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

The submissions of Mr Laurence and Miss Crail in essence are short and of disarming simplicity. They say that for any of the three exceptions in section 67(3) to apply, a section 53(5) application must have been made in accordance with all the requirements of paragraph 1 of Schedule 14. That is to say, it must have been (i) made in the prescribed form; and (ii) accompanied by a map drawn to the prescribed scale and showing the way(s) to which the application related; and (iii) accompanied by copies of any documentary evidence (including statements of witnesses) which the applicant wished to adduce in support of the application. At first sight, this seems unanswerable. The words are expressed in clear and ordinary language. Why not give them their plain and ordinary meaning? I need at this stage to summarise the reasons the judge gave for deciding the first issue against the claimants. Mr Timothy Mould QC (supported by Mr Litton) submits that the judge reached the right conclusion and for the right reasons.

The judge held at [36] that the authority has no power to waive requirements as to the “contents of an application” or the requirements as to “what an application must consist of”. I think that by this he meant at least that the authority has no power to waive the requirement that the application shall be made in the prescribed form. Mr Mould certainly accepted that this is the case. This view seems to be reflected at [43] where the judge said:

“It is implicit in the function of subsection (5) in the context of section 53 as a whole that, to be valid, an application must identify the way to which it relates and the modification to the definitive map and statement that is sought. It is also implicit, it seems to me, that it must refer to the new evidence on which the application is based—new, that is to say, in being evidence that was not taken into account by the authority when they prepared the definitive map and statement or subsequently modified it. Provided that the application includes these things and the new evidence, with or without evidence available to the authority, is not irrelevant or manifestly incapable of supporting the modification sought, the authority is, in my judgment, entitled to treat it as a valid application”.

At [37] he accepted the submission of Mr Mould that the requirements that the application should be in the prescribed form and should be accompanied by a map and copies of any documentary evidence are separate requirements: “an application, in my judgment, does not fail to constitute an application because it is not accompanied by a map and such copies”. He said at [38] that the requirement that the application should be accompanied by a map and copies of documentary evidence is a “procedural” requirement which the authority may be able to waive in the light of the principles stated in London and Clydesdale Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 188-190 and R v Secretary of State for the Home Department, ex p Jeyeanthan [2000] 1 WLR 354. Thus, if the authority has all the information it needs to determine the application in the absence of all or any of the documents that are required to accompany the application, it has the right to waive the requirement and determine the application. There would be no point in insisting on the provision of documents which are not needed to enable the application to be determined. On the other hand, if documents that are needed for this purpose are not supplied, the authority would no doubt take the view that, until they are supplied, it would not be “reasonably practicable” under paragraph 3(1) to investigate the matters stated in the application and to decide whether to make the order. The judge put it this way at [39]:

“To construe paragraph 1 in this way, it seems to me, not only reflects the actual language of the provision but it avoids the absurdities that would result if the requirement to supply the documents were treated as fundamental to an application.”

The judge then proceeded to apply this approach to the two applications. He held at [44] that the Council were entitled to treat each application as valid and that they were justified in not seeking compliance with the requirement that copies of the documentary evidence relied on should accompany the application. On the facts of the case, there was no need for them to be sent and the Council were entitled to waive this procedural requirement.

In case this conclusion was wrong, at [45] the judge reached the same decision on the first issue by a different route. He said that what had to be sent was “copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application”. He said that “adduce” was used to mean “put forward” or “provide”, and not “rely upon”. Thus the applicant does not have to provide copies of all the documentary evidence on which he relies in support of the modification of the DMS for which he contends. He can rely on documentary evidence in the possession of the authority (or to which it has access) without sending copies of it. What the applicant must do, however, is to provide copies of any documentary evidence that, because it is not already available to the authority, he wishes to put forward. He may not wish to put forward any such evidence because he relies on evidence that is already before the authority.

