England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 November 2007

Mr George Bartlett QC:

Introduction

1. In this application for judicial review the claimants challenge the lawfulness of the decision of the defendant, Hampshire County Council, on 12 April 2007 refusing to reconsider decisions made by them on 22 March 2006 to make orders modifying the definitive right of way map for Hampshire by upgrading two rights of way to the status of byways open to all traffic. The claimants are landowners whose land is crossed by one of the rights of way. Their contention is that by reason of the operation of section 67 of the Natural Environment and Rural Communities Act 2006 such public rights of way for mechanically propelled vehicles as may have existed over the rights of way in question immediately before the commencement of that section on 2 May 2006 were extinguished on that date so that any order made pursuant to the decisions of 22 March 2006 would be unlawful. The interested party, the Secretary of State for Environment, Food and Rural Affairs, as the minister with powers and duties under this Act and related statutes, is concerned with the proper construction of the section and related provisions.

The public rights of way

2. The public rights of way in dispute lie in open countryside to the south-east of Winchester. As at present shown on the definitive map they consist of Chilcomb Bridleway 3, which runs south-westwards from the small village of Chilcomb for about half a mile to a metalled road called Morestead Road, and a restricted byway, Twyford RUPP16, that continues south-westwards from Morestead Road for nearly 2 miles across Twyford Down to the B3335 Coxs Hill to the north of the settlement of Twyford. Together the two rights of way form a continuous route. The claimants the Warden and Fellows of Winchester College own land that is crossed by RUPP 16. This is leased to and occupied by Hockley Golf Club. The claimants Humphrey Feeds Limited also own land that is crossed by RUPP 16.

The legislative and general factual background

3. 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, where the public right of way was on foot only; bridleways, where the public right of way was on foot or horseback or leading a horse; and roads used as public paths (RUPPs) which were defined as highways other than footpaths or bridleways used by the public mainly for the purposes for which footpaths and bridleways are so used. The 1949 Act was amended by the Countryside Act 1968 so as to require surveying authorities to reclassify each RUPP shown on their definitive maps as either a footpath or as a bridleway or as a "byway open to all traffic" (BOAT) in accordance with specified criteria. This reclassification was far from complete when the relevant provisions of the 1949 and 1968 Acts were replaced by Part III of the Wildlife and Countryside Act 1981.
4. Section 54 of the 1981 Act required surveying authorities, as soon as reasonably practicable, to review all RUPPs remaining on their definitive maps and make modification orders reclassifying each as (a) a BOAT, if a public right of way for vehicular traffic had been shown to exist; or (b) a bridleway, if (a) did not apply and bridleway rights had not been shown not to exist; or (c) as a footpath, if neither (a) nor (b) applied. "Byway open to all traffic" was defined in section 66 of the Act as "a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths and bridleways are so used."
5. Section 53 of the Act, to which I will refer in more detail later, contains provisions relating to orders modifying the definitive map and statement. It contains a duty on the part of the surveying authority to make modifications on the occurrence of certain events, and it applies Schedule 15, which contains the procedural provisions relating to modification orders. Under Schedule 15 there is provision for the making of objections and the holding of a local inquiry where objections have been made, and an order does not take effect until it is confirmed (by the authority if the order is unopposed, by the Secretary of State if opposed).
6. Section 53 of the 1981 Act also contains provision in subsection (5) enabling a person to apply to the authority for a modification order to be made, and Schedule 14 contains the procedural provisions relating to such applications.
7. In 2000, with the reclassification of RUPPs still being far from complete, the Countryside and Rights of Way Act 2000 was enacted. Section 47(2) provided that every way which, immediately before commencement of the Act was shown in any definitive map and statement as a RUPP, should be treated instead as a "restricted byway". Under section 48(4) a restricted byway is a highway over which the public have restricted byway rights, with or without the right to drive animals, but no other rights of way; and restricted byway rights are rights of way on foot, on horseback or leading a horse, and for vehicles other than mechanically propelled vehicles. There was also provision in section 48(9)-(11) to the effect that the Act should not operate so as to prevent the operation of section 53 of and Schedules 14 and 15 to the 1981 Act where, before commencement, an order under section 53(2) or an application under section 53(5) had been made. The 2000 Act in addition made provision for the extinguishment in 2026 of unrecorded rights of way for mechanically propelled vehicles over byways. It also inserted into the 1981 Act (as section 53B) a requirement that every surveying authority should keep a register of applications under section 53(5).
8. The reclassification provisions of the 2000 Act reflected the growing public concern that unmade minor vehicular ways in the countryside, green lanes, enjoyed by walkers and those on horseback, were being damaged by off-road vehicles and motorcycles. That concern was recognised in a consultation document published by Defra in 2003. In a foreword the Rural Affairs Minister, Alun Michael, said:

"As Rural Affairs Minister, I have been approached by many individuals and organisations who are deeply concerned about problems caused by the use of mechanically propelled vehicles on rights of way and in the wider countryside. I share these concerns, having seen for myself examples of damage to fragile tracks and other aspects of our natural and cultural heritage in various areas of the country. There is considerable concern about behaviour that causes distress to others seeking quiet enjoyment of the countryside.

....

I do not think that it makes sense that historic evidence of use by horse drawn vehicles or dedications for vehicular use at a time before the internal combustion engine existed can give rise to rights to use modern mechanically propelled vehicles. Those who suffer from vehicle misuse find this incomprehensible and in this paper we offer new proposals that are intended address what many have come to view as the inappropriate and unsustainable way in which vehicular rights are acquired and claimed on rights of way."

