Section 8
Recording of highways
8.2: Wildlife and Countryside Act 1981
David Braham Q.C.
Errors on the definitive map can be rectified where new evidence shows that a
highway should have been omitted, or shown as a highway of a lesser kind, in the first
place.
George Laurence, Barrister
There is an apparent conflict between section 53(3)(c) and section 56(1) of the
Wildlife and Countryside Act 1981 insofar as downgrading or deletion of ways shown on the
definitive map are concerned. That conflict has now been resolved (overruling in the
process Rubinstein and another v. Secretary of State for the Environment (1989) 57P&
CR111) in favour of permitting in appropriate cases such downgrading or deletion,
notwithstanding the conclusive status conferred by section 56(1) on ways designated on the
map.
David Braham Q.C.
The decision of the Court of Appeal in Simms & Burrows establishes that
errors on the definitive map can be rectified where new evidence shows that a highway
should have been omitted, or should have been shown as a highway of a lesser kind, in the
first place. This article examines the problem of identifying real errors where the
original files have not been preserved.
George Laurence, Barrister
A RUPP enjoying vehicular rights which was reclassified as a footpath under
paragraph 9 Part III of Schedule 3 to the Countryside Act 1968 may subsequently be
upgraded to its true vehicular status under the modification procedures contained in
section 53(3)(c)(ii) of the Wildlife and Countryside Act 1981.
Timothy Harry, Barrister
The jurisdiction of the court to consider applications for judicial review of
decisions made under sections 53 and 54 of the Wildlife and Countryside Act 1981 is not
ousted by the provisions in Schedules 14 and 15 of the Act. This enables errors to be
corrected at an early stage, without incurring the expense of pursuing and exhausting all
other means of redress.
George Laurence, Barrister
It appears to follow from s.53(5) of the Wildlife and Countryside Act 1981 that
the duty on an authority to consider making a definitive map modification order depends
(despite s.53(2)) on whether the applicant for such an order has fulfilled the
requirements set forth in paragraphs 1 and 2 of Schedule 14 to the 1981 Act or not. It is
sought to reconcile the apparent conflict between s.53(2) and s.53(5) and Schedule 14, by
concluding that there are some circumstances (i.e. where the need for modification is
clear) in which the council must make a modification order in fulfilment of its duty under
s.53(2), despite non-compliance with the requirements of paragraphs 1 and 2 of Schedule 14
George Laurence Q.C.
There is no inconsistency between ss. 57(3) and 54(2) of the 1981 Act. S.57(3)
permits "consolidation" of a definitive map and statement which have earlier
been modified under the Act, into a single copy which incorporates those modifications. It
is submitted that such consolidation can take place even though there may still be some
roads used as public paths shown on the map which have not yet been reclassified under
s.54 and despite the prohibition in s.54 on the use of the expression "road used as a
public path" to describe any way.
George Laurence Q.C.
Legal challenge to an error made by a council in preparing a definitive map
modification order can be made, and only made, in a six week period beginning with the
publication of confirmation of the order.
George Laurence Q.C.
Case report
The obligation to make a modification order under s.53(2) of the Wildlife and
Countryside Act 1981 can be triggered by the discovery of evidence already available to
the council in its archives. Modification of the definitive map is concerned only with the
legal status of alleged highways and not with any question relating to suitability for
vehicular or other traffic.
George Laurence Q.C.
Case report
A council faced with an objection to an order reclassifying a road used as a public path
(RUPP) as a byway is not entitled to disregard such objection merely because the same is
made on grounds which are legally irrelevant i.e. grounds such as, even if sustained,
could not lead to a refusal to confirm the order. Accordingly, a council which confirms an
order as unopposed notwithstanding that such an objection has not been withdrawn acts
unlawfully in so doing.
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