It is important not to lose sight of the precise question raised by the first issue. It is whether, for the purposes of section 67(3) of the 2006 Act, the Tilbury and Fosberry applications were made in accordance with paragraph 1 of Schedule 14 to the 1981 Act. This question is not the wider question of whether it was open to the Council to treat an application which was not made in accordance with that paragraph as if it had been so made because the failure could be characterised as a breach of a procedural requirement rather than a breach which was so fundamental that (to use the judge’s language) the application failed to “constitute an application” at all. I readily accept that the wider question is relevant and important in the context of applications made under section 53(5) generally and whether an authority has jurisdiction to make a determination pursuant to paragraph 3 of Schedule 14.

But the question that arises in relation to section 67(6) is not whether the Council had jurisdiction to waive breaches of the requirements of paragraph 1. It is whether the applications were made in accordance with paragraph 1. For present purposes, the question of whether the applications were made in accordance with paragraph 1 is only relevant to whether extinguishment by subsection (1) is disapplied by subsection (3). It has nothing to do with the wider question of whether, absent the 2006 Act, the Council would be entitled to treat a non-compliant application as if it complied by waiving what the judge referred to as breaches of “procedural” requirements.

In any event, I accept the submission of Mr Laurence that the purpose of section 67(6) is to define the moment at which a qualifying application is made because timing is critical for the purpose of determining whether subsection (1) is disapplied. The moment identified by Parliament as the relevant moment is when an application is made in accordance with paragraph 1. A purported subsequent waiver of the obligation to accompany the application with copies of documentary evidence cannot operate to alter the date when the non-qualifying application was made or to treat such an application which was made on a particular date as having been made in accordance with paragraph 1 when it was not. All a waiver can do, with effect from the date of the waiver, is to permit the decision-maker to treat itself as free to determine the application even though it was not made in accordance with paragraph 1.

The main emphasis of the judgment and Mr Mould’s oral submissions was on the argument that the failures to accompany the applications with copies of the documentary evidence were breaches of procedural requirements which did not affect the Council’s jurisdiction to waive the breaches and determine the applications. For the reasons that I have given, this argument is irrelevant to the section 67(6) question.

But at [37] the judge also said that “an application does not fail to constitute an application” because it is not accompanied by a map and copies of the evidence that the applicant wishes to adduce. I take this to mean that an application which is invalid because it is not so accompanied is nevertheless made in accordance with paragraph 1. That is to say, it is so made if it is made in the form set out in Schedule 7 to the 1993 Regulations or “in a form to substantially like effect” (Regulation 8(1)) and it refers to new evidence which is not irrelevant (see [43] of the judgment).

In his skeleton argument, Mr Mould submits that an application under section 53(5) is made when it is made in the prescribed form and identifies the route to which the application relates. He says that it is immaterial to the question whether an application has been made that it is accompanied by copies of all, some or none of the documentary evidence relied on by the applicant as the evidential basis for the application.

I cannot accept that an application which is not accompanied by a map (subparagraph (a)) or by copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application (subparagraph (b)) is made in accordance with paragraph 1 of Schedule 14. An application is not so made unless it is made in accordance with all three requirements of the paragraph. There is no warrant for saying that an application which is in accordance with the first requirement of the paragraph, but not the second or third, is made in accordance with the paragraph.

Section 67(6) could have said that, for the purposes of section 67(3), an application under section 53(5) is made when it is made in the form prescribed by Regulation 8 of the 1993 Regulations. Mr Mould’s argument proceeds as if it did. The judge’s approach is the same, although he adds that it is implicit in the function of section 53(5) that, in order to be made in accordance with paragraph 1 of Schedule 14, an application must also refer to new evidence that is not irrelevant.

Mr Litton adopts a yet different approach. He submits that an application is made in accordance with paragraph 1 if it is made in the prescribed form (or a form to substantially like effect) and the requirements of paragraph 1(a) are satisfied. He says, however, that it is not necessary for the making of an application that the requirements of paragraph 1(b) be met. He seeks to justify the different treatment of the two subparagraphs of paragraph 1 by saying that this is required by a purposive construction. He submits that the requirement that the application should be accompanied by a map showing the public right of way to which the application relates is important: it is necessary to identify clearly the rights of way in respect of which the rights are being claimed. On the other hand, a strict insistence that an application should be accompanied by copy documents serves no real purpose and confers no obvious advantage over providing a list of the documents in support of the claim, particularly where the authority is already in possession of, or has access to, such documents.

