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Does a DMMO application have to be compliant to bring rights into question under the Highways Act?

August 2012

Under s31(2) Highways Act 1980 the period required for long-user dedication (20 years) ends when the rights are “brought into question”. The same applies to common law dedication but without a specific period. Case law to date has required some form of objection or challenge from the landowner as to assertion of rights to bring into question.  It has been assumed that the mere process of inquiry into rights does not satisfy the test, but it has been an open question as to whether an application for rights under s53 Wildlife and Countryside Act 1981 serves the purpose.  NERCA 2006 “clarified” the law under s69 by providing that such claims serve the purpose.  The clause expressly refers to claims covered by the exemption provisions in s 67(3) NERCA which attach to pre cut-off claims and which give exemption from extinguishment of motor vehicular rights.  Under s67(6) exemption is however subject to complying with paragraph 1 of Schedule 14 WCA 1981 as to form of application, scale of map and copies of evidence.  The Winchester Case made it necessary for pre cut-off claims to be strictly compliant with Sch 14 to win exemption.

The provisions of Sch 14 as a starting point for bringing into question are also adopted in s69.  The question therefore arose as to whether the claims need to be strictly compliant with Sch 14 in order to bring rights into question. GLEAM originally thought not because s69 serves a very different purpose from s67(3) and includes claims that are not pre cut-off. GLEAM’s view appeared to be supported by the Appeal judgment in the Fortune case (at http://www.bailii.org/ew/cases/EWCA/Civ/2012/334.html) which distinguished the compliance requirement when applied to a context other than s67(3) exemption (ie s67(2)(b) NERCA relating to entry in the List of Streets).  Defra however favoured strict compliance and said so in its website guidance. The “Blue Book” currently shares the Defra original view.

On 30 May 2012 Defra changed its mind to the non-strict compliance line, albeit for different reasons to those of GLEAM, and in conflict with the Blue Book. The letter to authorities was published on the PINS website under Defra Announcements (see http://www.planningportal.gov.uk/planning/countryside/rightsofway/rowannouncements).

GLEAM referred the point to the editors of the Blue Book who are currently reviewing the text on this issue. Their conclusion is that strict compliance is required because of the express inclusion of s67(3) applications in s69.  It follows that Winchester calls for the same approach in both contexts – exemption from extinguishment AND bringing into question. GLEAM agrees and has also reversed its view – like Defra but in the other direction!  This conclusion was underpinned by a quote from Hansard (in GLEAM’s records) reporting what Lord Bach, then a minister, said to the House of Lords on 20 March 2006:

“Similarly, Amendment No. 148 will ensure that applications under Section 53(5) of the Wildlife and Countryside Act 1981 bring into question the right of the public to use the way only if they are made correctly and in accordance with Schedule 14 to that Act and that therefore the map modification order process will not be triggered by an incomplete or spurious application.”