One cannot copy a void. In cases without any evidence, we believe the application is nothing more than a request for the authority to exercise its duty to review the Definitive Map, to which the authority does not need to respond in the absence of new evidence. If an order is made on the authority’s own volition, exemption does not apply. Defra agreed by letter dated 19 March 2009 that an application without evidence and therefore with no list cannot qualify for exemption. In Buckinghamshire, several claims had been rejected and appealed to the Secretary of State, some of which resulted in a direction to BCC to make BOAT orders. The first of these, a claim by the Chairman of the TRF, was decided by an inspector who rejected the claim as a result of Winchester. This was partly because, although some copy evidence may have related to this claim, there was no list. A modification to Restricted Byway (RB) was proposed by the inspector. GLPG supported the change and there were no objections – not even from the TRF.  On 21 October 2009 the inspector confirmed RB status. The decision can be viewed on the PINS website http://www.planninginspectorate.gov.uk/pins/row_order_advertising/councils/2009/buckinghamshire_county_council.htm under ref FPS/P0430/7/28.

In Maroudas v SoSEFRA, the High Court allowed correspondence with the Council to be treated as making good a claim that was originally without date, signature or map, although it was at least confirmed that such matters were not de minimis.  A BOAT was ordered.  Leave to appeal was refused, but the objector secured leave from the Court of Appeal and obtained judgment quashing the order.  See http://www.bailii.org/ew/cases/EWCA/Civ/2010/280.html . The Court emphasised that, to qualify for exemption,  the application must be in the correct form as a whole – not just completing the prescribed form.  Some tolerance would be allowed in specifically making good defects, but this must be done within a very short space of time. Ten weeks was too long. Regard was also paid to the agreement rather than the intent to include an extra section not originally designated.