I can see that the distinction Mr Litton seeks to draw may be relevant to the question whether a failure to comply with paragraph 1 should be waived in the particular circumstances of the case. But I do not see how the distinction can be relevant to determining whether an application has been made in accordance with paragraph 1. As a matter of construction, it seems to me that, in order to be made in accordance with the paragraph, an application must be accompanied by both a map and copies of documentary evidence or neither. It is impossible to spell out of paragraph 1 that an application may be made in accordance with it if it is accompanied by one but not the other.

In my judgment, as a matter of ordinary language an application is not made in accordance with paragraph 1 unless it satisfies all three requirements of the paragraph. Moreover, there are two particular indications that an application is only made in accordance with paragraph 1 of Schedule 14 if it is made in accordance with all the requirements of the paragraph. First, paragraph 1 is headed “Form of applications”. The word “form” in the heading is clearly not a reference only to the prescribed form. It is a summary of the content of the whole paragraph. It is a reference to how an application should be made. It must be made in a certain form (or a form substantially to the like effect with such insertions or omissions as are necessary in any particular case). It must also be accompanied by certain documents. The requirement to accompany is one of the rules as to how an application is to be made.

Secondly, Schedule 7 to the 1993 Regulations shows that the prescribed form itself requires the route to be shown on the map “accompanying this application” and the applicant to “attach” copies of the following documentary evidence (including statements of witnesses) in support of the application. This language reflects the content of subparagraphs (a) and (b) of paragraph 1. It is artificial to say that, in order to be made in accordance with paragraph 1, an application must be made in the prescribed form or a form to substantially like effect; but that it need not be accompanied by a map or have attached to it the documentary evidence and witness statements to be adduced even though these are referred to in the body of the prescribed form itself. The language of the form shows that an application is only made in accordance with paragraph 1 if it is made in the prescribed form and is accompanied by a map and the documentary evidence and witness statements to be adduced.

It is submitted by Mr Mould and Mr Litton that a strict interpretation of paragraph 1 leads to absurdity and cannot have been intended by Parliament. For example, the application may list a number of documents, but by oversight may be accompanied by only some of them. The absurdity may be sharpened by the fact that the authority has the originals in its possession or has access to them.

I acknowledge that matters of this kind are relevant to the question whether the consequences of the failure to make the application in accordance with paragraph 1 are such that the failure can and should be waived in the particular circumstances of the case. But in relation to the specific section 67(6) question, I do not see how they are relevant to whether the application, when it was made, was made in accordance with paragraph 1. In relation to that question, Parliament stipulated that an application is made when it is made in accordance with all the requirements of the paragraph.

It is also necessary to consider the case where an application is not accompanied by the copy documents because the applicant is unable to obtain them. Mr Laurence concedes that it would be absurd to hold that an application is not made in accordance with paragraph 1 where copy documents do not accompany it because the applicant cannot obtain them. In order to avoid such absurdity, he submits that the obligation should be construed as being to accompany the application with copies of all the documents which the applicant wishes to adduce in support of his application, save for any which it is impossible for him to obtain. Such a construction is justified on the basis that “unless the contrary intention appears, an enactment by implication imports the principle of the maxim lex non cogit ad impossibilia (law does not compel the impossible)”: see section 346 of Bennion on Statutory Interpretation (4^th ed).

I accept this submission. Mr Mould submits that this exception is not expressed in the legislation and is uncertain as to its extent and application. He says that it is unclear how, as regards any given application, the question whether it is impossible for the applicant to supply a copy of a document is to be judged and by whom such judgment is to be made. The court should be slow to adopt so arbitrary and uncertain an approach.

But it is intrinsic to the maxim of construction that it arises by implication. Further, in my view the difficulties identified by Mr Mould are overstated. It should not be difficult for a surveying authority (or if necessary the court) to verify the explanation given by the applicant for his failure to copy a particular document. I do, however, acknowledge that to this limited extent there is an element of uncertainty in the application of paragraph 1 if, for the purposes of section 67(3), it is strictly construed in the way that I have described.

