Public right of way – Modification of definitive map and statement – Byways open to all traffic (BOATs) – Paragraph 1 of Schedule 14 to Wildlife and Countryside Act 1981 – Section 67 of Natural Environment and Rural Communities Act 2006 – Respondent council allowing applications to upgrade rights of way to BOATs – Whether pre-existing rights for mechanically propelled vehicles extinguished such that modification unlawful – Whether applications made in accordance with para 1 of Schedule 14 – Appeal allowed
The appellants’ land was crossed by two public rights of way, which were recorded on the definitive map and statement as a road used as a public path (RUPP) and a bridleway respectively. The respondents, as the surveying authority, received applications, under section 53(5) of the Wildlife and Countryside Act 1981, to upgrade both right of ways to byways open to all traffic (BOATs). By Schedule 14 to the 1981 Act, such applications were required to be in a prescribed form, accompanied by a map showing the relevant ways and copies of all documentary evidence that the applicant wished to adduce in support of the application. The applications in question contained a list of the documents rather than copies; the respondents waived that breach of para 1 and made the modifications sought.
The appellants sought to quash the modification orders as unlawful, relying upon the provisions of section 67 of the Natural Environment and Rural Communities Act 2006. By section 67(1), any pre-existing public rights of way for mechanically propelled vehicle not already shown in a definitive map and statement would be extinguished unless, by section 67(3) and (6), an application for modification “in accordance with paragraph 1 of Schedule 14” to the 1981 Act had been made by 20 January 2005. The appellants submitted that the applications had failed to comply with para 1 and that, consequently, any rights of way for mechanically propelled traffic had ceased to exist by the date of the respondents’ determination, such that they could not validly find the rights of way to be open to all traffic.
Dismissing the claim, the judge held that: (i) the requirement for applications to be accompanied by a map and copies of documents was a procedural requirement, which an authority could waive provided that they had all the necessary information to determine the application or (ii) in the alternative, the documents that an applicant wished to “adduce”, within the meaning of para 1 of Schedule 14, meant only those that the applicant wished to put forward or to provide, and did not extend to documents that it wished to rely upon and which were already in the authority’s possession. The appellants appealed.
Held: The appeal was allowed.
(1) An application that was not accompanied by a map or copies of any documentary evidence that the applicant wished to adduce was not made “in accordance with para 1 of Schedule 14” to the 1981 Act and would not fall within the exception in section 67(3) of the 2006 Act. An application had to comply with all three of the requirements of para 1, as to prescribed form, maps and documents. The purpose of section 67(6) was to define when a qualifying application was made, since timing was critical for subsection (1) purposes. A subsequent purported waiver of the obligation to supply documents could not operate to alter the date of the application or to treat it as having been made in accordance with para 1 on that date if that was not the case. It could have the effect only of permitting an authority to determine the application even though it was not made in accordance with para 1. However, an application would not fail to be made in accordance with para 1 where certain documents were omitted because it was impossible for the applicant to obtain them, and a minor, de minimis, departure from para 1 would not invalidate an application. Those concessions did not assist the respondents in the instant case since neither application had been accompanied by copies of documents at all, despite the fact that both clearly wished to adduce a substantial quantity of documentary evidence in support.
(2) There were no grounds for distinguishing between documentary evidence that was available to an authority and that which was not. The language of para 1 was unambiguous and required an application to be accompanied by all documentary evidence that the applicant wished to adduce, in the sense of both “put forward” and “rely upon”. The applicant was not required to only identify and provide copies of the documents to which the authority did not have access. It was not reasonable to expect an authority to investigate which of the listed documents were available to them, whereas it was straightforward for an applicant to provide copies of all documents sought to be relied upon.
George Laurence QC and Ross Crail (instructed by Knights Solicitors, of Tunbridge Wells) appeared for the appellants; Timothy Mould QC (instructed by the legal department of Hampshire County Council) appeared for the respondents; John Litton (instructed by Defra) appeared for the interested party.
Sally Dobson, barrister
