2.13, Although the Booklet has no legal force, it does indicate the legitimate expectations of the public attending local public inquiries. Implicit in its publication is recognition that Parliament intended inquiries to provide an opportunity for public participation. However, though Parliament probably regarded them as opportunities for mainly local people to express their views, increasingly organisations and individuals from further afield have become involved. Nowadays, it is not uncommon for statutorily recognised organisations to seek to ensure that local views are aligned with their national policy objectives. Other opinion may, or may not, coincide with local perception.

Challenge

2.14, Decisions on WCA 81 Orders are increasingly likely to be challenged in the Courts. At one time, the principal grounds were whether the Inspector was mistaken in law or had come to a conclusion which no reasonable person would have come to on the evidence (i.e. ‘Wednesbury¹ unreasonableness’). However, ‘the conduct of the inquiry’ is now also being included in the grounds of challenge. An Inspector should therefore make a note, at the time, both of any incidents which could later result in a complaint and of any departure from the procedure contained in the Booklet. If a point relating to the conduct of the hearing or inquiry is raised, the Inspector should clarify whether an adjournment is sought without necessarily acceding to it. If an adjournment is not sought, or if a decision to refuse one is not challenged, this should limit the scope for a subsequent complaint to the High Court that the complainant did not have the opportunity to present his or her case fairly.

Cross-Examination

2.15, One area of potential misunderstanding is ‘cross-examination’. It is properly the purpose of the questioner to seek to discredit either the factual evidence or the assumptions of an opposing witness, but the exchanges should not be allowed to become aggressive. Questions may address not only matters of fact or assumptions introduced by the witness, but also similar matters which might reasonably be thought to be within the witness’s compass, even if the witness has not raised them. However, the questioner’s own opinions should not be introduced into these exchanges; the time to hear them is when the questioner’s own case is presented.

2.16, It is a good general rule that only opposing parties should be allowed to cross-examine each other’s facts and assumptions. However, a potentially damaging difference may appear to arise between those otherwise on the same side. In such a situation, to clarify any apparent misunderstanding, the Inspector should allow questioning from an otherwise friendly party. Such questioning is generally best conducted through the Inspector. Where, exceptionally, cross-examination (or rather questioning in elucidation) by a friendly party is permitted, it should precede the cross-examination by opposing parties

2.17, This technique should also be used when a member of the public who does not intend to give evidence wishes to challenge a fact or assumption that has been put before the hearing or inquiry. Sometimes, the person concerned finds it difficult to frame purposeful and incisive questions or to differentiate between a statement and a question. In such a situation, once the point at issue is established, the Inspector may usefully paraphrase what the questioner has said, so that the point of the question is clear.

Consideration of Evidence

2.18, An analysis of hearing or inquiry evidence usually comprises three stages: the identification of fact, the derivation of an inference from that fact, and an assessment of the evidential weight of the inference.

Identification of Fact

2.19, When a document is introduced at a hearing or inquiry, the facts it contains become [inquiry] evidence, whether relied upon by the witness or not. Consequently, it is necessary to consider the portion of the document on which the witness relies, not by itself, but in context. Similarly, it is necessary to study maps carefully to see whether the feature relied upon is supported by other information on the map. As Mummery L J said in O’Keefe^{Footnote 2} ... it is important to read all the documents ... as a whole and not to examine passages taken out of context. If appropriate, Inspectors should attempt to resolve any apparent inconsistency by questioning the witness who introduced the document. Such additional evidence can often be of value to the Inspector later, when considering the issues. s32 of Highways Act 1980 (HA 80) indicates how the Inspector should evaluate a document as a whole and determine the weight to give to the facts derived from it.

Inference

2.20, More often than not documentary evidence will not supply a seamless array of facts leading to a confident conclusion. In such cases, gaps in evidence may be bridged by the use of one or more of a number of legal presumptions. One of them is contained in the maxim: Once a highway, always a highway^{Footnote 3}. As noted in Christine Willmore’s 1993 Rights of Way Law Review (RWLR) article^{Footnote 4} this presumption must prevail unless some legal event causing the highway to cease can actually positively be shown to have occurred. Another – what is termed the ‘presumption of regularity’ - can be invoked where there is a lack of evidence on whether proper legal procedures were followed. This presumption is well explained in a paper entitled ‘Documentary Evidence’, prepared in July 2002 by Christine Willmore, a Barrister and lecturer in Law.

