Guidance on Procedures for Considering Objections to Definitive Map and Public Path Orders html

Q: 18. Annex F - Data protection and privacy in the Planning Inspectorate

How we use your information 18.1.1. The Planning Inspectorate takes its data protection responsibilities for the information you provide us with very seriously. To find out more about how we use and manage your personal data, please go to our privacy notice .

Question 1

1. When we receive an order

Accepted Answer

1.0. We aim to process all orders promptly. However, we cannot process orders which are in the wrong form or which are not accompanied by all the supporting documents. (See paragraph 1.2.1 below).

1.1 The correct form

1.1.1. When we receive an order, we check that it has been made under the right Act and section and that it is in the same, or more or less the same, form as that set out in the appropriate regulations:

the form for orders made under sections 26, 118 and 119 of the Highways Act 1980 is in the Public Path Orders Regulations 1993 (SI 1993 No 11 amended by SI 1995/451);
the form for orders made under sections 118A and 119A of the Highways Act 1980 is in the Rail Crossing Extinguishment and Diversion Orders Regulations 1993 (SI 1993 No 9 amended by SI 1995/451);
the form for orders made under sections 118B or 119B of the Highways Act 1980 is in the Highways, Crime Prevention etc. (Special Extinguishment and Special Diversion Orders) Regulations 2003 (SI 2003 No 1479);
the form for orders made under section 119D of the Highways Act 1980 (diversion of certain highways for protection of sites of special scientific interest) is in Schedule 3 of the Highways (SSSI Diversion Orders) (England) Regulations 2007 (SI 2007 No. 1494)
the form for orders made under the Wildlife and Countryside Act 1981 is in the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (SI 1993 No 12 amended by SI 1995/451); and
the form for orders made under sections 257 and 258 of the Town and Country Planning Act 1990 is in the Town and Country Planning (Public Path Orders) Regulations 1993 (SI 1993 No 10 amended by SI 1995/451).

1.1.2. If an order is not in the same form, or in more or less the same form as set out in the regulations, we return it to the local authority with a letter explaining why we have done so. More information can be found in Annexes M,N & O.

1.2 The supporting documents

1.2.1. We check that the local authority has sent all the supporting documents. We have given all local authorities a checklist of the documents we need. The checklist sets out our preferred order for the file documents – councils should use it as a guide when putting together their bundle for submission of orders. The checklist is on our website

1.2.2. One of the documents we need is a ‘statement of reasons’. In this the local authority explains why it considers that the order should be confirmed. The local authority should not just repeat the criteria of the section of the Act under which the order has been made. It must explain how the order meets all the relevant criteria that will need to be considered by the Inspector, even if these have not been disputed by the objector(s). We also need the local authority’s comments on the representations and objections made to the order.

1.2.3. The local authority should also confirm that it has consulted other local authorities or statutory undertakers, or any other organisations, where it is required to do so by the Act under which the order is made. We need to know the outcome of those consultations. The failure of local authorities to comply with procedural requirements set out in the legislation can render an order invalid, for more information see Annex N.

1.3 Options for dealing with representations or objections

1.3.1. When we receive an order responsibility for it passes from the local authority to the Secretary of State. If all the representations and objections to a Highways Act 1980 or Town and Country Planning Act 1990 order are withdrawn, we ask the local authority if it wants to confirm the order itself. However, we cannot pass an order made under the Wildlife and Countryside Act 1981 back to the local authority even if all the representations or objections are withdrawn (see paragraph 1.16 below).

1.3.2. Everyone who has duly made a representation or objection (“relevant persons”) to an order made under the Highways Act 1980 or Town and Country Planning Act 1990 is entitled to be heard by an Inspector, through a hearing or a local public inquiry. So too is anyone who made a representation or objection to an order made under the Wildlife and Countryside Act 1981 but only where relevant reasons have been given for the objection. If a local authority (other than the one that made the order) has duly made a representation or objection to a Town and Country Planning Act or Highways Act Order, we must arrange for an inquiry to be held.

1.3.3. We decide whether to hold a hearing or an inquiry, or whether a written exchange of evidence and comments would be the most efficient way to decide the case. We use the written representations procedure (see section 2 of this guidance) and hearings (see section 3) rather than inquiries in all suitable cases (see section 4).

1.3.4. Having received an order from a local authority, we aim to issue the notice containing the ‘start date’ to all the parties within 10 weeks. In the event of a hearing or inquiry, we will write to the local authority, applicant and all relevant persons before we send out the notice, to inform them of the procedure. This gives them the opportunity to let us know of any dates they will be unavailable before we arrange a date. Similarly, where we believe the written representation procedure will be appropriate, we will write to the local authority, applicant and relevant persons offering them this procedure before the notice is issued.

1.4 Written Representations

1.4.1. This procedure is the exchange of evidence and comments without recourse to holding a meeting in public; the Inspector considers all evidence and correspondence submitted, normally with a visit to the site - which is generally unaccompanied.

1.4.2. From validation of the order, we aim to issue a decision on cases which proceed by way of written representations within 37 weeks.

1.5 Inquiries and hearings

1.5.1. An inquiry or a hearing is a procedure where evidence is presented by persons who are supporting and opposing an order. The procedure is organised according to the Rules and is conducted by an Inspector. The role of the Inspector is to hear all the evidence for and against confirming an order in an open, fair and impartial manner. The Inspector therefore acts in a neutral capacity; they represent the Secretary of State and must implement the published policies on rights of way matters. The evidence presented should focus on the legal requirements set out in the legislation and clear conclusions should be identified from the evidence presented. The legislation is quite limited in some rights of way casework as to what can be accepted as relevant matters for discussion (see Section 6) and the Inspector will intervene to stop the giving of irrelevant evidence. An inquiry or hearing is not a forum to negotiate alternative routes, but it may be appropriate to explain why a modification of a published order route should be made before the order is confirmed.

1.5.2.From validation of the order, we aim to issue a decision on cases which proceed by way of local inquiry within 45 weeks, and cases which proceed by way of a hearing within 39 weeks.

