| HIGHWAY — Right of way — Definitive map — Rights for mechanically propelled vehicles — Local surveying authority determining to upgrade to byway open to all traffic — Application to modify definitive map and statement — Whether failure to comply with statutory requirements as to making of such applications rendering application invalid — Whether invalidity of such application preventing operation of saving provision relating to extinguishment of existing rights — Wildlife and Countryside Act 1981, s 53(5), Sch 14, paras 1, 3 — Natural Environment and Rural Communities Act 2006, s 67
R (Warden and Fellows of Winchester College and another) v Hampshire County Council [2008] EWCA Civ 431; [2008] WLR (D) 132
CA: Ward, Dyson and Thomas LJJ: 29 April 2008
The formal requirements governing the making of an application to modify a definitive map and statement under s 53(5) of, and para 3 of Sch 14 to, the Wildlife and Countryside Act 1981, which were contained in para 1 of Sch 14, had to be adhered to strictly. Where such an application was found to be invalid, certain rights ostensibly extinguished under s 67(1) of the Natural Environment and Rural Communities Act 2006 were not apt to be saved by virtue of s 67(3) of the 2006 Act since the latter provision was predicated upon a valid application.
The Court of Appeal so held when allowing the appeals of the claimants, the Warden and Fellows of Winchester College, and Humphrey Feeds Ltd, from a decision of George Bartlett QC, sitting as a Deputy Judge of the High Court in the Queen’s Bench Division on 28 November 2007 [2007] EWHC 2786 (Admin), refusing their claim for judicial review of the refusal by the defendant, Hampshire County Council, to reconsider decisions made on 22 March 2006, as surveying authority for Hampshire, to make an order modifying the definitive map and statement by upgrading two rights of way to the status of byways open to all traffic.
The decisions had followed upon separate applications by two members of the public: first, to upgrade a bridleway; and, second, to upgrade a road used as a public path. The judge held, inter alia, that such rights for mechanically propelled vehicles as existed over the two rights of way on 2 May 2006 were not extinguished by s 67(1) of the 2006 Act when it came into force. He held that the rights had been saved from s 67(1) extinguishment under s 67(3)(b) by virtue of the defendant’s decisions on 22 March 2006, which he found to have been valid determinations of the various applications to modify the definitive map and statement under s 53(5) of, and para 3 of Sch 14 to, the 1981 Act. In the case of the bridleway, the judge further held that the applicable rights had been saved from extinguishment under s 67(3)(a) of the 2006 Act by virtue of a valid application under s 53(5) of, and para 1 of Sch 14 to, the 1981 Act. The grounds of appeal were that the applications should have been found to be invalid in light of failures to comply with the formal requirements governing such applications, and the judge should therefore have found that the relevant rights had not been saved from extinguishment.
S 53(5) of the 1981 Act provides: “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.”
S 67 of the 2006 Act provides: “(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 byway. But this is subject to subsections (2) to (8) ... (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 ... 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 ... (4) ‘The relevant date’ means—(a) in relation to England, 20 January 2005 ... (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.”
DYSON LJ said that the principal issue of law was: what was meant by “an application made in accordance with paragraph 1 of Schedule 14 to the 1981 Act” within the meaning of s 67(6) of the 2006 Act, where the claimants contended that neither of the applications in issue was a qualifying application? Construing the applicable provisions, for any of the three exceptions identified in s 67(3) to apply a s 53(5) application had to have been made in accordance with all the requirements of para 1 of Sch 14, viz it had to have been: made in the prescribed form; accompanied by a map drawn to the prescribed scale and showing the way(s) to which the application related; and accompanied by copies of any documentary evidence (including statements of witnesses) which the applicant wished to adduce in support of the application. Those words were expressed in clear and ordinary language and were to be given their plain and ordinary meaning, and an application which was not accompanied by a map (para 1 (a)), or by copies of any documentary evidence (including statements of witnesses) which the applicant wished to adduce in support of the application (para 1 (b)), was not made in accordance with para 1 of Sch 14 to the 1981 Act. On the facts, for the purposes of the saving provision within s 67(3) of the 2006 Act, the applications were not made in accordance with para 1 of Sch 14 to the 1981 Act, so that neither was a qualifying application. It followed that the relevant rights had not been saved from extinguishment.
THOMAS and WARD LJJ agreed.
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