Martin Wilkins & Anor v Secretary of State for Environment, Food and Rural Affairs

Deputy High Court Judge Karen Ridge:

1. This is the Claimants’ application under Paragraph 12 of Schedule 15 of the Wildlife and Countryside Act 1981 (the WCA 1981 ) to challenge the First Defendant’s decision, made on 16 October 2024, to confirm the “Kent County Council (Restricted Byway AB27 at Tenterden) Definitive Map Modification Order 2021” (the Order). That Order recorded the width of Restricted Byway AB27 (RB/AB27), and modified the Definitive Map and Statement for Kent by amending the description of RB/AB27, so as to record its width as depicted in the Order plan and described in the Order schedule. The Background

2. The Claimants are the owners of Morghew Park House in Tenterden, Kent. And RB/AB27 passes by their property. The First Interested Party, Kent County Council, are the Order Making Authority (OMA). The Defendant is the decision maker responsible for deciding whether Orders made by the OMA, under relevant powers, should be confirmed. Mr Lewis, the Second Interested Party (IP2), is the neighbouring landowner who resides at the Morghew Park Estate in Tenterden, Kent. Mr Lewis participated in the proceedings leading to the making and the confirmation of the Order and the associated applications related to RB/AB27.

3. On 1 December 1952 RB/AB27 was recorded on the first definitive map as a Road used as a Public Path (RUPP).

4. In 2006, the Natural England and Rural Communities Act 2006 brought into force certain provisions of the Countryside and Rights of Way Act 2000 . By that legislation all RUPPs were reclassified as restricted byways. Restricted byways are highways over which the public is entitled to travel on foot, horseback, and with non-mechanically propelled vehicles (such as pedal cycles and horse drawn vehicles).

5. Sometime in 2015 the Claimants instructed a Rights of Way consultant, Mr. Robin Carr, to produce a detailed report investigating the history of RB/AB27. In that report (the Carr Report) dated 5 September 2019 Mr. Carr concluded, amongst other things, that RB/AB27 was originally claimed as a Carriage Road Footpath (CRF). Mr. Carr opined that this suggested that it was predominantly used by pedestrians and had not been subject to public rights for mechanically propelled vehicles. The route was claimed as a Carraige Road Footpath, but that term does not occur in the National Parks and Access to the Countryside Act, 1949 and Kent County Council recorded the route as a RUPP. There had been no objections to the inclusion of RB/AB27 on the Definitive Map, so it remained on the records as a RUPP. As a result of that report the Claimants made a series of applications for modifications to the Definitive Map. The Carr Report

6. In his report, Mr Carr explained that: “RB/AB27 was subject to cattle grids with gates across them, and associated pedestrian bypass gates, and had been for some considerable time. As a result, RB/AB27 and RB/AB28 were inaccessible to certain classes of user who would have a legal right to use a restricted byway.”

7. Mr Carr had concluded that RB/AB27 had not been subject to public rights for mechanically propelled vehicles prior to the 2006 reclassification. Consequently, Mr Carr concluded that the reclassification of the route to Restricted Byway had, in fact, imposed new and additional public rights (for at least non-mechanically propelled vehicles) over RB/AB27 and that such users were unable to use the route because of the cattle grid arrangements which had been in place for at least a number of decades without any complaint. The Claimants were then advised to submit a series of applications to reflect what, Mr Carr opined, was the correct position.

8. In relation to the history of the Order Route, the Carr Report said this: “Section D-C of RB/AB27 15.2 This section of RB/AB 27 is bounded on both sides by fencing and trees with a ditch (predominantly silted up) to each side of the made-up road. What are now trees may have originally been planted to form a hedge line. Whilst it is not possible to confirm it by reference to the documentary evidence, I consider it likely that the ditches were formed at the same time as the roadway was set out. The boundary trees etc were probably also planted at this time. (predominantly silted up) to each side of the made-up road. ” 15.3 It is clear from the Ordnance Survey mapping [App 9/pg 38-39] that all of these features existed prior to the period during which I have concluded that public rights were established (1900– 1949). As a result, it cannot be said that these boundary features were set out by reference to the highway. Therefore, in my opinion the “boundary to boundary” principle will not apply to this section (D-C on Plan 1 [APP 1/pg 1]) of RB/AB/27. … Section A1-A on RB/AB27 15.14 This section of RB/AB27 appears, by reference to the 1871 – 1908 Ordnance Survey Maps [APP9/pg 38-40] to have been bounded on both side by physical boundary features, however the later maps [APP 9/pg 41-45] suggest that these features were removed. Notwithstanding this, it is currently bounded, in part by a retaining wall to the south and fence to the north. Given the close proximity of the boundary features to the made-up surface of the road it is likely, in my opinion, that the “Boundary to boundary” principle may apply to this section” The 2019 Definitive Map Modification Order (DMMO) applications

