Public rights of way – Definitive map and statement – Paragraph 1 of Schedule 14 to Wildlife and Countryside Act 1981 – Section 67 of Natural Environment and Rural Communities Act 2006 – Claimants applying to upgrade existing rights of way – Claimants failing to supply map drawn to scale as required by statute – Defendant council rejecting applications – Claimants applying for judicial review – Whether claimants complying exactly with statutory requirements – Whether any failure to comply coming within de minimis rule – Application dismissed The claimants challenged the decision of the defendant council to reject five applications made under section 53(3) of, and Schedule 14 to, the Wildlife and Countryside Act 1981 for modification orders to the definitive map and statement (DMS). The claim concerned five routes over which the claimants maintained the public enjoyed vehicular public rights of way (including with mechanically-propelled vehicles) which were not recorded on the DMS. The applications had sought specifically to upgrade existing rights of way to “byways open to all traffic” (BOATs) status and/or to cause lengths of path to be shown as BOATs. Those applications were accompanied by maps generated by using software installed on a personal computer rather than by maps drawn to a scale of not less than 1:25,000 as required by paragraph 1 of Schedule 14 to the 1981 Act, as applied by section 67(6) of the National Environment and Rural Communities Act 2006. Therefore the defendants took the view that the claimants had failed to comply with the strict statutory requirements and rejected their applications. The claimants applied for judicial review of that decision contending, inter alia, that the defendants had been wrong to find that the requirements of paragraph 1 were not exactly complied with. The maps were drawn to a scale of no less than 1:25,000 and plainly showed the routes in question. The legislative requirements did not address themselves to the way in which such a map was derived, only to the end result. In any event, even if the statutory requirements were not exactly complied with, any departure came within the de minimis rule that the court was not concerned with matters of little importance. The Secretary of State was joined as an interested party. The second interested party represented the interests of a local protected group and affected landowners. Held: The application was dismissed. (1) Section 67(6) of the 2006 Act required that, for the purposes of section 67(3), an application to modify the definitive map and statement had to be made strictly in accordance with paragraph 1 of Schedule 14 to the 1981 Act. However there was scope for the de minimis rule and minor departures from paragraph 1 would not invalidate an application: R (on the application of Warden and Fellows of Winchester College) v Hampshire County Council [2008] EWCA Civ 431; [2008] PLSCS 128; [2008] 18 EG 127 (CS) applied. (2) In the present case, there had been no strict compliance with the requirements of paragraph 1. The maps which accompanied the applications were not drawn to a scale of no less than 1:25,000 and it could not be said that the defendants’ analysis of the facts was premised upon a fundamental misunderstanding of the process of reproducing a map by digital means. It was clear from the evidence that the misunderstanding had been that of the claimants, not the defendants. (3) It did not follow from the fact that Parliament had not specified that an OS map had to be used that, by selecting as the minimum prescribed scale 1:25,000, Parliament did not have in mind that at that scale it was possible to provide detail which at lesser scales it became increasingly difficult to provide. Parliament required a map at a prescribed scale of 1:25,000 to accompany applications under section 53(5) of the 1981 Act in the knowledge that OS maps were used to prepare the DMS itself and in the reasonable expectation that many persons who applied to modify the DMS would choose to accompany their applications with OS maps. Accordingly it made sense to prescribe that the accompanying map should be at a scale enabling applicants who chose to use an OS map to include a level of detail sufficient to ensure that in most cases physical features, bounding tracks on the ground or separating one parcel of land from another would appear on an OS map drawn to that scale. (4) As regards the de minimis rule, the court did not accept that the maps which accompanied the applications were of equal practical use as the maps which should have been submitted since there were material differences between the presentation of the claimed ways on the application maps and their presentation on a 1:25,000 scale map. It was clear from the evidence that a map to a scale of 1:50,000 was very different from a map to a scale of 1:25,000, in particular, in terms of the detail relevant to the routes of the claimed ways and their impact relative to surrounding features. It could not follow from the fact that the maps which accompanied the applications enabled the defendants to identify the routes in relation to which the applications were made that the departure from the requirements of paragraph 1 of Schedule 14 was de minimis. For the doctrine of de minimis to apply in such circumstances would mean that each application accompanied by a non-compliant enlarged map would have to be scrutinised on a case by case basis, leading to expense and uncertainty: Maroudas v Secretary of State for Environment, Food and Rural Affairs [2010] EWCA Civ 280; [2010] PLSCS 85 considered. Adrian Pay (instructed by Brain Chase Coles, of Basingstoke) appeared for the claimant; George Laurence QC (instructed by Dorset County Council) appeared for the defendants; Claire Staddon (instructed by Thomas Eggar LLP) appeared for the second interested party; The first interested party did not appear and was not represented. Eileen O’Grady, barrister