9. In due course the Natural Environment and Rural Communities Act 2006 was enacted, and in section 67 it provided for the extinguishment of all existing public rights of way for mechanically propelled vehicles over ways which, immediately before commencement, either were not shown on the definitive map and statement at all or were so shown but only as a footpath, bridleway or restricted byway. Certain exceptions to this extinguishment provision were made in the section, and these proceedings are concerned with two of them: where, before 20 January 2005, an application under section 53(5) of the 1981 Act had been made to reclassify a right of way as a BOAT; and where, before commencement (2 May 2006), the authority had determined such an application.
10. Sections 47-50 of the 2000 Act (including in particular the provision reclassifying RUPPs as restricted byways) were brought into force on 2 May 2006, and section 67 of the 2006 Act (together with other provisions in Part 6 of that Act) was brought into force on the same day but immediately after the commencement of sections 47 to 50 of the 2000 Act.
11. Certain other matters should be mentioned as part of the general factual background. The first is that the task given to surveying authorities of preparing and updating definitive maps is a formidable one, requiring as it does extensive research into great numbers of historical documents and the evaluation of a range of evidence for numerous minor ways. Mr George Laurence QC with his unequalled experience in this field described the work done in this respect by the defendant surveying authority, Hampshire County Council, as excellent. Nevertheless even the best, and best resourced, of authorities, have extensive backlogs of reclassification work. Secondly, the effect of sections 47-48 of the 2000 Act and the prospect of their commencement, and the expectation of the extinguishment provisions that are now in the 2006 Act, led to a great acceleration in the numbers of applications made under section 53(5) by those concerned that rights of way for motor vehicles along particular minor ways should not be lost. It appears that the questions that arise for consideration in the present proceedings will also arise in the case of many of these applications. Finally, it is to be noted that the process of evaluating and protecting minor public rights of way is assisted (although the burden on surveying authorities is no doubt often increased) by the work of very active pressure groups, notably the Trail Riders Fellowship, who were responsible for the section 53(5) applications in the present case, and the Green Lanes Protection Group, which provides active support for the present claimants and itself represents the interests, as they relate to vehicular access issues, of a large number of organisations, including the Campaign for Protection of Rural England, the Ramblers Association and the Council for National Parks.

The relevant statutory and regulatory provisions

12. These proceedings concern the construction and effect of section 53 of and Schedule 14 to the 1981 Act and section 67 of the 2006 Act. Subsection (1) of section 53 contains a definition of "definitive map and statement." Immediately before its amendment with effect from 2 May 2006 in respects which are not material to the present dispute, the section then went on to provide:

"(2) As regards every definitive map and statement, the surveying authority shall ...

(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in subsection (3); and

(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event.

(3) The events referred to in subsection (2) are as follows ...

(a) the coming into operation of any enactment or instrument, or any other event, whereby ...

(i) a highway shown or required to be shown in the map and statement has been authorised to be stopped up, diverted, widened or extended;

(ii) a highway shown or required to be shown in the map and statement as a highway of a particular description has ceased to be a highway of that description; or

(iii) a new right of way has been created over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path;

(b) the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;

(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows ...

(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies;

(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or

(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.

(4) The modifications which may be made by an order under subsection (2) shall include the addition to the statement of particulars as to ...

(a) the position and width of any public path or byway open to all traffic which is or is to be shown on the map; and

(b) any limitations or conditions affecting the public right of way thereover.

(5) Any person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection.

(6) Orders under subsection (2) which make only such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (a) of subsection (3) shall take effect on their being made; and the provisions of Schedule 15 shall have effect as to the making, validity and date of coming into operation of other orders under subsection (2)."

13. Schedule 14 provides as follows:
"Form of applications

1. An application shall be made in the prescribed form and shall be accompanied by ...

(a) a map drawn to the prescribed scale and showing the way or ways to which the application relates; and

(b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application.

Notice of applications

2. (1) Subject to sub-paragraph (2), the applicant shall serve a notice stating that the application has been made on every owner and occupier of any land to which the application relates.

(2) If, after reasonable inquiry has been made, the authority are satisfied that it is not practicable to ascertain the name or address of an owner or occupier of any land to which the application relates, the authority may direct that the notice required to be served on him by sub-paragraph (1) may be served by addressing it to him by the description 'owner' or 'occupier' of the land (describing it) and by affixing it to some conspicuous object or objects on the land.

(3) When the requirements of this paragraph have been complied with, the applicant shall certify that fact to the authority.

(4) Every notice or certificate under this paragraph shall be in the prescribed form.

Determination by authority

3. (1) As soon as reasonably practicable after receiving a certificate under paragraph 2(3), the authority shall ...

(a) investigate the matters stated in the application; and

(b) after consulting with every local authority whose area includes the land to which the application relates, decide whether to make or not to make the order to which the application relates.

(2) If the authority have not determined the application within twelve months of their receiving a certificate under paragraph 2(3), then, on the applicant making representations to the Secretary of State, the Secretary of State may, after consulting with the authority, direct the authority to determine the application before the expiration of such period as may be specified in the direction.

(3) As soon as practicable after determining the application, the authority shall give notice of their decision by serving a copy of it on the applicant and any person on whom notice of the application was required to be served under paragraph 2(1).

Appeal against a decision not to make an order

4. (1) Where the authority decide not to make an order, the applicant may, at any time within 28 days after service on him of notice of the decision, serve notice of appeal against that decision on the Secretary of State and the authority.

(2) If on considering the appeal the Secretary of State considers that an order should be made, he shall give to the authority such directions as appear to him necessary for the purpose."