9. On 14 January 2019 the Claimants applied for a DMMO seeking to record the existing gates on RB/AB27 as a limitation on use on the DMS (the historic limitations application) . A further DMMO application was then made on 18 April 2019 to downgrade Restricted Byways AB27 and AB28 to Public Footpath Status, on the basis that no public rights higher than footpath had ever existed Application number: PROW/AS/C412 . Application number: PROW/AS/C419

10. A third application for a DMMO was made on 7 October 2019 and that was to add a width to the definitive statement . It is this application, and the decisions which followed in relation to it, which form the subject of this claim. The Claimants point out that the width application and the historic limitations application had materially the same evidence base. Application number: PROW/AS/C430

11. A further application was submitted on 24 February 2020 by the Claimants seeking to modify the DMS by amending the alignment of public footpath AB35 . Application number: PROW/AS/C437

12. There was a delay by the OMA in issuing a decision on the historic limitations application and subsequently the Defendant’s Inspector directed the First Interested Party (IP1) to determine it. The Delegated Report of the OMA

13. All four modification applications were determined by IP1 on the 9 July 2021 and followed the recommendations in a delegated report. That report took into account submissions made by IP2, Mr Lewis, who also sent in two statutory declarations from local residents who provided evidence regarding the route and its use since 1930. Relevant conclusions from the report included the following: “87. Taking the evidence as a whole, there is nothing to suggest that public rights over the entirety of both routes were not established at the same time. The physical nature of both routes is consistent amongst all the documentary evidence. Whilst a specific date when public rights were dedicated cannot be proven, it would be reasonable to conclude that there were public rights over the application routes before the Finance Act 1910 Map was drawn up and, in all reality, long before then, possibly even before the Tithe Map was drawn up. Therefore, the County Council cannot agree with the applicant’s conclusions that public rights were dedicated in the period 1900-1949, as the applicant has failed to submit any cogent evidence to that effect. …

97. … it is considered that a logical methodology and fairly reasonable approach to determine a width, is to scale off the 1st and 3rd Edition OS Maps, giving preference to the 3rd Edition’s accuracy where there are differences, essentially using the “boundary-to-boundary” principle where possible.”

14. On the 27 July 2021 the Claimants appealed the decision of the OMA to refuse to make orders in relation to the historic limitations application and the downgrade application.

15. Separately, on the 23 September 2021 the Order dealing with the width application was made. It was published on 22 October 2021 and recorded the width of RB/AB27. An Order made on 2 September 2021 amended the alignment of public footpath AB35.

16. On the 27 October 2021 the Claimants submitted a statutory objection to the making of the Order and as a result the matter was referred to the Defendant. Five key submissions were made, as follows: • the OMA’s findings on when public highway rights were dedicated was disputed; • the widths stated in the order between Point A on the Order Map and the boundary of the Claimants’ land in the vicinity of Point F were disputed; • the Claimants contended that the location of Point D on the Order Plan and the width of the byway at that point should be specified with greater accuracy; • it was submitted that scaling off Ordnance Survey maps for the purpose of ascertaining widths was inappropriate as this cannot be relied upon and is not accurate; and • the plan attached to the Order was called into question, as it was claimed this should have been produced at a larger scale. The First Appeal Decision dated 17 June 2022

17. This appeal was against the OMA’s decision not to make orders to record the gates and to downgrade the restricted byways. On 17 June 2022 Planning Inspector Martin Small dismissed the appeal. That decision is relevant to the claim only insofar as Inspector Small made findings of fact as to when public rights were dedicated. The Claimants rely on the following key finding: “Although a specific date when public rights were dedicated cannot be proven, I find, on the balance of probability in the absence of cogent evidence to the contrary, that public rights for the majority of the route AB27 did not exist prior to 1910 and for section D-C prior to 1929.” The Interim Order Decision (IOD) dated 9 January 2024

18. The Order was submitted to the Planning Inspectorate for confirmation and Inspector Spencer-Peet was appointed to determine the matter. Following a site visit on 12 September 2023, the Inspector issued his IOD on 9 January 2024 setting out his analysis and proposing to confirm the Order with modifications.

