PannageMan

The Ministry of Defence has confirmed its plans to deregister Warcop common, which is part of the Warcop military training area in Cumbria. The announcement this week concludes a consultation launched over two years ago.

Warcop and adjacent commons are owned by the Secretary of State for Defence, and are used for live firing training. For many years, commoners continued to graze their livestock on the commons, but worked with range officials to clear stock on training days. However, in order to confer greater control over the use of the commons, the Ministry embarked on a compulsory purchase of rights of common, confirmed in 2003 by the Secretary of State after a public inquiry. As that time, the Secretary of State gave undertakings that the acquisition of the rights would not lead to the deregistration of the common. He also undertook, if training use ceased, to then grant new limited rights of common which would protect the status of the land as common land (as an example of what might have been granted, the right might have been to graze one sheep on one day each year).

The Ministry considered that, by extinguishing the commoners’ rights, the land had ceased to be common land, but was willing to allow the land to remain registered under the then legislation — the Commons Registration Act 1965. Its view appears to have been that the registration became a nullity, the true position being that the status of the land as common land had been removed, but the out-of-date registration lingered in the registers. That is because the 1965 Act contains few mechanisms to allow or require the registers to be updated, and there can be no guarantee that what is shown in the registers is indeed the correct position. However, the Ministry subsequently became concerned that the Commons Act 2006 interfered with the status of the commons and the undertakings given. This is because the 2006 Act adopts a proactive approach to maintenance of the registers and requires transactions affecting common land and rights exercisable over common land to be done on-register. This means that, from the Ministry’s point of view, once the 2006 Act came into force in Cumbria, the commons would have the conclusive status of registered common land, and what had been done in the past would be irrelevant in terms of the contemporary status: what is shown in the register would prevail.

It’s not clear why two and a half years have elapsed between the consultation and the announcement. It seems that the announcement has been left until the last possible moment, for Defra Ministers are poised to bring Part 1 of the 2006 Act into force in Cumbria and North Yorkshire before the end of the year — whereupon the Secretary of State would no longer be able to apply to deregister the commons. The Ministry’s responses to points made by consultees appears to have been drafted so long ago that it overlooks some more recent arguments in its favour. In its response to the consultation, the Open Spaces Society said as regards implementation of Part 1 beyond the existing seven pioneer local authority areas that “there is no certainty when or if this will take place”; in its response, the Ministry acknowledges this, and merely adds: “It is necessary that the MOD plans now before the changes come into force”, without noting Defra’s plans, announced in January 2014, to extend Part 1 to Cumbria.

In its decision to restructure undertakings, the Ministry has announced that it: “is now applying to Cumbria County Council (the commons registration authority for Cumbria) to de-register the land as common land”. It will need to be quick: once Part 1 is brought into force in Cumbria, the power to apply to the council under section 13(a) of the 1965 Act to deregister will no longer have effect (section 13(a) was in fact repealed in 2006, but subject to a saving in art.3(3) of SI 2006/2504). It seems likely that the imminent commencement order for Part 1 will itself contain a saving for applications already made under the 1965 Act. The application may not receive wide publicity, because regulation 27 of the Commons Registration (General) Regulations 1966 requires in this case only that notice of the application should be sent to the district and parish councils.

In its application to the council, the Ministry will need to show that the commons are no longer common land subject to rights of common, nor waste land of the manor. The first criterion is easily demonstrated: the rights were extinguished by the 2003 compulsory purchase. In the consultation, the Ministry asserted that the commons were not waste of the manor (para.2.7); in its response, it explains the previous assertion by adding that the commons are subject to grazing agreements, which render the land no longer waste. In a much cited case from 1859, Attorney General v Hanmer, waste is considered to be “the open, uncultivated and unoccupied lands parcel of the manor”. It can only be said that there are conflicting views on whether the mere grazing of extensive, unenclosed land is sufficient to cause the land to cease to be ‘unoccupied’. In Defra’s Guidance to commons registration authorities and the Planning Inspectorate for the pioneer implementation of Part 1 of the 2006 Act (January 2014, via here), it advises (in the context of applications to register waste land of the manor under paragraph 2 of Schedule 2 to the 2006 Act), “In Defra’s view, land does not cease to be waste merely because it is subject to a tenancy, lease or licence whose sole or principal purpose is to enable the land to be extensively grazed. Occupation requires some physical use of the land to the exclusion of others: such might occur if the land were occupied by a quarry, or were improved by a tenant (e.g. by cultivating and reseeding moorland) for his own exclusive use and benefit. Nor does Defra consider that shared upland grazing of manorial origin will have ceased to be waste land merely because there is provision for grazing the land contained in several tenancy agreements.” So it seems that Departmental views differ. It remains to be seen whether the council agrees with the Ministry’s position, and as the Ministry observes, the council is not bound by the Ministry’s position — indeed, the council must form its own view.