R (on the application of Trail Riders Fellowship and another) v Dorset County Council
Public rights of way – Definitive map and statement – Paragraph 1 of Schedule 14 to Wildlife and Countryside Act 1981 – Section 67 of Natural Environment and Rural Communities Act 2006 – Claimants applying to upgrade existing rights of way – Claimants failing to supply map drawn to scale as required by statute – Defendant council rejecting applications – Claimants applying for judicial review – Whether claimants complying exactly with statutory requirements – Whether any failure to comply coming within de minimis rule – Application dismissed The claimants challenged the decision of the defendant council to reject five applications made under section 53(3) of, and Schedule 14 to, the Wildlife and Countryside Act 1981 for modification orders to the definitive map and statement (DMS). The claim concerned five routes over which the claimants maintained the public enjoyed vehicular public rights of way (including with mechanically-propelled vehicles) which were not recorded on the DMS. The applications had sought specifically to upgrade existing rights of way to “byways open to all traffic” (BOATs) status and/or to cause lengths of path to be shown as BOATs. Those applications were accompanied by maps generated by using software installed on a personal computer rather than by maps drawn to a scale of not less than 1:25,000 as required by paragraph 1 of Schedule 14 to the 1981 Act, as applied by section 67(6) of the National Environment and Rural Communities Act 2006. Therefore the defendants took the view that the claimants had failed to comply with the strict statutory requirements and rejected their applications. The claimants applied for judicial review of that decision contending, inter alia, that the defendants had been wrong to find that the requirements of paragraph 1 were not exactly complied with. The maps were drawn to a scale of no less than 1:25,000 and plainly showed the routes in question. The legislative requirements did not address themselves to the way in which such a map was derived, only to the end result. In any event, even if the statutory requirements were not exactly complied with, any departure came within the de minimis rule that the court was not concerned with matters of little importance. The Secretary of State was joined as an interested party. The second interested party represented the interests of a local protected group and affected landowners. Held: The application was dismissed. (1) Section 67(6) of the 2006 Act required that, for the purposes of section 67(3), an application to modify the definitive map and statement had to be made strictly in accordance with paragraph 1 of Schedule 14 to the 1981 Act. However there was scope for the de minimis rule and minor departures from paragraph 1 would not invalidate an application: R (on the application of Warden and Fellows of Winchester College) v Hampshire County Council [2008] EWCA Civ 431; [2008] PLSCS 128; [2008] 18 EG 127 (CS) applied. (2) In the present case, there had been no strict compliance with the requirements of paragraph 1. The maps which accompanied the applications were not drawn to a scale of no less than 1:25,000 and it could not be said that the defendants’ analysis of the facts was premised upon a fundamental misunderstanding of the process of reproducing a map by digital means. It was clear from the evidence that the misunderstanding had been that of the claimants, not the defendants. (3) It did not follow from the fact that Parliament had not specified that an OS map had to be used that, by selecting as the minimum prescribed scale 1:25,000, Parliament did not have in mind that at that scale it was possible to provide detail which at lesser scales it became increasingly difficult to provide. Parliament required a map at a prescribed scale of 1:25,000 to accompany applications under section 53(5) of the 1981 Act in the knowledge that OS maps were used to prepare the DMS itself and in the reasonable expectation that many persons who applied to modify the DMS would choose to accompany their applications with OS maps. Accordingly it made sense to prescribe that the accompanying map should be at a scale enabling applicants who chose to use an OS map to include a level of detail sufficient to ensure that in most cases physical features, bounding tracks on the ground or separating one parcel of land from another would appear on an OS map drawn to that scale. (4) As regards the de minimis rule, the court did not accept that the maps which accompanied the applications were of equal practical use as the maps which should have been submitted since there were material differences between the presentation of the claimed ways on the application maps and their presentation on a 1:25,000 scale map. It was clear from the evidence that a map to a scale of 1:50,000 was very different from a map to a scale of 1:25,000, in particular, in terms of the detail relevant to the routes of the claimed ways and their impact relative to surrounding features. It could not follow from the fact that the maps which accompanied the applications enabled the defendants to identify the routes in relation to which the applications were made that the departure from the requirements of paragraph 1 of Schedule 14 was de minimis. For the doctrine of de minimis to apply in such circumstances would mean that each application accompanied by a non-compliant enlarged map would have to be scrutinised on a case by case basis, leading to expense and uncertainty: Maroudas v Secretary of State for Environment, Food and Rural Affairs [2010] EWCA Civ 280; [2010] PLSCS 85 considered. Adrian Pay (instructed by Brain Chase Coles, of Basingstoke) appeared for the claimant; George Laurence QC (instructed by Dorset County Council) appeared for the defendants; Claire Staddon (instructed by Thomas Eggar LLP) appeared for the second interested party; The first interested party did not appear and was not represented. Eileen O’Grady, barrister