19. At paragraph 28 of the IOD decision letter the Inspector made the following findings: “28….However, it does not appear that a specific date when public rights over the route were dedicated can be proven and, irrespective of the above described previous finding that public rights for the majority of the route did not exist prior to 1910, it is noted that the full width between the boundaries has been available for people to use since at least the time of the Tithe Map (1843). As such, whenever the public acquired the rights, people have been able to use the width between the boundaries as depicted on maps and including the Third Edition OS Map (1907-1923). Consequently, in the absence of any evidence to displace the presumption, the boundary to boundary principle applies.”

20. In the IOD the Inspector made further key findings as follows: “29. Furthermore, and although a specific date when public rights over the route were dedicated cannot be proven, the physical layout of the Order route has not changed significantly between the time of the Tithe Map (1843) and the Third Edition OS map (1907-1923). The Third Edition OS map would have been published following an accurate survey of the physical features present at the date of the survey and as noted above, this edition was used as the base mapping for the Finance Act (1910) map. As such, it would be reasonable and appropriate to scale up from the Third Edition OS map (1907-1923) given the reliable nature of the details contained thereon.”

21. He went on to conclude that it had not been necessary to consider whether the principle of a “reasonable width” should be applied in light of his conclusion that it was reasonable to scale off measurements from the Ordnance Survey (OS) maps in order to define the width of the Order route. He had come to his conclusions on scaling off OS maps because the recent ground survey measurements had not been supported by documentary evidence FOD30.

22. The Claimants then lodged an objection to the IOD on the 19 March 2024. The objections contended that: the Inspector had misinterpreted the law and evidence in defining the boundaries of the highway; reference should be made to the maps as originally published by the OS, rather than computer generated composites; and the width of the route should be defined as a reasonable width of 3 metres. Representations on the IOD

23. The Claimants made further representations to the Inspector following the issue of the IOD. Those maintain their position that the Inspector erred in defining the boundaries of the highway using the boundary to boundary presumption.

24. Sue Rumfitt Associates, acting on behalf of Mr Lewis also submitted comments on the Claimants’ Statement of Case. Ms Rumfitt said that the Claimants contention that there was no evidence that the public had used the land was incorrect. She pointed to the existence of the later unauthorised cattle grids across part of the width of the carriageway being strongly supportive of the width being greater than that argued by the Claimants. Her contention was that at least at the time the grids were installed in around 1971, then the landowner must have considered that the width of the carriageway highway included the verges generally.

25. Ms Rumfitt also highlighted the evidence within the statutory declarations of Mrs Evelyn Luck and Mr Beach as to the nature and extent of use of the highway since the 1930s. The case put to the Inspector on behalf of Mr Lewis was that the Inspector need not concern himself with the boundary-to-boundary principle because the user evidence was sufficient to establish the lateral extent of the order route. The Final Order Decision (FOD) of 16 October 2024

26. The FOD was issued on 16 October 2024 and it confirms that it should be read in conjunction with the IOD of 9 January 2024. After setting out various procedural requirements, and the objections of the Claimants, the Inspector went on to define the main issue as follows: “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.”

27. Dealing with the objectors’ (i.e. the Claimants) contention that his approach with regard to the date of dedication should be consistent with that of Inspector Small, the Inspector maintained his original conclusions: “ 7. The Objector has put it to me that a consistent approach must be taken with regards to when dedication of the route occurred and that it would be unreasonable to make a finding now, in the matter of the date of dedication, which differs from that previously found within the abovementioned appeal decision. Furthermore, and in that respect, it is maintained that it is impossible for any structure shown to exist before 1929 for the route section A-B-C on the Order plan and before 1910 for the route section C-D-E-F-G-H on the Order plan, to have been set out with reference to the highway and that, consequently, the boundary to boundary principle cannot apply here.