A recent High Court judgment brings welcome clarity to the power of the magistrates’ court to award costs on a ‘complaint’. A complaint is the procedure by which most civil matters are initiated in magistrates’ courts. Although the magistrates have a primarily criminal jurisdiction, they also have a role in regulating the relationship of the state, and particularly local government, with the citizen. For example, under s.91 of the Environmental Protection Act 1990, anyone (a ‘complainant’) may ask the court to make a litter abatement order against a local authority which has allowed a road to become ‘defaced’ by litter. More relevantly to this blog, the Highways Act 1980 requires the magistrates to determine an application by the highway authority to stop up or divert a highway (s.116: there are separate, more accessible, procedures specifically for rights of way, but the authority still has recourse to the court as regards any highway), while any person may apply to the court for an order requiring the authority to fix a highway out of repair (s.56), or to address an obstruction on a right of way (s.130A).

These provisions giving recourse to the magistrates’ court were conceived in a different age, when every town had its own court house and local bench of justices, and when the court fees were nominal. Now, the fee for a complaint is £205, and £720 if the complaint is contested (see para.8 of the substitute schedule contained in the schedule to the Magistrates’ Courts Fees (Amendment) Order 2014, SI 2014/875), so it hardly seems likely that the average citizen, troubled by the council’s failure to sweep a local street, will resort to the courts to oblige the council to act.

Now, s.64 of the Magistrates Courts Act 1980 provides that a complainant who obtains an order from the court may be awarded costs against the defendant (note the ‘may’): so the successful litigant may get back both legal fees and court costs — but it’s not guaranteed. But conversely, where the complaint is dismissed, s.64 enables the magistrates to award costs against the complainant: a local authority represented by counsel may easily rack up £5,000 costs preparing for and attending a half-day hearing.

But what if someone else turns up in court to have their say in relation to a complaint — an interested party? Are they able to apply for costs against the complainant, or the defendant, too? On a s.130A application (to require the highway authority to deal with an obstruction of a right of way), s.130C(6) provides that the landowner ‘responsible for the obstruction’ is entitled to be heard by the court, presumably to explain that the obstruction is not an obstruction at all, or that it is de minimis, or that the right of way is ‘seriously disputed’ (s.130B(5)(a)).

According to the judgment of the High Court in Wheeler v Norfolk County Council, the answer is ‘no’. The court said that the language of s.64 was plain: the magistrates had power to award costs to follow the event, but had no power to award costs in favour of an interested party. Collins J said: “the power is only given to make orders for costs between the parties to the case who are either complainant or defendant.” In Wheeler, the complainant had, under s.130A, sought an order against Norfolk County Council, but it had been refused, on the grounds that the obstruction had been licensed by the council under s.147 (which confers on the highway authority a power to authorise the erection of stiles or gates on a public right of way). The landowner had appeared in support of the council’s defence against the claim (and indeed, in his own self-interest: there is no criminal liability attached to an order under s.130A, but such an order, if granted, does beg the question whether a criminal offence has been committed), and sought his costs against Mr Wheeler. It seems that the magistrates were either poorly advised by their clerk, or unduly sympathetic to the plight of the landowner, but despite the language of s.64, they decided that Mr Wheeler should pay those costs.