(Paragraph 4(2) has been amended by section 51 of, and paragraph 10 in part I of schedule 5 to, the 2000 Act in a manner not material to the present dispute). In addition, paragraph 5, the interpretation paragraph, provides that "application" means an application under section 53(5) and "prescribed" means prescribed by regulations made by the Secretary of State.

14. Regulation 8 of The Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993, which were made under Schedule 14 (and other provisions), provides as follows:

"8. (1) An application for a modification order shall be in the form set out in Schedule 7 to these Regulations or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case.

(2) Regulation 2 above shall apply to the map which accompanies such an application as it applies to the map contained in a modification or reclassification order.

(3) A notice required by paragraph 2 of Schedule 14 to the Act (applications for certain orders under Part III) shall be in the form set out in Schedule 8 to these Regulations or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case.

(4) A certificate required by paragraph 2 of Schedule 14 to the Act shall be in the form set out in Schedule 9 to these Regulations or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case."

15. It is also necessary to set out the terms of Schedule 7, which contains the form of application for a modification order:

"Wildlife and Countryside Act 1981

[Title of Definitive Map and Statement]

To: [name of authority]

of: [address of authority]

I/We, [name of applicant] of [address of applicant] hereby apply for an order under section 53(2) of the Wildlife and Countryside Act 1981 modifying the definitive map and statement for the area by [deleting the [footpath] [bridleway] [[restricted byway]] [by way open to all traffic] from ............................to.........................] [adding the [footpath] [bridleway] [[restricted byway]] [byway open to all traffic] from ......................................... to ..............................................] [upgrading] [downgrading] to a [footpath] [bridleway] [[restricted byway]] [byway open to all traffic] the [footpath] [bridleway] [[restricted byway]] [byway open to all traffic] from ........................................................to .....................................] [[varying] [adding to] the particulars relating to the [footpath] [bridleway] [[restricted byway]] [byway open to all traffic] from ...................................... to ................................................ by providing that ......................................................] and shown on the map accompanying this application.

I/We attach copies of the following documentary evidence (including statements of witnesses) in support of this application:

List of documents

Dated: Signed .............................."

16. Regulation 2 of the 1993 Regulations provides that a definitive map shall be on a scale of not less than 1/25,000, but permits the surveying authority to include an inset map on a larger scale. It is unnecessary for present purposes to set out Schedules 8 and 9 which contain the form for notices and certificates under paragraph 2 of Schedule 14.
17. Section 67 of the 2006 Act provides where material as follows:

"Ending of certain existing unrecorded public rights of way

67. (1) An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement ...

(a) was not shown in a definitive map and statement, or

(b) was shown in a definitive map and statement only as a footpath, bridleway or restricted by way.

But this is subject to subsections (2) to (8).

(2) Subsection (1) does not apply to an existing public right of way if ...

(a) it is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use for mechanically propelled vehicles,

(b) immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (c.66) (list of highways maintainable at public expense),

(c) it was created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles,

(d) it was created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles, or

(e) it was created by virtue of use by such vehicles during a period ending before 1^st December 1930.

(3) Subsection (1) does not apply to an existing public right of way over a way if ...

(a) before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 (c.69) for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic,

(b) before commencement, the surveying authority has made a determination under paragraph 3 of Schedule 14 to the 1981 Act in respect of such an application, or

(c) before commencement, a person with an interest in land has made such an application and, immediately before commencement, use of the way for mechanically propelled vehicles ...

(i) was reasonably necessary to enable that person to obtain access to the land, or

(ii) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only.

(4) "The relevant date" means ...

(a) in relation to England, 20^th January 2005;

(b) in relation to Wales, 19^th May 2005.

(5) Where, immediately before commencement, the exercise of an existing public right of way to which subsection (1) applies ...

(a) was reasonably necessary to enable a person with an interest in land obtain access to the land, or

(b) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only, the right becomes a private right of way for mechanically propelled vehicles for the benefit of the land or (as the case may be) the part of the land.

(6) For the purposes of subsection (3), an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act...."

The applications

18. The application relating to Chilcomb Bridleway 3 was made by David Leonard Tilbury and was dated 11 June 2001. It said:

"I .... hereby apply for an Order under section 53(2) of the Wildlife and Countryside Act 1981 to modify the definitive map and statement for the area by:-

... upgrading to a byway open to all traffic the bridleway from SU502275 to SU507279 and shown on the map annexed hereto.

I append a list of documents on which I base this application.

Parish Chilcomb

Way number 3

Way name Cowards Lane."

19. The list of documents that was appended included some 25 maps or plans, in respect of each of which Mr Tilbury added an observation. Thus the first one was: "1759 ... Isaac Taylor ( A route is shown from Twyford to Chilcomb". The fifth one was: "1838 ( Tithe map ( The lane is shown, coloured yellow, and marked 'Church Lane' & 'Cowards Lane'. It is numbered '3'. It is shown as a through route from the village to the 'Bishop's Waltham' road." A later one, under the heading "Bartholomew's maps", was: "1903 – Survey Atlas of England & Wales: The claimed lane is clearly shown as 'Other Driving roads'. Footpaths and bridleways are shown separately." In addition there was listed a 1854 certificate of completion for roads set out under an enclosure award, and Mr Tilbury quoted the passage in it that related to what was called Chilcomb Road.
20. Mr Tilbury also sent to the council a certificate of service, certifying that the requirements of paragraph 2 of Schedule 14 to the Act had been complied with, and giving as the name of the landowner "Mr J Seale" and his address. The certificate was dated 11 June 2001.
21. There were in fact three applications made in respect of Twyford RUPP 16 because Mr Fosberry, who made them, was originally under the impression that part of the route in question was RUPP15. Although, therefore, Mr Fosberry replaced his two original applications (dated 14 March 2005) with a later application (dated 16 June 2005), nothing turns on this, and the applications referring to RUPP16 were in identical terms except that the grid co-ordinates for the start of the way were (because of Mr Fosberry's original misunderstanding) differently stated. The council treated the original applications as the effective application. I will refer simply to "the application".
22. The application was made on a printed council pro forma. It gave as the name of the applicant, "Sean Fosberry, on behalf of the Trail Riders Fellowship", and it stated that the applicant applied for an order under section 53(2) modifying the definitive map and statement by "upgrading to a byway open to all traffic the Road Used as a Public Path RUPP 16 from SU 48325 25584 to SU 50210 27410 and shown on the map annexed hereto." Appended to it were four pages headed "Detailed Evidence Report", which identified some 30 maps. Against each of them, under the heading "evidence entry" there was a commentary. Thus, for example, in relation to the map in the 1855 enclosure award for Twyford, the following was stated:

