Public rights of way – Definitive map and statement – Wildlife and Countryside Act 1981 – Respondents applying to upgrade existing rights of way – Map accompanying application enlarged to scale of 1:25,000 from original in 1:50,000 scale – Whether first appellant council entitled to reject applications on ground that not accompanied by map drawn to scale of 1:25,000 as required by para 1 of Schedule 14 to 1981 Act – Whether Schedule 14 requiring map originally drawn in 1:25,000 scale – Appeal dismissed
The respondents made five applications, under section 53(5) of the Wildlife and Countryside Act 1981, for orders modifying the definitive map and statement maintained by the appellant council, as surveying authority, to upgrade certain rights of way currently depicted as footpaths or bridleways to byways open to all traffic (BOATs). The applications were accompanied by maps generated by computer software that sourced maps from the Ordnance Survey (OS), at a scale of 1:50,000, and enabled them to be printed out to a range of scales; the respondents had printed them out to a scale of 1:25,000 or larger.
The appellants rejected the applications on the ground that maps enlarged from originals in 1:50,000 scale did not comply with the requirements of para 1 of Schedule 14 to the Act since the map was not “drawn to the prescribed scale” of not less than 1:25,000 set out in regulation 8(2) of the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993.
That decision was upheld on a judicial review by the High Court but was subsequently overturned by the Court of Appeal: see [2012] EWHC 2634 (Admin); [2012] PLSCS 194 and [2013] EWCA Civ 553; [2013] PLSCS 111. The Court of Appeal held that the legislation imposed no prescriptive requirement as to content as opposed to scale, such that the requirement for a map “drawn to a scale of not less than 1:25,000” did not require a map originally drawn to that scale and showing the range of features normally depicted on an original OS map of that scale. However, it took the view that, if it were wrong on that point and the respondents’ maps did not comply with the statutory requirements, it would not be permissible to overlook that non-compliance as being de minimis. The appellants appealed.
Held: The appeal was dismissed.
(1) (Lord Neuberger and Lord Sumption dissenting). The requirement for a map “drawn to the prescribed scale” did not require that the map had originally been drawn on that scale without being enlarged or reduced in any way. The 1993 Regulations, which prescribed the relevant scale, made no distinction between a map “drawn to the prescribed scale” and a map “on a scale of no less than 1:25,000”. A map which was presented at a scale of no less than 1:25,000 could satisfy the requirement in para 1(a) of Schedule 14 to the 1981 Act of being “drawn to the prescribed scale” even where it had been digitally derived from an original map with a scale of 1:50,000. It was sufficient, for the purposes of Schedule 14 and the 1993 Regulations, that the map presented a scale of 1:25,000 or larger, so that measurements on the map corresponded to measurements on the ground by a fixed ratio of 1cm on the map to 250m on the ground.
The legislation did not require the application map to exhibit all the detail that would appear on an OS map on that scale. Such a requirement could have been imposed by statute or regulation but had not been. Since para 1(a) of Schedule 14 permitted the use of a map which was not produced by the OS, or any other commercial or public authority, it could not be said to embrace a requirement that the application map include all the same features as were depicted on an original 1:25,000 OS map. The legislation was not prescriptive as to the features that had to be shown on the map, apart from the requirement, in para 1(c) of schedule 14, that it should show the way or ways to which the application related. That requirement was a flexible one; sometimes more details would be required and sometimes fewer, depending on the way in question and its location. The application map might therefore include more, or fewer, features than those marked on an OS map of the same scale.
Moreover, the word “drawn” did not that the application map had to have originally been drawn to the prescribed scale rather than enlarged or reproduced to it. The word “drawn” did not need to imply a reference to the original creation of the map but could sensibly be construed as synonymous with “produced” or “reproduced”.
It followed that the map complied with the statutory requirements where the scale of the map as presented was larger than 1:25,000; the fact that it was taken from a map on a smaller scale was irrelevant.
Per curiam: Their Lordships differed on the issue of whether the use of a map that did not comply with the statutory requirements would have rendered the application invalid. Lord Neuberger, Lord Sumption and Lord Toulson took the view that non-compliance with the statutory requirements would invalidate the applications. Lord Carnwath considered that the applications would be valid since they substantially complied with the statute and strict compliance was not necessary. Lord Clarke did not express a view on the issue.
George Laurence QC and Kira King (instructed by the legal department of Dorset County Council) appeared for the appellants; Adrian Pay and Thomas Fletcher (instructed by Brian Chase Coles, of Basingstoke) appeared for the respondents; Graham Plumbe, of the Green Lanes Protection Group, and James Pavey, of Thomas Eggar LLP, appeared for the intervener.
Sally Dobson, barrister