1.6 Wildlife and Countryside Act orders

1.6.1. Section 6 of this booklet (paragraphs 6.1.1 to 6.3.2) sets out the criteria Inspectors are required to consider in making their decisions on orders made under the Wildlife and Countryside Act 1981. As the criteria are quite limited, we check all the representations and objections made on these orders to make sure that they are relevant to the Inspector’s consideration.

1.6.2. If we think a representation or an objection contains no material that is relevant, we write to the person to give them the opportunity to say why they think it is relevant, to amend the representation or objection so that it is relevant, or to withdraw it. However, if none of the representations or objections are relevant, an Inspector can decide the order without hearing the evidence or exchanging written representations (Paragraph 7(2A) and paragraph 8(3) of Schedule 15 to the Wildlife and Countryside 1981 allows us to do this). In these cases, we let everyone know that the Inspector intends to decide the order on the basis of the information already on file. This is known as an ‘in-house decision’ – there is no hearing, inquiry or exchange of written representations. Other circumstances where an in-house decision may be appropriate include:

where an unopposed order has been submitted to the Secretary of State for confirmation with a request for modification (order making authorities do not have the power to confirm orders with modifications);
where all the objections to an order have been withdrawn; and
where an order making authority decide they no longer wish to proceed with an order (this does not apply to an order made under the Wildlife and Countryside Act 1981; where evidence exists, the Secretary of State still has the duty to establish whether the right of way exists or not).

The appointed Inspector is unlikely to visit the site when completing an in-house decision.

Question 2

2. Written representations

Accepted Answer

2.0.1. Some orders are decided after exchanges of written evidence; there is no hearing or inquiry, but everyone involved has to agree to use this procedure. It is best suited to orders where there is only a little evidence, the issues are relatively straightforward and there are only a few relevant persons. Where we have an order which meets these criteria, we write to the local authority, the applicant and the relevant persons asking for their agreement to using this procedure. We also ask them to adopt the procedures for handling the exchanges of evidence and comments (Annex B).

2.0.2. We then give notice in writing to the local authority, the applicant, relevant persons and any other person who has written expressing an interest in the order that the written representations procedure is to be used. We also inform the prescribed organisations and everyone who the local authority were required to inform when they made the order.

2.1 Preparing the evidence

2.1.1. The local authority, the applicant, relevant persons and other persons who wish to submit evidence each prepares a “statement of case” (see Annex E). This is a written statement containing full details of the case which each of them wishes the Inspector to consider. It should include copies of all documents on which they wish to rely. If you refer to a web-link then you must ensure that you also include copies of these documents. If you are referring to a section of a document, then you should also indicate what page number/section you are referring to. The local authority does not need to prepare a statement of case if it has nothing to add to the statement of reasons which it sent in with the order.

2.2 Inflammatory, discriminatory or abusive comments

2.2.1. If we consider your representations contain inflammatory, discriminatory or abusive comments, we will send them back to you before the Inspector or anyone else sees them. If you take out the inflammatory, or abusive comments, you can send your representations back to us; but you must send them back before the time limit ends.

2.3 Anonymous representations

2.3.1. We do not accept anonymous representations, but you may ask for your name and address to be withheld. If you ask us to do this you should make sure that your representations do not include any other information which may identify you. We will copy your representations, with your name and address removed, to the parties, and they will be seen by the Inspector who may give them less weight as a result.

2.3.2. According to the Procedure for Written Representations, the local authority sends us its statement of case, a copy of the documents it is submitting as evidence and a list of all these documents within 2 weeks of the start date. We copy the local authority’s statement of case to the applicant, relevant persons and any other person who has written expressing an interest in the order. If you want to examine the documents submitted with the local authority’s statement of case, you can inspect them at the places listed in our notice informing the parties of the procedure. The statement of case can be inspected at the local authority’s offices. We do not normally accept late statements (please see paragraph 2.6.1 for guidance on late submissions).

2.3.3. The applicant and the other persons have a bit longer to submit their statements of case. This gives them the opportunity to examine the local authority’s statement and supporting documents. If a document is included in the local authority’s statement of case, the applicant or other persons do not have to supply a copy – they can refer to the copy of the document sent in by the local authority.

2.3.4. According to the Procedure for Written Representations, the applicant, relevant persons and any other person who wishes to give evidence should ensure that their statement is received by us not later than 8 weeks after the start date. We copy these statements including the documents to the local authority, which makes them available for public inspection. We also copy the applicant’s statement excluding the documents to the relevant persons and any other person who has submitted a statement of case. We then copy the relevant and other persons’ statements to the applicant, every relevant person and the other persons who have submitted a statement of case. We do not normally accept late statements (please see paragraph 2.6.1 for guidance on late submissions).

2.3.5. The local authority, applicant, relevant persons and other persons comments on any or every other statement of case has to be received by us not later than 14 weeks after the start date. We copy these to the local authority, the applicant, relevant persons and anyone else who has submitted a statement of case. We do not normally accept evidence received more than 14 weeks after the start date. (Please see paragraphs 2.6.1 – 2.6.3 for guidance.)

2.3.6. Usually, there are no further exchanges of comments. If we need to, we ask the local authority, the applicant, relevant persons and anyone else who has made comments for further information about their statements or their comments. However, from our experience, further exchanges do not usually add to the case for or against an order.

2.4 What happens if you think written representations is no longer appropriate?

2.4.1. We can change the procedure to decide an order at any time before the decision is issued. The other options are a hearing or an inquiry. If the local authority or applicant thinks the written representations procedure is no longer appropriate, they should let us know, with reasons why we should change the procedure. We will then consider the request having consulted with the other parties to the order, as necessary. Anyone who has made a duly made objection or representation to an order has a statutory right to be heard; where a party who has made a duly made objection or representation subsequently decides to exercise their right to be heard we will determine the procedure – hearing or inquiry, taking account of the circumstances of the order.

2.5 What happens if people do not abide by the Procedure for Written Representations?

2.5.1. We may take the decision to hold a hearing or local inquiry if it becomes clear that the Procedure for Written Representations is not being adhered to correctly.

