Public path – Bridleway – Modification – Defendants upgrading rights of way to byways open to all traffic – Defendants refusing to reconsider decisions – Claimant landowners seeking judicial review – Whether extinguishment of pre-existing rights making decisions unlawful – Whether failure to comply with procedural requirements invalidating upgrade applications – Application dismissed
The claimants were owners of land that was crossed by a road used as a public path (RUPP) and a bridleway. Under Part IV of the National Parks and Access to the Countryside Act 1949, county councils, as surveying authorities, were required to maintain a definitive map and statement showing three categories of highway: footpaths, bridleways and RUPPs (highways used by the public mainly for the same purposes as footpaths and bridleways).
Section 54 of the Wildlife and Countryside Act 1981 required surveying authorities, as soon as reasonably practicable, to review all RUPPs remaining on their definitive maps and to make modification orders reclassifying each as a byway open to all traffic (BOAT), a bridleway or a footpath. Section 53(5) enabled a person to apply to the authority for a modification order, with Schedule 14 containing the procedural provisions relating to such applications.
By an application for judicial review, the claimants challenged the lawfulness of the defendant council’s refusal to reconsider their decisions of 22 March 2006 to make orders, pursuant to section 53(5), modifying the definitive right of way map by upgrading two rights of way to the status of BOATs
They contended that, by reason of the operation of section 67 of the Natural Environment and Rural Communities Act 2006 Act, pre-existing public rights of way for mechanically propelled vehicles had been extinguished so that orders made pursuant to the defendants’ decisions would be unlawful. Moreover, any such rights were not saved by section 67(3) since the procedural requirements of Schedule 14 had not been satisfied.
Section 67 of the 2006 Act provided for the extinguishment of all existing public rights of way for mechanically propelled vehicles over ways that, immediately before its commencement, were not shown on the definitive map and statement or were shown only as a footpath, bridleway or restricted byway. However, section 67(3) provided exceptions where: (i) an application under section 53(5) of the 1981 Act had been made before 20 January 2005 to reclassify a right of way as a BOAT; and (ii) the authority had determined such an application before commencement of section 67.
The secretary of state, as minister with powers and duties under the 2006 Act and related statutes joined the proceedings as an interested party.
Held: The application was dismissed.
The pre-existing rights of way for mechanically propelled vehicles were not extinguished by section 67 of the 2006 Act because they had been saved by the defendants’ valid determinations of 22 March 2006 under section 53 of, and Schedule 14 to, the 1981 Act.
It was implicit in the function of section 53(5) that, to be valid, an application had to identify the right of way to which it related and the modification to the definitive map and statement that was sought. It should also refer to the new evidence, upon which the application was based, that was not taken into account when the map and statement were prepared or subsequently modified. However, the defendants were entitled to waive the procedural requirement in para 1 of Schedule 14, namely that the application should be accompanied by a map and copies of documentary evidence, and to take account of the consequences of the failure to comply with it in the light of the principles in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 EGLR 11; [1980] 253 EG 1011 and R v Immigration Appeal Tribunal, ex parte Jeyeanthan [2000] 1 WLR 354.
Furthermore, the defendants were entitled to waive the requirements for notice under para 2 of Schedule 14. Each landowner and occupier entitled to such notice had been made aware of the applications and had been given the opportunity to make representations. None of those who should have been served with notice had been prejudiced by the failure to comply with the formal requirements.
George Laurence QC and Ross Crail (instructed by Knights Solicitors, of Tunbridge Wells) appeared for the claimants; Timothy Mould QC (instructed by legal department of Hampshire County Council) appeared for the defendants; John Litton (instructed by DEFRA) appeared for the interested party.
Eileen O’Grady, barrister
