R (Winchester College) v Hampshire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Thomas,Lord Justice Ward |
| Judgment Date | 29 April 2008 |
| Neutral Citation | [2008] EWCA Civ 431 |
| Docket Number | Case No: C1/2008/0060 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 2008 |
[2008] EWCA Civ 431
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr George Bartlett QC sitting as a Deputy Judge of the High Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Dyson and
Lord Justice Thomas
Case No: C1/2008/0060
George Laurence QC and Miss Ross Crail (instructed by Messrs Knights) for the Appellants/Claimants
Timothy Mould QC (instructed by The Principal Solicitor Hampshire County Council) for the First Respondent/Defendant
John Litton ( instructed by DEFRA) for the Interested Party
Hearing dates: 15 and 16 April 2008
Introduction
The claimants are owners of land in Hampshire. They appeal against the decision of George Bartlett QC (sitting as a deputy high court judge) refusing their application for judicial review of the refusal by the Hampshire County Council (“the Council”) to reconsider decisions made by it on 22 March 2006, as surveying authority for Hampshire, to make an order modifying the definitive map and statement (“the DMS”) by upgrading two rights of way to the status of byway open to all traffic (“BOAT”). The two rights of way were shown on the DMS as Chilcomb Bridleway 3 and Twyford Road Used as a Public Path 16 (“Twyford RUPP 16”) respectively.
The main issue raised by the appeal is whether the judge was right to hold that such rights for mechanically propelled vehicles as existed over the two rights of way on 2 May 2006 were not extinguished by section 67(1) of the Natural Environment and Rural Communities Act 2006 (“the 2006 Act”) when the 2006 Act came into force. The judge held that these rights were saved from extinguishment under section 67(3)(b) by virtue of the Council's decisions on 22 March 2006 which he found to have been valid determinations of applications to modify the DMS under section 53(5) of and paragraph 3 of schedule 14 to the Wildlife and Countryside Act 1981 (“the 1981 Act”). In the case of Chilcomb Bridleway 3, the judge also held that those rights were saved from extinguishment under section 67(3)(a) of the 2006 Act by virtue of the application dated 11 June 2001, which the judge found to have been a valid application under section 53(5) of and paragraph 1 of Schedule 14 to the 1981 Act.
I shall come to the relevant statutory provisions in more detail later in this judgment. But at the heart of the appeal lie section 67 of the 2006 Act and paragraph 1 of Schedule 14 to the 1981 Act. Section 67(1) extinguishes an existing public right of way for mechanically propelled vehicles which before commencement (2 May 2006) was not shown in a DMS or was shown in a DMS only as a footpath, bridleway or restricted byway. But this is subject to subsections (2) to (8). Section 67(3) provides:
“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 (c. 69) 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
….”
The “relevant date” is 20 January 2005 (subsection (4)). Section 67(6) provides:
“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.”
Paragraph 1 of Schedule 14 to the 1981 Act provides:
“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.”
The principal issue of law raised by this appeal is what is meant by “an application made in accordance with paragraph 1 of Schedule 14 to th[e] [1981] Act” within the meaning of section 67(6) of the 2006 Act. It is contended by Mr George Laurence QC and Miss Ross Crail on behalf of the claimants that the applications made by Mr Tilbury in respect of Chilcomb Bridleway 3 and Mr Fosberry in respect of Twyford RUPP 16 were not made in accordance with that provision and that it was not open to the Council to waive compliance with the requirements of the statute. The questions raised are believed to affect many cases throughout the country and are important for landowners and users alike. The Secretary of State has an interest in the proper construction of section 67(6) of the 2006 Act and paragraph 1 of Schedule 14 to the 1981 Act and has been added as an interested party. His interest arises because of the guidance given by the Department for Environment, Food and Rural Affairs (“Defra”) in its publication “Part 6 of the Natural Environment and Rural Communities Act 2006 and Restricted Byways” version 4—November 2006 and a letter circulated by Defra to all local highway authorities dated 26 March 2007.
The legislative and general factual background
Under Part IV of the National Parks and Access to the Countryside Act 1949, county councils as surveying authorities were required to maintain a DMS showing three categories of highway, namely footpaths, where the public right of way was on foot only; bridleways, where the public right of way was on foot or horseback or leading a horse; and roads used as public paths (RUPPs) which were defined as highways other than footpaths or bridleways used by the public mainly for the purposes for which footpaths and bridleways are so used. The 1949 Act was amended by the Countryside Act 1968 so as to require surveying authorities to reclassify each RUPP shown on their definitive maps either as a footpath or as a bridleway or as a BOAT in accordance with specified criteria. This reclassification was far from complete when the relevant provisions of the 1949 and 1968 Acts were replaced by Part III of the 1981 Act.
Section 54 of the 1981 Act required surveying authorities, as soon as reasonably practicable, to review all RUPPs remaining on their DMSs and make modification orders reclassifying each as (a) a BOAT, if a public right of way for vehicular traffic had been shown to exist; or (b) a bridleway, if (a) did not apply and bridleway rights had not been shown not to exist; or (c) as a footpath, if neither (a) nor (b) applied. A BOAT was defined in section 66 of the Act 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.”
Section 53 of the 1981 Act contains provisions relating to orders modifying the DMS. It imposes a duty on the surveying authority to make modifications on the occurrence of certain events.
In 2000, with the reclassification of RUPPs still being far from complete, the Countryside and Rights of Way Act 2000 was enacted. Section 47(2) provided that every way which, immediately before commencement of the Act was shown in any DMS as a RUPP, should be treated instead as a “restricted byway”. The 2000 Act in addition made provision for the extinguishment in 2026 of unrecorded rights of way for mechanically propelled vehicles over byways. It also inserted into the 1981 Act (as section 53B) a requirement that every surveying authority should keep a register of applications under section 53(5).
The reclassification provisions of the 2000 Act reflected the growing public concern that unmade minor vehicular ways in the countryside, green lanes, enjoyed by walkers and those on horseback, were being damaged by off-road vehicles and motorcycles. That concern was recognised in a consultation document published by Defra in 2003. In a foreword the Rural Affairs Minister, Alun Michael, said:
“As Rural Affairs Minister, I have been approached by many individuals and organisations who are deeply concerned about problems caused by the use of mechanically propelled vehicles on rights of way and in the wider countryside. I share these concerns, having seen for myself examples of damage to fragile tracks and other aspects of our natural and cultural heritage in various areas of the country. There is considerable concern about behaviour that causes distress to others seeking quiet enjoyment of the countryside.
….
I do not think that it makes sense that historic evidence of use by horse drawn vehicles or dedications for vehicular use at a time before the internal combustion engine existed can give rise to rights to use modern mechanically propelled vehicles. Those who suffer from vehicle misuse find this incomprehensible and in this paper we offer new proposals that are intended to address what many have come to view as the inappropriate and unsustainable way in which vehicular rights are acquired and claimed on rights of way.”
In due course the 2006 Act was enacted, and it provided for the extinguishment of all existing public rights of way for mechanically propelled vehicles over ways which, immediately before commencement, either were not shown on the DMS at all or were so shown but only as a...
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