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Which way to the High Court: Statutory Application or Judicial Review?

By James Pavey, Partner, Thomas Eggar LLP

In practice, there is often confusion as to when it is appropriate to challenge a decision relating to rights of way by judicial review proceedings and when an application under the Wildlife and Countryside Act 1981 should be made. Both forms of proceedings are heard by the Administrative Court (part of the High Court) and the grounds of challenge are similar. This article briefly examines and explains which is appropriate in which circumstances and the procedural differences between them.

Schedule 15 Wildlife and Countryside Act (WCA) 1981 or Judicial Review?
Schedule 15, paragraph 12 WCA 1981 provides a right to challenge a Definitive Map Modification Order (DMMO) which has been confirmed by an Inspector, typically after an inquiry into objections to that DMMO as made by a surveying authority. The DMMO, as confirmed, can be challenged on two bases – that:

  • It was not properly made within the powers laid down in the statute – for example, because there was a mistake in applying the law on dedication, such that no right of way could have arisen.
  • There was a procedural failure – for example, notice was not properly given to landholders.

If it is satisfied that the DMMO was not properly made or, in the case of a procedural failure, that the failure caused substantial prejudice, the Administrative Court can quash (ie, overturn) the DMMO. It is important to note that it is the DMMO that is quashed, not the Order Decision of the Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs. So, the effect of quashing is to return the matter to the surveying authority to re-consider, not to return it to the Inspector to consider at a further inquiry.

Judicial review is the appropriate means of challenge in other circumstances, principally where:

  • A surveying authority has decided not to make a DMMO; the applicant has appealed to the Secretary of State under Schedule 14 WCA 1981; and the Secretary of State has decided not to direct the surveying authority to make a DMMO.
  • A surveying authority has made a DMMO to which there is an objection; an Inspector appointed by the Secretary of State considers whether to confirm the DMMO at an inquiry; and the Inspector decides not to confirm the DMMO.

In both cases, the proceedings will be brought against the Secretary of State.

The Administrative Court will usually wish to be satisfied that the applicant has exhausted all rights of appeal before applying for judicial review. So, if a surveying authority made a DMMO on the basis of a legal error, the normal route of challenge would be to object to the DMMO, which would lead to an inquiry before an Inspector. It would not be normal to commence judicial review proceedings against the surveying authority.

An exception to this rule might be where there is an important point of law on which the High Court’s decision is sought. So, for example, in the Winchester case, the claimants judicially reviewed Hampshire County Council’s decision that it would make DMMOs based on a misunderstanding of the Natural Environment and Rural Communities Act 2006, before it had actually made those DMMOs.

It is also important to recognise that a judicial review claim is neither an appeal nor an opportunity to re-visit all the evidence before the surveying authority or Secretary of State. Rather, it is a more limited exercise in scrutinising whether there were any legal errors in the decision and/or whether it was made reasonably, in the sense that it was not wholly illogical.

Time limits
Judicial review proceedings must be commenced promptly and, in any event, within three months of the decision or act challenged. Although the Court is usually strict about the three-month time limit, it does have a discretion to hear proceedings that are started after three months of the date of the decision or act.

An application under Schedule 15, paragraph 12 WCA 1981 must be made within 42 days of the publication of the notice of the decision by the Secretary of State’s Inspector. By contrast with judicial review proceedings, the Court has no discretion to extend that 42-day time limit.

Who may bring a claim?
To bring a judicial review claim, it is necessary to have a “sufficient interest” in the matter to which the claim relates. The High Court interprets this widely.

Any “person aggrieved” by the DMMO may make an application under Schedule 15, paragraph 12 WCA 1981. Again, this is interpreted widely.

Procedural differences
There are key procedural differences between the two different routes to the Administrative Court.

In judicial review proceedings, interested parties (ie, third parties who are affected) must be identified and notified in the correspondence that precedes the claim; and the claim form must be served on them. There is no such requirement in an application under Schedule 15, paragraph 12 WCA 1981.

Further, in judicial review proceedings it is necessary to file a detailed statement of the case and a witness statement and documents at the Court at the same time as the claim form. By contrast, the witness statement and documents and any statement of case may be filed up to 14 days after the claim form in an application under Schedule 15, paragraph 12 WCA 1981. Given the limited time available to commence the claim (42 days), those additional 14 days may be helpful to the applicant.

Lastly, judicial review proceedings comprise a two-stage process: applicants require permission of the Court to proceed to a full hearing. (This permission stage enables the Court to filter out claims that lack merit.) A High Court Judge will consider the judicial review claim form and its accompanying documents, as well as any response from the defendant and interested parties, to decide whether to grant permission. (This will be a paper-based exercise and will not require a hearing.) If the Judge refuses permission, the applicant may then ask for a hearing to explain to the Court why permission should be granted. Only after permission has been granted can the claim proceed to be considered at a full hearing.

By contrast, there is no requirement to satisfy the Court that permission is required for an application under Schedule 15, paragraph 12 WCA 1981. Once an application has been commenced, it will proceed to a full hearing.

Do the differences matter?
The differences outlined above are, in certain cases, more than just a matter of form. For example, the Court has no discretion to consider an application under Schedule 15, paragraph 12 WCA 1981 brought outside the 42-day time limit – and nothing short of legislation by Parliament would enable it to do so.

Other differences are formal: for example, what documents must accompany the claim form. There are, nevertheless, good reasons to appreciate these differences. For example, the Court may not accept the application under Schedule 15, paragraph 12 WCA 1981 if it has been made on the wrong claim form – and, if it is made late in the 42-day period, there may not be time to correct the error.

James Pavey is a Partner of Thomas Eggar LLP and an Honorary Legal Adviser to GLEAM. His property litigation practice includes advice and representation in relation to public rights of way, public access and towns and village greens. He has acted in a number of reported judicial review cases and in statutory appeals. He can be contacted on 01293 742746.

This Note is not intended as a substitute for situation-specific legal advice.