R (on the application of Trail Riders Fellowship and another) v Dorset County Council
| Jurisdiction | England & Wales |
| Judge | Lord Clarke,Lord Sumption,Lord Carnwath,Lord Neuberger,Lord Toulson |
| Judgment Date | 18 March 2015 |
| Neutral Citation | [2015] UKSC 18 |
| Date | 18 March 2015 |
| Court | Supreme Court |
[2015] UKSC 18
Lord Neuberger, President
Lord Clarke
Lord Sumption
Lord Carnwath
Lord Toulson
Appellant
George Laurence QC Kira King
(Instructed by Dorset Legal and Democratic Services)
Respondents
Adrian Pay Thomas Fletcher
(Instructed by Brain Chase Coles Solicitors)
Intervener
Graham Plumbe James Pavey
(Instructed by Thomas Eggar LLP)
Heard on 15 January 2015
This is an appeal by Dorset County Council ("the council") from an order of the Court of Appeal (Maurice Kay LJ, who is Vice President of the Court of Appeal, Black LJ and Rafferty LJ), [2013] EWCA Civ 553; [2013] PTSR 987, allowing an appeal by the respondents from an order of Supperstone J ("the judge") dated 2 October 2012, [2012] EWHC 2634 (Admin); [2013] PTSR 302, in which he dismissed an application for judicial review of the decision of the council 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 a definitive map and statement ("the DMS"). The claim concerns five routes over which the respondents say that the public enjoy vehicular public rights of way (including with mechanically-propelled vehicles) which were not recorded on the DMS.
The first issue in this appeal and the principal issue which was considered in the courts below is whether, for the purposes of paragraph 1 of Schedule 14 to the 1981 Act as applied by section 67(6) of the Natural Environment and Rural Communities Act 2006 ("the 2006 Act"), 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. The judge answered that question in the affirmative but the Court of Appeal disagreed. In this appeal the council seeks the restoration of the order made by the judge. If the appeal succeeds, any public rights of way which were the subject of the five applications will have been extinguished.
In this judgment I will focus on the first issue. There is a second issue, which only arises if the council's appeal on the first issue fails.
The applications were submitted by Mr Jonathan Stuart, who is a member of the Friends of Dorset's Rights of Way ("FDRW"). The first respondent, the Trail Riders Fellowship ("TRF"), took over the conduct of the applications from FDRW in October 2010. The second respondent, Mr David Tilbury, is a member of FDRW. The council is the surveying authority, as defined in section 66(1) of the 1981 Act, for the area in which the proposed "byways open to all traffic" ("BOATs") are located. The intervener, Mr Graham Plumbe, represents the interests of the Green Lanes Protection Group and affected land-owners. He supports the council's appeal.
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 subsection (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 subsection (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 subsection (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 subsection (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection."
As the judge put it in his para 6, there are three categories of public highway: footpaths, bridleways, and "byways open to all traffic", known as "BOATs". 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"), which 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."
The form of application set out in Schedule 7 provides for an applicant who wishes, for example, to add a BOAT to the DMS (whether by upgrading an existing path shown on the map or by adding the path for the first time) to identify the points from and to which the proposed BOAT runs and its route as "shown on the map accompanying this application".
Section 67 of 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 subsections (2) to (8).
…
(3) Subsection (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 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, 20th January 2005;
…
(6) For the purposes of subsection (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(1) of the Highways Act 1980 provides:
"It...
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