update June 2009
GLEAM, through the Green Lanes Protection Group (GLPG), has been very active in several legal test situations. These are of vital concern to anyone trying to protect green lanes and to prevent them from being wrongly classified as Byways Open to All Traffic (BOATs). The most notable has been the successful appeal in the Winchester case.
Schedule 14(1) Wildlife and Countryside Act 1981 requires that any application must be accompanied by copies of any documentary evidence that the applicant wished to adduce in support of his claim. This case involved BOAT claims on a restricted byway in the parish of Twyford and a bridleway in the parish of Chilcomb. The Chilcomb claim was made by the TRF prior to the cut-off date, and the Twyford claim was potentially exempt from the provisions of the NERC Act for a different reason. However, both were made without copies of any supporting documentary evidence, merely lists of documents. We considered, therefore, that the applications were incomplete and were not valid. In its general guidance on the NERC Act, Defra did (in our view) wrongly advise local authorities on the level of detailed evidence needed to support BOAT claims. Hampshire County Council had therefore wrongly determined this double application as a BOAT. Fortified by an Opinion from George Laurence QC, we supported litigation which would overturn the Defra guidance and the determination made by Hampshire County Council.
The case went to Judicial Review in the High Court in November 2007, but the judge ruled against us and refused leave to appeal. The judgment can be read at: www.bailii.org/ew/cases/EWHC/Admin/2007/2786.html (18 pages). George Bartlett QC, deputy judge, refused leave to appeal because there was “no reasonable prospect of success, for the reasons given in the judgment”. The two landowners involved, Winchester College and Humphrey Feeds Ltd, sought leave from the Court of Appeal instead, and this was granted. The Winchester College Governing Body agreed to pursue the appeal. In view of its national importance, the date of the hearing was expedited. It was heard in the Court of Appeal before Lord Justices Ward, Dyson and Thomas on 15th and 16th April 2008.
On 29th April the Court of Appeal handed down its judgment which overturned the High Court judgment. The Court of Appeal judgment can be read (20 pages) at www.bailii.org/ew/cases/EWCA/Civ/2008/431.html. In essence, the judges said that compliance with Sch 14 Wildlife and Countryside Act 1981 must be strictly applied. It is necessary for pre-20 Jan 2005 applicants
- to have completed the prescribed form correctly,
- to have supplied a map to a scale of not less than 1:25,000 showing the
route claimed, and - to have supplied copies (not just a list) of any documentary evidence relied
on.
It is estimated that over 500 BOAT applications are affected by this judgment.
Most counties have now correctly applied the judgment to cases in progress. Where there is any doubt, it is now up to objectors to BOAT applications to ask for the evidence supporting those applications (in some counties these can be seen on the website), and to make objections where the above conditions are not satisfied. If the application has already been determined by the authority, the decision should be revisited. If an order has already been wrongly made, the situation becomes more complicated. In this case, objectors should contact GLEAM for advice.
There was a second issue in the Winchester case in respect of one of the two applications – whether Hampshire County Council could properly determine it in the absence of a valid certificate of notice being served on landowners. The court found against us on this issue, but that was immaterial as the applicant fell at the first hurdle. This problem in fact affects few if any other cases, because exemption from extinguishment of rights does not depend on such a certificate other than in exceptional circumstances.
The TRF informed its members that it was not involved in the case, and so could do nothing about it. The fact is that both applicants – Messrs Tilbury and Fosberry – were sent full court papers and invited to join the action as interested parties. Both spurned the offer.
GLPG and GLEAM are now assisting members, local authorities and PINS in the correct application of the judgment. There are several situations where authorities and inspectors have seriously misunderstood the effect of the law as confirmed by the Court of Appeal. Counties also vary as to whether non-compliant claims are to be processed in spite of losing vehicular rights, or are to be rejected altogether as being invalid. Hampshire and Somerset adopted the latter course (20 and 102 claims respectively, and Derbyshire followed suit on 18 May 2009 in respect of up to 80 claims.