R (on the application of Trail Riders Fellowship and another) v Dorset County Council and others

Public rights of way – Definitive map and statement – Wildlife and Countryside Act 1981 – Appellants applying to upgrade existing rights of way – Map accompanying application enlarged to scale of 1:25,000 from original in 1:50,000 scale – First respondent council rejecting applications on ground that not accompanied by map drawn to scale of 1:25,000 as required by para 1 of Schedule 14 to 1981 Act – Decision upheld in judicial review proceedings – Whether Schedule 14 requiring map originally drawn in 1:25,000 scale – Appeal allowedThe appellants made five applications, under section 53(5) of the Wildlife and Countryside 1981, for modification orders to modify the definitive map and statement maintained by the first respondent council, as surveying authority, to upgrade certain rights of way currently depicted as footpaths or bridleways to byways open to all traffic (BOATs). The applications were accompanied by maps generated by computer software that sourced maps from the Ordnance Survey, at a scale of 1:50,000, and enabled them to be printed out to a range of scales; the appellants had printed them out to a scale of 1:25,000 or larger.The first respondent rejected the applications on the ground that maps enlarged from originals in 1:50,000 scale did not comply with the requirements of para 1 of Schedule 14 for a map drawn to the “prescribed scale” of not less than 1:25,000 set out in regulation 8(2) of the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993.The appellants’ claim for judicial review of that decision was dismissed in the court below; the judge agreed with the first respondents’ interpretation of the legislation: see [2012] EWHC 2634 (Admin); [2012] PLSCS 194. The appellants appealed.Held: The appeal was allowed. Paragraph 1(a) of Schedule 14 to the 1981 Act required something that was identifiable as a map, was drawn to a scale of 1:25,000 and showed the way or ways to which the application related. The map did not have to be an Ordnance Survey map. Nor was the legislation prescriptive as to the features that had to be shown on it, apart from the requirement that it show the way or ways to which the application related. An original Ordnance Survey map produced to a scale of 1:25,000 would show more features than an original Ordnance Survey map of the same site with a scale of 1:50,000. However, since the legislation permitted the use of a map that was not produced by the Ordnance Survey, the requirement for a map “drawn to a scale of not less than 1:25,000” did not mean a map originally drawn to that scale and showing the range of features normally depicted on an original Ordnance Survey map of that scale. The language of the legislation imposed no such prescriptive requirement as to content as opposed to scale. The only prescriptive requirement as to content was that the map showed the way or ways to which the application related. That was a flexible requirement. Sometimes more detail would be required, sometimes less, depending on the way in question and its location.Nor did the words “drawn to” a scale of not less than 1:25,000 require that the map in question had to have been originally drawn to that scale rather than enlarged or reproduced. What was important was the scale on the document that accompanied the application. The word “drawn” did not have to refer to the original creation but was more sensibly construed as being synonymous with “produced” or “reproduced”; it could also embrace technological change and new techniques for the production of maps that had not been readily available at the time when the legislation was enacted: R (on the application of Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687 applied. Accordingly, a map that was produced to a scale of 1:25,000, even if it was digitally enlarged from an original map with a scale of 1:50,000, satisfied the requirements of para 1(a) of Schedule 14 provided that it was indeed a map and it showed the way or ways to which the application related.By para 3(1)(a) of Schedule 14, it was for the surveying authority to investigate the matters stated in the application. Although that investigation might be easier in some cases with the benefit of a map such as an original 1:25,000 Ordnance Survey map, that did not mean that the map accompanying the application had to take that form in the absence of clear prescription. Parliament had laid down minimum requirements in relation to the application. If the investigation resulted in a modification of the definitive map, the surveying authority might conclude something like an original 1:25,000 Ordnance Survey map was needed in order to deliver the requisite clarity. It did not follow that such a map was required at the application stage.Adrian Pay (instructed by Brain Chase Coles, of Basingstoke) appeared for the appellants; George Laurence QC (instructed by the legal department of Dorset County Council) appeared for the first respondent; the second respondent did not appear and was not represented; the third respondent appeared in person.Sally Dobson, barrister