"The map of Twyford Down, Hants, 1851, No3, Part 2A shows the RUPP from SU485263 north eastwards as Chilcombe Road, 24 feet wide. Annotated 'From Twyford' at its south western end and 'To Chilcombe' at its north eastern end. The Award states 'And I do hereby declare that I have set out an appointed and do hereby set out and appoint the following Public Carriage Roads or Highways that is to say One Public Carriage Road or Highway of the width of Twenty four feet to be called Chilcombe Road commencing at a point marked Aa on the said Map and extending thence in a North Eastward direction along the side and thence across Twyford Down to and terminating at a point marked Ab on the same Map opposite the continuation of the same Road to the village of Chilcombe'. The map of Twyford Inclosure, Hants, 1851, Part 2B, which concerns Inclosures in and around Twyford village, shows the south western end of the RUPP coloured brown as are all other public roads including the Turnpike and London Lane (now Hazeley Road). There is no barrier or anything where it leaves the turnpike on the bend."

Mr Fosberry also sent to the council a certificate certifying that the requirements of paragraph 2 of Schedule 14 had been complied with. Under the heading "Name and address of landowner(s)" the certificate said: "Notice served on site. Please see photos sent by e-mail".

The council's determination

23. The applications were considered by the council at the meeting of its Regulatory Committee on 22 March 2006. The committee had before it the report by the Director of Recreation and Heritage that I have mentioned. The report referred to the relevant statutory provisions, and it described the applications and the claimed routes. Under the heading "The Landowners" it said this:

"4.1 Twyford RUPP 16(A-B-C)

4.1.1 The majority of section A-B of this route is registered, part to Mr and Mrs Wood of Twyford and part to Humphrey Farms Limited. Both parties have been informed of the application.

4.1.2 Winchester College owns the remainder of the route. Both Winchester College and its tenant, Hockley Golf Club, have been informed of the application.

4.2 Chilcomb Bridleway 3 (C-D)

4.2.1 It is understood that Mr Seale of Manor Farm, Chilcomb, owns a small part of the northern end of route C-D, the remainder being owned by the Ministry of Defence. Both parties have been informed of the application.

4.2.2 C-D passes immediately to the south of a Ministry of Defence Firing Range. The route, and neighbouring land, is subject to Ministry of Defence Byelaws, made in 1969 under the provisions of the Military Lands Act 1892, which prohibit public access when the range is in use. Should the Committee decide to accept the application to upgrade Chilcomb Bridleway 3, the current Byelaws will continue to apply to vehicular use."

24. The report went on to state that the issue to be decided was whether or not there was evidence to show on the balance of probabilities that the claimed routes should be shown as BOATs on the definitive map. It summarised and discussed the modern user evidence and the historic and documentary evidence. It quoted letters from Winchester College as landowners on RUPP16 and Hockley Golf Club as occupiers expressing their strong objection to the reclassification. It summarised the responses received from consultees. The conclusion in respect of both routes was that the claims to upgrade them should be accepted and it recommended that the appropriate orders should be made.
25. The minutes of the committee record that deputations were made by the Secretary of Hockley Golf Club and on behalf of Twyford Parish Council and by the local ward member and that the committee considered the officer's report. It then went on:

"In considering RUPP 16, the committee requested that urgent consideration be given to the making of the Traffic Regulation Order prohibiting use by public motorised vehicles.

RESOLVED:

(a) That, an Order be made to upgrade Twyford RUPP 16 to Byway Open to All Traffic, and it be recorded in the definitive statement with a maximum width of 6.0 metres (between point A and point B on appendix 1 to the report) and 7.3 metres (between point B and point C on Appendix 1 to the report).

(b) That an Order be made to upgrade Chilcomb Bridleway 3 to Byway Open to All Traffic, and it be recorded with a maximum width of 3.0 metres."

The challenge

26. The case for the claimants is that it would now be unlawful for the council to make the orders that they resolved to make on 22 March 2006 because on 2 May 2006, by virtue of the commencement of the relevant provisions of the 2000 Act and the 2006 Act, any existing rights for mechanically propelled vehicles were extinguished. Such rights, they say, were not saved from extinction by section 67(3)(b) because there had not in either case been a valid determination of an application under paragraph 3 of Schedule 14, firstly, because neither of the purported applications were valid applications under paragraph 1 and, secondly, because the requirements as to notice and certification of notice under paragraph 2 of that Schedule were to the knowledge of the council not complied with. In the case of Chilcomb Bridleway 3, where an application, purportedly made under paragraph 1 was made in 2001, the claimants say that any rights for motor vehicles are not saved from extinguishment by section 67(3)(a) because the purported application was not a valid application.