2.21, An approach to the application of an inference derived from evidence was suggested by McCullough J in ‘ West Yorkshire MCC v Harry Brown’ (1983). The decision-maker should give ... careful consideration of what should prima facie be drawn from a fact and then see whether, upon consideration, this should be rebutted or whether it should ripen into an inference upon which further conclusions may in turn be based. However any inference must be tested against other hearing or inquiry evidence. No matter how reasonable the inference drawn, it is generally no more than a rebuttable presumption. For example, it may have been argued that a commercial property owed its siting to the prior existence of a thoroughfare which provided access. It would follow that this thoroughfare was probably a highway (the terms are not synonymous). If the commercial activity necessitated the use of wheeled traffic, the highway could probably be a public carriageway. This persuasive reasoning would lead to a rebuttable presumption that, in the context of WCA 81 Orders, Byway Open to All Traffic (BOAT) would be the appropriate status if the classification of the way meets the test (Masters^{Footnote 5}). However, if subsequent hearing or inquiry evidence showed that the premises pre-dated the thoroughfare, the hypothesis would be undermined. If this occurred, conclusions drawing on the original inference might also be unsoundly based.

Evidential Weight

2.22, When all the material considerations have been identified, the weight attaching to the evidence must be assessed. Most recent case law guidance is to be found in the Hollins v Oldham 1995 (C94/0206, unreported) judgment. Throughout that judgment Judge Howarth followed with approval the “rough guide” set out in ‘Rights of Way: A guide to law and practice’ by John Riddall and John Trevelyan (pages 136-147 in the 3 rd Edition). It provides a good guide for Inspectors.

2.23, There is a distinct and important difference between the ‘cumulative’ and ‘synergistic’ approach to the weighing of evidence. Under the cumulative approach a number of relatively lightweight pieces of evidence (e.g. three commercial maps by different cartographers, all produced within the same decade or so) could be regarded as mere repetition. Thus, their cumulative evidential weight may not be significantly more than that accorded to a single map. If, however, there is synergy between relatively lightweight pieces of highway status evidence (e.g. an OS map, a commercial map and a Tithe map), then this synergy ( co-ordination as distinct from repetition) would significantly increase the collective impact of those documents. The concept of synergism may not always apply, but it should always be borne in mind.

2.24, Halsbury, in ‘Halsbury’s Laws of England’ Vol.17, pages 13-15, covers this topic in detail. The term can be used in two senses: the ‘legal burden’ and the ‘evidential burden’. The burden of producing sufficient evidence will rest initially upon the party bearing the legal burden of proving its case, but as the weight of evidence given by either side changes, so will the evidential burden shift to the party whose case would fail without further evidence. This guidance has two applications in WCA 81 inquiries. For example, it is inherent in s31 HA80, because, if the first limb of the section is satisfied, the burden shifts to the landowner (see ‘Dedication’).

2.25, Section 32 of the Highways Act 1980 requires any court or tribunal to which documentary evidence is adduced to take such evidence into consideration “before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any took, place”. It is also required by that section to give such weight to the document it considers is “justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it was produced.”

2.26, Section 32 is declaratory of the common law. Inspectors should follow it in how they treat documentary evidence. In assessing the value of a document, Inspectors should, for example, take into account evidence of the facts surrounding its creation and its provenance such as, in the case of a private map, the reputation of the person who produced it. The surrounding circumstances may point to a document being of some weight.

2.27, For example, the document may have been prepared by someone acting in a public capacity, the procedures for producing it may have involved external checks or public participation, or what was recorded may be the result of a person acting against his interest. A document may not on its own be conclusive of the status of a way. This may, for example, be because it was prepared merely to record the physical existence of the way or who was responsible for maintaining it. Documentary evidence will often support other such evidence or user evidence and so ought not to be considered in isolation.

2.28, In general, the weight to be attached to documentary evidence is for the Inspector, subject to the administrative law test of reasonableness.

Balance of Probability

2.29, Once all of the evidence has been individually assessed, the ‘balance of probability’ test demands a comparative assessment of the evidence on opposing sides. This is a complex balancing act, involving careful assessment of the relative values of the individual pieces of evidence and the evidence taken together. It is the infinitely variable nature of this assessment which makes WCA 81 case decisions unique.

Reasoning

2.30, It is unusual to be presented with a single piece of evidence that both is legally conclusive in what it demonstrates and by itself permits only one decision. In most cases the full analysis process will have to be followed. All material facts must be identified and the reasoning which leads from these facts to the decision must be clearly stated. The complexity of many WCA 81 cases and the increasingly litigious nature of society make it vital that this advice is followed meticulously.