8. It will be seen from my IOD that I have noted the finding of the Inspector in the abovementioned previous appeal decision and have also noted that the OMA maintained that dedication occurred around the time of the production of the Tithe Map. The finding contained within my IOD was that, irrespective of the previous finding that public rights for a majority of the route did not exist prior to 1910, the full width between the boundaries had been available for people to use since at least the time of the Tithe Map. Consequently, irrespective of the previous finding, people have been able to use the width between the boundaries as depicted on maps including the 25 Inch Third Edition OS Map sheets (1907-1923):”

28. In relation to the submissions regarding the unreliability of scaling off OS maps, the Inspector said this: “11. The Objection further maintains that the maps from which the measurements of width would be taken are only accurate to within +/- 5 metres over a 100 metre length. As such, it has been put to me that it would not be appropriate to scale off from maps in order to determine the width of the route.

12. Whilst I acknowledge those submissions, in respect of the width of a route it is likely that the level of accuracy would be significantly greater than the margin of +/- 5 metres over a 100 metre length as put to me in the objection. Furthermore, the accuracy of OS maps generally has been confirmed by the Courts, indicating that the OS has, through its long history, had a reputation of excellence in that regard. I therefore do not find that it would be inappropriate to scale off the measurements from the 25 Inch Third Edition OS map (1907 1923).”

29. In paragraph 15 the Inspector summarised his conclusions as follows: “…there is no substantive evidence before me that the public did not or could not use the whole width between the boundary features as shown on the 25 Inch Third Edition OS map. On the contrary there is some evidence as described above which suggests that the public did use the full width between the boundaries. In the absence of any other evidence which clearly confirms the width of the route, and given the reliable nature of the details contained within OS maps, it would be appropriate and necessary in the circumstances to define the width of the Order route with reference to the 25 Inch Third Edition OS map sheet references Kent LXXI.16, Kent LXXIX.4 and Kent LXXIX.3, published in 1908.”

30. The FOD was published on 20 December 2024 in accordance with the statutory provisions within Schedule 15 of the Wildlife and Countryside Act 1981 . The Order was confirmed on the basis that the width for RB/AB27 should be recorded on the DMS as “a width as shown on the 25 Inch Third Edition Ordnance Survey map sheet references Kent LXXI.16, Kent LXXIX.4 and Kent LXXIX.3, published in 1908”. These proceedings

31. The Claimants issued the claim on 29 January 2025. They seek to challenge the FOD on three grounds, namely: the Inspector misdirected himself as to the correct legal test in relation to application of the boundary-to-boundary principle and he failed to have regard to guidance on determining the correct widths for PROW; that the Inspector departed from the findings of fact of Inspector Small without evidence; and further or alternatively that the Inspector erred by applying the boundary-to-boundary principle.

32. The Defendant resists the claim in its entirety and contends that the witness evidence of Mr Carr dated 29 January 2025 is inadmissible in part given that it is expert opinion and does not comply with the requirements of CPR 35. The Defendant further submits that the issues in the case do not require expert evidence in order to reach a determination and that the further evidence adduced was not before the Inspector. Paragraphs 18-29

33. The Claimants invite the Court to refuse to grant the request sought by the Defendant which would require paragraphs 18-29 of the witness statement of Mr Robin Carr to be removed and the witness statement re-served. They submit that those paragraphs contain admissible evidence of fact which is central to the issues raised in this statutory challenge.

34. The OMA, (the First Interested Party), has filed its acknowledgement of service form indicating that it wishes to remain neutral. It took no part in the hearing of this matter. The Second Interested Party (IP2), Mr Lewis, supports the Defendant’s position and was represented at the hearing before me. The Legal Framework

35. Section 53(2) of the WCA 1981 imposes a duty on the OMA to keep the definitive map and statement (DMS) under continuous review and “by order, to make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in subsection (3).”

36. Section 53(3) (c)(iii) provides that one of the specified events is the “ discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows… 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.”

37. The test therefore for a decision-maker when applying s53(3) (c)(iii) is whether there is discovered evidence which, when considered with all other relevant evidence available, shows that any particulars contained within the DMS require modification.

38. Paragraph 12 of Schedule 15 to the WCA 1981 provides that a person aggrieved by any order purporting to have been made pursuant to s53 may apply to the High Court to question its validity on the ground that it is “not within the powers of s53 .” If satisfied that the order is not within the powers of s53 , the High Court will quash the order, or any provision of the order, either generally or in so far as it affects the interests of the applicant.

