R (on the application of Trail Riders Fellowship & Anor) v Dorset County Council [2015] UKSC 18

Dorset County Council rejected five applications to record byways on its definitive map because the accompanying maps were computer-enlarged from 1:50,000 OS originals. The Supreme Court held, by majority, that maps presented at 1:25,000 satisfied the statutory requirement, preserving the vehicular rights of way.

Facts

Five applications were made under section 53(5) of the Wildlife and Countryside Act 1981 between July and December 2004 seeking modifications to Dorset’s definitive map and statement (DMS) to add or upgrade routes to ‘byways open to all traffic’ (BOATs). The applications were submitted by Mr Jonathan Stuart of the Friends of Dorset’s Rights of Way, with conduct later assumed by the Trail Riders Fellowship.

Each application was accompanied by a map produced using ‘Anquet’ computer software which digitally enlarged OS maps originally drawn at 1:50,000 to a presented scale of 1:25,000 or larger. The agreed statement of facts confirmed that the resulting maps had a fixed ratio whereby 1 cm on the map corresponded to no more than 250 metres on the ground.

The Council acknowledged the applications in early 2005 without complaint. Only in October 2010 did it reject them on the basis that the maps were ‘computer generated enlargements of OS maps and not by maps drawn to a scale of not less than 1:25,000’. The significance was that section 67 of the Natural Environment and Rural Communities Act 2006 extinguished unrecorded public rights of way for mechanically propelled vehicles unless a qualifying application had been made before 20 January 2005 in accordance with paragraph 1 of Schedule 14.

Issues

The principal issue was whether a map accompanying a section 53(5) application, presented at a scale of not less than 1:25,000, satisfied the requirement in paragraph 1(a) of Schedule 14 of being ‘drawn to the prescribed scale’ where it had been digitally derived from an original map with a scale of 1:50,000.

A second issue arose only if the first failed: whether section 67(6) of the 2006 Act required strict compliance with paragraph 1 of Schedule 14, following R (Warden and Fellows of Winchester College) v Hampshire County Council [2009] 1 WLR 138.

Arguments

Appellant Council

The Council argued that where the application map was derived from a previous map, the relevant map was the original from which it was derived. A map ‘drawn to’ a scale of 1:25,000 meant one originally drawn at that scale, not merely enlarged or reproduced to it. The Council relied on evidence from Ordnance Survey that an enlarged 1:50,000 map remained properly regarded as a 1:50,000 map. It contended the requirement existed to ensure adequate surrounding detail equivalent to an OS 1:25,000 map.

Respondents

The respondents argued that the natural meaning of the provisions was that the application map itself must be on a scale of not less than 1:25,000, which these maps were. The word ‘drawn’ was synonymous with ‘produced’ and should accommodate modern technological methods of map production.

Judgment

The Supreme Court, by a majority of three to two (Lord Clarke, Lord Carnwath, Lord Toulson; Lord Neuberger and Lord Sumption dissenting), dismissed the appeal.

Majority reasoning (Lord Clarke)

Lord Clarke held that on the ordinary and natural meaning of the provisions, no distinction was drawn between a map ‘drawn to the prescribed scale’ and a map ‘on a scale of not less than 1:25,000’. Only one map accompanied each application, and each was on a scale of not less than 1:25,000, satisfying regulations 2 and 8(2) of the 1993 Regulations and paragraph 1(a) of Schedule 14.

There was nothing in the statutory language to warrant the conclusion that the relevant map was any map from which the application map was derived. The scheme was not prescriptive as to features which must be shown, beyond the requirement that the way be shown. The Council conceded that an applicant could create an accurate manuscript map at 1:25,000 containing only such detail as a 1:50,000 OS map, and such a map would comply.

Adopting Maurice Kay LJ’s approach in the Court of Appeal, Lord Clarke held that ‘drawn’ was not confined to ‘originally drawn’ and should embrace modern techniques including computer-generated production. Lord Toulson agreed, finding the Ordnance Survey evidence a ‘red herring’ not featuring in the Regulations.

Second issue

As the first issue was decided in favour of the respondents, the second issue did not arise. Lord Clarke expressed sympathy with Lord Carnwath’s general approach but preferred to express no view. Lord Carnwath would have held that the strict compliance approach in Winchester was too narrow, favouring substantial compliance grounded in principles from R v Soneji [2006] 1 AC 340 and Inverclyde District Council v Lord Advocate. Lord Toulson agreed with the dissentients on this point, considering section 67(6) made clear that only timely and formally compliant applications were saved.

Dissent (Lord Neuberger and Lord Sumption)

Lord Neuberger considered the purpose of the minimum scale requirement was to ensure a level of detail to inform the council about the way and its surroundings. It was unnatural to describe an enlarged photocopy of a 1:50,000 map as ‘drawn to’ 1:25,000. Regulation 2 must bear the same meaning for both definitive maps and application maps. He further held that section 67(6) of the 2006 Act required strict compliance, and the consequence of non-compliance was extinguishment under section 67(1). Lord Sumption agreed, considering the Regulations were drafted on the assumption that a 1:25,000 map would have more surrounding detail than a 1:50,000 map.

Implications

The decision establishes that, for applications under section 53(5) of the 1981 Act, the statutory requirement is satisfied where the application map as presented is at a scale of not less than 1:25,000, regardless of whether it has been digitally enlarged from a smaller-scale original. The word ‘drawn’ is to be construed flexibly to accommodate modern map production techniques.

Practically, the decision preserves vehicular rights of way over the disputed Dorset routes which would otherwise have been extinguished under section 67(1) of the 2006 Act. It is significant for surveying authorities, applicants seeking to record rights of way, landowners, and groups such as the Trail Riders Fellowship and Green Lanes Protection Group.

The judgment confirms a non-prescriptive approach to the form of application maps: the statute does not require an OS map, nor that the map contain particular features beyond identifying the way to which the application relates. Authorities retain their own OS resources and may raise queries with applicants where necessary.

The second issue concerning strict compliance under section 67(6) remains formally governed by Winchester, although Lord Carnwath’s reasoning casts doubt on extensions of that approach (notably Maroudas), and Lord Clarke expressed doubt about the narrow construction. The point remains open for future determination on appropriate facts.

Verdict: Appeal dismissed. The Supreme Court held by majority that maps presented at a scale of not less than 1:25,000 satisfied the requirement in paragraph 1(a) of Schedule 14 to the Wildlife and Countryside Act 1981, even where digitally derived from an original 1:50,000 map. The Court of Appeal’s order was upheld and the second issue did not arise for decision.

Source: Trail Riders Fellowship & Anor, R (on the application of) v Dorset County Council [2015] UKSC 18