R and Others (Claimants) Dorset County Council (Defendant) (1) Secretary of State for Environment, Food & Rural Affairs (Interested Parties) (2) Philip Graham Plumbe
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 02 October 2012 |
| Neutral Citation | [2012] EWHC 2634 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/899/2011 |
[2012] EWHC 2634 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Supperstone
Case No: CO/899/2011
Mr Adrian Pay (instructed by Messrs Brain Chase Coles) for the Claimant
George Laurence QC (instructed by Dorset County Council Legal Dept.) for the Defendant
Claire Staddon (instructed by Messrs Thomas Eggar) for the 2 nd Interested Party
Hearing dates: 26 & 27 June 2012
Introduction
The Claimants challenge the decision of Dorset County Council, the Defendant, to reject five applications made under section 53(5) of and Schedule 14 to the Wildlife and Countryside Act 1981 ("the 1981 Act") for modification orders to the definitive map and statement ("the DMS"). The claim concerns five routes over which the Claimants maintain the public enjoy vehicular public rights of way (including with mechanically-propelled vehicles) which were not recorded on the DMS.
The Claimants contend that the effect of the decisions made by the Defendant is that public rights of way for mechanically-propelled vehicles have been extinguished.
The principal issue in this case is whether for the purposes of paragraph 1 of Schedule 14 to the 1981 Act as applied by Section 67(6) of the National Environment and Rural Communities Act 2006 a map which accompanies an application made under section 53(5) of the 1981 Act is drawn to the prescribed scale only if it is derived from a map originally so drawn without being enlarged or reduced in any way.
Mr Stuart, a member of the Friends of Dorset's Rights of Way ("FoDRoW") submitted the applications. The First Claimant is an organisation that took over the conduct of the applications from FoDRoW in October 2010. Mr Tilbury, the Second Claimant, is a member of FoDRoW. The Defendant is the surveying authority, as defined in s.66(1) of the 1981 Act, for the area in which the proposed "byways open to all traffic" ("BOATs") are located. The Secretary of State, the First Interested Party, was originally joined to the proceedings as a defendant; subsequently by agreement the Secretary of State was removed as a defendant and joined as an interested party. Mr Plumbe, the Second Interested Party, represents the interests of the Green Lanes Protection Group ("GLPG") and affected land-owners.
The legal framework
Section 53 of the 1981 Act imposes a duty on a surveying authority to keep a DMS of the public rights of way in its area under continuous review. So far as material, it provides:
"(2) As regards every definitive map and statement, the surveying authority shall—
(a) as soon as reasonably practicable after the commencement date, by order 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 sub-section (3); and
(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event.
(3) The events referred to in sub-section (2) are as follows:
…
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows…
(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies;
(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or
(iii) 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.
…
(5) Any person may apply to the authority for an order under sub-section (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of sub-section (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this sub-section."
There are three categories of public highway: footpath, bridleway, and 'byway open to all traffic' ("BOAT"). Section 66 of the 1981 Act defines a BOAT as "a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths and bridleways are so used".
Schedule 14 to the 1981 Act provides:
" 1.Form of Applications
An application shall be made in the prescribed form and shall be accompanied by—
(a) a map drawn to the prescribed scale and 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.
2. Notice of Applications
(1) Subject to sub-paragraph (2), the applicant shall serve a notice stating that the application has been made on every owner and occupier of any land to which the application relates.
…
(3) When the requirements of this paragraph have been complied with, the applicant shall certify that fact to the authority.
(4) Every notice or certificate under this paragraph shall be in the prescribed form.
3. Determination by authority
(1) As soon as reasonably practicable after receiving a certificate under paragraph 2(3), the authority shall—
(a) investigate the matters stated in the application; and
(b) after consulting with every local authority whose area includes the land to which the application relates, decide whether to make or not to make the order to which the application relates.
…
5. Interpretation
(1) In this Schedule…
'prescribed' means prescribed by regulations made by the Secretary of State."
The material regulations made by the Secretary of State are the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 ("the 1993 Regulations"). The Regulations provide:
" 2. Scale of definitive maps
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.
6. Provisions supplementary to Regulations 4 and 5
Regulations 2 and 3 above shall apply to the map contained in a modification or reclassification order as they apply to a definitive map.
8. Application for a modification order
(1) An application for a modification order shall be in the form set out in Schedule 7 to these Regulations or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case.
(2) Regulation 2 above shall apply to the map which accompanies such an application as it applies to the map contained in a modification or reclassification order."
Section 67 of the Natural Environment and Rural Communities Act 2006 ("the 2006 Act") provides:
" Ending of certain existing unrecorded public rights of way
(1) An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement—
(a) was not shown in a definitive map and statement, or
(b) was shown in a definitive map and statement only as a footpath, bridleway or restricted byway.
But this is subject to sub-sections (2) to (8).
…
(3) Sub-section (1) does not apply to an existing public right of way over a way if—
(a) before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 (c69) for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic,
(b) before commencement, the surveying authority has made a determination under paragraph 3 of Schedule 14 to the 1981 Act in respect of such an application, or
(c) before commencement, a person with an interest in land has made such an application and, immediately before commencement, use of the way for mechanically-propelled vehicles—
(i) was reasonably necessary to enable that person to obtain access to the land, or
(ii) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only.
(4) 'The relevant date' means—
(a) in relation to England, 20 th January 2005;
…
(6) For the purposes of sub-section (3), an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act."
Section 130 of the Highways Act 1980 provides:
"It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it."
The factual background
Between 14 July 2004 and 21 December 2004 Mr Stuart submitted five applications under s.53(5) of the 1981 Act to modify the definitive map to upgrade existing rights of way to BOAT status and/or to cause lengths of path to be shown as...
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