Mr Wheeler’s victory was Pyrrhic. His s.130A complaint was dismissed by the magistrates (and not appealed). The High Court unsurprisingly declined to award Mr Wheeler costs against the magistrates, and the landowner did not appear and had obtained an assurance that he would not be held liable for those costs. So the costs of the High Court hearing were borne by Mr Wheeler, and exceeded the costs in favour of the landowner which were the subject of the appeal. Mr Wheeler still had to pay the costs of Norfolk County Council in the magistrates: over £6,000. But the judgment, albeit one in which no argument to the contrary was brought before the court other than the magistrates’ case stated, is a useful confirmation that interested parties appear before the court at their own expense. Pannageman understands that Mr Wheeler’s application was supported by the Ramblers, so he may not end up seriously out of pocket.

An interesting question now arises in an application by the highway authority to stop up or divert a highway under s.116 of the Highways Act 1980. In such an application, there is no nominated defendant, but “any person who uses the highway and any other person who would be aggrieved by the making of the order applied for, have a right to be heard” in objection to the order. Are such objectors interested parties, who are immune from an order for costs against them, or do they take on the status of defendants, who are potentially liable for costs? In the Roman Road case heard in Oxford magistrates’ court in 2007, the Ramblers and the British Horse Society were landed with a substantial five figure sum each in costs for objecting to the closure of a bridleway through a BMW factory site. They did not raise s.64 as a possible objection at the time. They may well be sorry now.

Postcript: A bit worryingly, I came across a report of Lincolnshire CC v Brewis and others ([1992] Times Law Reports, 18 August) a month or so after writing this post. In that case, the High Court held that a magistrates’ court, on a s.116 application, did have jurisdiction to award costs in favour of objectors (so in this case, it was the objectors who sought their costs against the council, the magistrates’ court having refused to make the s.116 order sought by the council). The court specifically considered s.64, and decided that an application under s.116 was indeed a complaint, but the report does not suggest the court considered the specific question of the status of objectors as defendants. Nevertheless, the case does raise further questions about the sufficiency of Wheeler as a defence to a potential award of costs against objectors to a s.116 order. So far as I can tell, Brewis was not cited to the court in Wheeler. It seems likely that a court will in due course be required to reconcile both cases in relation to a s.116 application. My money is on Wheeler.

Most minor statutory bodies might hope to stay out of the courts for a lifetime, or at least, for the term of their existence, which may well be shorter. The Conservators of Wimbledon and Putney Commons have however appeared four times in the higher courts in the last few years. First, they eventually lost a case brought by a local resident, Michael Housden, who sought and won a declaration from the Court of Appeal (having failed before the Adjudicator to HM Land Registry and in the High Court) that he was entitled to a right of way across Wimbledon common to reach his home in Southside Common. (The Adjudicator was no less than Edward Cousins, the editor of Gadsden on Commons and Greens, but his finding, and that of Judge Roger Kaye QC in the High Court, were overturned on appeal.)

More recently the Friends of Putney Common have brought an action in the High Court and subsequently the Court of Appeal, to challenge the decision of the Conservators that new easements could be granted by them over Putney Common in favour of Wandsworth Borough Council to facilitate access to a development on the old Putney hospital site adjacent to the common. You can read a brief background and a report of the unsuccessful High Court challenge in an earlier blog. The Friends therefore appealed to the Court of Appeal. Nicholas Evans is a co-founder of the Friends of Putney Common, and the action was brought in his name, in what (despite my bafflement in my blog of the earlier case) turns out to be a judicial review. Oddly, the case is not listed conventionally as R (Evans) v Conservators, although that is probably the fault of the parties rather than the court. The council was an interested party in the case.

Both Housden and Evans concern the power of the Conservators to grant an easement (i.e. a private right of way, in this case over part of the common, in favour of the owner of a neighbouring piece of land). Ironically, the Conservators first went into battle because Mr Housden claimed he had acquired an easement across the common through long use, and wanted to have it recorded on his Land Registry title — this is how most access ways are acquired across common land, by a mechanism approved by the House of Lords in 2004 (Bakewell Management Ltd v Brandwood and others). The Conservators said that was impossible in relation to Wimbledon and Putney commons, because the commons are protected under a local Act, the Wimbledon and Putney Commons Act 1871, which forbad the Conservators “to sell, lease, grant, or in any manner dispose of any part of the commons”, and granting an easement was just such a prohibited disposal. However, the Court of Appeal found for Mr Housden, noting that the grant of an easement was not a disposal of a ‘part’ of the commons, but simply enabling a right of way over the common. Indeed, the right of way had been in long use, and there was no suggestion that finding for Mr Housden would allow him to upgrade the track by putting down a tarred surface. The court noted that “the Access Way would not cease to be an open space” (para.23), and inferring a power for the Conservators to grant such an easement was “consistent with the conservation of the commons” (para.24).