Site visits

2.5.2. The purpose of a site visit is for the Inspector to see the land to which the order relates and the surrounding area, and to note physical features such as stiles, gates, fences, walls, hedges and trees. The Inspector usually visits the site when the exchange of comments is complete and makes this visit alone unless the local authority, the applicant or a relevant person asks to accompany the Inspector. If the Inspector decides an accompanied visit is necessary, or a request for an accompanied visit is received by any of the above, we give the local authority, the applicant and relevant persons not less than 2 weeks notice of the date and time it will take place. Any party wishing to accompany the Inspector should contact the Planning Inspectorate as early as possible.

2.5.3. Where an accompanied site visit is carried out, at the beginning, and in the presence of all parties, the Inspector will explain the purpose of the site visit and what can and cannot be done. Those accompanying the Inspector may only point out physical features that they have mentioned in their evidence. The Inspector will not accept any further evidence at that time, nor will they deliberate on the merits of the case as the Inspector will proceed to their final decision after the site visit. The Inspector will not defer the site visit in the absence of anyone who has asked to be present. If an objector to an order requests to accompany the Inspector then the local authority are required to send a representative however if the request is made by the local authority, the applicant or a supporter we will write to the objector(s) seeking their confirmation that they are prepared to attend the site visit. If representatives from both sides are not present, the Inspector will have to conduct an unaccompanied site visit instead.

2.5.4. The Inspector will not discuss the case for or against the order. Nor will the Inspector defer the site visit in the absence of anyone who has asked to be present. If an objector to an order requests to accompany the Inspector then the local authority are required to send a representative however if the request is made by the local authority, the applicant or a supporter we will write to the objector(s) seeking their confirmation that they are prepared to attend the site visit. If representatives from both sides are not present, the Inspector will have to conduct an unaccompanied site visit instead.

2.5.5. Occasionally it will not be possible to carry out a site visit at all. This will occur where the path or way (which is the subject of the order) is not already on the Definitive Map and written permission from the landowner allowing the Inspector to conduct a site visit has not been received. In these circumstances the Inspector will, if possible, try to view the path or way from land with public access.

2.6 Late evidence on cases being dealt with by way of written representations

2.6.1. Sending late material is unfair on others who have an interest in the order. Unless there are extraordinary circumstances (Please see paragraph 15 of the Circular for Rights of Way Orders which is attached to the back of this booklet) for submitting late statements of case, we will return them if they are received by us outside of the deadline from an already involved party (2 weeks from the start date for OMAs and 8 weeks from the start date for all other parties, the specific dates will be set out in the order start notice).

2.6.2. When making a decision, the Inspector may disregard any written representation, evidence or other documents received after the exchange period (14 weeks from the start date), even if it raises new issues (unless the Inspector has asked for further information). If an already involved party’s comments on the statements of case are received after the 14 week deadline, the Inspector will only look at the material if there are extraordinary circumstances for its late submission. If the Inspector concludes that there are extraordinary circumstances, we will circulate a copy to all other parties giving them two weeks to make written representations or ask to be heard.

2.6.3. If an entirely new interested party submits correspondence after the 14 week deadline, we will not accept it unless the author can provide us with a good reason for it being late. An acceptable reason might be that they have only just become aware of the order, for example by coming across the site notice. If no reason is given, or we do not find the reason given acceptable, we will return the correspondence. Otherwise we will circulate a copy to all the other parties giving them two weeks to make written representations or ask to be heard.

2.7 Legal submissions

2.7.1. A challenge to an order or a representation or objection on a question in law is known as a “legal submission”. If you want to make a legal submission it should be submitted with your statement of case (As far as possible, a legal submission should be submitted as a separate document alongside the statement of case, rather than being an integral part of it). Legal submissions received after this time will only be circulated to the other parties for comment if the issues are central to the consideration of the case. This is a matter for the Inspector. On receipt of a legal submission we will need to decide whether the written representation procedure is still appropriate for determining the order or whether a hearing or inquiry is more appropriate depending on the complexity of the case. In any event, the Inspector will not give a ruling on legal submissions, but usually responds to them in the decision. Further advice on legal submissions is given in Annex J.

2.8 What happens next?

2.8.1. After the site visit the Inspector writes the decision.

2.8.2. If, as part of the written representations process you have submitted original documents that you would like us to return, please let us know. We will return your documents to you after the period for challenging the decision has ended. Once a final decision has been issued and all our actions have been completed the case file will be sent into storage, normally for 12 months, before being destroyed.

Question 3

3. The hearing procedure

Accepted Answer

3.1. A hearing is a discussion led by an Inspector. Hearings are less formal, simpler and usually quicker than inquiries. There is usually no formal cross-examination. They usually last no more than a day. They work best where only a few people wish to be heard, where the issues to be considered are relatively straightforward, and where there is relatively little dispute over documentary or user evidence. Hearings are not usually suitable for cases which rely on user evidence which may best be tested by cross-examination.

3.1 Arranging the date, time and place

3.1.1. Where we have an order which seems suitable for a hearing, we arrange a date, time and place for the hearing in consultation with the local authority. The arrangements for a hearing and the conduct of it are designed to create the right atmosphere for discussion and to remove or reduce the formalities of the traditional public inquiry. Wherever practicable, the Inspector and the parties sit round a table. A small, local authority committee room is usually satisfactory, and the more formal atmosphere of a Council chamber should be avoided. The venue for the hearing should provide adequate facilities for those with special needs. The Inspectorate has produced a Facility Note for Public Inquiries and Hearings to help local authorities choose suitable venues. The Facility Note is on our website

3.1.2. We give notice in writing to the local authority, other local authorities, the applicant, landowners and occupiers, relevant persons, prescribed organisations, everyone the local authority were required to inform when they made the order and anyone else who has indicated an interest in the order. If anyone else expresses an interest in the order after we have issued this notice, we will write to them. The notice tells people that there is to be a hearing, the start date (see Annex D), the date, time and place for the hearing, describes the land to which the order relates and the effect of the order, where documents relating to the hearing can be inspected and copied, and when statements of case must be sent to us. We also put a copy of the notice on our website. We aim to hold the hearing within 20 weeks of the date of this notice.

