The Supreme Court has rejected – by a 3-2 majority – a county council’s appeal over whether an application by motorcyclists to upgrade rights of way complied with relevant statutory requirements.
Under section 53 of the Wildlife and Countryside Act 1981 councils (‘surveying authorities’) are required to maintain a definitive map and statement of the public rights of way in their local area.
Under the 1981 Act, members of the public may apply to surveying authorities for an order modifying the definitive map and statement in light of new evidence of the existence of a public right of way.
Schedule 14 to the 1981 Act specifies in paragraph 1 that such applications must be accompanied by “a map drawn to the prescribed scale and showing the way or ways to which the application relates”.
The scale is prescribed by the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993, which provide by Regulation 2 that a definitive map shall be on a scale of not less than 1:25,000 and by regulation 3 that maps accompanying an application for a modification order must also comply with regulation 2.
The Natural Environment and Rural Communities Act 2006, section 67, meanwhile extinguished all unrecorded rights of way for mechanically propelled vehicles in England as of 2 May 2006.
However, such rights of way could be preserved if an application for a modification order had been made before 20 January 2005. Section 67(6) specifies that an application under this section is made when it is made in accordance with paragraph 1 of Schedule 14 to the 1981 Act.
The Supreme Court case revolved around five applications made before this deadline by the Friends of Dorset’s Rights of Way to Dorset County Council under the 1981 Act for orders modifying the definitive map and statement to show various byways open to all traffic.
The maps accompanying the applications were produced using a computer program which printed out maps which were to a presented scale of 1:25,000 or larger but which were derived originally from Ordnance Survey 1:50,000 maps.
The Trail Riders’ Fellowship subsequently took over conduct of those applications.
On 7 October 2010, Dorset rejected all of the applications on the basis that the accompanying maps were not drawn to a scale of not less than 1:25,000.
Were the council’s decision to be upheld, the vehicular rights of way in question would no longer exist.
In the High Court Mr Justice Supperstone upheld Dorset’s decision on the basis that: (i) the application maps did not comply with the statutory requirements; and (ii) applying the decision of the Court of Appeal in the case of R (Warden and Fellows of Winchester College) v Hampshire County Council  EWCA Civ 431, the applications were invalid because the extent of the non-compliance was not negligible (de minimis).
The Court of Appeal allowed the appeal, holding that (i) the maps did comply with the statutory requirements, but (ii) if the appeal had failed on the first point, the non-compliance “could not sensibly be described as de minimis”.
In R (on the application of Trail Riders Fellowship and another) v Dorset County Council  UKSC 18 the Supreme Court dismissed the council’s appeal on the basis of point (i) and upheld – by a majority of 3-2 – the Court of Appeal’s decision that the maps did comply with statutory requirements.
Lord Clarke gave the leading judgment; Lord Toulson and Lord Carnwath agreed with Lord Clarke. Lord Sumption and Lord Neuberger would both have decided in Dorset’s favour on point (i).
Point (ii) therefore did not arise. Had it arisen, Lord Neuberger, Lord Sumption and Lord Toulson would have held that the effect of non-compliance with the statutory provisions was that the applications would not have been valid, while Lord Carnwath would have held, contrary to Winchester, that they would nonetheless have been valid. Lord Clarke preferred not to express a view on point (ii).
Cllr Robert Gould, Leader of Dorset, said: “I am pleased that the Supreme Court recognised that this matter was an arguable point of law of general public importance. This ruling gives us a reasoned balanced outcome that we can apply consistently in the future.”
Cllr Gould added: “Modifications to the definitive map often raise opposing viewpoints. Our job is to consider the evidence presented and apply the law before deciding whether the map and statement should be changed.”
Dorset the five applications would now be considered and the public rights for mechanically propelled vehicles would be fully consulted on.