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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Trail Riders' Fellowship & Anor, R (on the application of) v Dorset County Council [2012] EWHC 2634 (Admin) (02 October 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2634.html Cite as: [2013] PTSR 302, [2012] EWHC 2634 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the application of TRAIL RIDERS' FELLOWSHIP DAVID LEONARD TILBURY |
Claimants |
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- and - |
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DORSET COUNTY COUNCIL |
Defendant |
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- and - |
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SECRETARY OF STATE FOR ENVIRONMENT, FOOD & RURAL AFFAIRS PHILIP GRAHAM PLUMBE |
Interested Parties |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
George Laurence QC (instructed by Dorset County Council Legal Dept.) for the Defendant
Claire Staddon (instructed by Messrs Thomas Eggar) for the 2nd Interested Party
Hearing dates: 26 & 27 June 2012
____________________
Crown Copyright ©
Mr Justice Supperstone :
Introduction
The legal framework
"(2) As regards every definitive map and statement, the surveying authority shall—
(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in sub-section (3); and
(b) as from that date, 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.
(3) The events referred to in sub-section (2) are as follows:
…
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows…
(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies;
(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.
…
(5) Any person may apply to the authority for an order under sub-section (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of sub-section (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this sub-section."
"1. Form of Applications
An application shall be made in the prescribed form and shall be accompanied by—
(a) a map drawn to the prescribed scale and showing the way or ways to which the application relates; and
(b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application.
2. Notice of Applications
(1) Subject to sub-paragraph (2), the applicant shall serve a notice stating that the application has been made on every owner and occupier of any land to which the application relates.
…
(3) When the requirements of this paragraph have been complied with, the applicant shall certify that fact to the authority.
(4) Every notice or certificate under this paragraph shall be in the prescribed form.
3. Determination by authority
(1) As soon as reasonably practicable after receiving a certificate under paragraph 2(3), the authority shall—
(a) investigate the matters stated in the application; and
(b) after consulting with every local authority whose area includes the land to which the application relates, decide whether to make or not to make the order to which the application relates.
…
5. Interpretation
(1) In this Schedule…
'prescribed' means prescribed by regulations made by the Secretary of State."
"2. Scale of definitive maps
A definitive map shall be on a scale of not less than 1/25,000 but where the surveying authority wishes to show on a larger scale any particulars required to be shown on the map, in addition, an inset map may be used for that purpose.
6. Provisions supplementary to Regulations 4 and 5
Regulations 2 and 3 above shall apply to the map contained in a modification or reclassification order as they apply to a definitive map.
8. Application for a modification order
(1) An application for a modification order shall be in the form set out in Schedule 7 to these Regulations or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case.
(2) Regulation 2 above shall apply to the map which accompanies such an application as it applies to the map contained in a modification or reclassification order."
"Ending of certain existing unrecorded public rights of way
(1) An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement—
(a) was not shown in a definitive map and statement, or
(b) was shown in a definitive map and statement only as a footpath, bridleway or restricted byway.
But this is subject to sub-sections (2) to (8).
…
(3) Sub-section (1) does not apply to an existing public right of way over a way if—
(a) before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 (c69) for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic,
(b) before commencement, the surveying authority has made a determination under paragraph 3 of Schedule 14 to the 1981 Act in respect of such an application, or
(c) before commencement, a person with an interest in land has made such an application and, immediately before commencement, use of the way for mechanically-propelled vehicles—
(i) was reasonably necessary to enable that person to obtain access to the land, or
(ii) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only.
(4) 'The relevant date' means—
(a) in relation to England, 20th January 2005;
…
(6) For the purposes of sub-section (3), an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act."
"It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it."
The factual background
"The Head of Legal and Democratic Services referred members to the requirement for an application to be accompanied by a map drawn to a scale of not less than 1:25,000. … The Head of Service advised that he did not believe the maps which accompanied the applications to have been drawn to a scale of not less than 1:25,000. Members were referred to letters [dated 19 March 2009 and 10 December 2009] provided by the Ordnance Survey setting out their comments and in particular to their description of an application map as a facsimile copy of an enlarged image taken from the Ordnance Survey digital raster mapping originally produced at a 1:50,000 scale."