First ground: no valid determinations because applications failed to comply with paragraph 1

27. In addressing the claimants' contentions on this ground it is necessary to consider the relevant legislative provisions. These are specifically section 53(5) of and paragraph 1 of Schedule 14 to the 1981 Act, regulation 8 of and Schedule 7 to the 1993 Regulations and section 67(3) and (6) of the 2006 Act, although the provisions, of course, have to be considered in their context.
28. I should express a number of preliminary conclusions about them. Firstly, for the purposes of the application of section 67 the 2006 Act does not add to or subtract from the pre-existing legislative requirements as to what constitutes an application for the purposes of section 53(5) of the 1981 Act. The 2006 Act does not purport to alter the effect of these provisions for the purpose of applying section 67, and none of the parties suggested that it did. For this reason, although the parties were ready, on the basis of Pepper v Hart, to rely on the proceedings in Parliament on the 2006 Act and ministerial statements, it is clear that such material could not have any bearing on the meaning of the provisions in the 1981 Act.
29. Secondly, it follows that the present issues are not ones that the 1981 Act was designed to address. As Mr Laurence pointed out, if a council had treated as valid an invalid section 53(5) application and had proceeded to deal with it by making an order under section 53(2), the invalidity would have been immaterial. The council would have made the order on the basis of the material before it, and the remedy of an objector would have been to object to the order under Schedule 15.
30. Thirdly, the function of the 1993 Regulations in relation to applications under paragraph 1 of Schedule 14 is to prescribe the form of such applications. The Regulations cannot add to or subtract from the substance of what is required to constitute an application. This is recognised by regulation 8 which not only provides that an application has to be in the form set out in Schedule 7 to the Regulations or in a form substantially to the like effect but adds "with such insertions or omissions as are necessary in any particular case".
31. Mr Laurence submitted that an application had to comply strictly with the requirements of paragraph 1 of Schedule 14, that is to say that it had to be "made in the prescribed form" and be accompanied by "(a) a map drawn to the prescribed scale and showing the ways to which the application relates; and, as listed by him, (b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application." For the council Mr Timothy Mould QC submitted that strict compliance was not necessary. It was, he said, sufficient that an application substantially complied with the requirement of paragraph 1 so that the purpose of the requirements had been fulfilled. He relied on the decision in R v Secretary of State for the Home Department, ex p Jeyeanthan [2000] 1 WLR 354. In that case the Court of Appeal made statements of principle that were based on the speech of Lord Hailsham of St Marylebone LC in London and Clydeside Estates ltd v Aberdeen District Council [1980] 1 WLR 182 at 188-190. In the passage cited by Lord Woolf MR in his judgment, Lord Hailsham, having referred to the conventional categorisation of statutory requirements into "mandatory" and "directory", said this:

"... In this appeal we are in the field of the rapidly developing jurisprudence of administrative law, and we are considering the effect of non-compliance by a statutory authority with the statutory requirements affecting the discharge of one of its functions. In the reported decisions there is much language presupposing the existence of stark categories such as 'mandatory' and 'directory,' 'void' and 'voidable,' a 'nullity,' and 'purely regulatory.'

Such language is useful; indeed, in the course of this opinion I have used some of it myself. But I wish to say that I am not at all clear that the language itself may not be misleading in so far as it may be supposed to present a court with the necessity of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments, compartments which in some cases (e.g. 'void' and 'voidable') are borrowed from the language of contract or status, and are not easily fitted to the requirements of administrative law."

32. Having noted that there might be cases, on the one hand, where a fundamental obligation had been outrageously and flagrantly ignored or defied and, on the other, those where a defect in procedure was so nugatory or trivial that the authority could safely proceed without remedial action, Lord Hailsham went on:

"But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like 'mandatory,' 'directory,' 'void,' 'voidable,' 'nullity' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition."

33. In a section of his judgment in Jeyeanthan headed "What should be the approach to procedural irregularities?" Lord Woolf quoted these and adjacent passages, and he concluded as follows (at 362C-F):

"Bearing in mind Lord Hailsham LC's helpful guidance I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test. The questions which are likely to arise are as follows:

1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)

2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.

3. If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequence question.)

Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent of waiver."

