In an attempt to rescue claims that plainly fell foul of the law, the TRF sought to defy commonsense by arguing that black is white.  The High Court understood both the law and commonsense. Regrettably the Court of Appeal did not. The Supreme Court has however recognised the need to look again at the issues.

The 1981 Act requires all claims to be accompanied by a map “drawn to a scale of not less than 1:25,000”.  Plainly fostered by TRF influence,  Buckinghamshire CC (BCC) and Dorset CC (DCC) both chose to interpret that requirement as allowing photo-enlargement or computer zooming of small scale maps. The Winchester case however held that the requirements must be strictly applied if claims are to benefit from the concession allowed to pre cut-off applications.  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’ (trivial) 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 an opinion from Leading Counsel confirming GLPG’s argument. For more details of the Ordnance Survey 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, the matter of scale having not been argued.  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 October 2009.

In Dorset however, no amount of logical reasoning regarding computer zoomed maps was accepted, given the misleading information put to officers by FoDRoW (Friends of Dorset Rights of Way, a trail-riding organisation in Dorset). 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 altogether under the 1981 Act.  It was also decided to follow the same policy in respect of 6 other BOAT claims that were indirectly affected.

The DCC notice of rejection invited an appeal to the Secretary of State (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 wholly invalid. The claims had all been made by FoDRoW 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 and the appeal was dismissed. The TRF therefore turned to judicial review of the decisions by both the SoS and DCC which requires initial consent from the court to pursue such an action.  It was then admitted by the TRF that the SoS had acted properly, so the SoS reduced involvement to that of interested party and took no active part in the proceedings. Consent for JR was initially refused (on papers only) on the basis that the TRF case was unarguable. Undaunted, the TRF renewed the application for consent (which it is entitled to do, at an oral hearing) which was heard on 9 November 2011. Consent to argue a case was granted.

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 Graham Plumbe (as Vice Chairman) in a personal role which was later confirmed.

The Ordnance Survey had consistently said that the TRF was wrong as to the drawn scale, but the parties were required to repeat the questions.  Unsurprisingly, The OS confirmed GLPG’s position and rejected that of the TRF.

The application maps had been purchased through an Anquet programme which is a company selling re-presented OS maps under licence. The FoDRoW applicant had originally stated that the maps attached were “blown up 1:50,000” but after Winchester he contradicted himself and claimed that they were ‘drawn’ to the scale chosen on computer, and carried no scale until scale was chosen. Misleadingly (his job is in IT), he told DCC that his data was obtained direct from the OS. That was in spite of the Anquet labelling the maps “Anquet – 1:50,000” (note 1).  In court, the argument was added that all that was necessary was to identify the location of the route, that use of OS maps was not required, that the level of detail was not specified by the Act, and that if the location was shown the matter of scale was ‘de minimis’ and so escaped Winchester.  Unsurprisingly, on 2 October the judge rejected all parts of the argument and refused leave to appeal (note 2). The case can be viewed at http://www.bailii.org/ew/cases/EWHC/Admin/2012/2634.html

DCC were represented by George Laurence QC on the recommendation of GLPG. Graham Plumbe appeared as Litigant in Person in the early stages, but for the main hearing was advised by James Pavey of Thos Eggar who instructed Claire Staddon of Counsel. GLPG was grateful for strong support from a group of landowners, from its own and GLEAM members, from the Ramblers and from other well-wishers.

The TRF was represented by Adrian Pay of Counsel. It has a right to ask the Appeal Court direct for leave to appeal. It did so and was successful. The matter was heard on 23 April with judgment handed down on 20 May 2013 in favour of the TRF.

The judgment can be viewed at http://www.bailii.org/ew/cases/EWCA/Civ/2013/553.html. It is curious in that the court took a view as to what ‘drawn scale’ means that is the opposite of the view reported by the OS which had been consulted by the TRF to give expert evidence. The court also subscribed to an interpretation of the governing legislation which renders it meaningless. In a contested application to the Supreme Court for permission to appeal, made by DCC, but supported by GLPG as Intervener, the court has accepted that the judgment needs looking at afresh. Such decisions rest mainly on the question of public interest. The matter is likely to be heard in a few months’ time.

Notes

1. The same applicant had submitted a correct map in his first claim in August 2003, purchased from the OS, before the new law was announced in December. In 2004 all the rest followed in a hurry using the standard Anquet programme carrying the 50k scale, but not the 25k scale which cost extra. Strange.

2. Trail Riders’ Fellowship & D L Tilbury, R (oao) v Dorset C C, I/Ps SoSEFRA & P G Plumbe [2012] EWHC 2634 (Admin) (02 October 2012)