Winchester College & Anor, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

An application preserves mechanically propelled vehicular rights from extinguishment under section 67(3) of the Natural Environment and Rural Communities Act 2006 only if it satisfies every requirement of paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981. It must be in the prescribed form and accompanied by the prescribed map and copies of all documentary evidence which the applicant wishes to adduce.

Documents need not be supplied where obtaining them is impossible, and trivial departures may fall within the de minimis principle. An authority’s power to waive procedural non-compliance cannot retrospectively make an application compliant for the time-sensitive statutory exception. Separately, a defective notice certificate does not necessarily invalidate a later determination. The court should examine the consequences, including whether the defect caused substantial prejudice.

The claimant landowners challenged Hampshire County Council’s refusal to reconsider decisions upgrading two recorded rights of way to byways open to all traffic. A deputy High Court judge refused judicial review, holding that mechanically propelled vehicular rights over both ways were preserved from extinguishment under section 67(3) of the Natural Environment and Rural Communities Act 2006.

Neither application had been accompanied by copies of the substantial documentary evidence listed in support. The principal issue was whether each was nevertheless an application made in accordance with paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981. A subsidiary issue, relevant only to the later application, concerned whether defects in the applicant’s certificate of notice invalidated the Council’s determination.

1. The appeals were allowed unanimously. Section 67(6) of the Natural Environment and Rural Communities Act 2006 defines the time at which an application qualifies for the exceptions in section 67(3). An application qualifies only when it complies with all three requirements of paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981: the prescribed form, the prescribed map and copies of the documentary evidence which the applicant wishes to adduce. The structure and heading of paragraph 1, together with the prescribed form, confirmed that each requirement governed how an application had to be made. Per Dyson LJ, with whom Thomas and Ward LJJ agreed, paras [36]–[47].
2. The obligation extends to all documentary evidence which the applicant wishes to put forward and rely upon. It does not exclude evidence already held by, or accessible to, the surveying authority. An applicant ordinarily cannot be expected to know what material the authority possesses, while supplying copies of the listed evidence is straightforward. Paras [56]–[58].
3. The implied principle that the law does not compel the impossible permits omission of documents which the applicant cannot obtain. Minor departures may also fall within the de minimis principle. These qualifications did not assist either applicant because neither supplied any of the substantial body of documentary evidence identified in the application. Paras [50]–[54].
4. An authority’s possible power, in other contexts, to waive procedural non-compliance does not answer the section 67(6) question. A later waiver cannot alter the date on which an application was made or retrospectively convert a non-qualifying application into a qualifying one. Both applications therefore failed to preserve mechanically propelled vehicular rights from extinguishment under section 67(1). Paras [37]–[39], [55] and [59].
5. Obiter, the defects in the later applicant’s notice certificate would not themselves have invalidated the Council’s determination. Applying ordinary public law principles, the question was whether Parliament intended total invalidity, assessed by examining the consequences of non-compliance and any substantial prejudice. Every affected owner and occupier had received notice in time to make representations, so the Council could waive the procedural defects. Paras [60] and [63]–[70].

1. Court of Appeal (Civil Division): The appeal was allowed in relation to both applications. The court held that neither application qualified under section 67(3) of the Natural Environment and Rural Communities Act 2006. [2008] EWCA Civ 431
2. High Court, Administrative Court: George Bartlett QC, sitting as a deputy High Court judge, refused judicial review. He held that the Council could treat the applications as valid and waive the failure to provide copies of the listed documentary evidence. No citation is stated in the judgment.