Powers of Modification

2.31, Statutory guidance on an Inspector’s powers of modification of WCA 81 Orders is at paragraph 7(3) of Schedule 15 WCA 81. The restrictions on this power follow at paragraph 8. Directory guidance is in The Wildlife and Countryside (Definitive Map and Statements) Regulations, 1993, SI 12. Whilst these contain information principally of interest to the Order Making Authority (OMA), they provide guidance against which an Inspector should check that the Order is properly made. Information can also be found in Section 8 of RWLR in the Annexe headed 'Practice and Precedent' although Inspectors will not normally require such a detailed understanding. Numerous other RWLR articles have titles suggesting they offer explanatory guidance but similarly focus on OMAs' responsibilities for modification and are of marginal interest. Advisory guidance is contained in DoE Circular 2/93/WO Circular 5/93 Annexe A paragraphs 3-6. The key point is that an Inspector's powers of modification are limited but following the Court of Appeal's judgment in Trevelyanv SSE (2001), these are broader than were once thought. Of particular interest is the passage at p52 paragraph 23 of the judgment in which Phillips MR suggests that … if, in the course of the inquiry, facts come to light that persuade the inspector that the definitive map should depart from the proposed order, he should modify it accordingly, subject to any consequent representations and objections leading to a further inquiry.

Written Representations

2.32, It is unusual for all statutory and other contributors of evidence to be able to appear at a hearing or inquiry. They may present written representations in the form of Statutory Declarations, Witness Statements made to a solicitor, User Evidence Forms, statements which would serve as a proof of evidence had the author appeared (often supported by the documents relied on) or simply letters to The Planning Inspectorate or the Inspector. These submissions must be made available for public inspection at the hearing or inquiry. Provided that these documents pass the test of relevance they must be examined for material considerations. The latter then form part of an Inspector’s post-hearing or inquiry deliberations. The evidential weight attaching to the various types of evidence can vary. Legally attested documents will carry more weight than other statements. The need for critical scrutiny of User Evidence Forms is addressed in ‘Dedication.’ Other written representations should be subjected to similarly disciplined scrutiny. However, evidence tested in cross-examination is best evidence. Untested post-hearing or inquiry submissions should normally be accorded less weight.

Post-hearing or inquiry Submissions

2.33, The guiding principle in dealing with post-hearing or inquiry submissions is complete fairness and openness towards all parties. Inspectors should leave the parties with the impression that continuing to submit evidence or other material after the close of the hearing or inquiry is against the spirit of the process and it is not something which is encouraged or expected, other than in exceptional circumstances. All evidence which should and could have been brought to the hearing/inquiry should have been placed before the Inspector at the hearing or inquiry and been exposed to challenge and cross-examination in the usual way. However, the position may be different where after the close of the hearing or inquiry there is a change in government policy, new legislation or new case law which may have a bearing on the case.

2.34, Where the Inspector is appointed to take the decision, the case officer will forward the post-hearing or inquiry correspondence to the Inspector who should then decide whether it contains evidence or facts not raised at the inquiry and which are material to the order. If it does not, the Inspector may proceed to decision and no reference to the correspondence in the decision will be necessary.

2.35, Where the Inspector considers that the correspondence does raise relevant new issues, he or she should return the representations with the case file to the case officer who will ensure that they are copied to the parties for comment. When considering post-hearing or inquiry submissions, Inspectors should bear in mind that people attending the hearing or inquiry who did not give evidence might have been stimulated to do so had the post-hearing or inquiry evidence been available at the time. It is arguable, therefore, that post-hearing or inquiry submissions may have been less well tested than other written submissions. This fact may have some effect on the evidential weight given. If appropriate, the hearing or inquiry will need to be re-opened to consider the new evidence. An Inspector can also enable a hearing or inquiry to be re-opened at his or her discretion. However, such a course should not be taken unless there are very exceptional circumstances.

2.36, Where the Secretary of State/National Assembly for Wales has recovered a case, post-hearing or inquiry correspondence will be placed on the file by the case officer with a note to the effect that it has not been considered by the Inspector. It is for the Secretary of State/National Assembly for Wales to consider the submissions in reaching a decision. The Secretary of State/National Assembly for Wales also has the power to re-open hearings or inquiries into rights of way cases. Where the Secretary of State/National Assembly for Wales proposes to exercise such powers Inspectors will be advised on a case by case basis.

Associated Provincial Picture Houses Ltd Houses Ltd v Wednesbury Corporation [1948] 1KB223
O’Keefe v SSE and Isle of Wight Council [1997]
Dawes and Hawkins [1860]
Evaluating Documentary Evidence - November 1993
Masters v SSETR (on appeal) [2000]

(October 2005)