mapping).
North of the length of road in dispute is another stretch of BOAT, leading up to Watling Street, and this is about 480 yards in length.
Between is a stretch of Oakridge Lane of about 120 yards, from E to C on the order plan, which order and plan also address the correct line of a length of public footpath in relationship to The Brook: a discrete issue for the Inspector.
Due to the date of the application to add this road to the definitive map and statement, s.67(2) of the Natural Environment and Rural Communities Act 2006 is engaged, and (in this case) for the way to be recorded as a BOAT it must also have been shown in Hertfordshire County Council’s (HCC) s.36(6) list of streets on 2 May 2006. By this date, the council’s list of streets had been ‘digitised’, and while Oakridge Lane was named and described in a spreadsheet, HCC also maintained a GIS map layer, which, says the council, is part of the list of streets. This map layer, by an admitted human error, showed the maintainable highway a short distance off the historical line towards the east, in the 120-yard area in dispute. This route on the GIS layer is referred to as ‘the magenta line’, but caution, as a magenta-like colour is also used in the order plan to indicate a length of footpath.
This error, said HCC, engaged the extinguishment provisions of NERCA 2006 such that this length of the true line of Oakridge Lane could now only be recorded as a restricted byway. In a decision letter of 9 October 2012 (FPS/M1900/7/67), Inspector Michael Moffoot agrees. The Trail Riders Fellowship (TRF) challenged the Inspector’s decision by statutory application to the High Court, and the Secretary of State (SoS) consented to judgment, remitting the order back to a fresh inquiry, with a different Inspector. This time it was Inspector Susan Doran.
Anticipating further difficulties due to NERCA’s being so deeply embedded here, the TRF based its new submissions on counsel’s advice, and there followed two public inquiries, two interim decision letters, a further set of written submissions, and a final decision letter of 6 December 2016 (FPS/M1900/7/67RM2). Mrs Doran held to the line of accepting HCC’s view that their GIS layer was and is a component of the list of streets, and the admitted erroneous plan trumps the written description in the list.
The TRF once again issued proceedings against the SoS who, this time, did not concede. The case was heard by HH Judge Holman on 12 July 2017, with Adrian Pay for the TRF, and Mark Westmoreland Smith for the Secretary. Judge Holman normally sits in the Family Division, and he told the court that he had ‘never heard of the Wildlife and Countryside Act 1981 before’, but he plainly picked up the issues quickly as Mr Pay opened his case.
The Judge’s asides were illuminating (noted down as spoken), including ‘… can’t lose an ancient right because someone puts their felt-tip pen in the wrong place’, and he showed frustration at needing to decipher Mrs Doran’s hand-annotated order as confirmed: ‘… funny little hand-written bits in red.’ DEFRA’s Mr Hepburn was in attendance, and so it will be illuminating to see if that clear message gets back to Bristol.
The Judge also commented on the sheer size and scope of the first instance judgment in Fortune, adding in his judgment at , “Pausing there, one can only gaze in awe and wonderment at the mighty first instance judgment of His Honour Judge McCahill QC in Fortune …”
HH Judge Holman in his ‘analysis’ goes immediately to the nub. While the TRF argued that the Inspector should not give the GIS layer any sort of ‘veto’ effect over the written list, the Judge agrees with the Inspector  where she finds in her decision that she, “must have regard to what the council says is its LoS,” and continues, “I agree also that ‘the details contained in the GIS layer’ cannot be treated as ‘irrelevant’ or be wholly disregarded.”
But here, says the Judge, Mrs Doran goes wrong, and her reasoning contains a non-sequiter leading to an error in law.  “The non sequitur and error is that the inspector then jumped from not treating ‘the details’, viz the precise alignment of the magenta line, as ‘irrelevant’ to making them decisive. In the process, although she had correctly recognised differences between a LoS and a DMS in paragraph 17 of her Order Decision, she treated the map within the LoS as if it was required to contain, and did contain, the cartographic accuracy and precision of a DMS; and treated it as ‘conclusive’, although a LoS is not required to include any map at all.”
Further, Judge Holman finds  that the thin magenta line “… is only intended to identify, and not precisely to delineate, a given ‘street’. In the bottom right‑hand corner of the map are a number of residential streets. The thin magenta line passes through the middle of each such street but does not colour in the whole width of the street. The magenta line over the lower parts of Oakridge Lane (roughly between points E and F) does not colour in the whole width of the lane as clearly printed on the map. At various points where the lane borders the brook the magenta line has obviously been imprecisely drawn and in places runs up the middle of the brook itself. All this is consistent with the purpose of a LoS which is essential to identify and record which streets are maintainable at public expense, but not, in contrast to a DMS, precisely to delineate them.”
 “The requirement of section 67(2)(b) of NERCA is simply that immediately before commencement the way ‘was shown in a list required to be kept under section 36(6) …’ The descriptive list in list form, now at bundle page 56, clearly does ‘show’ and describe a continuous way from beyond or south of point F to point A, and the map at page 60 clearly depicts a continuous path twice labelled as ‘Oakridge Lane’. In my view, the whole of Oakridge Lane was patently ‘shown’ in the LoS, and section 67(2)(b) neither requires nor justifies the decisive concentration which the inspector gave to the precise course of the magenta line on the map. This led her to reach a conclusion which is, frankly, perverse and which Parliament cannot have intended.”
HH Judge Holman notes at , “I have no power other than to quash, and I cannot substitute any amended or alternative form of order. However, if this matter is further considered by the same or another inspector, she or he must clearly have regard to the contents of this judgment.” The Judge and counsel discussed in court the terms of an order (should such be made), with counsel invited to provide additional submissions later. The scope for partial quashing of, variously, an Inspector’s decision, or the order itself, is still quite often a matter of difficulty. Here the Judge simply quashes the Inspector’s decision on the order route from C to E, and remits this back to the SoS for redetermination. This was certainly a pragmatic outcome as it avoids the need to revisit the footpath elements in the order, and the undisputed BOAT parts.