3.1.3. Once the date and place of a hearing have been notified we change them only in very special circumstances. The non-availability of the person you have chosen to represent you, school holidays or holiday season is not normally considered special circumstance. Adjournments for ill health will be considered, but we will require a doctor’s note. For this reason you should tell us in advance of any dates you are unavailable and notify us immediately if any other dates become inconvenient to you so that we can take this into account in arranging a date, if possible.

3.2 Who can attend

3.2.1. Anyone can go to a hearing. The Inspector usually allows everyone who wishes to speak to do so. No-one is obliged to attend, but the local authority, the applicant, relevant persons and any other person who has submitted a statement of case is entitled and expected to be there (see paragraph 8.0.4). If an applicant or a relevant person decides not to attend, they should let us know as soon as possible. Most people present their own case at a hearing but you can appoint someone to speak for you if you wish. However, formal legal representation (that is, a barrister or solicitor acting as an advocate) is not appropriate for a hearing.

3.3 Preparing the evidence

3.3.1. It is important for everyone to assemble all their evidence well before the hearing starts. The local authority, the applicant, each relevant person and every person who wishes to be heard prepares a “statement of case” (see Annex E). This is a written statement containing the full details of the case which each of them proposes to put before the Inspector. Included in the statement of case is a copy of each document to which the statement refers (except where the local authority has already included a document as part of its statement of case. In this case, you need only include a reference to the document). If you refer to a web-link then you must ensure that you also include copies of these documents. If you are referring to a section of a document then you should also indicate what page number/section you are referring to. The local authority does not need to prepare a statement of case if it has nothing to add to the statement of reasons which it sent in with the order.

3.3.2. We write to tell everyone involved when we need their statements of case. There is plenty of time to do this between the date when we notified you of our intention to hold a hearing and the start of the hearing. Everyone has the chance to examine these statements and the accompanying documents. This opportunity to examine the evidence before the hearing ensures that the most efficient use is made of everyone’s time. The Inspector reads every statement and examines all the documents before the hearing.

3.3.3. One of the objectives of the Rules is to ensure that everyone who is involved in the procedure is fully aware of each other’s views and the evidence supporting those views before the hearing opens. No-one should hold back evidence with the intention of surprising the other parties after the hearing has started. To do so might be regarded as unreasonable behaviour and, if this leads to adjournments or other delays which incur additional expenditure, this could leave the person submitting late evidence vulnerable to an application for an award of costs against them (see section 8 and paragraphs 8.3 for more information). The Inspector does not have to consider evidence sent in after the close of the hearing and will only do so if there are extraordinary circumstances. (Please see paragraph 15 of the Circular for Rights of Way Orders which is attached to back of this booklet).

3.4 Inflammatory, discriminatory or abusive comments

3.4.1. If we consider your representations contain Inflammatory, discriminatory or abusive comments, we will send them back to you before the Inspector or anyone else sees them. If you take out the inflammatory, discriminatory or abusive comments, you can send your representations back to us; but you must send them back before the time limit ends.

3.5 Anonymous representations

3.5.1. We do not accept anonymous representations, but you may ask for your name and address to be withheld. If you ask us to do this you should make sure that your representations do not include any other information which may identify you. We will copy your representations, with your name and address removed, to the parties, and they will be seen by the Inspector who may give them less weight as a result.

Not later than 8 weeks after the start date

3.5.2. The local authority sends us a copy of its statement of case. The statement of case includes a copy of the documents it is submitting as evidence and a list of all these documents. In turn, we send a copy of its statement of case - excluding copies of documents themselves but including the list of documents - to the applicant and relevant persons, and anyone else who we know wishes to give evidence at the hearing. If you want to examine the documents submitted with the local authority’s statement of case, you can inspect them at the places listed in the notice of intention to hold a hearing. The local authority’s statement of case has to be received by us not later than 8 weeks after the start date. We do not normally accept late statements (please see section 5 paragraphs 5.3 – 5.6 for further information).

3.5.3. If it is not possible to copy a document (e.g. because it is too fragile), the statement should say where it can be inspected.

Not later than 12 weeks after the start date

3.5.4. We give the applicant, relevant persons and other persons who have asked to be heard a bit longer to submit their statements of case. This gives them the opportunity to examine the local authority’s statement of case and supporting documents. If a document is included in the local authority’s statement others do not have to supply a copy – they can refer to the copy of the document sent in with the local authority’s statement.

3.5.5. The applicant, each relevant person and any other person sends their statement of case to us, along with a list of those documents in the local authority’s list and copies of every other document that they wish to submit as evidence. We copy these statements and documents to the local authority, which makes them available for inspection. We also send a copy of the applicant’s statement excluding the documents to relevant and other persons, and a copy of every other statement excluding the documents to the applicant and every relevant and other person. The applicant’s, relevant persons’ and other persons’ statements of case have to be received by us not later than 12 weeks after the start date. We do not normally accept late statements (please see section 5 paragraphs 5.2.1 – 5.2.3 for further information).

3.6 What happens if you think a hearing is no longer appropriate?

3.6.1. We can change the procedure for deciding an order before the hearing starts or during it. The other options are an inquiry or written representations. If, having seen the statements of case, the local authority, the applicant or a relevant person thinks that a hearing is not appropriate, they should let us know, with reasons why we should change the procedure. If we conclude that a hearing is not suitable we will hold an inquiry or arrange for exchanges of written representations instead. If, during the hearing, the local authority, the applicant, a relevant person or anyone who has submitted a statement of case thinks that the procedure is not appropriate, they should tell the Inspector. The Inspector may also conclude that an inquiry should be arranged. In either case, the Inspector will consult the local authority, the applicant, and relevant persons and anyone else who has submitted a statement of case who is present about whether the hearing should be closed and an inquiry arranged instead.

3.7 Advertising the hearing

3.7.1. The local authority must advertise the hearing in the local area not less than 4 weeks before it is due to start. The local authority puts notices:

i) at both ends of the part of the way(s) affected by the order;

ii) at places where notices are usually situated in the local area; and

iii) in at least one local newspaper.