39. It is established that a decision infected by legal error will not be within the powers of s53 , Berry v Secretary of State for the Environment, Food and Rural Affairs [2005] EWCA Civ 1597 . Admissibility of witness evidence

40. As to the dispute regarding the admissibility of paragraphs 18-29 of Mr Carr’s statement, Dr Stedman Jones, on behalf of the Claimants, summarises and relies upon the relevant legal principles as set out in Kirkman v Euro Exide Corporation [2007] EWCA Civ 66 . Kirkman differentiated between professional advisors providing evidence as to facts rather than statements which provide expert opinion, whilst acknowledging that such a distinction might not be immediately obvious.

41. On the basis that Mr Carr’s evidence is not opinion evidence, Dr Stedman Jones submits that the court may consider that evidence since it provides background and context in which the issue of law arises. R (Al-Sweady) v SSD [2009] EWHC 2387 (admin) at §23. Dedication and the Boundary to Boundary principle

42. A way becomes a highway by virtue of the doctrine of dedication by the owner of a right of passage to the public, and the acceptance of such a right, which is generally by actual use of the way by the public. Dedication may be, and commonly is, inferred from the conduct of the landowner which is such as to lead the public to infer that he was willing for the public to have a right of passage. Both dedication and use by the public must occur to create a common law highway. See Fortune v Wiltshire Council [2013] 1 WLR 808 at paragraphs 11 – 14 and Halsbury’s Laws of England (Vol. 55 – Highways) paragraphs 141 143 and 149).

43. The boundary to boundary principle is the presumption that a highway extends over the whole space between its boundaries. The presumption only applies when the boundaries were erected by reference to the highway. As Goff J explained in Attorney General v Beynon [1969] 2 WLR 1447 : “12. … It is clear that the mere fact that a road runs between fences, which of course include hedges, does not per se give rise to any presumption. It is necessary to decide the preliminary question whether those fences were put up by reference to the highway, that is, to separate the adjoining closes from the highway or for some other reason.”

44. The correct legal approach to the boundary-to-boundary principle is set out by Chadwick LJ in the Court of Appeal case of Hale v Norfolk County Council [2001] Ch 717 “33 It seems to me much less clear that there is any foundation for a presumption of law that a fence or hedge which does, in fact, separate land over part of which there is an undoubted public highway from land enjoyed by the landowner has been erected or established for that purpose. It must, in my view, be a question of fact in each case. To take an obvious example: there could be no room for any such presumption unless the highway predated (or was contemporary with) the fence or hedge. If it were unknown which came first, I can see no reason in principle for making an assumption—or adopting a presumption—that the landowner fenced against the highway rather than that the highway followed the line of the existing fence. Whether it is right to infer, as a matter of fact in any particular case, that the landowner has fenced against the highway must depend, as Lord Russell of Killowen CJ observed in Neeld v Hendon Urban District Council 81 LT 405, 409 on the nature of the district through which the road passes, the width of the margins, the regularity of the line of hedges, and the levels of the land adjoining the road; and (I would add) anything else known about the circumstances in which the fence was erected. If nothing is known as to the circumstances in which the fences were erected, the fact that the soil of a highway and the adjoining land on each side was once in common ownership and that the highway is separated from the adjoining land by continuous fence lines may well enable a court properly to infer that the landowner has fenced against the highway; that is to say, "that the fences may prima facie be taken to have been originally put up for the purpose of separating land dedicated as a highway from land not so dedicated", per Vaughan Williams LJ, at p 410. But it is, I think, wrong to treat the remarks of Vaughan Williams LJ in Neeld's case as authority for a presumption of law that, whenever it is found that a highway runs between fences, the fences were erected for that purpose. ”

45. LJ Chadwick was careful to point out in Hale that one must draw appropriate inferences about the intentions of the landowner with regards to dedication of any land from the facts that are known about the circumstances in which the boundary features were erected. So, the question as to whether the boundary features were erected by reference to the highway is a matter of fact to be resolved on the individual facts of the case.

46. Dr Stedman Jones contends that where it is either (1) unknown whether the boundary features pre-dated the highway, or (2) established by the evidence that the boundary features pre-dated the highway, there is no scope for the boundary-to-boundary presumption to be raised. Further, Dr Stedman Jones says that where the boundary-to-boundary presumption is engaged, its effect is that (absent evidence to the contrary) the width between the boundary features is taken to be dedicated as the width of the highway. Challenges to decisions

47. There are a number of key principles established by the courts when considering a challenge to the decisions of Planning Inspectors. Excessive legalism has no place in planning and the courts should always resist over complicating concepts that are basically simple (per Lindblom LJ in East Staffordshire BC v SSCLG [2018] PTSR 88 at para. 50; St Modwen v SSCLG [2017] EWCA Civ 1643 at para. 7).

