Off-roaders fail in High Court bid to open up rural routes

A group of off-roaders have failed in their High Court bid to open up a number of rural routes in Dorset for use by motorbikes, quadbikes and 4x4s.

In R (on the application of Trail Riders’ Fellowship and Tilbury) v Dorset County Council [2012] EWHC 2634 (Admin), the claimants challenged the local authority’s decision to reject five applications made under the Wildlife and Countryside Act 1981 for modification orders to the definitive map statement (“the DMS”).

At the centre of the case were five routes over which the Trail Riders’ Fellowship claimed that the public enjoyed vehicular public rights of way (including with mechanically-propelled vehicles) that were not recorded on the DMS.

Five applications had been submitted between July and December 2004 under the 1981 Act to modify the definitive map to upgrade existing rights of way to ‘BOAT’ status (“byways open to all traffic”) and/or to cause lengths of path to be shown as BOATs. Accompanying each application was a map showing the route in question.

The applications were acknowledged by the council by early 2005 and there was no intimation that they were defective before 2009.

Under the Natural Environment and Rural Communities Act 2006 all unrecorded rights of way for motor vehicles were extinguished, subject to certain exceptions. 

The Dorset case covered one of these exceptions: to save motor vehicle rights from extinguishment, the maps included in the off-roaders’ applications to Dorset needed to comply with strict statutory requirements as to scale. 

A meeting of the authority’s roads and rights of way committee considered the five applications at a meeting on 7 October 2010 and resolved to refuse all five applications.

The committee concluded that the applications were not in strict compliance with the requirements of Schedule 14 of the 1981 Act. “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,” it said.

The claimants brought legal proceedings after being notified of the committee’s decision.

In the High Court Mr Justice Supperstone ruled in Dorset’s favour, concluding that the applications were accompanied by a map that was not a 1:25,000 scale map.

The judge rejected the claimants’ submission that the council’s analysis of the facts was premised upon a fundamental misunderstanding of the process of reproducing a map by digital means.

“It is clear from the evidence from OS (the Ordnance Survey) that the misunderstanding was that of the claimants, not the defendant,” Mr Justice Supperstone added.

The judge also said that the de minimis principle had no application in this case.

Thomas Eggar partner James Pavey, who acted for interested party the Green Lanes Protection Group, said: “Although this was a highly technical case, the ruling has real, practical benefits. It is good news for the Dorset landowners who own the lanes in question: they will not see physical damage to the lanes in their stewardship, as a result of heavy vehicular use.

“It is also good news for the public, who can continue using some of the ways on foot and on horseback without risk of collision with motor vehicles.”

Pavey claimed that the proceedings were “a veiled attack” on the R (on the application of Warden and Fellows of Winchester College and Humphrey Feeds Ltd) v Hampshire County Council [2008] EWCA Civ 431 test case on the interpretation of the 2006 Act.

He said: “There, the Court of Appeal said that, to save motor vehicle rights from extinguishment, applications to recognise them must have been made strictly in compliance with the requirements in legislation.

“Mr Justice Supperstone, who has refused the Trail Riders’ Fellowship permission to appeal, has followed the Court of Appeal’s guidance in the Winchester College case. That is good generally for landowners: it remains clear for county councils, when they determine outstanding applications by off-roaders to recognise motor vehicle rights, where those rights were extinguished.”

George Laurence QC of New Square Chambers was counsel for Dorset.

Pavey instructed Claire Staddon of New Square Chambers to represent Graham Plume, vice chairman of the Green Lanes Protection. The group is an alliance of 21 organisations including the Country Land and Business Association.