The notices shall state the date, time and place of the hearing, the section of the Act under which the order was made, a description of the land to which the order relates, the effect of the order and where copies of the orders and documents relating to the hearing can be inspected and copied.

3.8 At the hearing

3.8.1. So that the Inspector has an accurate record of everyone at the hearing, it is important that you complete the attendance list (If you do not want your details to be seen a separate form can be completed which can be handed to the Inspector by the end of the hearing) that the local authority passes round. If you do not wish to speak at the hearing but you would like a copy of the Inspector’s decision, you can ask us for one, otherwise the decision will be available online at https://www.gov.uk/guidance/2020-rights-of-way-order-information-decisions-and-maps

3.8.2. The Inspector decides the procedure at the hearing. In most cases the Inspector opens the hearing, introduces themself and explains the law under which the order has been made. The Inspector will ask for the names of those who wish to speak. If you want to comment on the way the order has been made or processed by the local authority, have any questions about procedure, need to leave early or have any other requests, now is the time to speak. Once the Inspector has decided on the order of proceedings, they keep to it unless there are very good reasons to change.

3.8.3. The Inspector leads the discussion by:

identifying what they see as the main issues from reading the statements of case and any site visit; and
identifying matters on which they require further explanation.

This does not prevent anyone else from identifying other issues for consideration or referring to other issues which they consider relevant to the consideration of the order.

3.8.4. The Inspector encourages everyone at the hearing to enter the discussion. Because a hearing is only arranged where there is likely to be little dispute over documentary or user evidence, cross- examination of opposing parties is not usually appropriate or necessary. Exceptionally, the Inspector may allow cross- examination, but only if they consider it is necessary in order to explore fully the issues. The Inspector normally asks everyone who has contributed to the debate if they wish to make any final remarks before the discussion closes, usually concluding with the local authority.

3.8.5. The Inspector will stop the giving or production of evidence, putting of questions or the presentation of any other matter if they consider it to be repetitive or irrelevant. They will also stop aggressive or offensive questioning or any other behaviour that they consider inappropriate. If a person is prevented by the Inspector from completing his or her evidence, they can give the Inspector that evidence or any other matter in writing before the close of the hearing.

3.9 Site visits

3.9.1. The purpose of a site visit is for the Inspector to see the land to which the order relates and the surrounding area, and to note physical features such as stiles, gates, fences, walls, hedges and trees. The Inspector usually visits the site alone before the start of the hearing. They may also visit the site after the hearing has closed. The Inspector must visit the site if the local authority, the applicant, a relevant person, or anyone else who has submitted a statement of case asks him/her to do so. Anyone at the hearing can accompany the Inspector on this second visit so long as representatives from both sides can be present (paragraph 3.25 refers) and, where a site visit is being held on private land, the landowner has given his/her consent. Where there is no general right of access, the Inspector has no right to give access. Due to practicality and safety issues that may arise, the Inspector has discretion to limit the numbers attending a site visit as appropriate.

3.9.2. Those present may point out physical features that they have mentioned in their evidence but, because the visit is made after the hearing has closed, the Inspector will not discuss the case for or against the order or any other matters.

3.9.3. Occasionally, the Inspector may decide during the hearing that certain matters could be dealt with more easily if the discussion continued at the site. If an Inspector decides to do this, they announce the details before adjourning to the site, but will do so only if they are satisfied that:

the weather conditions are suitable;
everyone at the hearing who wants to do so can attend;
no-one will be placed at a disadvantage; and
there are no reasonable objections to continuing the hearing at the site.

3.9.4. Inspectors make sure that accompanied site visits are made when representatives of both sides (for and against the order) can be present but they need not defer an inspection if anyone who has said they intend to attend is not present. If representatives from both sides are not present the Inspector will visit the site alone.

3.10 What happens next?

3.10.1. After the close of the hearing, the Inspector writes the decision.

3.10.2. If, as part of the hearing process you have submitted original documents that you would like us to return, please let us know. We will return your documents to you after the period for challenging the decision has ended. Once a final decision has been issued and all our actions have been completed the case file will be sent into storage, normally for 12 months, before being destroyed.

Question 4

4. Local public inquiries

Accepted Answer

4.0. Public inquiries are formal settings where evidence is heard and witnesses are open to cross-examination. Inquiries are the best option when there is a lot of evidence, or there is conflicting evidence, or there are numerous relevant persons.

4.1 How long is an inquiry?

4.1.1. Most inquiries last one or two days. We can advise on how long an inquiry is likely to last, but there is no way of knowing how long it will actually take, nor can we set a limit on how long it will be. The time each inquiry takes depends on the number of people who want to speak, the amount of evidence that is presented and the extent of cross-examination. However, with all evidence from the main parties being submitted and exchanged well in advance of the inquiry – as required by the Rules - this is likely to shorten proceedings. It should give the opportunity for participants to help the Inspector to programme the inquiry by giving a sensible estimate of how long it will take to present their case, including cross-examination of the opposing party’s witnesses, and their closing submissions. If you cannot attend on each day of an inquiry, you should let the Inspector know during his/her introduction so arrangements can be made for you to present your evidence on a certain day.

4.1.2. Please be aware that there may be a need to cross-examine your evidence. If this is not possible, due to your non-attendance, it may lead to the Inspector giving it less weight than evidence which is able to be cross examined.

4.2 Meetings before an inquiry

4.2.1. A pre-inquiry meeting will be held for all inquiries which appear likely to run for 8 days or more unless the Inspector considers it unnecessary. We will tell you if we are going to do this and give you at least 14 days’ notice of the date, time and place of the meeting. The meeting will deal with such things as the sequence in which persons will give evidence or, if the order contains several routes, the sequence in which the routes will be dealt with.

