(1) Trail Riders Fellowship (First Claimant / Appellant) (2) David Leonard Tilbury (Second Claimant) v Dorset County Council (Defendant / First Respondent) (1) Secretary of State for the Environment, Food and Rural Affairs (First Interested party / Second Respondent) (2) Mr Graham Plumbe (Second Interested party / Third Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lady Justice Black,Lady Justice Rafferty |
| Judgment Date | 20 May 2013 |
| Neutral Citation | [2013] EWCA Civ 553 |
| Docket Number | Case No: C1/2012/2689 + 2689(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2013 |
[2013] EWCA Civ 553
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT (SUPPERSTONE J)
REF: CO899/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay Vice President of the Court of Appeal, Civil Division
Lady Justice Black
and
Lady Justice Rafferty
Case No: C1/2012/2689 + 2689(A)
The Queen (on the application of)
and
Mr Adrian Pay (instructed by Brain Chase Coles) for the Appellant
Mr George Laurence QC (instructed by Dorset County Council for the (1 st Respondent)
Treasury Solicitors (2 nd Respondent did not appear)
Mr Graham Plumbe (3 rd Respondent in person)
Access to the countryside often gives rise to controversy. The existence and extent of public rights of way is now regulated by Part III of the Wildlife and Countryside Act 1981 (the 1981 Act). It requires surveying authorities to maintain definitive maps and statements. They are given "conclusive evidence" status by section 56, which distinguishes between footpaths, bridleways and byways open to all traffic (BOATs'). Definitive maps and statements have to be kept under continuous review (section 53(2)(b)). Any person can apply to the relevant authority for an order which makes such modifications as appear to the authority to be requisite in consequence of certain events (section 53(5)). The prescribed events include the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows that a right of way which is not shown in the map or statement subsists or that a highway shown in the map or statement as a highway of a particular description ought to be there shown as a highway of a different description (section 53(3)). An application pursuant to section 53(5) must comply with requirements set out in Schedule 14. This case is concerned with those requirements.
In 2004, Mr Jonathan Stuart, a member of Friends of Dorset's Rights of Way, submitted five applications to Dorset County Council, the appropriate surveying authority, seeking modification orders in relation to the definitive map and statement. His aim was to achieve the upgrading of existing rights of way from footpath or bridleway to BOAT status and/or to achieve BOAT status for other lengths of path. In due course, Mr Stuart and his organisation were replaced as applicants by Mr David Tilbury and the Trail Riders' Fellowship (of which Mr Tilbury is a member). The objects of the Trail Riders' Fellowship are "to preserve the full status of vehicular green lanes and the rights of motorcyclists and others to use them as a legitimate part of the access network of the countryside …". Essentially, the Trail Riders' Fellowship seeks to establish that rights of way presently depicted in definitive maps and statements as footpaths or bridleways should be reclassified as BOATs', thereby enabling members of the Fellowship and others to ride their motorcycles on them. As Mr Tilbury says in his witness statement, this is an emotive issue. However, at this stage we are not concerned with the merits of the applications or the quality of the general evidence said to support them. Our sole concern is with whether, as a matter of form, the applications complied with the statutory requirements.
The statutory requirements
Paragraph 1 of Schedule 14 provides:
"An application shall be made in the prescribed form and shall be accompanied by –
(a) a map drawn to the prescribed scale showing the way or ways to which the application relates; and
(b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application."
The present dispute is concerned with the maps submitted with the applications.
"Prescribed" in paragraph 1 (a) means prescribed by regulations made by the Secretary of State (paragraph 5 (1)). The relevant regulations are the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (the 1993 Regulations), regulation 2 of which provides:
"A definitive map shall be on a scale of not less than 1:25,000 but where the surveying authority wishes to show on a larger scale any particulars required to be shown on the map, in addition, an inset map may be used for that purpose."
By regulation 8(2), regulation 2 "shall apply to the map which accompanies such an application as it applies to the map contained in a modification or reclassification order"
Thus, in simple terms, when a person applies for a modification order, he must show the right of way for which he contends on a map drawn to a scale of not less than 1:25,000.
The issue
In his witness statement, Mr Stuart describes how he produced the maps which he submitted with the applications:
"The maps were generated using software installed on my personal computer. The software is called 'Anquet' and the relevant version number was VI …
The software is designed for the viewing and printing of digitally encoded maps. The digitally encoded maps from which the application maps were generated were purchased by me and were supplied on a CD-ROM. The packaging on the CD-ROM describes the map as 'Anquet Maps: the South Coast'. The packaging refers to 1:50,000 scale and states 'mapping sourced from Ordnance Survey' …
The printing function on the software allows maps to be printed to a range of scales. In relation to the maps in question, the software allowed maps to be printed to scales 1:10,000 to 1:1,000,000. I selected a scale that best fitted the claimed route on A4 paper but it was always 1:25,000 or larger. I then printed the maps on a laser printer …
The maps which were produced are, indeed, to a scale of at least 1:25,000, that is to say … a measurement of 1 centimetre on the printed map corresponds to a measurement of 250 metres or less on the ground."
For more than four years after the applications were filed with Dorset County Council, no point was taken as to compliance with the statutory requirements relating to the maps — or, indeed, as to anything else. However, in October 2010 all five applications were rejected by the Council. Its reasoning was:
"The applications in question were accompanied by computer-generated enlargements of Ordnance Survey maps and not by maps drawn to a scale of not less than 1 : 25,000 …"
In other words, it did not...
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