34. In relying on Jeyeanthan for his proposition that strict compliance with the requirements of paragraph 1 of Schedule 14 was not required, Mr Mould referred in addition to earlier passages in Lord Woolf's judgment where he emphasised (at 359H) that the procedural requirements in that case were designed to further the interests of justice, so that any consequence which would achieved a result contrary to those interests should be treated with considerable reservation, and (at 360D) the importance of focussing on the consequences of non-compliance.
35. I think that Jeyeanthan is of limited assistance in determining the question of whether the purported applications were applications for the purposes of section 53(5) and paragraph 1. The reason is that the validity of an application is a matter that goes to jurisdiction, and the considerations that apply are not the same as those that apply to procedural irregularities, which are capable of being waived. This is clear from Lord Woolf's judgment at 362F, and there is direct authority for it in Rydquist v Secretary of State for Work and Pensions [2002] 1 WLR 3343. In my judgment the question of what constitutes an application in terms of the relevant legislation is a matter that requires to be approached more strictly than the sort of procedural requirements to which considerations of substantial compliance and waiver may apply.
36. In the present case there cannot, in my judgment, be any question of the authority being entitled to waive requirements as to the contents of an application, nor can the consequences of non-compliance with those requirements have any relevance. On the other hand the question of the validity of the application was a matter for them to determine, and their decision to treat the applications as valid is only susceptible of challenge on Wednesbury grounds. It was for them to decide whether they had jurisdiction to make a determination under section 53(5) and Schedule 14. They had, however, no power to waive the requirements as to what an application must consist of or to take into account the effects of non-compliance.
37. Mr Mould submitted that paragraph 1 drew a distinction between the application itself and the documents that are required to accompany it. Mr John Litton for the Secretary of State did not support this submission. He said that to constitute an application for the purposes of the provision an application had to be accompanied by a map and a list of documents. I agree with Mr Mould's submission. Paragraph 1 provides: "An application shall be made in the prescribed form and shall be accompanied by –". The requirements that the application should be in the prescribed form and should be accompanied by a map and copies of any documentary evidence are separate requirements, and an application, in my judgment, does not fail to constitute an application because it is not accompanied by a map and such copies. The difficulty with Mr Litton's contention is that the requirement in relation to documentary evidence is specific. The requirement is for copies of any documentary evidence which the applicant wishes to adduce in support of the application, not for a list of such documents; so that, even if the test were that of substantial compliance, this would not be satisfied by sending a list of documents where the requirement was that copies of the documents themselves should be sent.
38. My view, therefore, is that the requirement that the application should be accompanied by a map and copies of documentary evidence is a procedural requirement. Thus the authority may be able to waive the requirement and to take account of the consequences of the failure to comply with it in the light of the principles in London and Clydeside Estates and Jeyeanthan. If the authority have all the information that they need to determine the application in the absence of all, or indeed of any, of the documents that are required to accompany the application, I do not see why they should not have power to determine the application. There would simply be no point on insisting on the provision of documents which are not needed to enable the application to be determined. On the other hand, if documents that are needed for this purpose were not supplied, the authority would no doubt take the view that, until they had been supplied, it would not be "reasonably practicable" under paragraph 3(1) to investigate the matters stated in the application and to decide whether to make an order.
39. To construe paragraph 1 in this way, it seems to me, not only reflects the actual language of the provision but it avoids the absurdities that would result if the requirement to supply the documents were treated as fundamental to an application. Take the requirement to supply a map. If the application (like the applications in the present case) contends that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description (see section 53(3)(c)(ii)), no purpose would be served by sending a map of the highway. Provided that the length of highway was identified in the application (as here, where the applications referred respectively to Chilcomb Bridleway 3 and Twyford RUPP 16 and also gave the grid co-ordinates for the start and the end of the length of the way), it would be there to be seen on the definitive map, and it would be nonsensical if the authority were unable to treat the application as valid until a map had been supplied by the applicant showing what was shown on the definitive map. On the other hand, if the application was in respect of a right of way that was not shown in the definitive map, a map showing the claimed right of way would almost certainly be required in order to identify it.
40. Similar considerations, in my view, apply to copies of documentary evidence. If the authority already have copies of or have access to the documentary evidence on which the applicant relies, there would be no sense in treating the application as invalid simply because it was not accompanied by copies of the same evidence. The applicant might indeed himself have supplied the evidence sometime previously. The evidence available to an authority like Hampshire is considerable. In her witness statement Alexandra Claire Lewis, a Senior Rights of Way Officer with the council, who is in charge of the Map Team that has responsibility for the maintenance of the definitive map and statement, said this:

"The Map Team is based at the main offices of the County Council in Winchester. The County Record Office is also based in Winchester, and is part of the Recreation and Heritage Department. We are able to access documents held by the County Record Office very easily, save in rare cases when depositors restrict access to their own archives. The County Record Office contains many of the documents that officers in the Map Team would normally look at during the course of investigating applications. These include tithe maps, inclosure awards, highway maintenance records, quarter sessions records, deposited plans (for railways or canals) and some private archives which include estate management records. We also have access to many resources via our computer terminals. These include Ordnance Survey County Series maps since the 1870s, and many small scale maps from the C17th -C19th which can be downloaded from a website known as 'Old Hampshire Mapped' and which is hosted by Portsmouth University. There are very few documents that we do not have ready access to: documents held in private collections being the main exception. From time to time we will go to record offices in other counties if a route close to our boundaries is under investigation, or the National Archive at Kew. We consider this to be all part of our duty to investigate the true status of a claimed right of way."

