March 2015 updating the website report in Feb 2014
NERCA (Natural Environment & Rural Communities Act 2006) served to extinguish unrecorded motorised public vehicular rights (MPVRs) subject to exceptions. One of these was where BOAT (byway open to all traffic) applications had been made before the cut-off date of 20 Jan 2005, provided they were compliant with the statutory requirements. Those requirements were that the applications were (i) in the prescribed form, (ii) included copies of all documents relied on to support the case, and (iii) used identification maps drawn to the prescribed scale of not less than 1:25,000. In 2007/8, GLPG initiated litigation as Winchester College v Hampshire CC (the ‘Winchester case’), in which the Court of Appeal held that the need for compliance must be strictly applied.
On commencement of NERCA in 2006 there were c880 pre-cut off BOAT applications (Defra figure) outstanding, the vast majority of which have fallen victim to the Winchester case. The TRF have been looking ever since for an opportunity to overturn the Winchester case, but needed to get access to the Supreme Court to do so.
In Dorset, in response to GLPG arguments, a handful of applications were ruled in 2010 not only to be subject to extinguishment of MPVRs (as GLPG argued) but (going further) were in fact invalid altogether for that reason, a decision which was permissible in law. The ‘compliance’ failure was that the application maps, although presented at a scale of not less than 1:25,000, were blown up copies of Ordnance Survey (OS) Landranger maps which are drawn to a scale of 1:50,000. The TRF challenged the Dorset decision by judicial review of 5 cases (TRF v DCC). GLPG partook as interested party. DCC won in the High Court, then lost in the Court of Appeal, then won permission to appeal to the Supreme Court. Applying complex construction rules, disdaining the clear intent of Parliament of which evidence had been given, and contrary to clear evidence from the OS as to ‘drawn scale’, the Supreme Court held on 18 March 2015 (R (TRF) v Dorset CC  UKSC 18) that the application maps satisfied the statutory requirement as to scale. The decision was reached only on a majority basis, the vote being 3-2 and the minority including Lord Neuberger himself as President of the Supreme Court. This has proved expensive for DCC, but we commend them for applying what most rational people would regard as the clear meaning of the legislation. The very disparate findings by the court demonstrate that DCC was well justified in defending the case all along. GLPG incurred no costs as it was personally represented, and lawyers’ fees (necessary for conduct of its involvement) were funded by the landowners and other welcome contributors.
Throughout the proceedings the TRF had made plain that it intended to seek the overturning of the Winchester case, this being far more damaging in its readiness to desecrate the countryside than a handful of cases in Dorset. Although because of the way the issues were framed there was no express ruling on Winchester, the issue was fully argued and three of the judges found that it had been correctly decided. That effectively puts it out of reach of further challenge. Although GLPG is disappointed by the Supreme Court’s ruling in the Dorset case, it hugely welcomes the lifting of a shadow over the whole nation in respect of the Winchester case. If that case had been overturned, it would have been an unmitigated disaster for the countryside, for landowners, and for a huge number of walkers, cyclists and horseriders who use green lanes. Not only are some old claims still undecided, but potential re-opening of hundreds of claims is avoided.
The TRF won the battle but lost the war.
Why the TRF v Dorset CC decision went wrong March 2015
The TRF’s long-running case against Dorset County Council on the correct scale of maps to accompany applications for BOAT status has finally been won in the Supreme Court by a majority of 3 to 2. The judgment in favour of the TRF was plainly contrary to the intent of Parliament, as demonstrated by quotes from Hansard combined with common sense. It was won primarily on a very obscure technicality that was not in fact specifically argued by Counsel for the TRF. The key factor in the decision lies in an ambiguity in the legislation.
Schedule 14 to the 1981 Act provides:
1. Form of Applications
An application shall be …. accompanied by –
(a) a map drawn to the prescribed scale …..
5. (2) ‘prescribed’ means prescribed Regulations made by the Secretary of State.
The relevant Regulations are the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993.
2. Scale of definitive maps
A definitive map shall be on a scale of not less than 1:25,000 …….…
8. Application for a modification order
(1) An application for a modification order shall be in the form set out in Schedule 7 to these Regulations …..,
(2) Regulation 2 above shall apply to the map which accompanies such an application …..”
There can be no doubt that the prescribed scale is “not less than 1:25,000“. There is however a conflict between “drawn to” for application maps (Sch 14) and “on a scale of” for a definitive map (Reg 2). The problem arises when Regulation 8(2) is considered, because it applies the Regulation 2 requirement designed for definitive maps (ie on the prescribed scale) to the requirement designed for application maps (ie drawn to the prescribed scale). That error in drafting was not seen or taken into account when s67(6) NERCA was passed, requiring compliance with the Sch 14 requirements if exemption from extinguishment of unrecorded MPV rights is to succeed.
