Court of Appeal decision: the  ‘Winchester’ case

The Court of Appeal recently issued a judgment giving guidance on how members of the public should make applications to have the definitive map modified.

The case concerned the form and validity of applications to modify the county’s definitive map of public rights of way, and considered whether certain types of application are exempted from the effects of Part 6 of the Natural Environment and Rural Communities Act 2006 (‘NERC’, which aims to limit use of mechanically propelled vehicles in the countryside).

The case focused on applications to upgrade a route in Twyford and a route in Chilcomb to byways open to all traffic. Two specific exemptions (sections 67(3)(a) and (b) of the NERC Act) were considered. Winchester College and Humphrey Feeds Limited (both owners of part of the Twyford route) claimed that the applications were not properly made, and therefore, any right to drive a motor vehicle over the routes was not saved from extinguishment by either of the two exemptions in question. The Court of Appeal agreed.

It is now clear that all evidence relied on by a claimant should be copied and submitted with any application for a modification order and that any waiver of the requirements, that a surveying authority might otherwise be entitled to make, could not secure the exemption in s.67(3)(a).

It should be noted that the case focused on the interpretation of a technical point of law. The consequence of the decision in those particular cases is to prevent rights of way for mechanically propelled vehicles being preserved over the routes by s.67(3) of the Natural Environment and Rural Communities Act 2006, but the question of whether or not the Twyford and Chilcomb routes do in fact carry the status of byways open to all traffic remains to be answered. A small number of other applications for byways open to all traffic may be similarly affected. However, the case has implications for many more applications in the County, and nationally.

Full judgment