Having lost that case, the Conservators did not go away empty handed (though no doubt the costs were colossal). They were now cognisant that they possessed a very potent power to grant easements to access neighbouring property which might otherwise be landlocked — in effect, they might control the only means of access to development sites in a hugely valuable part of London. Such was the case with the old Putney hospital site.

The site was formerly served by a hodgepodge of access ways across the common, and indeed some land used for car parking was on the common itself. But the existing access ways were unsatisfactory, and the Conservators agreed to grant a new means of access, to be tarred, and protected by bollards, mounds and a barrier, while the existing access ways would be ‘erased’. The Friends of Putney said that the Conservators were now exceeding the powers involuntarily won in Housden, because the new means of access would be an intrusion on the common, and the Conservators entirely lacked powers to allow the establishment of the bollards, mounds and barrier. In effect, the Conservators were permitting the inclosure of this part of the common, contrary to the purpose of the 1871 Act. Indeed, all parties appeared to accept that the new road would amount to inclosure.

The Court of Appeal was unsympathetic. It noted that Housden had decided that the grant of an easement was not prohibited by the 1871 Act, and the Conservators therefore had only to act in accordance with their general statutory objectives to “keep the commons open, uninclosed, and unbuilt on…except as otherwise in this Act expressed”. The Act conferred a specific power on the Conservators to “make and maintain such roads and ways as may be in their judgment necessary or proper”, and the court concluded that, even if the means of access to the Putney hospital site amounted to inclosure, it was a permitted derogation under the power to make roads.

Despite the absence of any statutory power conferred on the Conservators to erect bollards, mounds and barriers, the court noted that the Conservators were under a duty to use all lawful means to protect the commons: indeed, the byelaws prohibited unauthorised access onto the common with vehicles (the irony that the judgment would facilitate driving across the common apparently escaped the court). So the Conservators could erect the bollards etc. in furtherance of its general duty.

The court rejected the obvious view that the Conservators’ power to “make and maintain such roads and ways as may be in their judgment necessary or proper” was confined to such roads and ways as might be ‘necessary or proper’ for the enjoyment of the commons. After all, the power appears among a number of other powers (to ‘improve’ the common, to plant trees for ornament, to build lodges for common-keepers) all the rest of which are clearly orientated towards the Conservators’ functions to protect the commons and preserve them as open spaces. Instead, the court concluded that the Conservators were entitled to look at the overall result of the deal with the council, which would see other misused areas restored to open space, and the avoidance of any revival of the original right of way to the site. If that result was consistent with the Conservators’ functions, then it was lawful.

Comment: Even if one accepts the principle apparently (if not obviously) established by Housden that the Conservators have a power to grant any easement over the common which is consistent (taken as a whole) with their functions, it’s hard to see that their power to “make and maintain roads” is one which has any purpose other than to create such roads to enable the public to enjoy the common, and the Conservators to maintain it. By way of contemporary comparison, s.7(5) of the Commons Act 1876 (enacted five years after the 1871 Act) enabled orders for the regulation of commons to contain provision “for the benefit of the neighbourhood”: “That carriage roads, bridle paths, and footpaths, over such common are to be set out in such directions as may appear most commodious”, which was clearly intended to be relevant only to ways for public enjoyment or need.

And it seems likely that the Conservators intend neither to make nor maintain the access road to the hospital site: that will presumably be done by the council. Which makes it all the harder to understand how the statutory power is relevant.

There is nothing in the Act about installing bollards, mounds and barriers. The court thought the Conservators could put these in so as to protect the common. But that raises the paradox that none of these things would be necessary, and the common would not need protecting in this particular instance, if the easement were not granted in the first place. Besides, if the Conservators have unrestricted powers to protect and maintain the common, what is the point of the specific powers conferred for those purposes? It does seem that this constraint was swept aside by the court as a mere trifle which rather got in the way.

