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An occasional blog about commons — and just possibly even more occasionally about village greens and rights of way. New posts will be tweeted at @PannageMan.

DMMO applications: paragraph 1 compliance

Rights of WayPosted by Hugh Craddock Sun, August 27, 2017 16:50:58
Roman Road, Sutton next Ripple, Kent: PannageMan applied under para.1 in November 2016 to record this short length of Roman Road as a restricted byway (the paved road turns left here)

A previous blog explored applications under s.53(5) of the Wildlife and Countryside Act 1981 to surveying authorities for a definitive map modification order (DMMO), so as to amend the official definitive map and statement to add a right of way, to modify the details of an existing recorded right of way, or to delete a right of way already shown. It looked at the procedure in para.3(2) of Sch.14 to the 1981 Act for the Secretary of State to direct an authority to determine such an application where it remains undetermined one year after the date on which the application had been certified by the applicant as compliant with para.2. This blog looks at the requirements of a s.53(5) application, and in what circumstances such an application might be rejected for non-compliance.

An application under s.53(5) is to be made in a certain form set out in para.1 of Sch.14. It must be 'made in the prescribed form' — that is, prescribed by the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (SI 1993/12), 'accompanied by—(a) a map drawn to the prescribed scale and showing the way or ways to which the application relates' (the prescribed scale being 1:25,000: see r.2 applied by r.8(2)), and 'accompanied by—…(b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application.' R.8(1) provides that an application must be in the form set out in Sch.7 to the Regulations, 'or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case.'

Many such applications are made, often by applicants who have little or no interest or practice in rights of way as such, but are motivated by particular circumstances which befall them — a challenge to a long-used path, or a conviction that a path through their premises was wrongly recorded. Surveying authorities often provide a template of the Sch.7 form to assist applicants (with words to be inserted or crossed-out as the case may be), but even if the form is correctly completed (and it may not be), there is still room for error in getting the map wrong, or providing the right copies of documentary evidence. Indeed, one question to which PannageMan seeks an elusive answer is what amounts to a copy of documentary evidence: if an application relies on the entry in a deposited railway plan and book of reference, is it sufficient to supply a copy of the particular intersection of application path and proposed railway in the plan, and the relevant entry in the book of reference, or must one supply a copy of the relevant pages in both, or of the entire set of plans and book of reference?

But what if, as is likely, an application fails quite to comply with the requirements of para.1, including those prescribed in the 1993 Regulations? Is the application invalid, and to be disregarded, or must it be treated as an effective application anyway?

Some commentators turn for assistance to R (on the application of the Warden and Fellows of Winchester College and Humphrey Feeds Limited) v Hampshire County Council and the Secretary of State for Environment, Food and Rural Affairs, decided in the Court of Appeal. This was a judicial review of the decision of the defendant council to make DMMOs to record two byways open to all traffic across the claimants' land. The DMMOs had been made in response to two s.53(5) applications. Rights for mechanically propelled vehicles (MPVs) along the ways were potentially extinguished by s.67 of the Natural Environment and Rural Communities Act 2006, but s.67 provided that the rights were excluded from extinguishment if the s.53(5) applications were made before a certain date (they were) and if the applications were: 'made in accordance with paragraph 1 of Schedule 14'. In fact, the applications were defective, because they listed the documentary evidence supporting the applications, but did not provide copies. The court decided that the applications were not 'made in accordance with paragraph 1' for the purposes of s.67, and so they were not valid applications for the purposes of excluding the extinguishment of rights for mechanically propelled vehicles under s.67.

Winchester is sometimes taken to mean that a s.53(5) application must be fully compliant with the requirements of para.1, or it is not a valid application. But that is not what Winchester decided. As Dyson LJ (who gave the only judgment) made very clear in Winchester, 'It is important not to lose sight of the precise question raised by the first issue [before the court]. It is whether, for the purposes of section 67(3) of the 2006 Act, the Tilbury and Fosberry applications were made in accordance with paragraph 1 of Schedule 14 to the 1981 Act.' [Emphasis from the judgment, not me]

He went on to repeat the point: 'I wish to emphasise that I am not saying that, in a case which does not turn on the application of section 67(6), it is not open to authorities in any particular case to decide to waive a failure to comply with paragraph 1(b) of Schedule 14 and proceed to make a determination under paragraph 3; or to treat a non-compliant application as the "trigger" for a decision under section 53(2) to make such modifications to the DMS as appear requisite in consequence of any of the events specified in subsection (3).'

