R. (on the application of Roxlena Ltd) v Cumbria County Council
30 Nov 2017
The Court was prepared to entertain a landowner’s claim for an injunction restraining the Council from acting on its resolution to make a modification order adding 44 new footpaths to the Definitive Map and Statement (‘DMS’), on the basis that, if it did so, the Council would make errors of law.
The Court held among other things (1)that when a Council is deciding whether to make an order, it need not ask itself whether the supporting evidence, if accepted, is strong enough to justify confirmation; (2) that in considering whether there has been 20 years uninterrupted enjoyment of a claimed route, as of right, for the purposes of section 31 Highways Act 1980, a cessation of use as a result of the foot and mouth outbreak in 2001 will stop time running; and (3) that a Council presented with user evidence in support of an application under section 53(5) Wildlife and Countryside Act 1981 to add paths to the DMS must continue to consider the claim even if the application itself is rejected for non-compliance with procedural requirements.
The case is proceeding to appeal on that last point, and other grounds, in the Court of Appeal.
George Laurence QC
Leading Claire Staddon
Instructed by Underwood Vinecombe LLP