In September 2023 the BHS applied to Cornwall Council for a DMMO to add a restricted byway to the definitive map and statement maintained by the Council between two County roads in Altarnun, Bodmin, Cornwall. The application was made on the form prescribed by reg.4 of and Sch.2 to the Wildlife and Countryside (Definitive Map and Statement) Regulations 1993 and accompanied by documentary evidence in support of the application. 

By a decision of 13 October 2023 the Council refused to register the application on the basis that the BHS had not served notice of the application on every owner and occupier of the land to which the application related. The Council also indicated that it would not register a number of other applications made to it by the BHS and the West Penwith Bridleways Association for the same reason, namely that notice had not been served.

This decision was challenged by the BHS, with the support of the Open Spaces Society and the Ramblers, on the basis that the refusal to register the applications was contrary to the Defendant’s statutory duty to register DMMO applications, which is triggered by the receipt of an application that complies with para.1 of Sch.14 of the 1981 Act (i.e. one that is made on the correct form and accompanied by a map drawn to the prescribed scale and supporting evidence). Para.3(6)(a) of the Public Rights of Way (Register of Applications under section 53(5) of the Wildlife and Countryside Act 1981) (England) Regulations 2005 requires the surveying authority to enter an application into the register within 28 days of receipt. Notification of owners and occupiers under para.2 of Sch.14 is irrelevant to the performance of the obligation in reg.3(6). 

The failure by councils to register validly made DMMO applications has practical implications, particularly given the increased urgency for such applications following recent commencement in October 2023 of a cut-off date of 1 January 2031 for adding certain unrecorded rights of way, including bridleways, to the definitive map and statement. Understandably, user and amenity groups such as the British Horse Society wish to focus their efforts in the short-term on registering applications, and only proceed with notifying owners and occupiers when there is less time pressure. 

The claim was initially defended by Cornwall Council, both in pre-action correspondence and in its Acknowledgement of Service. However, Cornwall Council subsequently agreed to consent to judgment, accepting that the approach it previously adopted is unlawful. The Council acknowledged that the Altarnun application was lawfully made and that it could not lawfully refuse to register that application on the basis of the failure to service notice on owners and occupiers of the land. It has agreed to register the Altarnun application within 1 month of the date of the consent order, and to determine whether the other applications should be registered on the basis that they are compliant with para.1 of Sch.14 to the 1981 Act within 6 months of the date of the order.

Ned Westaway and Esther Drabkin-Reiter acted for the British Horse Society, instructed by Lisa Foster of Richard Buxton Solicitors.

A copy of the consent order can be viewed here. A copy of the Statement of Facts and Grounds drafted on behalf of the British Horse Society can be viewed here.