The court appeared to be influenced by the vicarious nature of the challenge, explicitly noting at the end of para.28 that the Friends were opposed to the redevelopment of the Putney hospital site, and implying that this action were only a means to an end, rather than a concern for the conservation of the common.

But the reported £350,000 value of the easement is a strong incentive to go to court — even if the core of the Conservators’ case is a power to grant an easement which they went to court to oppose just a few years ago. It is understood that the Friends are contemplating an appeal to the Supreme Court, though it seems unlikely that the Court would wish to review a case with strictly local parameters.

Finally, it’s worth noting that Putney common was not registered as common land under the Commons Registration Act 1965. That means that, whereas the consent of the Secretary of State is required for works on registered and certain other common land (including laying out sealed roads) under s.38 of the Commons Act 2006, including the vast majority of London commons managed under schemes made under the Metropolitan Commons Act 1866, it is not needed for Wandsworth and Putney commons. However, even if the commons had been registered, it is likely that the specific power of the Conservators to make roads across the commons would have waived the requirement for consent, by virtue of subs.(6)(a) of s.38 — provided of course that it is the Conservators who are laying out the road.

In a post on March 20, I wrote about the judgment awaited in R (on the application of Andrews) v Secretary of State for the Environment, Food and Rural Affairs, a claim to record an inclosure awarded public bridleway on the definitive map and statement. Finally, about ten weeks after the hearing, judgment has been handed down by the High Court. To understand this blog, it’s best to read the earlier one first. There is a useful map at the end of the judgment, which can be compared to the map on streetmap.co.uk.

It’s not hard to see why it’s taken so long. The judgment is a pretty full and thorough analysis of the arguments, at 141 paragraphs. The judgment begins with a brief but genuine illumination of the historical context of inclosure, leading to the Inclosure Consolidation Act 1801, before reviewing the context of the original decision, now under challenge, of the court in R v Secretary of State for the Environment, ex parte Andrews (‘Andrews 1’) in 1993.

In 1993, the claimant, John Andrews, was represented by George Laurence QC, as he was before the court in the present claim. And in 1993, Mr Laurence made a fateful concession. There are two powers in the 1801 Act to create new highways, in sections 8 and 10. The more obvious candidate for creating new paths is in section 10, which contained a power ‘to set out and appoint such private Roads, Bridleways, Footways, Ditches, Drains, Watercourses’ and various other features of the landscape. But Mr Laurence conceded then that ‘private’ modified all the terms in the provision, so that the power could be used to create only private roads, private bridleways and so on. Clearly, a private bridleway could not be a public one. And the court found that the power in section 8 could not be used to create a public bridleway too.

This time, Mr Laurence had retracted the original concession, and pitched battle on section 10 rather than section 8. He conceded that the usual rules of grammatical construction applied ‘private’ to the entire provision, but argued that the context of the history of the Act and its implementation were persuasive to the contrary. It was only natural that section 10 made provision for private roads, because section 8 had addressed public roads, and what was left in the provision might well be public, private, or indeed neither one nor the other; more to the point, there was an obvious need for a power to set out public bridleways and public footways. Moreover, section 11, which made further provision as regards ways set out in an award, referred to ‘publick and private Roads and Ways [which] shall have been set out and made’: that too was suggestive that there was a power to award not just public roads, but also public ways. Mr Laurence also asserted that there was good contemporary case law to the effect that existing footpaths not awarded by the Commissioners were stopped up by section 11: if that were so, it must surely be the case that there was a power to preserve them in the award?

But the judge was unpersuaded. The normal grammatical rules of construction applied, the headings to the sections confirmed the application of those rules, the reference to ‘publick and private Roads and Ways’ in section 11 was distinct from later reference to ‘Roads, Ways and Paths’ and did not embrace bridleways and footways, and any absurd result could be discounted because the local Act, which was necessary to incorporate and give effect to the 1801 Act, could make further provision as thought appropriate. The court in Andrews 1 was correct to accept Mr Laurence’s concession.