The Committee resolved to refuse all five applications. Under the heading "Reasons for Recommendation", the following was recorded:
"1. For the transitional provisions in the Natural Environment and Rural Communities Act 2006 to apply so that public rights of way for mechanically propelled vehicles are not extinguished the relevant application must have been made before 20 January 2005 and must have been made in strict compliance with the requirements of Schedule 14 to the Wildlife and Countryside Act 1981. The applications in question were accompanied by computer-generated enlargements of ordnance survey maps and not by maps drawn to a scale of not less than 1:25,000. In each case none of the other exemptions in the 2006 Act are seen to apply and so the applications should be refused."
That decision was notified in writing to the Claimants on 2 November 2010.
The parties' submissions
"…Although a digital map might be said to have a level of accuracy in that the location of particular features will be stored to a particular resolution, it is misleading to talk of it having a scale until it is printed (or viewed). Such a map may be printed or viewed at any particular scale. …"
In their Detailed Statement of Grounds in support of their application for judicial review the Claimants indicated that they wished to call expert evidence on this issue.
Discussion
The First Issue: whether there was compliance with paragraph 1 of Schedule 14
"In my judgment, section 67(6) requires that, for the purposes of section 67(3), the application must be made strictly in accordance with paragraph 1. That is not to say that there is no scope for the application of the principle that the law is not concerned with very small things (de minimis non curat lex). Indeed this principle is explicitly recognised in regulation 8(1) of the 1993 Regulations. Thus minor departures from paragraph 1 will not invalidate an application."
"26. For the purposes of this response, Ordnance Survey will focus solely on raster data since the digital versions of the mapping from Ordnance Survey at issue are both held by Ordnance Survey and published in raster data format.
i. Since the raster image is in lay terms a 'digital picture' of the map, it follows that once the raster has been created only the content of the source graphic map is contained within the data. …
…
27. It also follows that, disregarding the capabilities of a computer screen or printer/plotter to reproduce a specific map image, the process of outputting from raster data, a map published at one scale, at a larger or smaller output scale simply magnifies or reduces the image of the map, but cannot change the content or appearance of the source map/source data. …"
"(1) Question 1 (first part)
Where:
1.1 digital raster mapping is originally produced by the OS at 1:50,000 scale ("the Original Product");
1.2 an image is taken from the Original Product and enlarged to a 1:25,000 scale; and
1.3 a facsimile copy of that enlarged image is produced in printed form ("the Map")
is the Map properly to be regarded as being at a scale of 1:50,000 or 1:25,000?"
Answer:
"As described in the question the map would be properly to be regarded as a 1:50,000 scale Ordnance Survey map enlarged to a 1:25,000 scale."
(2) Question 1 (second part):
"If not properly regarded as being at a scale of 1:25,000 is the Map regarded as equivalent to a map produced at 1:25,000 by the Ordnance Survey?"
Answer:
"It is not regarded by Ordnance Survey as equivalent to a map published by Ordnance Survey at 1:25,000 scale, since it does not conform to the standard cartographic style and content used by Ordnance Survey for national series maps and data products published at the 1:25,000 Scale."
Question 6
"What are the differences between an OS 1:25,000 map and an enlarged (by the method described by the Claimants) 1:50,000 product?"
Answer:
"The differences are those already expressed as the differences between the specifications of the two data sets published by Ordnance Survey. They are most apparent visually in the different levels of content simplification, generalisation, symbology and conventions of depiction of the two map series.
These include, for example, the inclusion of land enclosure boundaries, separate depiction of a greater number of individual buildings, and depiction of various roads widths for certain categories of road within the 1:25,000 scale OS Explorer Map and 1:25,000 Scale Colour raster, compared with the more heavily simplified and generalised content of the 1:50,000 Scale OS Landranger Map and 1:50,000 Scale Colour Raster which has standardised road width depictions, far fewer individual buildings identified and minimal land enclosure boundary information."
Conclusion on First Issue
The second issue: the application of the de minimis principle
Conclusion on second issue
Conclusion