41. I have no doubt that the council were entitled to treat each of the applications as valid. The validity of an application has to be considered in the context of section 53 as a whole. An application under subsection (5) is an application for an order to be made by the authority under subsection (2) modifying the definitive map and statement. A modification under subsection (2) falls to be made in consequence of the occurrence of one of the events specified in subsection (3). We are here concerned with paragraph (c) of subsection (3), in which the event consists of the discovery by the authority of evidence which (when considered with all the other relevant evidence available to them) shows – (ii) (the relevant subparagraph here) that a highway shown with a particular description should be shown as a highway of a different description.
42. I can see no reason for thinking that to constitute an application under section 53(5) an application must relate to, and therefore must provide, evidence that the authority have not yet discovered. Mr Laurence, as I understood him, ultimately accepted that that was so. One can indeed envisage circumstances in which an applicant has himself provided such evidence (for instance witness statements about use of the way by motor vehicles) to the authority at some earlier time and now, disappointed that the authority has not acted upon it, formally makes an application under section 53(5) to ensure that the authority is compelled to decide whether it justifies an order modifying the map and statement.
43. It is implicit in the function of subsection (5) in the context of section 53 as a whole that, to be valid, an application must identify the way to which it relates and the modification to the definitive map and statement that is sought. It is also implicit, it seems to me, that it must refer to the new evidence on which the application is based – new, that is to say, in being evidence that was not taken into account by the authority when they prepared the definitive map and statement or subsequently modified it. Provided that the application includes these things and the new evidence, with or without other evidence available to the authority, is not irrelevant or manifestly incapable of supporting the modification that is sought, the authority is, in my judgment, entitled to treat it as a valid application. In the present case each of the two applications identified the highways to which they related and the modifications that they sought – in each case the upgrading of the highway to a BOAT. Each application included a list of documents (in one case 26 in number, in the other 30) and an analysis of what each document showed in relation to the claimed right of way for motor vehicles. Although there is nothing to indicate which of the documents contained evidence that had not already been taken into account by the council in preparing or modifying the map and statement, it is, I think, implicit in the witness statement of Emma Claire Noyce, the officer who dealt with the applications, that new material was indeed identified, since the work of investigation that she says that she carried out would not have been necessary if the ground had been covered in previous investigations. In any event there is no suggestion on the part of the claimants that all of the extensive material referred to in the applications was already known to the council.
44. For these reasons I think that the council were entitled to treat each application as valid. They were also manifestly justified in not seeking compliance with the requirement in paragraph 1 of Schedule 14 that copies of the documentary evidence relied on by the applicant should be sent to them. There was no need for them to be sent, and the council was entitled, under the principles in Jeyeanthan, to waive this procedural requirement.
45. If I am wrong, however, in treating as separate the requirements under paragraph 1 on the one hand as to the form of the application and, on the other, as to what it must be accompanied by, I would in any event reach the same conclusion on the validity of the applications by another route. What has to be sent are "copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application". "Adduce" is used here, in my view, to mean to put forward or provide, not to rely upon. The applicant does not have to provide copies of all the documentary evidence on which he relies for his contention that the map and statement should be modified. He can rely on documentary evidence that the council have or have access to without sending copies of it to them. What the applicant does have to do, however, is to provide copies of any documentary evidence that, because it is not already available to the council, he wishes to put forward. The word is "any". The applicant may not wish to put forward any such evidence, because he relies on evidence that is already before the council. Provided that his application identifies the new evidence on which he relies, he does not have to send copies of such evidence if the council already have it or have access to it.
46. The first ground accordingly fails. The applications were not rendered invalid by reason of the fact that copies of the documentary evidence on which the applicants relied did not accompany the applications.

Second ground: no valid determinations because requirements as to notice not complied with