The court went on to consider whether further research into contemporary practice under the 1801 Act should cause any uncertainty about the judgment in Andrews 1. The research had found that, pre-1801, local inclosure acts generally made provision for the award of public bridleways and footpaths. And none of the post-1801 local inclosure acts made further provision for awarding public bridleways and footpaths over new inclosures, but many did make provision for creating them over old inclosures not otherwise subject to the award [this would enable a rational route to be laid out from end to end, including across intervening old inclosures]. The researcher observed, ‘It is difficult to imagine that such a large body of professionals, from all corners of the kingdom, should have been wrong in supposing that there was statutory authority for them to set out public footpaths or public bridleways. It is also difficult to conceive, had it been so obvious that they were acting illegally, that nothing should have been done to redress the situation.’

Again, the court was unimpressed. Counsel for the Secretary of State had adduced competing research which suggested that perhaps Commissioners had ignored the absence of powers and gone ahead and made unlawful awards anyway, too late to influence the construction of the 1801 Act. [But if that were so, why did experienced surveyors not lobby to ensure that local Acts did contain the elusive powers?] The court noted wider precedent which suggested that the court could derive some meaning from a long history of consistent interpretation, but in the event, concluded that the research was not all one way. For example, the research found that at least one-third of local Acts did make specific provision for ‘public watering places’, provision which might be unnecessary if the list in section 10 were unconstrained by the word ‘private’. And around one-third also made special provision for stopping up public paths across inclosures, even though Mr Laurence’s interpretation might make such provision redundant, for he thought that could be achieved under section 11.

Finally, it was argued that, even if the award of the public bridleway was unlawful, it was now far too late to quash it, a point which apparently was not argued before the court in 1993. Both the 1801 and the local Act contained ouster clauses, providing that the award was final and not to be questioned except by means of a timely challenge. The argument was given short shrift [though see my earlier analysis on this point]. There was no case to allow an ultra vires award to stand, and where the legislation purported to oust the jurisdiction of the courts to interfere in an unlawful act, it would be set aside.

Nothing is said in the judgment about leave to appeal. So the question arises as to whether leave will be sought from the Court of Appeal.

Comment: This was always going to be a tough call. As the court noted, the historic evidence does not all point one way. And the judge has taken great care to ensure that the decision is fully considered.

The court’s conclusion on that evidence is perhaps the weakest element. The court recognises that the deemed absence of powers under the 1801 Act to create new public paths across inclosures might be seen as absurd, were it not for the fact that such powers could be conferred in each local Act incorporating the 1801 Act — as indeed other often essential powers were missing from the 1801 Act. But time after time, local Acts did not confer such powers — yet often (the judgment does not appear to specify in precisely what proportion of cases) the awards did purport to set out public paths. If the experienced surveyors who toured the country drawing up awards knew that they were sailing on thin ice, why did the communities which procured new local Acts not address the deficiency by including specific powers to put the matter beyond doubt? Why was there no amendment to the 1801 Act even though two amending Acts provided an appropriate vehicle? Above all, why was there no contemporary challenge to the validity of those awards? The court alighted on one such challenge (Logan v Burton) as illuminating the meaning of section 10 — but the case does not directly address the role of section 10, and is so poorly expressed that even the court described it as ‘a difficult case to follow and the report is hardly a model of lucidity’.

As for the construction of section 10, legislation in the early nineteenth century was notoriously poorly drafted by today’s standards. Applying today’s rules of grammar to such drafting as the default construction may produce a result, but only analysis of the contemporary context is likely to produce the right answer, and the context tends to suggest the opposite result.

Finally, as to the validity of a challenge to the vires of the award 200 years after the event, see the prepenultimate paragraph of my previous post.

While we’re waiting for the High Court judgment in Andrews (see previous post: it’s now about five weeks since the hearing), the Supreme Court has decided to hear an appeal from the Court of Appeal in R (on the application of the Trail Riders Fellowship and Tilbury) v Dorset County Council and the Secretary of State for Environment, Food and Rural Affairs and Plumbe. The Supreme Court frequently hears town and village green cases, but the last rights of way appeal was Godmanchester in 2007.

On the face of it, the TRF case is about a rather straightforward if technical question, and it seems odd that the Supreme Court is willing to opine. But, as the first claimant’s name suggests, this is also about motorised rights on unsealed highways, and therefore a tad more controversial than the dry question before the court suggests.