Faced with this conundrum, the principle passages in the judgments were:
19. The question is therefore whether each of the maps was drawn to a scale of not less than 1:25,000. On the face of it that question must be answered in the affirmative. Paragraph 1 of Schedule 14 provides that the map must be drawn “to the prescribed scale” and by paragraph 5 “prescribed” means prescribed by the 1993 Regulations. By regulation 2 of those Regulations, “A definitive map shall be on a scale of not less than 1:25,000” and, by regulation 8(2), regulation 2 applies to a map accompanying an application. As I read these provisions, no distinction is drawn between a map “drawn to the prescribed scale” and a map “on a scale of not less than 1:25,000”.
That last sentence is plainly wrong. The natural meaning of the words “on [the prescribed scale]” is the presented scale, although in the case of definitive maps that is normally taken to be synonymous with drawn scale. By contrast, the words “drawn to [the prescribed scale]” have a very specific meaning, there being copious evidence from the OS as to the conventional meaning of ‘drawn’ in relation to maps.
Lord Neuberger was far more rational. He said:
86. Where an applicant uses a copy of an original map, the appellant council contends that the document only complies with the requirements of paragraph 1(a) of Schedule 14 if it is a copy of a map which was prepared on a scale of at least 1:25,000, whereas the respondent applicants argue that it complies with these requirements if the copy is on a scale of at least 1:25,000, even if the map from which the copy was made was on a scale of less than 1:25,000.
87. The words used in paragraph 1 of Schedule 14 and in regulations 8(2) and 2 of the 1993 Regulations could justify either contention as a matter of pure language, although, as explained in para 90 below, I consider that the more natural meaning is that contended for by the appellant council.
90. Secondly, it is not an entirely natural use of language to describe an enlarged photocopy of a map originally prepared on a scale of 1:50,000, as “drawn” on a higher scale. To my mind at any rate, a map is “drawn” to a certain scale if it is originally prepared to that scale. One might fairly describe a doubly magnified photocopy of a 1:50,000 map as “being on” a scale of 1:25,000, but I do not think that it would be naturally described as having been “drawn to” a scale of 1:25,000. The word “drawn” in paragraph 1 of Schedule 14 must, of course, be given a meaning which is appropriate in the light of modern technology and practice, but I do not see how that impinges on the natural meaning of the expression in the present case.
91. Thirdly, the operative regulation in the present case, regulation 8(2) of the 1993 Regulations, states that regulation 2 is to apply to an application. Regulation 2 contains the express requirement “A definitive map shall be on a scale of not less than 1:25,000”. It appears to me therefore incontrovertible that if a map satisfies regulation 8(2), it must also satisfy regulation 2. With due respect to those who think otherwise, I do not see how regulation 2 can have one meaning in relation to a definitive map and another meaning in relation to a map accompanying an application. Bearing in mind the public importance of a definitive map, it strikes me as very unlikely that the drafter of the 1993 Regulations could have envisaged that such a map could be an enlarged photocopy of a map which had been prepared on a scale of significantly less than 1:25,000. I also note that regulation 2 is foreshadowed by section 57(2) of the 1981 Act, which refers to “Regulations” which can “prescribe the scale on which maps are to be prepared”: again, it does not seem to me to be a natural use of language to describe a doubly magnified photocopy of a 1:50,000 scale map as “prepared” on a scale of 1:25,000.
Lord Neuberger’s reasoning paid far more regard to the whole background of the problem than did that of Lord Clarke, but even Lord Neuberger did not recognise (i) the fact that ‘on a scale’ can mean either ‘drawn to’ or ‘presented at’, and (ii) that if Reg 2 expressly applies only to definitive maps, it is silent as to application maps and could arguably be of no effect.
It is unfortunate that two other judges followed Lord Clarke for reasons that were not directly related to this central point of construction. In its submission, GLPG (personally represented) had raised the issue of the word ‘drawn’ being missing from Reg 2 but regrettably Counsel for DCC (who had seen GLPG’s submission beforehand) did not take the point and argue it specifically as a matter of construction along the lines adopted by Lord Neuberger. The TRF were extremely lucky to win this case (by a majority of one), given that the applicant’s case had originally rested on the absurd claim that a digitally enlarged map ‘carried no scale’ prior to selection of the presented image on computer.