Uncertainty cannot be avoided on the approach advocated by Mr Mould and Mr Litton either. This is because, on that approach, the question whether an application is a qualifying application where there is a failure to comply with paragraph 1(a) and/or (b) depends on whether the authority is entitled to waive the non-compliance. That in turn depends on an assessment of the consequences of the non-compliance for the authority in the particular circumstances of the case. The consequences for authority A which has copies of the missing documents are obviously different from the consequences for authority B which has no copies of the documents. Predicting the assessment is far from certain.

In his analysis of the first issue, the judge did not address the effect of section 67(6) at all. Nor do the submissions of Mr Mould and Mr Litton. 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. But neither the Tilbury application nor the Fosberry application was accompanied by any copy documents at all, although it was clear from the face of the applications that both wished to adduce a substantial quantity of documentary evidence in support of their applications. In these circumstances, I consider that neither application was made in accordance with paragraph 1.

I wish to emphasise that I am not saying that, in a case which does not turn on the application of section 67(6), it is not open to authorities in any particular case to decide to waive a failure to comply with paragraph 1(b) of Schedule 14 and proceed to make a determination under paragraph 3; or to treat a non-compliant application as the “trigger” for a decision under section 53(2) to make such modifications to the DMS as appear requisite in consequence of any of the events specified in subsection (3).

I have summarised this at [35] above. I would reject this approach substantially for the reasons given by Mr Laurence. There is no basis in the wording of paragraph 1 (or in the prescribed form) for distinguishing between two categories of documentary evidence: (i) those on which the applicant relies, but of which he is not providing copies because they are available to the surveying authority and (ii) those on which he relies and of which he is providing copies because they are not available to the authority. The language of the paragraph is clear and unambiguous. The application must be accompanied by copies of any documentary evidence which the applicant wishes to adduce. This must mean any documentary evidence, whether it is already available to the authority or not. The dichotomy adopted by the judge between “put forward” and “rely upon” does not stand up to scrutiny. The word “adduce” read in its context means “put forward and rely upon”. The applicant is required to identify and provide copies of all the documentary evidence on which he relies in support of his application. There is nothing in the language of the paragraph which supports the construction that the applicant’s obligation is limited to identifying and providing copies of those documents on which he relies to which the authority does not have access.

In any event, an applicant cannot reasonably be expected to know, or take steps to discover, what documents or copy documents the surveying authority possesses or to which it has access. Further, it is not reasonable to expect an authority, before accepting an application as valid, to investigate which, if any, of the documents listed in the application is available to it. On the other hand, as Mr Laurence submits, it is straightforward for an applicant to provide copies of all the documents on which he wishes to rely in support of his application and lists as such in his application.

Both Mr Tilbury and Mr Fosberry wished to adduce the documentary evidence to which they referred in the body of their applications. No copy of any of these documents accompanied the applications. Even if the Council already had copies of all the documentary evidence which they wished to adduce (or the original documents), that fact would not mean that the applications were made in accordance with paragraph 1.

It follows that neither the Tilbury application nor the Fosberry application was a qualifying application. The Tilbury application was made before 20 January 2005 and was not a section 53(5) application for the purposes of section 67(3)(a). The result is that for that reason his application did not save the rights for mechanically propelled vehicles over Chilcomb bridleway 3 from extinguishment by section 67(1). The Fosberry application was made after 20 January 2005 and before the commencement date of 2 May 2006. If the rights for mechanically propelled vehicles to which that application was relevant were to be saved from extinguishment, this could only be if a determination was made before 2 May 2006 under paragraph 3 of Schedule 14 “in respect of [an application made under section 53(5)]”: see section 67(3)(b). The reference to “such an application” in section 67(3)(b) is to an application made under section 53(5) for the purposes of section 67(3)(a). For this reason, the relevant rights in that case (over Twyford RUPP16) were not saved from extinguishment by section 67(1) either. I would, therefore, decide the first issue in favour of the claimants in respect of both applications.

In the light of my conclusion on the first issue, it is not necessary to deal with the second issue. But because it was the subject of full argument, I shall express my conclusions on it, although less fully than if it had been necessary to decide the point.