4.3 Arranging the date, time and place

4.3.1. We arrange a date, time and place for the inquiry in consultation with the local authority. When they are choosing a venue, local authorities should follow the guidelines in the Inspectorate’s Facility Note for Public Inquiries and Hearings. Among other things, the note contains guidance on the location of the venue, how the inquiry room should look and the facilities that should be available. The note is on our website

4.3.2. We give notice in writing to the local authority, other local authorities, the applicant, land owners and occupiers, relevant persons, prescribed organisations, everyone the local authority were required to inform when they made the order, and anyone else who has indicated an interest in the order. If anyone else expresses an interest in the order after we have issued this notice, we will write to them. The notice tells people the start date (see below), that there is to be an inquiry, the date, time and place for the inquiry, describes the land to which the order relates and the effect of the order, where documents relating to the inquiry can be inspected and copied, and when statements of case and proofs of evidence must be sent to us. We also put a copy of the notice on our website. We aim to hold the inquiry within 26 weeks of the date of this notice.

4.3.3. Once the date and place have been notified, we change them only in very special circumstances. The non-availability of the person you have chosen to represent you, school holidays or holiday season is not normally considered special circumstance. Adjournments for ill health will be considered, but we will require a doctor’s note. For this reason, you should tell us in advance of any dates you are unavailable and notify us immediately if any other dates become inconvenient to you so that we can take this into account, if possible.

4.4 Who can attend

4.4.1. Anyone can go to an inquiry. The local authority, the applicant, each relevant person and anyone else who has submitted a statement of case is entitled to appear at the inquiry, but the Inspector usually allows everyone else who has a relevant contribution to do so. No-one is obliged to attend, but we expect the local authority, the applicant, relevant persons and any other persons who have submitted a statement of case to be there (see section 8 paragraph 8.0.4). If an applicant or a relevant person decides not to attend, they should let us know as soon as possible. People may send representatives if they cannot themselves attend.

4.4.2. Many people speak on their own behalf, but you can appoint someone - a professional, an acquaintance or a friend - to speak for you. Appointing a professional does not mean that your case carries more weight than if you present it yourself. At most inquiries the local authority and major parties may have legal representation (a barrister or solicitor acting as advocate). Nevertheless, however relevant evidence is presented, the Inspector considers everyone’s case with equal care.

4.5 Preparing the evidence

4.5.1. It is important for everyone to assemble all their evidence well before the inquiry starts. The local authority, the applicant, relevant persons and other persons who wish to appear at the inquiry each prepares a “statement of case” (see Annex E). This is a written statement containing full details of the case which each of them proposes to put before the Inspector. It includes copies of any documents to which they intend to refer or put in evidence. If you refer to a web-link then you must ensure that you also include copies of these documents. If you are referring to a section of a document, then you should also indicate what page number/section you are referring to. The local authority does not need to prepare a statement of case if it has nothing to add to the statement of reasons which it sent in with the order. The local authority does not need to prepare a statement of case if it has nothing to add to the statement of reasons which it sent in with the order.

4.5.2. We write to tell everyone when we need their statements of case and proofs of evidence. Everyone has the chance to examine these statements of case and to make further comments in their proofs of evidence, concentrating on the matters in dispute. This opportunity to inspect evidence before the inquiry ensures that the most efficient use is made of everyone’s time. The Inspector reads every statement of case and proof of evidence before the inquiry.

4.5.3. One of the objectives of the Rules is to ensure that everyone who is involved in the procedure is fully aware of each other’s views and the evidence supporting those views before the inquiry opens. No- one should hold back evidence with the intention of surprising the other parties after the inquiry has started. The Inspector can refuse to accept any late evidence put forward at the inquiry. If, however, the Inspector decides to accept late evidence, and this leads to adjournments or other delays which incur additional expenditure, this could leave the person submitting late evidence vulnerable to an application for an award of costs against them (see Section 8 for more details). The Inspector will not consider any evidence sent in after the close of the inquiry unless there are extraordinary circumstances for doing so.

4.6 Inflammatory, discriminatory or abusive Comments

4.6.1. If we consider your representations contain inflammatory, discriminatory or abusive comments, we will send them back to you before the Inspector or anyone else sees them. If you take out the inflammatory, discriminatory or abusive comments, you can send your representations back to us; but you must send them back before the time limit ends.

4.7 Anonymous representations

4.7.1. We do not accept anonymous representations, but you may ask for your name and address to be withheld. If you ask us to do this, you should make sure that your representations do not include any other information which may identify you. We will copy your representations, with your name and address removed, to the parties, and they will be seen by the Inspector who may give them less weight as a result.

Not later than 8 weeks after the start date

4.7.2. The local authority sends us a copy of its statement of case including a copy of the documents it is submitting as evidence and a list of all those documents. In turn, we send a copy of its statement of case - excluding copies of documents themselves but including the list of documents - to the applicant, relevant persons and anyone else who we know wishes to give evidence at the inquiry. If you want to examine the documents submitted with the local authority’s statement of case, you can inspect them at the places listed in the notice of intention to hold an inquiry. The local authority’s statement of case has to be received by us not later than 8 weeks after the start date. We do not normally accept late statements (please see section 5 paragraphs 5.2.1 – 5.2.3 for guidance).

4.7.3. If it is not possible to copy a document (e.g. because it is too fragile), the statement of case should say where it can be inspected.

Not later than 14 weeks after the start date

4.7.4. We give the applicant, relevant persons and other interested persons a bit longer to submit their statements of case. This gives them the opportunity to examine the local authority’s statement and supporting documents. If a document is included in the local authority’s statement of case, the applicant, relevant persons and other persons do not have to supply a copy – they can refer to the copy of the document sent in with the local authority’s statement.

4.7.5. The applicant, each relevant person and any other interested person sends his/her statement of case to us and any supporting documents that they wish to submit as evidence as well as a list of those documents. We copy these statements and documents to the local authority. The local authority makes them available for inspection. We also copy the applicant’s statement excluding the documents to relevant persons and other persons who have sent us a statement of case and copy relevant and other persons’ statements of case excluding the documents to the applicant and to every other relevant and other person. You can examine all the documents at the places listed in the notice of intention to hold an inquiry. The applicant’s, relevant persons’ and other persons’ statements of case have to be received by us not later than 14 weeks after the start date. We do not normally accept late statements (please see section 5 paragraphs 5.1.3 – 5.2.1 for guidance).