The claim relates to five applications made in 2004 by a third party, Mr Stuart, to record on the definitive map and statement for Dorset, five byways open to all traffic (BOATs) — public carriageways, all of them probably unsealed, but which are mainly used by walkers and horseriders. The TRF and David Tilbury took over the applications. Now, the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 provide, in regulation 2 as applied by regulation 8(2), that the map which must accompany an application “shall be on a scale of not less than 1/25,000”. It’s worth noting here that the regulations are not a model of good drafting, and moreover, neither in the regulations nor in the enabling legislation (Paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981) does it say that the map must be an Ordnance Survey map — even though Schedule 1 to the Interpretation Act 1978 helpfully defines what is an ‘Ordnance Map’.

Mr Stuart’s applications contained maps generated by PC-based software published by Anquet derived from Ordnance Survey mapping at 1:50,000 (or ‘1/50,000’, using the slightly quaint form of the 1993 regulations), but enlarged to a scale of 1:25,000. The question before the courts below, and now for the Supreme Court, is whether such an enlargement of a smaller scale map renders an application compliant with the legal requirements of the 1993 Regulations and paragraph 1 of Schedule 14 to the 1981 Act? The point of specifying a minimum scale is that the application route can be reasonable accurately determined in relation to its surrounding features, such as whether it runs on one side or the other of a hedge — only the 1:25,000 mapping and larger scales show hedgerows, fences and walls. On the one hand, an extract of England from a World Atlas could be enlarged to 1:25,000, but would clearly lack any useful identifying features of any kind. On the other, given that the legislation fails to require the use of an Ordnance map, a sketch drawn at 1:25,000 would appear to be compliant, but very likely would be a good deal less useful than the enlarged 1:50,000 map produced by Anquet software.

At this point, the reader might legitimately ask whether the question before the court really merits consideration by that court, the Court of Appeal and the High Court. After all, Dorset County Council was at liberty to waive the non-compliance with the regulations, or revert to the applicants for a compliant map. While the question itself may appear of limited relevance, the answer holds the key to the future classification of the application and other BOATs. This is because s.67 of the Natural Environment and Rural Communities Act 2006 extinguished rights for motor vehicles on most unrecorded public carriageways. But subsection (3) contained an exception for such ways which were the subject of an application to record as a BOAT, where the application had been made before 20 January 2005 (the date on which the Government’s legislative intention was announced), and the application was “made in accordance with paragraph 1 of Schedule 14”.

The Court of Appeal has already held, in R (on the application of Warden and Fellows of Winchester College) v Hampshire County Council, that ‘in accordance with’ meant in strict compliance with the requirements of paragraph 1. That judgment has meant that many subsisting applications to record BOATs have failed to attract the protection afforded by s.67(3), and at best, will now be recorded as restricted byways (at worst, the applicants will lose interest in pursuing the applications, and the applications may be lost altogether). The TRF case will now decide whether applications which were otherwise compliant, but which submitted a map not produced directly from an Ordnance Survey 1:25,000 map, are also deemed to be non-compliant, and have therefore had motor vehicular rights extinguished by the 2006 Act. That then, in this and potentially similar cases, is why the question has been escalated to the Supreme Court, and accepted by it for determination.

In the Court of Appeal, the court recognised that, in the absence of any specification of an Ordnance map in the 1993 Regulations, an applicant could submit a map at a scale of 1:25,000 which showed more or fewer features than an Ordnance map at the scale, and therefore the Anquet enlargement could hardly be criticised as insufficient. Paragraph 1(a) of Schedule 14 to the 1981 Act requires the submission of “a map drawn to the prescribed scale” (i.e. the prescribed scale of 1:25,000), and the Court of Appeal thought this satisfied by the Anquet software ‘drawing’ the map when it was printed out. But it is not hard to conceive that the Supreme Court may conclude that the Anquet map was ‘drawn’ at 1:50,000 when it was published by the Ordnance Survey, even if printed at a larger scale, if that will preserve some unsealed roads in the countryside from the perceived curse of recreational ‘off-road’ vehicles — much the same motivation which influenced the Court of Appeal in Winchester. It will be a few months yet to find out.