A dispute that has divided the courts, over the correct scale for digital maps used to support rights of way applications, today even split the Supreme Court.
But, by a three to two majority in which Supreme Court President Lord Neuberger was on the minority side, they found that the requirements of the 1981 Wildlife and Countryside Act and the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 were met by maps originally drawn to 1:50,000 scale that were digitally enlarged to the prescribed 1:25,000 scale.
In 2012, Supperstone J at the High Court had rejected a legal challenge brought by rights-of-way campaigners to Dorset county council’s refusal to upgrade five existing routes in its area to “byways open to all traffic” (BOATs), because the maps that were submitted were digitally enlarged by computer software from an Ordnance Survey map originally drawn only to 1:50,000 scale. He ruled that, under the 1981 Act, the maps had to be “drawn” to a scale of at least 1:25,000.
However, in 2013, the Court of Appeal allowed an appeal by off-road motorcycling enthusiasts the Trail Riders’ Fellowship and overturned that decision, finding that the maps did comply with the statutory requirements.
Now the Supreme Court has backed that stance, meaning the council must consider the applications to classify the five routes as BOATs, which would allow them to be used by motorcycles and other mechanically powered vehicles.
Lords Clarke, Toulson and Carnwath dismissed the council’s appeal, but Lords Neuberger and Sumption gave dissenting judgments.
Lord Clarke said that the appeal raised the short point whether a map which accompanies an application and is presented at a scale of no less than 1:25,000 satisfies the requirement in paragraph 1(a) of Schedule 14 of the 1981 Act of being “drawn to the prescribed scale” in circumstances where it has been “digitally derived from an original map with a scale of 1:50,000”.
He said: “The question is therefore whether each of the maps was drawn to a scale of not less than 1:25,000. On the face of it that question must be answered in the affirmative. Paragraph 1 of Schedule 14 provides that the map must be drawn ‘to the prescribed scale’ and by paragraph 5 ‘prescribed’ means prescribed by the 1993 Regulations. By regulation 2 of those Regulations, ‘A definitive map shall be on a scale of not less than 1:25,000’ and, by regulation 8(2), regulation 2 applies to a map accompanying an application. As I read these provisions, no distinction is drawn between a map ‘drawn to the prescribed scale’ and a map ‘on a scale of not less than 1:25,000’.
“On the ordinary and natural meaning of these provisions it appears to me that the map referred to in paragraph 1(a) of Schedule 14 is the map which must be drawn to the prescribed scale. Only one map accompanied each application. In each case it was the map produced as described above to a presented scale of 1:25,000 or larger, in that measurements on the map corresponded to measurements on the ground by a fixed ratio whereby a measurement of 1 cm on the map corresponds to a measurement of no more than 250 metres on the ground. Thus each such map was on a scale of not less than 1:25,000 and, in my opinion, satisfied regulations 2 and 8(2) of the 1993 Regulations. In my opinion each such map also satisfied paragraph 1(a) of Schedule 14 on the basis that it was drawn to the same scale.”
If it had been intended that the application map should be on a scale of 1:25,000 and exhibit all the detail which would appear on an Ordnance Survey map of that scale, he said that this could have been so provided by statute or regulation.
And he said that maps drawn to a scale of 1:25,000 without any reference at all to an Ordnance Survey map would satisfy the statutory provisions, even if they contained only as much detail as an Ordnance Survey 1:50,000 map would.
In his dissenting judgment, in which he said he would have allowed the council’s appeal, Lord Neuberger said that the “more natural meaning” of the requirements is that a copied map only complies if it is a copy of a map which was prepared on a scale of at least 1:25,000. He added that the purpose of imposing a minimum scale for the accompanying map was, in his view, because it could be expected to show a “level of detail which would not normally be shown on a map prepared on a smaller scale”.
He said: “It is not an entirely natural use of language to describe an enlarged photocopy of a map originally prepared on a scale of 1:50,000, as ‘drawn’ on a higher scale. To my mind at any rate, a map is ‘drawn’ to a certain scale if it is originally prepared to that scale. One might fairly describe a doubly magnified photocopy of a 1:50,000 map as ‘being on’ a scale of 1:25,000, but I do not think that it would be naturally described as having been ‘drawn to’ a scale of 1:25,000.”
The Queen on the application of Trail Riders’ Fellowship and anr v Dorset County Council Supreme Court (Lords Neuberger, Clarke, Sumption, Carnwath and Toulson) 18 March 2015
Adrian Pay and Thomas Fletcher (instructed by Brain Chase Coles) for the claimant/respondent
George Laurence QC and Kira King (instructed by Dorset Legal and Democratic Services) for the defendant/appellant
Graham Plumbe and James Pavey (Instructed by Thomas Eggar LLP) for the intervener