Not later than 4 weeks before the start of the inquiry

4.7.6. As the time for the inquiry date approaches, the local authority, the applicant, relevant persons and other interested persons should be preparing the case - “proof of evidence” - that they intend to present to the inquiry (Guidance on procedures for considering objections to definitive map and public path orders). This should focus on the matters that are in dispute rather than rehearsing all of the available evidence. (Remember that everyone has had the opportunity to examine everyone else’s statement of case.) Indeed, it can be helpful to identify areas of agreement. You can use your proof of evidence to comment on or add to your evidence in the light of what others have said in their statements of case (to rebut what has been said). As a general rule, proofs of evidence should not contain supporting documents (all such documents should be submitted with your statement of case) nor should they contain entirely new evidence (6 This could be viewed by other parties to be unreasonable behaviour and may lead to other parties seeking an award of costs against you at the inquiry. – Section 8 refers). However, appendices submitted as part of a rebuttal of another person’s evidence would be acceptable. If, though, you have nothing to add to your statement of case, you should write and let us know. In this case, we regard your statement of case as your proof of evidence.

4.7.7. If your proof of evidence (or statement of case where you are not submitting a proof) is longer than 1,500 words (about three typed A4 sheets) you must supply a written summary which you then present at the inquiry rather than reading out the whole proof of evidence. The summary should be proportionate to the main proof of evidence but should not exceed 1500 words. The summary should be provided at the same time as the main proof of evidence is submitted. Please note, however, that witnesses will be open to cross-examination on the whole of the main proof of evidence.

4.7.8. Proofs of evidence (or notice that a statement of case is to be regarded as a proof of evidence) and any summaries have to be received by us not later than 4 weeks before the start of the inquiry. We do not normally accept late proofs of evidence (please see section 5 paragraphs 5.2.1 – 5.2.3 for guidance).

4.7.9. In turn, we send copies of everyone’s proof of evidence and any summary to the local authority. We also send copies, of any attached appendices, to the applicant, each relevant person and other persons who have submitted a statement of case. The local authority makes copies of all the proofs of evidence and summaries available for public inspection.

4.8 Advertising the inquiry

4.8.1. The local authority must advertise the inquiry in the local area not less than 4 weeks before it is due to start. The local authority puts notices:

i) at both ends of that part of the way(s) affected by the order;

ii) at places where notices are usually situated in the local area; and

iii) in at least one local newspaper.

The notices contain the date, time and place of the inquiry, the section of the Act under which the order has been made, a description of the land to which the order relates, the effect of the order and details of where and when copies of all the documents relating to the inquiry can be inspected and copied.

4.9 At the inquiry

4.9.1. So that the Inspector has an accurate record of everyone at the inquiry, it is important that you complete the attendance list (If you do not want your details to be seen please complete a separate form and hand it to the Inspector by the end of the inquiry) that the local authority passes round. The decision will be available online.

4.9.2. The Inspector decides the procedure at the inquiry. In most cases the Inspector opens the inquiry, introduces themself and explains the law under which the order has been made. The Inspector asks for the names of those who wish to speak. They will identify what they consider to be the main issues. If you want to comment on the way the order has been made or processed by the local authority, have any questions about procedure, need to leave early or have any other requests, now is the time to speak. The Inspector will ask the main parties for an estimate of how long they consider it will take for them to present their cases, cross examine the opposing party’s witnesses and make their closing submissions. This will give the Inspector the opportunity to draw up an approximate timetable for the inquiry.

4.9.3. The Inspector decides the order in which the local authority, the applicant, relevant persons and other persons speak. Once the

Inspector has decided on the order of proceedings, they will keep to it unless there are very good reasons to change.

4.10 Presenting the cases

4.10.1. Usually, the local authority presents its case first, followed by those in support of the order, those opposed to the order and anyone else who the Inspector allows to speak. Each of the main parties will be offered the opportunity to make a brief opening statement to outline their case before calling their witnesses to give evidence. The Inspector will stop anyone who unnecessarily repeats evidence or makes irrelevant remarks.

4.10.2. If you give evidence, you may have to answer questions about that evidence from the supporters (if you are an objector) or vice versa. You can, in turn, put questions to witnesses who are opposing your own position once they have given their evidence. This procedure is known as cross-examination. The Inspector may also have questions of their own to put to witnesses, but this is not part of cross-examination.

4.10.3. If you are unfamiliar with how or when cross-examination is to take place the Inspector will guide you. Supporters of an order, or objectors, do not normally cross-examine each other unless they disagree on an important point (8 Authorities should call supporters and those with user evidence as witnesses if their evidence forms an essential part of its case). The Inspector will halt cross- examination if the questions are repetitive or irrelevant. The Inspector will also stop aggressive or offensive questioning or any other behaviour that they consider inappropriate. If a person is prevented by the Inspector from completing their evidence, they can give the Inspector evidence or any other matter in writing before the close of the inquiry.

4.10.4. The Inspector usually allows anyone speaking for or against the order who has presented a lot of evidence and called several witnesses to make a closing statement. The local authority usually makes its closing statement after everyone else has spoken. Closing statements are brief summaries of the case already presented. They should not include any new evidence. However, if a party raises new issues at this point, or if a party makes a submission about a point of law, the Inspector will give the other parties the opportunity to respond. The Inspector will allow the party who introduced the issue or made the legal submission the final right of reply. (More information on legal submissions is at section 5 paragraph 5.8.1 and in Annex J). It is helpful to the Inspector for closing statements to be put in writing and submitted to them before the close of the inquiry.

4.11 Site visits

4.11.1. The purpose of a site visit is for the Inspector to see the land to which the order relates and the surrounding area, and to note physical features such as stiles, gates, fences, walls, hedges and trees. The Inspector usually visits the site alone before the start of the inquiry. They may also visit it after the inquiry has closed. The Inspector must visit the site if the local authority, the applicant, a relevant person, or anyone else who has submitted a statement of case asks them to do so. Anyone at the inquiry can accompany the Inspector on this second visit so long as representatives from both sides can be present (see paragraph 4.10.3 below) and, where a site visit is being held on private land, the landowner has given his/her consent. Where there is no general right of access, the Inspector has no right to give access. Due to practicality and safety issues that may arise, the Inspector has discretion to limit the numbers attending a site visit as appropriate.

