Court of Appeal

Published May 8, 2008

Regina (Warden and Fellows of Winchester College and Another) v Hampshire County Council

Before Lord Justice Ward, Lord Justice Dyson and Lord Justice Thomas

Judgment April 29, 2008

Statutory requirements governing the making of an application to change the status of a right of way were to be adhered to strictly.

The Court of Appeal so held when allowing appeals by the Warden and Fellows of Winchester College and Humphrey Feeds Ltd, from the refusal by Mr George Bartlett, QC, sitting as a deputy Queen’s Bench Division ([2007] EWHC 2786 (Admin)) of their claim for judicial review of the refusal by Hampshire County Council to reconsider decisions made on March 22, 2006, to make an order modifying the definitive county map and statement by upgrading two rights of way to the status of byways open to all traffic.

The claimants were landowners. Their land was crossed by a road which was used as a public path and that right of way, together with a bridleway, formed a continuous route.

The council decisions related to applications made by two members of the public; but those applications did not have copies of documentary evidence attached, as required by paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981, and notice was not served on the relevant owners and occupiers, as required by paragraph 2.

The judge had held that the applications were validly made, so that the applicable rights were saved from extinguishment by virtue of section 67 of the Natural Environment and Rural Communities Act 2006.

Mr George Laurence, QC and Miss Ross Crail for the landowners; Mr Timothy Mould, QC, for the council; Mr John Litton for the Secretary of State for Environment, Food and Rural Affairs, as interested party.

LORD JUSTICE DYSON said that the principal issue was whether the applications to modify the county map under section 53 of the 1981 Act had been made validly in accordance with paragraph 1 of Schedule 14 to the 1981 Act as required by section 67(6) of the 2006 Act, where the landowners contended neither was a valid application.

Under section 67 of the 2006 Act, an application to modify a county map had to have been made in the form prescribed in Schedule 14 to the 1981 Act: namely, accompanied by a map drawn to the prescribed scale, showing the way(s) to which the application related, and accompanied by copies of any documentary evidence, including statements of witnesses, which the applicant wished to adduce in support of the application.

Those words were expressed in clear and ordinary language and were to be given their plain and ordinary meaning, and an application which was not accompanied by a map or by copies of any documentary evidence which the applicant wished to adduce in support of the application was not properly made.

It followed that neither was a qualifying application and that the relevant rights had not been saved from extinguishment.

Lord Justice Thomas and Lord Justice Ward agreed.

Solicitors: Knights, Tunbridge Wells; Miss Elizabeth Ellam, Winchester; Solicitor, Department of Environment, Food and Rural Affairs.

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