48. The courts should respect the expertise of specialist planning inspectors who are tasked with resolving disputes between planning authorities, developers, and others and are in some ways analogous to expert tribunals. It should start from the presumption that they have properly understood the relevant statutory scheme and policy/guidance ( Hopkins Homes Ltd v Secretary of State [2017] 1 WLR 1865 per Lord Carnwath at para. 25).

49. It is also established that decision letters are to be read benevolently and as a whole, in a reasonably flexible way. Because they are written principally for parties well-aware of all of the issues involved and of the arguments deployed at the inquiry, it is not necessary to rehearse in the decision letter every argument relating to each matter ( Seddon Properties v SSE (1981) 42 P. & C.R. 26, per Forbes J. at p.28). An adverse inference that the inspector misunderstood something or failed to have regard to it will only be drawn where all other known facts and circumstances point overwhelmingly to that conclusion ( South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 at paras. 34-35).

50. There is a difference between a challenge based on misinterpretation and a challenge based on the application. Matters of application are matters of judgment and are within the exclusive jurisdiction of the decision-maker. They are not for the court. A public law claim does not afford an opportunity to review the planning merits of the first instance decision ( Bloor Homes Ltd v Secretary of State [2017] PTSR 1283 per Lindblom J (as he then was) at para 19(3)). Other Guidance

51. Both parties also refer to the DEFRA guidance ‘Non statutory Guidance on the recording of widths on public path, rail crossing and definitive map modification orders’, dated 12 February 2007 which says: “Definitive Map Modification Orders Unlike public path orders and rail crossing orders, DMMOs do not extinguish or create rights; instead they merely record them. DMMOs are determined according to the evidence available. Widths should be included in all DMMOs and these widths should also be based on the available evidence. For this reason, where the evidential source is vague or approximate then it may be appropriate for the recorded width to reflect that fact. For instance, an historic document may refer to a width of “20 feet or thereabouts” or “30 feet at the least”. In such cases it may be appropriate for OMAs to draft the order in similar terms. Care should be taken to distinguish between the legal width of the highway and specific “making up” requirements. In some cases the width of a route to be recorded may be based on the depiction of the route on an historic plan or map. For instance, the way may be shown as excluded from taxable hereditament on a Finance Act 1910 map. The approach suggested in Illustration 3 above, of shading the relevant area on the order plan, could be used or, alternatively, the schedule could refer to the width of the way as being “that shown excluded from the hereditament on the Finance Act 1910 map”. In some circumstances it may be appropriate to refer similarly to specific Ordnance Survey plans or maps based on them. OMAs will be aware that that it may not be appropriate to scale off precise measurements from such maps. However they will provide valuable indications of where the width varies significantly. There will be a small number of cases where there is little if any evidence, either documentary or user, as to the width of the route. In such cases the OMA should include a width that appears appropriate having regard to all relevant factors which may include, for instance, the type of user, location and the nature of the surface and other physical features. OMAs should bear in mind that such a width should be the minimum necessary for the reasonable exercise of the public right in these circumstances, enough for two users to pass in comfort, occasional pinch points excepted. Precision The regulations do not prescribe the degree of precision to which widths should be stated in orders and thus it is open to the OMA to use their discretion in this area. Nonetheless, it seems desirable to establish a consistent standard of precision to be used. It is thus recommended that widths are normally quoted rounded up or down to the nearest 0.1m. Measurement to such a degree of precision is easily achievable in most circumstances using a standard tape measure.”

52. The Planning Inspectorate (“PINS”) guidance, entitled “Widths on Orders”, is consistent with the DEFRA Guidance. It makes clear that it clarifies PINS position on the need for widths to be shown on all definitive map orders, but states expressly that the PINS guidance has no legal force and is not an authoritative interpretation of the law. It notes that under DEFRA Circular 1/09 the width of a path should be included in the order schedule, and that the “effective future management of the rights of way network and land over which the rights of way pass requires that widths of routes are recorded as accurately as possible”, but notes that the extent to which that is feasible may vary depending on the type of order, and that in applying the advice inspectors will need to take into account the nature of the order under consideration and the specific circumstances of the case.