When the Supreme Court reviewed the decision in Winchester, in R (on the application of Trail Riders Fellowship and another) v Dorset County Council, Lord Carnwath started, 'from the general principle that procedural requirements such as those in the 1981 Act should be interpreted flexibly and in a non-technical way. …Such a flexible approach is particularly appropriate in the context of an application to modify the definitive map. …under section 53 of the 1981 Act the primary duty to keep the definitive map up to date and in proper form rests with the authority, as does the duty (under section 53(3)(c)) to investigate new information which comes to their attention about rights omitted from the map. An application under section 53(5), which may be made by a lay person with no professional help, does no more than provide a trigger for the authority to investigate the new information (along with other information already before them) and to make such modification "as appears to [them] to be requisite.…"'

The judgments in both Winchester and TRF make clear that the judicial interpretation of the requirements of the saving for MPV rights in s.67 of the 2006 Act should not be extended to decide whether an application under s.53(5) should be treated as validly made or otherwise questioned: in that respect, s.67 has no relevance to most s.53(5) applications. In his judgment in TRF, Lord Carnwath refers to the speech of Lord Steyn in R v Soneji (para 23) as summarising the modern judicial approach to deciding whether a decision is invalidated where the decision maker fails to abide by some legislative procedural requirement imposed on it, in which Lord Steyn said that the emphasis is: "on the consequences of non-compliance, …posing the question whether Parliament can fairly be taken to have intended total invalidity." That is the approach which, in theory, a court could apply if deciding whether a defective s.53(5) application is valid.

But for two reasons, that analysis will seldom if ever be called for. First, because a surveying authority, on receiving such an application, must decide whether the application is duly made (i.e. whether it is what it purports to be — a validly made s.53(5) application) and if it is, include it on its register of such applications held under s.53B of the 1981 Act. Under the Public Rights of Way (Register of Applications under section 53(5) of the Wildlife and Countryside Act 1981) (England) Regulations 2005 (SI 2005/2461, as amended), an application must be registered within 28 days of the date the application is received by the authority (r.3(6)(a)). If the authority decides that the application is invalid, and it is not minded to waive the invalidity or to seek to resolve it, then the application is not an 'application' under s.53(5) and it need not be registered. It follows that, if the authority registers the application, it must be satisfied that the application is validly made, or by implication, it has decided to waive any outstanding non-compliance.

One could enter into a debate as to the extent of the surveying authority's powers to waive non-compliance. After all, para.1 does impose certain requirements on an application. Such a debate would have to consider the principles enunciated in Soneji to decide whether Parliament intended non-compliance with those requirements to promote total invalidity (noting again the expectation of Lord Carnwath in TRF that such an application, 'may be made by a lay person with no professional help').

But the debate would be sterile, and that leads us to the second reason why. The effect of an application is to alert the authority to events which call for the modification of the definitive map and statement. But the application is no more than a signal to the surveying authority that it has a duty under s.53(2) to 'keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event'.

When the Wildlife and Countryside Bill was introduced to Parliament in 1980, it did not contain provision for applications to be made to the surveying authority for the purposes of triggering a DMMO. This provision was introduced in the House of Lords by Lord Bellwin on behalf of the Government, responding to criticism of the omission. And so the provision for applications was bolted on to s.53 and Sch.14, without quite resolving the tension created by those amendments — why does a member of the public need to make a formal application for a DMMO if the authority itself has a duty to act 'as soon as reasonably practicable after the occurrence…of …events'? An authority cannot be omniscient, but surely, at least in theory, it would have been sufficient for a member of the public to write to the authority pointing out that certain events had taken place, and wouldn't the authority (pursuant to its statutory duty) like to investigate and, if it thought fit, make a DMMO? Conversely, why impose regulatory requirements on an applicant, if a simple letter ought to be all that is necessary? The Minister, speaking to his amendment, said, 'that to protect authorities from frivolous applications a formal procedure such as is provided for in the amendment was essential. That a person takes the time and trouble to produce the necessary evidence and plan is a clear indication that the claim is not frivolous, and that his application merits serious consideration.' But an authority receiving a frivolous letter need have done nothing at all.

Even if the application is defective in some way, the surveying authority will be on notice that events have occurred which trigger its duty to make a DMMO. It therefore does not greatly matter that the application may be defective in some way: it has achieved its purpose, which is to nudge the authority into performing its standing duty. Of course, if the application is so defective that the authority does not have the slightest idea why the applicant thinks that a DMMO is called for (in which case, it ought to have been rejected at the time of the application as not duly made), or having weighed the evidence, the authority concludes that, on the balance of probabilities, there is no case to make a DMMO, it need do nothing (apart from refusing the application).

But what if, at this stage, the application is identified as defective in, for example, lacking copies of certain documents listed in the application, or the scale of the attached map is less than the prescribed 1:25,000? Neither of these flaws impairs the communication to the surveying authority of the nature of the events referred to in it. Therefore, what basis can there be for the authority to reject the application as defective and to refuse to make a DMMO if the evidence otherwise stacks up?

If a surveying authority does wish to rely on the legislative requirements for an application, the proper time to impose such requirements is within 28 days of the date of application, before the application is registered in the s.53B register, by refusing the application as not duly made. In PannageMan's opinion, once the application is registered, the authority must, in due course, determine the application as if it were validly made, on the strength of the evidence submitted.

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