Case Comment: R (Trail Riders Fellowship & Anor) v Dorset County Council  UKSC 18
28 Tuesday Apr 2015
There are some cases that you read and know, “This is important. This case fundamentally redefines how we understand the law.” This is not one of those cases. This is a case that you read and think to yourself, “How on earth did this end up at the Supreme Court”. It is, quite literally, about map scales.
This case is an appeal from the Court of Appeal in England and Wales.
In England, s 67(1)(a) of The Natural Environment and Rural Communities Act 2006 provides that, “An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement was not shown in a definitive map and statement” which the Local Council is under a duty to maintain.
Under s 67(3) of the law, a right of way could be preserved if an application to have the right recorded on the definitive map (called a “modification order”) was made before 20 January 2005 and included along with it a map. “…of a scale of not less than 1:25,000″. In June 2004 the trail raiders fellowship did just that in an attempt to maintain a vehicular right of access across a stretch of land. They filled out the appropriate ambiguously numbered application forms and enclosed the maps. The maps were created on the computer [shock] which was based on OS maps drawn to a scale of 1:50,000. However, they were printed at a 1:25,000. This meant that while the original map had the detail present in a 1:50,000 scale map; 1cm on the application map represented 250m in real life.
The Council accepted the application and so preserved the right of way in their special map. But in 2010, on the basis of an objection being raised, the council retroactively rejected the applications on the basis that the maps were not drawn to a scale of 1:25,000, merely presented at that scale. The judge at first instance ruled in favour of the Council, stating that (i) the maps didn’t meet that statutory requirements; and (ii) the extent of the non-compliance was de minimus (i.e small enough to be overlooked). The Court of Appeal overturned this decision, stating that the maps did conform with the law – but if that was not the case, the extent of any non-compliance could not be described as de minimus. The Council appealed the UKSC and the court agreed to consider both points.
(i) Did the maps presented to a 1:25,000, but derived from a 1:50,000 scale meet the statutory requirements?
On this point the UKSC held 3-2 that the maps did comply with the requirements. Lord Clarke said that the question that fell to be answered was “Whether each of the maps was drawn to a scale of not less than 1:25,000″ .
He reasoned that since it was accepted that 1cm on the map represented 250m in real life, the maps were drawn to a 1:25,000 scale . The Council had suggested that the application map had to have the detail of a 1:25,000 OS Map, and since it was based on a 1:50,000 scale map, it failed to meet the requirement. Lords Clare, Toulson and Carnwarth agreed, stating that, not only was there no reference in the statues to the level of detail required, however helpful it would be to the Council [23-25]; it wasn’t even a requirement that an OS Map was used, and since many other statutes explicitly required the use of an OS Map, it’s absence could be taken to mean that this was not a requirement in this case.
Finally, it was noted that “drawn” didn’t refer to the original creation, but more broadly to the application map itself. The technological advances since the Regulations were made mean that courts have to grapple with whether new methods fit into old categorisations, but, in the present case at least, the issue was clear cut. Using a computer to print the map was not a new process, merely a modernised method of carrying out an old one[29-30]. On this basis, he rejected the Council’s appeal.
The dissent is notable, if only for the fact the President of the court, Lord Neuberger, and Lord Sumption are the two dissenters. They took the view that it was obvious that it was intended that the definitive OS 1:25,000 map was to be used. The fact that there was a scaling requirement in the first place suggested the level of detail required, and, given the ready and wide availability of the OS Maps for England, it must have been the intention of the regulations [88-89].
Further the ordinary meaning of the words of the law didn’t make a distinction between drawing a map and preparing a map and it would go against the “natural use of language” to describe an enlarged map to be “drawn” on the larger scale. It may be described as “being on” that scale…but not “drawn to it” . Finally, Lord Sumption added that it was so obvious that a 1:25,000 would have more detail than a 1:50,000 map, that it must be part of the reasoning behind the requirement [107-108]. As Sumption himself put it:
“I decline to construe them on the assumption that applicants could be expected to complete their applications in the most obtuse and unhelpful manner consistent with the language.”
