R (on the application of Roxlena Ltd) v Cumbria County Council

Right of way – Definitive map and statement – Written evidence – Application being made to modify definitive map to include rights of way over claimant’s land – Application relying on written evidence submitted with earlier application – Defendant local authority authorising making of statutory order – Claimant applying for judicial review – Whether defendants entitled to rely on earlier evidence when determining application – Application dismissed In January 2011, an application was made to the defendant local authority under section 53(2) of the Wildlife and Countryside Act 1981 for an order modifying the definitive map and statement by adding a network of footpaths identified in “User Evidence Forms” (UEFs) supplied and “shown on the attached map” in respect of land at Hayton Woods in Cumbria owned by the claimant. A planning officer’s report recommended that the defendants should make an order under section 53(3)(c)(i) of the 1981 Act, on the ground that there was sufficient evidence that the rights of way in question could reasonably be alleged to subsist. However, the defendants did not proceed with the application because the statutory notification requirements had not been complied with. In April 2015 a second application was made under section 53(5) of the 1981 Act in the same terms as the first application with the addition of a claimed bridleway. Reliance was placed on evidence in UEFs already submitted in support of the first application. The planning officer made the same recommendation as that in respect of the first application. The defendants, acting through their Development Control and Regulation Committee, authorised the making of a statutory order which, subject to confirmation, would add to the definitive map and statement of public rights of way, certain rights of way and a bridleway over the claimant’s land. The claimant applied for judicial review of that decision contending, amongst other things, that the defendants had wrongly taken into account the written evidence in the UEFs from the first application when determining the second application, because that evidence had already been “discovered” in accordance with section 53(3)(c)(i) of the 1981 Act and could not be discovered again. Held: The application was dismissed. (1) The defendants had acted lawfully in relying on the UEFs when it made its decision. The event that triggered the defendants’ duty to consider the UEFs was the discovery of the UEFs, which occurred in January 2011, when the first application was made. That discovery was an event falling within section 53(3)(c). The application then fell away. But the duty of the defendants under section 53(2)(b), as soon as reasonably practicable after the discovery of the UEFs, by order to make such modifications to the map and statement as appeared to it to be requisite in consequence of the discovery of the UEFs, remained in place. There was no good reason why the duty under section 53(2)(b) of the 1981 Act to keep the map and statement under continuous review should cease to apply when an application was made under section 53(5). There was nothing in the statutory language to support the claimant’s proposition that the “continuous review” duty was displaced by the successive applications under section 53(5). There was nothing in the statutory provisions that precluded the defendants from performing, belatedly in January 2017, their duty under section 53(2)(b) to make such modifications as they considered requisite in consequence of the discovery of the UEFs six years earlier; nor was there anything in the statutory language which prevented an applicant from relying, in an application made under section 53(5), upon evidence discovered years earlier but not yet acted upon by the authority concerned. (2) An authority proceeding to determine an application under section 53(5) had to require compliance with Schedule 14 which contained procedural provisions governing the form of applications, notice of them and determinations by the authority. They had to be made on the prescribed form and accompanied by a map and documents relied on and included an obligation to serve a notice in the prescribed form “on every owner and occupier of any land to which the application relates”; its provisions were there to be complied with. If the authority did not do so and unfairness to objectors resulted, the court could grant relief to correct the unfairness, though not every breach of Schedule 14 would lead to quashing of an order: see R (on the application of the Warden and Fellows of Winchester College) v [2008] EWCA Civ 431; [2008] PLSCS 128; [2009] 1 WLR 138. By similar reasoning, if an authority were to misuse its function of continuous review (enacted by section 53(2)(b)) for the improper purpose of denying objectors the benefit of the procedural rights conferred on them by Schedule 14, relief could be granted by the court to correct any resulting unfairness to the objectors. However, nothing of that kind had occurred in the present case. George Laurence QC and Claire Staddon (instructed by Underwood Vinecombe LLP, of Derby) appeared for the claimant; Alan Evans (instructed by Legal and Democratic Services, Cumbria County Council) appeared for the defendants. Eileen O’Grady, barrister Click here to read transcript: R (on the application of Roxlena Ltd) v Cumbria County Council