Winchester College, Warden & Fellows Of & Anor R (on the application of) v Food & Rural Affairs

For the purposes of statutory extinguishment provisions, an application under section 53(5) of the Wildlife and Countryside Act 1981 must identify the way, the modification sought and relevant new evidence. The application need not include evidence already held or accessible to the surveying authority. Requirements concerning accompanying maps and documentary copies are procedural and may be waived where the authority has sufficient information to determine the application.

Formal failures in serving and certifying notices do not invalidate a determination where the statutory purpose has been achieved, affected owners and occupiers were informed, and they had an opportunity to make representations.

The claimants, landowners affected by two rural rights of way, sought judicial review of Hampshire County Council’s refusal to reconsider its decisions to upgrade Chilcomb Bridleway 3 and Twyford RUPP 16 to byways open to all traffic.

They argued that section 67 of the Natural Environment and Rural Communities Act 2006 had extinguished vehicular rights before the council’s orders could be made. The central issues were whether the applications under section 53(5) of the Wildlife and Countryside Act 1981 were valid and whether failures concerning notice and certification invalidated the council’s determinations.

1. Claim refused. The council’s determinations of 22 March 2006 were valid, and the relevant vehicular rights were saved from extinguishment by section 67(3) of the Natural Environment and Rural Communities Act 2006.
2. The 2006 Act did not alter the pre-existing requirements for an application under section 53(5) of the Wildlife and Countryside Act 1981. The Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 prescribed the form but could not alter the substance of the statutory requirements.
3. The application itself had to identify the way, the modification sought and the new evidence relied on. It did not have to provide evidence that the authority already possessed or could access. The requirements to accompany the application with a map and documentary copies were procedural. The authority could waive them where it had all information needed to investigate and determine the application.
4. The validity of an application concerned the authority’s jurisdiction and required a stricter approach than ordinary procedural irregularities. The authority’s decision to treat the applications as valid was nevertheless reviewable only on Wednesbury grounds. The council was entitled to treat both applications as valid.
5. The notice requirements in Schedule 14 were also procedural. Although the applicants had not complied formally with service and certification requirements, every affected owner and occupier had learned of the applications, received relevant material or had an opportunity to make representations, and no prejudice was shown. The council was therefore entitled to waive the formal defects and determine the applications.
6. The 11 June 2001 application concerning Chilcomb Bridleway 3 satisfied even the more stringent possible test applicable when the court itself assessed validity. It contained the requisite material and was valid for section 67(3)(a) purposes.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.