47. The second ground of challenge relates to paragraphs 2 and 3 of the Schedule 14. Subparagraph (1) of paragraph 2 requires the applicant to serve notice of the application on every owner and occupier of any land to which the application relates. Subparagraph (2) enables the authority, if they are satisfied that it is not reasonably practicable to ascertain the name or address of an owner or occupier, to authorise service by affixing a notice to some object on the land. Subparagraph (3) requires the applicant to certify to the authority that the requirements of the paragraph have been complied with. Under paragraph 3(1) the authority is required, as soon as practicable after receiving a certificate under paragraph 2(3), to investigate the matters stated in the application and to decide whether to make the order to which the application relates.
48. At the time of the application relating to Chilcomb Bridleway 3 the owners and occupiers of the land crossed by the way were the Ministry of Defence and Mr J Seale. Mr Tilbury, the applicant, served notice of the application on Mr Seale, but he did not serve notice on the Ministry of Defence. He sent to the council a certificate in the prescribed form, stating that the requirements of paragraph 2 had been complied with and that he had served notice on Mr Seale as owner of the land. The certificate did not refer to the Ministry of Defence.
49. Twyford RUPP 16 crosses land owned as to part by Winchester College, as to part by Humphrey Feeds Limited (formerly Humphrey Farms Limited) and as to a further part by Mr and Mrs Wood. The Winchester College land is occupied by Hockley Golf Club. The land owned by Humphrey Feeds and Mr and Mrs Wood is registered. Mr Fosberry, the applicant, did not serve notice on any of the owners or the golf club. His application, under the heading "Land Registry – Land Ownership", identified as the land "lane surface" and stated: "No registered estate, caution against first registration or application for first registration is shown on the index map in relation to the Property." Mr Fosberry sent to the council a certificate in the prescribed form, stating that the requirements of paragraph 2 had been complied with. It said: "Notice served on site. Please see photos sent by e-mail." The council, however, had not authorised service by displaying the notice on site under subparagraph (2).
50. The claimants say that the certificates sent to the council in each case were erroneous and that the council knew that they were. In the case of Chilcomb Bridleway 3 they knew that the way crossed land owned by the Ministry of Defence and that the Ministry had not been served with notice. In the case of Twyford RUPP 16 there had been no authorisation under subparagraph (2), and the council in any event knew that two of the land ownerships were registered. Since the council knew that the certificates were erroneous, it is said, they had no power to determine the applications.
51. The council say that, by the time of the resolution on 22 March 2006, all owners and occupiers on both ways had been informed of the applications and had had the opportunity to make representations on them. There was, therefore, substantial compliance with the statutory requirements, and they accordingly had power to determine the applications. They rely on facts stated in the witness statement of Miss Noyce.
52. Miss Noyce said that she began to investigate the Chilcomb Bridleway 3 application at the beginning of November 2005. Since about four years had passed since the application was made she carried out a Land Registry search, and on 2 December 2005 the result was sent to her stating that that there was no registered owner for the route. Further research revealed past correspondence between the council and the Ministry of Defence about the bridleway, and she therefore wrote to Defence Estates on 12 December 2005 informing them of the application and offering to meet them to discuss it. On the same day she wrote in similar terms to Mr Seale. Between 19 and 30 January 2006 she sent out copies of her draft committee report to a number of interested parties, including Defence Estates and Mr Seale, and on 20 February 2006 she circulated her revised report. She received responses from Defence Estates.
53. On 5 January 2006 Miss Noyce sent out letters of consultation on the Twyford RUPP16 application to a number of interested parties, including Winchester College and Hockley Golf Club, both of whom had already corresponded with the council on the application. She had a meeting with the college's Estates Bursar and spoke on the telephone with the secretary of Hockley Golf Club. The college and the golf club were among the recipients of copies of her initial draft report and her revised report. Both of them responded, and the secretary of the golf club made representations at the meeting of 22 March 2006.
54. Also on 5 January 2006 Miss Noyce e-mailed Mr Fosberry to ask for a copy of the Land Registry search certificate. She did not receive a reply to this request, and she therefore carried out a Land Registry search herself. The results, which she received on 27 January 2006, revealed the existence of two landowners along the route, Mr and Mrs Wood and Humphrey Farms Ltd. She had not been aware until then of their interests. On 30 January 2006 she wrote to them informing them of the Twyford RUPP 16 application and consulting them on it. On 20 February 2006 she sent them copies of her revised report. No replies were received.
55. In her witness statement Miss Lewis said that, following the announcement of the Government's proposals to limit the time within which BOATs might be claimed, she received a telephone call from Mr Tilbury, as the representative of the Trail Riders Fellowship, asking, on the ground of cost, that the council should waive its established practice of requiring Land Registry searches to be made in relation to each application where the identity of the landowner was not known. She told him that the council would not authorise the posting of notices unless Land Registry searches had been made and returned a negative result. The council's Rights of Way section subsequently received over 150 applications over a period of 15 months from Mr Tilbury and Mr Fosberry on behalf of the TRF. Some of these identified landowners or occupiers, but the others quoted a Land Registry search number and stated that the land over which the route was claimed was not registered. She thought it likely that her insistence to Mr Tilbury on the need for Land Registry searches was taken by the TRF to mean that, in cases where searches had been made and the land was unregistered, consent had been given by the council to the posting of notices instead.
56. Miss Lewis said that she was aware that applications were being made by the TRF with notices being posted at the ends of the routes claimed. She did not, however, consider it necessary to intervene and require the applicants to make further inquiries about land ownership or occupation before sanctioning the posting of notices because of the difficulties in identifying owners and occupiers. She also took account of the publicity that was generated by the posting of notices. She was therefore satisfied that certificates could properly be accepted by the council under paragraph 2(3) on the basis of a Land Registry search that showed the land to be unregistered.
57. It is clear that in the case of neither application were the requirements of paragraph 2 complied with. It appears to me to be clear also that the council must have realised that they were not being complied with. In the case of Chilcomb Bridleway 3 notice had not been served on the Ministry of Defence, who the council had every reason to believe was a landowner on the route. In the case of Twyford RUPP 16 the council was aware that notice had not been served on Mr and Mrs Wood or Humphrey Farms Ltd, and it knew that these were registered owners. Mr Fosberry's certificate stated that notices had been displayed on site, but neither Miss Lewis nor Miss Noyce said that authorisation had been given under paragraph 2(2).
58. It does not seem to me, applying the established principles, that these failures to comply with the statutory procedural requirements rendered the council's decision on the applications invalid. The purpose of the requirements is to ensure that each landowner and occupier affected by an application is made aware of the application. Not only was each landowner and occupier made aware of the applications in the way that I have described but they were provided with the officer's report to the committee and were given the opportunity to make representations. Winchester College made representations, Humphrey Farms Ltd did not. For the council to have insisted that, despite all this, the applicants must serve notice of their applications on both of these parties, and on the Ministry of Defence, Mr and Mrs Wood and the golf club, and then certify to the council that this had been done, would have been absurd. The objective of paragraph 2 had been met, and none of those who had to be served with notice had been prejudiced by the failure to comply with the formal requirements. In the circumstances the council were in my judgment undoubtedly entitled to waive the formal requirements and to determine the applications as they did. The second ground of challenge accordingly fails.

Third ground: Chilcomb Bridleway 3 application invalid because it failed to comply with paragraph 1

59. The third ground of challenge concerns the validity of the application in relation to Chilcomb Bridleway 3. This was made in June 2001, well before 20 January 2005, the relevant date for the purposes of section 67(3)(a), so that any rights for motor vehicles would have been saved from extinguishment if the application was valid. The claimants' contentions as to its invalidity therefore have to be considered in relation to this provision. The considerations are not identical to those that arose on the first ground. There it was the validity of the council's determination that was in issue, and the question in relation to the application was whether the council was wrong in law to treat the application as valid. The validity of the application was a matter for the council, and its acceptance of it as valid could only be impugned on Wednesbury grounds. In relation to the third ground, on the other hand, the question as it now arises is one for the court.
60. I am not entirely sure what is the correct approach to the determination of this question. I think it unlikely that it would be sufficient for this purpose that the application was such that a council could lawfully treat it as valid, and I rather think that the test is whether a council would be obliged to treat it as valid. In the event it is not necessary to reach a view on this since in my judgment the June 2001 application would undoubtedly pass this more stringent test because, for the reasons that I have given, it clearly contained the requisite material. The third ground of challenge accordingly fails.

Conclusion

61. The claimants have failed to make out their challenge. While their concern about the damage done to these unmade rural ways by motor vehicles is understandable (and is evidently shared by the council, as the resolution of 22 March 2006 shows), for the reasons I have given such rights for motor vehicles as existed on 2 May 2006 were not extinguished under section 67 of the 2006 Act. They were saved from extinguishment under subsection (3) of that section by the council's determinations of 22 March 2006, which were valid determinations under section 53 of and paragraph 3 of Schedule 14 to the 1981 Act and, in the case of Chilcomb Bridleway 3, by the application of 11 June 2001, which was a valid application under paragraph 1 of the Schedule. The claimants' application is accordingly refused.