This is, essentially, a tension between two different approaches to Statutory interpretation. The Majority applied a Literal approach:
- The law requires a map drawn to a scale of not less than 1:25,000.
- This means the 1cm on the map must represent no more than 250m in real life.
- The map in the application does so.
- The statute and regulations make no reference to the level of detail or kind of Map required.
- Other statutes explicitly set out more exacting requirements.
- Therefore the map technically meets the criteria.
- Therefore the application is valid.
The Minority, however, applied a more Purposive approach:
- The law requires a map drawn to a scale of not less than 1:25,000.
- The map in the map technically meets this criteria.
- There must be a reason that that scale is required.
- It is inherent that a map prepared on a 1:25,000 scale has more detail than one prepared on a 1:50,000 scale.
- It is a natural reading that something drawn at size ‘A’, even when enlarged, is still “drawn at” size A.
- These conclusions are so obvious that the drafters must have had them in mind when writing the legislation.
- Therefore the maps cannot truly meet the criteria based on obvious legislative intention.
Personally, I’m inclined to agree with the majority in this case. Unless an suggestion is so obvious it must be taken, the court should stick as close to the words of the text as is reasonable. In this case, it is to look at the scale, and not the detail of the map sent in with the application – and so the application should stand.
(ii) If the map didn’t meet the required scale, would that alone mean the application was invalid?
This question is now purely academical, given the majority decision of the UKSC. but is still worth considering. Here there was a 3-1 (1 abstention) decision that, if the maps didn’t meet the statutory scale, the size of the deviation meant that the applications must be held as invalid, and so the right of way would cease to exist. Lord Neuberger, Sumption and Toulson were of the view that, while previously it was open to the Council to accept a dodgy application, or remedy it themselves, s 67 of the 2006 Act spells out very clearly that:
“…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 [requiring a map of a 1:25,000 scale to be attached…]”
meaning that an application cannot be made outwith those terms. If there is no acceptable map with an application, there is no application made at all. Using an inappropriate scale is not a de minimus error, but a fundamental one in terms of the Act .
Lord Carnwath takes an entirely different approach. He begins from the (established) premise that a failure to follow technical rules is not always a fatal flaw . If the error could be amended without “…having the effect of altering the whole character of the application, so as to amount in substance to a new application” then an amendment (either by the applicant or the Council) should be considered competent . In this case, the application would still be to protect the same right of way even if the map was changed, so it can be said that it is not fundamental to the application, so a reasonable degree flexibility should be allowed.
The abstainer Lord Clarke said that, “Since it is not necessary to do so, I prefer to express no view upon the second question unless and until it arises on the facts of a particular case”. This is, of course, Judge code for “[shrugs] Dunno. I’ll get back to it”.
So – what does this case tell us? It’s authority for the proposition that a 1:50,000 doubled in size is the same at a 1:25,000 map. Beyond that, why the Supreme Court waded into this I have no idea. The preservation of 5 Dorset byways is not, to my mind at least, a matter of national importance – but I don’t live in Dorest. I suspect that the fact question (ii) didn’t fall to be addressed on the facts is perhaps the reason for the unimportant nature. On a purely jurisprudential basis, the case is uninteresting.
But if you approach the case as an example of statutory interpretation, the ‘law of reading law’, the case maybe has an point. On the substantive point of whether the maps were acceptable, there was a clash between a literal approach, sticking as close to the words of the legislation as possible, leading, perhaps, to a more rigid conclusion – and the more purpose-driven approach, where the reason why the words were put in the statute in the first place was key to understanding the legislations as a whole. It provides, if nothing else, an insight to the approaches the Justices take in understanding legislative intent.
Or…it’s just a case about maps that people took too far.
Republished with kind permission. This post originally featured on Paul Cruikshank’s Blog and can be found here.
Paul is a DPLP Student at University of Glasgow. He graduated with his LLB (Law and Politics) from there in 2014.