Archived decisions

    Hampshire County Council

    Regulatory Committee Item 10

    21 May 2008

    Report on the decision of the Court of Appeal in the case of R (on the application of the Warden and Fellows of Winchester college and Humphrey Feeds Limited) v Hampshire County Council and The Secretary of State for Environment Food and Rural Affairs

    Report of the Chief Executive

    Contact: Elizabeth Ellam, extn. 7371; [email protected]

    NATURAL ENVIRONMENT AND RURAL COMMUNITIES ACT 2006

    67. Ending of certain existing unrecorded public rights of way

    (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)

    (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 1st 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 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, 20th January 2005

1. Summary

1.1 This item, for information only, considers the decision of the Court of Appeal on 29 April 2008, into a judicial review relating to a claim that applications considered by this Committee were not properly made and that rights of way for mechanically propelled vehicles over the claimed routes were not, therefore, preserved by s.67(3) Natural Environment and Rural Communities Act 2006.

2. Recommendation

      That this report be noted.

3. Background

3.1 Members may recall that, in June of last year, this Committee was asked to consider six applications for map modification orders to byway open to all traffic. The status of the routes in question depended, to a large part, on whether the right of public to use the way with motor vehicles had been extinguished by section 67 Natural Environment and Rural Communities Act 2006 (`NERC'). This section extinguishes rights of way for mechanically propelled vehicles over all roads, unless the way in question is already shown on the definitive map as a byway open to all traffic, or one of eight exceptions applies. Three of the eight exceptions relate to the making, or determination of applications for map modification orders. Members were asked to consider whether the applications before the Committee had been made in accordance with paragraph 1 of schedule 14 to the Wildlife and Countryside Act 1981 (`the 1981 Act') as, if so, the applications might save the right of way for mechanically propelled vehicles from being extinguished.

3.2 Paragraph 1 requires applications for map modification orders to be in the prescribed form, accompanied by a map and copies of the documents relied on. The subject applications did not include copies of all the documents referred to by the applicants, although each did include a comprehensive list and précis of the evidence in support of the application. Members considered two alternative views of the legislation. One view, advocated by the Department for Environment, Food and Rural Affairs (`Defra'), which promoted NERC, was that copies of all documents are not necessary. The other, put forward by the Green Lanes Protection Group (`GLPG'), was that an applications was not valid unless copies of all documents were included with the application.

3.3 After some debate, Members accepted the option put forward by Defra and preferred by officers. Six applications were then determined and decisions were taken to make orders to amend the definitive map by the addition of byways open to all traffic and some stretches of restricted byways. The orders were not made because a judicial review of the decision by GLPG was anticipated.

4. The High Court hearing

4.1 In fact, although judicial review proceedings were issued against the County Council, they did not relate to the six decisions made in June 2007. They related to two byway applications that had been determined by the Committee in March 2006, before NERC was brought into force. However, the same issues as to the form of the application and copy documents applied to those applications. The County Council had refused to reconsider these decisions in the light of the NERC, because it was felt that they complied with paragraph 1 and, therefore, that the exception in s.67(3) could apply.

4.2 In the High Court, Bartlett LJ agreed. He felt that the requirement to provide copy documents was a procedural requirement which could properly be waived by the County Council. He refused the relief sought by the applicants (the case was brought in the name of the Warden and Fellows of Winchester College and Humphrey Feeds Limited, two of the landowners affected by one of the claims). The applicants appealed against the decision of the High Court.

5. The Court of Appeal decision

5.1 The Court of Appeal was asked to overturn the decision of the High Court Judge. The County Council maintained its previous position, as did the Secretary of State for Environment, Food and Rural Affairs. Legal argument took place over two days and the decision was issued on 29 April 2008.

5.2 The Court of Appeal confirmed that, for the purposes of paragraph 1 of schedule 14 to the 1981 Act an application under s.53(5) of the 1981 Act consists of i) an application in the prescribed form and ii) a map at the prescribed scale and iii) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application. It concluded that the High Court Judge did not address the effect of s.67(6) and strict compliance with s.67(6) is needed if an exemption under s.67(3) is to apply. If follows that an application which did not include copy documents could not benefit from the exception in s.67(3). The Court, nonetheless, contemplated that in some circumstances it could still determine a non-compliant application ("I am not saying that, in a case which does not turn on the application of section 67(6), it is not open to authorities in any particular case to decide to waive a failure to comply with paragraph 1(b) of Schedule 14..." Dyson LJ), but that they were not entitled to waive non-compliance in the context of s.67(3) and (6) of NERC.

5.3 No guidance was given by the Court as to the nature of copies to be provided (i.e. whether the whole document should be copied or only the relevant part, or whether a transcript amounts to a copy) or to the circumstances in which it would be proper for an authority to waive strict compliance with paragraph 1.

5.4 A second issue debated before the Court was whether a failure to comply with the notice requirements in paragraph 2 of schedule 14 prevented an authority from determining an application. On this point, the Court preferred the argument put forward by the County Council and found that its determination of the subject applications was not invalid. It concluded that, as a general rule, one should examine the consequences of a defect in the certificate required to be given by the applicant. In circumstances where there was no prejudice, a determination can properly be made. This aspect of the decision did not, however, affect the ultimate outcome of the case.

6. The consequences of the decision

6.1 Officers welcome the decision as it provides clarity about the application of s.67(6) and the application of the exemptions in s.67(3). It was made clear at the outset that, in defending these proceedings, the County Council did not seek any particular outcome, merely clarification of the law.

6.2 The decision does, of course, have wider implications for other claims recorded on the County Council's Register of Applications and on the prioritisation of claims, as both require compliance with paragraph 1. In cases which are not time-critical (i.e. cases not potentially affected by s.67(3) NERC, or, by analogy, s.48(9) Countryside and Rights of Way Act 2000 (transitional provisions affecting applications or restricted byways made before 2 May 2006)) defective applications can be returned to claimants to be perfected before being re-entered on the list. The Court of Appeal also left open the opportunity to waive some non-compliance. It will be a while before the true effect of the decision can be seen nationally. From a practitioner's point of view (and that of claimants) it is regrettable that the Court did not give further guidance on the nature of `copies', or when it might be proper to waive strict compliance. However, the Court did not need to do this to reach its decision.

6.3 As is customary in these situations, costs "follow the event". The appellants' costs will be agreed, or taxed if not agreed, and will have to be borne by the County Council.

6.4 The decision may, however, result in the elimination of motorised vehicular rights on a small number of lanes in the County. Each case affected by the Court of Appeal decision will have to be considered again in the light of the remaining five exceptions in NERC.

Section 100D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB The list excludes (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act.

File CR 869 and 535 - Rights of Way Office, Mottisfont Court, Winchester, including copies of some of the documents referred to above the originals of which can be inspected in Hampshire Record Office.

File R40LA153 - Legal Practice, Chief Executive's Department, Elizabeth II Court, Winchester






13/05/2008