Maroudas v Secretary of State for Environment, Food and Rural Affairs

Rights of way – Definitive map and statement – Application to upgrade path to byway open to all traffic – Original application unsigned, undated and not accompanied by map showing route of byway – Modification order made and confirmed — Whether application invalid for failure to comply with requirements of para 1 of Schedule 14 to Wildlife and Countryside Act 1981 – Whether defects cured by subsequent correspondence with surveying authority – Appeal allowedIn February 2007, an application was made to the relevant surveying authority to modify the definitive map and statement to upgrade part of a restricted byway, previously shown as a road used as a public path, to a byway open to all traffic. The application form was substantially in the form prescribed by Schedule 7 to the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (S1 1993/12), but was not signed or dated or accompanied by a map showing the route to which it related. In 2007, the authority responded with a letter that enclosed a plan of the application, on which it was shown as extending to the entire length of the byway; the authority explained that reclassifying only the section referred to in the application would produce an anomaly. The applicant indicated that he was content to proceed in that way. The council proceeded to make a modification order, under section 53(2)(b) of the Wildlife and Countryside Act 1981, upgrading the byway as proposed. The order was subsequently confirmed by the respondent’s inspector.The appellant applied to quash the modification order on the ground that the application did not comply with the requirements of para 1 of Schedule 14 to the 1981 Act owing to the lack of a signature or date; he relied on section 67(6) of the Natural Environment and Rural Communities Act 2006, which provided that an application under section 53(5) of the 1981 Act was valid when only made strictly in accordance with para 1 of Schedule 14. Dismissing the claim, the judge held that the original defects had been remedied by the subsequent exchange of correspondence between the applicant and the council and that all those documents and maps should, as a whole, be treated as constituting the application. The appellant appealed. He contended that defects in an application could be cured only if this were done within a short time of the defective application being made and the defects in the original application could be cured only be a fresh application made strictly in accordance with para 1 of Schedule 14.Held: The appeal was allowed.Although, for the purposes of section 67 of the 2006 Act, an application had to comply strictly with para 1 of Schedule 14, the de minimis principle meant that a valid application did not have to be contained in a single document in the prescribed form. Minor departures from the requirements of para 1 did not invalidate an application and there were circumstances in which a valid application might be contained in the application form when read with another document; the supplementary information provided in the later document could make good an error or omission in the original application: R (on the application of Winchester College) v Hampshire County Council [2008] EWCA Civ 431; [2009] 1 WLR 138 considered. Where a date and signature were omitted from the original application and the applicant shortly afterwards wrote a signed and dated letter to the surveying authority referring to the application and asking the authority to treat it as bearing the date of the letter and the signature, the supply of those details after the submission of the application form was an acceptable minor departure from para 1. In such a case, the application comprised the original application form supplemented by the date and signature provided by the letter and was a valid application.In the instant case, however, the application did not comply with the strict requirements of para 1 of Schedule 14 even when it was considered together with the subsequent exchange of correspondence. The lack of a date and signature was an important omission that had not been remedied until 10 weeks after the original application. Such omission could, in principle, be cured by a dated and signed letter sent shortly after the submission of the form. However, an application that remained unsigned for a substantial period of time did not constitute a minor departure from the statutory requirements and was itself a strong reason for holding that a substantial departure had been made from the strict requirements of para 1 of Schedule 14. Moreover, the amendment of the application include an additional length of the byway, did not correct an omission made through an oversight because the applicant had deliberately omitted that section and it had been included only at the council’s suggestion. Further, the applicant had not returned in his reply the plan enclosed with the authority’s March 2007 and he had not sent an accompanying map. The absence of such was an important omission.The appellant appeared in person; Philip Coppel QC (instructed by the legal department of the Department for Environment, Food and Rural Affairs) appeared for the respondent.Sally Dobson, barrister