update January 2012
The 1981 Act requires all claims to be accompanied by a map “drawn to a scale of not less than 1:25,000”. Doubtless fostered by TRF influence, Buckinghamshire CC and Dorset CC both chose to interpret that requirement for applications as allowing photo-enlargement or computer zooming of small scale maps. GLPG argued that the Winchester case catches any map that was originally drawn or created to a scale smaller than 1:25,000.
In June 2009 Defra expressed the view that photo enlargement is a de minimis matter which does not fall foul of Winchester. Defra’s attention was drawn to the case of Maroudas v SoSEFRA (9.3.09) resulting in agreement to review the opinion. Defra did so, confirming that the point is material and that photo enlargement is unacceptable. It declined to express a view on computer zooming however, in spite of confirmation from the OS that digital storage makes no difference to the original scale (argued in Dorset), and in spite of opinions from two Leading Counsel confirming GLPG’s argument. For more details of the OS advice and Maroudas see Guidance.
The first of six such claims in Buckinghamshire (this one being from the Chairman of the TRF ) used a photographic enlargement. It was initially decided by an inspector in favour of a BOAT. At a subsequent hearing BCC listened to reason and agreed with GLPG. The inspector also saw sense and modified the decision to restricted byway which was confirmed in Oct 2009.
In Dorset however, no amount of logical reasoning regarding computer zoomed maps was accepted. An appeal to the SoS came and went without resolution. Eventually DCC’s Head of Legal Services agreed to a meeting, leading to a refreshing rethink and report to Committee. The decision, on 7 October 2010, was that 1:50,000 maps zoomed on a computer were non-compliant. The 5 outstanding BOAT claims were rejected, not just as failing to qualify for exemption, but also as invalid for processing under the 1981 Act. It was also decided to follow the same policy in respect of 7 other BOAT claims that were in the inquiry pipeline.
The DCC notice of rejection invited an appeal to the SoS in spite of GLPG pointing out, contrary to a passage in the Committee report, that no right of appeal arises when a claim is rejected as invalid. The claims had all been made by FoDRoW (Friends of Dorset Rights of Way, a trail-riding organisation in Dorset) who engaged the services of the TRF (D Tilbury) to make such an appeal. That merely repeated the nonsense argued by FoDRoW and omitted key facts. GLPG then pointed out to the SoS that the appeal had no standing which was accepted. The TRF therefore turned to judicial review of DCC’s decision which requires initial consent from the court to pursue such an action. That consent was initially refused (on papers only) on the basis that the TRF case is unarguable. Undaunted, the TRF renewed the application for consent (which it is entitled to do, necessitating an oral hearing) which was heard on 9 Nov 2011.
GLPG, at the suggestion of DCC, had applied to join the action as interested party. The judge accepted the joinder application but did not accept GLPG in that role as an unincorporated alliance. He offered to accept a personal role which was later confirmed in the name of P G Plumbe. The matter now moves forward on a stepped programme to a hearing scheduled (subject to formal order) for the end of April 2012.