Alan Evans recently appeared in the Court of Appeal in the case of Roxlena Ltd. v Cumbria County Council [2019] EWCA Civ 1639.  The case is required reading for applicants seeking orders to modify the definitive map to add previously unrecorded rights of way, landowners affected by such applications and by surveying authorities whose duty it is to make the necessary decisions under the Wildlife and Countryside Act 1981. In the case Alan successfully defended Cumbria County Council against a wide-ranging legal challenge to a decision to make an order adding to the definitive map for Cumbria a large number of footpaths and a bridleway in woodland, owned by Roxlena, near Brampton in the north of the county. The long history of the case (which is unusual even by the standards of the protracted disputes which sometimes feature in rights of way cases) culminated in a judicial review of the County Council’s decision by Roxlena. Alan successfully resisted the proceedings in the Planning Court ([2017] EWHC 2651 (Admin)) and was again able to secure a successful outcome for the County Council in the Court of Appeal.

The case explores several important issues across the breadth of the decision-making process:

  • The degree of precision required in showing routes on the definitive map;
  • The correct approach to the “reasonably alleged to subsist” test in section 53(3)(c)(i) of the 1981 Act;
  • The scope of the surveying authority’s duty to “investigate the matters stated in the application” under paragraph 3(1)(a) of schedule 14 to the 1981 Act; and
  • How the requirements of “discovery … of evidence” in section 53(3)(c) of the 1981 Act and the free-standing duty of surveying authorities under section 53(2(b) to keep the definitive map “under continuous review” apply (and interrelate) where a first application is not progressed to a decision on account of procedural shortcomings but is then followed by a second application seeking to rely only on exactly the same user evidence which supported the first application.

A full copy of the decision is available here.


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