The second issue has no relevance to the Tilbury application. That is because, having been made before 20 January 2005, it could only escape from the extinguishing effect of section 67(1) by virtue of section 67(3)(a). If it was not a qualifying application by virtue of section 67(3)(a), it was not a qualifying application at all.

But the second issue has relevance to the Fosberry application because it was made after 20 January 2005. Not only did it have to be made in accordance with paragraph 1 of Schedule 14, but it had to be an application in respect of which the Council made a determination under paragraph 3 before 2 May 2006: section 67(3)(b).

The Council was required by paragraph 3(1), as soon as reasonably practicable after receiving a certificate under paragraph 2(3), to decide whether or not to make the order to which the application related. Mr Laurence submits that, because to the knowledge of the Council, Mr Fosberry had provided his certificate under paragraph 2(3) without complying with the requirements of paragraph 2(2), the Council’s decision in this case could not be a determination under paragraph 3. It follows that the requirements of section 67(3)(b) were not satisfied.

The judge rejected this argument. He found that, when Mr Fosberry provided his certificate, the Council must have known that the requirements of paragraph 2 were not being complied with. It was aware that notice had not been served on Mr and Mrs Wood or Humphrey Farms Ltd and these were the registered owners. Mr Fosberry’s certificate stated that notices had been displayed on the site, but no direction had been given by the Council pursuant to paragraph 2(2) that notice could be served by addressing it to the owner by the description “owner” of the land and affixing it to some conspicuous object or objects on the land.

The judge held at [58] that these failures to comply with the statutory procedural requirements of paragraph 2(2) did not render the Council’s decision on the applications invalid. The purpose of the requirements is to ensure that each landowner and occupier affected by an application is made aware of it. All landowners and occupiers affected by the Fosberry application received notice of it in good time to enable them to consider the application and make representations to the Council in respect of it. The Council was entitled to waive the formal requirements and to determine the application as it did.

Mr Laurence submits that the Council had no jurisdiction to make a decision pursuant to an application made under section 53(5) if any of the paragraph 2 requirements had to its knowledge not been complied with. That is because in any such case, the resulting paragraph 2(3) certificate would be invalid.

In my view, the judge was right on this issue. As Mr Mould submits, the correct approach is to apply ordinary public law principles. In so far as there is shown to have been a failure to comply with the procedural requirements of paragraph 2, it is necessary to ask whether and, if so, to what extent any substantial prejudice has been suffered as a result. On the facts of this case, the Council was entitled to waive the failure to comply with the procedural requirements.

In my view, the difference between the failure to comply with paragraph 1 (the first issue) and the failure to comply with paragraph 2 (the second issue) is fundamental. As I have explained, in the first case the effect of section 67(6) was that section 67(3)(a) was not engaged and section 67(1) applied. It was irrelevant whether the failure was a breach of a procedural requirement which could be waived. On the other hand, in the second case section 67(6) is not in play. The only question here is whether the determination was a determination under paragraph 3. On the face of it, the Council unquestionably decided to make a determination. It purported to be a determination in respect of the Fosberry application: see [26-27] above. It must follow that it was purportedly a determination under paragraph 3 (rather than a free-standing decision pursuant to section 53(2)). Moreover, the determination was made following receipt of what purported to be a certificate under paragraph 2(3).

It is true that the certificate was not properly issued, but it does not follow that the consequent determination was invalid. In R v Soneji [2005] UKHL 49, [2006] 1 AC 340 at [23], having reviewed the authorities on the distinction between mandatory and directory requirements, Lord Steyn said: “the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction.”

Adopting that approach, I conclude that Parliament cannot fairly be taken to have intended that, if a paragraph 2(2) certificate is wrongly issued, it must follow that a determination on which it is based is invalid. The facts of the present case show that the better approach is to examine the consequences of the defect in the certificate. If they are serious and the defective certificate has caused real prejudice, then it may be that the determination on which it is based should be declared to be invalid. But in my judgment, on the facts of this case the judge reached the correct conclusion on this issue and for the right reasons.

For the reasons that I have given, I would allow this appeal in relation to both applications.