53. Dr Stedman Jones also points to the OMAs own guidance, the ‘Countryside Access Design Standards Path Widths and Heights’ Guidance which provides: “In the event that a width cannot be established by [checking the Definitive Statement, DMMOs, mapping evidence, boundary-to-boundary principle, etc], the following table provides guidance as to what the County Council would normally expect to be available for public use. …and later… In cases where the path runs between two established boundary features, such as a hedge or a ditch, the whole width between them can be presumed to be available, so long as they were laid out in reference to the highway.” The Admissibility of Mr Robin Carr’s Witness Statement dated 29 January 2025

54. The Carr Report of 5 September 2019 and Mr Carr’s letter of 19 March 2024 which objected to the making of the Order were before the Inspector and are in evidence. The witness statement was filed during the course of these proceedings and was not before the Inspector. Paragraphs 1-17 of the witness statement set out a chronology of events and are not contentious. Paragraphs 18-19 are statements of fact as to the contents of his report and the basis for his conclusions within the Carr Report. I am going to admit those paragraphs into evidence. Paragraphs 20-28 are more problematic. Paragraph 20 is a straightforward disagreement with the FOD decision maker and paragraphs 21-28 continue with a critique as to that decision.

55. Helpfully I have been referred to relevant caselaw. In the case of Kirkman the court was careful to make the distinction between expert opinion and factual evidence given by someone with relevant expertise. Mr Streeten has referred me to R (Law Society) v Lord Chancellor [2019] 1 WLR 1649 per Leggatt LJ at paragraph 36 and R (Public and Commercial Services Union) v Secretary of State for Home Department [2022] EWHC 517 (Admin) at paragraphs 22 – 30. He submits that the evidence in the disputed paragraphs is not reasonably required to determine the issues which arise. I agree with that submission, the relevant material which was before the decision maker is in evidence and submissions have been made about the matters in dispute.

56. Whilst much of the critique in paragraphs 21-28 relies on, and repeats previous submissions to the OMA and Inspector, it is argumentative and coming, as it does from the Claimants’ expert advisor, it crosses the line into expert opinion. I am satisfied that the content of paragraphs 21-28 is not reasonably required to determine the issues arising and it is inappropriate in a public law challenge. It would be unfair to the other parties to admit paragraphs 20-28 into evidence given that this evidence was not before the original decision maker and the contents stray into expert opinion or commentary on the final decision. Mr Carr was essentially seeking to justify and reinforce his earlier expert opinion.

57. For the above reasons I have excluded the evidence in paragraphs 20-28 from my analysis. The Grounds of Challenge Ground 1- misdirection in law

58. 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.

59. 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.

60. 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.

61. 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.

62. 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.”

63. 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.

64. 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.

65. 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. Analysis

66. 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.

67. 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.

68. 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.

69. 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. ”

70. 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.

71. 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.

72. 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.

73. 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.

74. 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.

75. 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.

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

77. The Inspector’s own findings and conclusions commence at IOD28. He makes the following findings: • A specific date for dedication of public rights over the route cannot be proven ; • Irrespective of Inspector Small’s finding (that public rights did not exist prior to 1910) the Inspector noted that the full width between the boundaries had been available for people to use since at least 1843 (the Tithe Map date); • Whenever the public acquired the rights, people have been able to use the width between the boundaries as depicted on the 3 rd Ed. OS Map (1907-1923); [IOD28]; • In the absence of any evidence to displace the presumption, the boundary to boundary principle applies; • The physical layout of the route has not changed significantly between the Tithe Map of 1843 and the 3 rd Ed. OS Map; • A series of findings regarding the historical evidence regarding the width of the route.

78. 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.

79. 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.

80. 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.

81. 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.

82. 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.

83. 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.

84. 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.

85. 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.

86. 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.

87. 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.

88. 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.

89. For all of the above reasons the Inspector did not misdirect himself in law and ground 1 fails. Ground 2- departure from previous findings

90. 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.

91. 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)”.

92. 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.

93. 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.

94. 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.

95. 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. Analysis

96. 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.

97. 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.

98. 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.

99. 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.

100. 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.

101. 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.

102. For the above reasons ground 2 is rejected. Ground 3-Irrationality

103. 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.

104. 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.

105. 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.

106. 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.

107. 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.

108. 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. Analysis

109. 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.

110. 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.

111. 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.

112. 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.

113. For all of the above reasons ground 3 is rejected. Conclusion

114. The claim for statutory review is dismissed.