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On appeal from: [2013] EWCA Civ 553

The Natural Environment and Rural Communities Act 2006, s 67, extinguished all unrecorded rights of way for mechanically propelled vehicles in England as of 2 May 2006. However, if an application for a modification order was made before 20 January 2005, then these rights of way could be preserved.

The Friends of Dorset’s Rights of Way submitted five applications to Dorset County Council under the Wildlife and Countryside Act 1981 for orders modifying the definitive map and statement of the public rights of way in the area to show various byways open to all traffic. The maps submitted with the applications were prepared using a computer program which presented them on a scale of 1:25,000 or larger but which were originally derived from Ordnance Survey 1:50,000 maps. The scale prescribed by the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 is not less than 1:25,000. The council rejected the applications on the basis that the maps were not drawn to a scale of not less than 1:25,000. If this decision were to be upheld then the relevant vehicular rights of way would no longer exist.

Supperstone J upheld the council’s decision, however the Court of Appeal allowed an appeal by Trail Riders.

The Supreme Court dismissed the council’s appeal, upholding the Court of Appeal’s decision on the first argument by a majority of 3 to 2 i.e. the maps did comply with statutory requirements. The Supreme Court held that a second argument that the applications were invalid because the extent of the non-compliance was not negligible therefore did not arise.

Expanding on the Supreme Court’s decision on the first argument, Lord Clarke stated that the only question is whether the maps were drawn to a scale of not less than 1:25,000 and held that they were. He noted that each map was in fact produced to a presented scale of 1:25,000 or larger.

However, Lord Neuberger and Lord Sumption would have allowed the council’s appeal, with Lord Neuberger considering, inter alia, that the most natural meaning of the relevant legislation is that it requires that, where an applicant uses a copy of an original map, the original map must have been presented on a scale of at least 1:25,000.

Although the point did not in the end arise, the Supreme Court addressed the second argument. Lord Neuberger explained that the ultimate question was whether Parliament can fairly be taken to have intended that the applications would be totally invalid if they did not comply with the statutory requirements. Lord Neuberger noted that prior to the deadline imposed by the 2006 Act, it would have been open to the council to waive a defect or for an applicant to amend an application after submission by providing compliant maps. The defect could not be overlooked unless it was de minimis. However, as a consequence of the 2006 Act, a non-compliant application is not to be treated as a valid application and a defect cannot be waived or amended. Lord Carnwath, however, concluded that procedural requirements such as those in the 1981 Act should be interpreted flexibly and substantial compliance with the statutory provisions would be sufficient to achieve validity.

For judgment, please download: [2015] UKSC 18

For Court’s press summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII