update February 2010
In spite of the Winchester case, Buckinghamshire CC and Dorset CC both chose to interpret the requirement for applications to be accompanied by a map “drawn to a scale of not less than 1:25,000” as including photo-enlargement or computer zooming of small scale maps. GLPG argue that Winchester 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) and then agreed to review the opinion. It did so, but has since wavered, 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 ) 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 June 2009 (see Order Decision ).
In Dorset however, no amount of logical reasoning was accepted, and the point was added to objections made to the Secretary of State regarding a long-outstanding Sch 14 appeal (refusal to make an order for other reasons). The inspector reported to the SoS in July 2008. She recommended that (i) part of the claim failed altogether on historic evidence and (ii) the rest should be restricted byway status because, although vehicular rights would have existed, Winchester caught the application on lack of copy evidence. The map scale point was referred to briefly and wrongly without reference to any of the facts or arguments. The report was nodded through by the Secretary of State as a decision in February 2010 – yes, 18 months later – without any reference at all to information on map scales submitted after July 2008, directing DCC to make a partial restricted byway order. DCC now has to make an order which not only does it oppose on evidential grounds but which also will not reflect non-compliance in respect of map scales. As this point affects a number of other claims in Dorset, the system is less than helpful.