4.11.2. Those present may point out physical features that they have mentioned in their evidence but, because the visit is made after the inquiry has closed, the Inspector will not discuss the case for or against the order.

4.11.3. Inspectors make sure that accompanied site visits are made when representatives of both sides (for and against the order) can be present but they need not defer an inspection if anyone who has said they intend to attend is not present. If representatives from both sides are not present the Inspector will visit the site alone.

4.11.4. Arrangements for the site visit are usually made towards the end of the inquiry. The Inspector will identify those parties who wish to attend and will agree when and where to meet.

4.12 What happens next?

4.12.1. After the close of the inquiry, the Inspector writes the decision.

4.12.2. If, as part of the inquiry process you have submitted original documents that you would like us to return, please let us know. We will return your documents to you after the period for challenging the decision has ended. Once a final decision has been issued and all our actions have been completed the case file will be sent into storage, normally for 12 months, before being destroyed.

Question 5

5. Other issues relevant to hearings and inquiries

Accepted Answer

5.1 Orders which the local authority does not support

5.1.1. Local authorities do not always support orders that they have made. A local authority may have been directed to make an order by the Secretary of State, or new evidence may have come to light after the order was made which leads the local authority to change its view. If the local authority sends such an order to us the local authority should explain that it does not support it. But it still has to supply all the documents on the checklist (see section 1 paragraph 1.4), provide a venue for and attend any hearing or inquiry. In these circumstances the applicant, if there is one, or a supporter for the order will be asked if they wish to make the case in support of the order. If they agree they would be expected to submit their statement of case at the time when the local authority would have submitted theirs (i.e. not later than 8 weeks after the start date). This will be the same for the local authority. Whilst we would expect the person taking the case forward to submit their statement of case as if they were the local authority, the Rules do not state that they must and therefore if one is received at the same stage for all other parties (14 weeks from the start date for inquiries and 12 weeks from the start date for hearings) it will be accepted. Nonetheless, regardless of the local authority’s stance, the Rules make the local authority responsible for ensuring that documents are submitted according to the timetable.

5.1.2. The local authority may also change their stance at any time during the processing of the order (after the timetable has been set) and no longer wish to support it. If this is the case, the applicant if there is one or a supporter for the order will be asked if they wish to take the place of the local authority and support the order at a hearing or a local inquiry.

5.1.3. Where the local authority holds the view that the order should not be confirmed, this includes any orders they have been directed to make by the Secretary of State, it would be entirely appropriate for the local authority to appear at the inquiry or hearing as an objector, rather than assuming a neutral stance. Indeed, such a position can be helpful to the parties concerned, as well as the Inspector. Annex I of this booklet gives more information about handling these orders.

5.2 What if I am one of the main parties, (OMA, relevant person etc) and have late evidence or cannot meet the dates for sending evidence for cases being dealt with by way of a hearing or local inquiry?

5.2.1. Sending late material which causes the hearing or inquiry to be delayed is unfair on others who have an interest in the order. We will return late documents. But we may accept material after the times set out in the Rules if you persuade us that there were extraordinary circumstances (Please see paragraph 15 of the Circular for Rights of Way Orders which is attached to the back of this booklet) why you could not meet the timetable. Good reasons might include where material is delayed because of a postal strike, or ill-health (but we will require a doctor’s note), or where there is a last-minute change in circumstances which is relevant to the hearing or inquiry.

5.2.2. The Inspector may allow people to alter or add to their statements of case, or their proofs of evidence, during an inquiry. If you make a request to submit revised or additional rebuttal evidence to the Inspector at the hearing or inquiry, or if your request concerns substantial or entirely new matters, you should make sure you bring enough copies for everyone, in the event that it is accepted. The local authority ought to provide copying facilities, but you should not assume that facilities will be available. If the submissions are considered to be relevant and are accepted, the Inspector may adjourn the proceedings to give others present time to consider these changes.

5.2.3. You should be aware that if you unreasonably cause others to suffer additional costs as a result of your submitting material late, or by bringing forward altered or new evidence at the proceedings, or by altering or adding to evidence afterwards they can apply for an award of costs against you (see section 8).

5.3 What if I am not a relevant person and have relevant evidence but I do not want to appear at the hearing or inquiry?

5.3.1. You should tell us in good time that you do not want to appear. We would expect you to send us your written representations, evidence or comments within the deadlines set out in the Rules. However, we will accept late material if you can provide us with a good reason for it being late. An acceptable reason might be that you have only just become aware of the order, for example by coming across the site notice. If no reason is given, or we do not find your reason acceptable, we will return the correspondence to you. In this case you may hand your evidence to the Inspector at the hearing or inquiry. It will be for the Inspector to decide whether to accept it. If the Inspector decides to take your evidence into account, the Inspector will disclose that they have received your material. You should bear in mind however that the Inspector may not be able to give as much weight to evidence which has not been heard at the hearing or inquiry and been open to cross examination. Please also see paragraph 5.2.3 above.

5.3.2. If we do accept your reasons for submitting late correspondence, we will circulate a copy to all the other parties.

5.4 What if I do not turn up?

5.4.1. If you asked to be heard, we expect you or your representative to attend. However, the Inspector can proceed with a hearing or an inquiry even if a person entitled to speak does not turn up.

5.5 What happens if someone disrupts the hearing or inquiry?

5.5.1. The Inspector can require anyone behaving in a disruptive manner to leave the proceedings and refuse to allow them to return or allow them to return only if they agree to conditions which they set out. But if the Inspector asks anyone to leave or refuses permission for anyone to give evidence in person, that person can give evidence or any other matter in writing before the close of the hearing or inquiry.

5.6 What if I discover new evidence after the close of the hearing or inquiry?

5.6.1. This should happen only rarely. In most cases the parties will have had many months to research and prepare their evidence prior to the opening of the inquiry or hearing. There would have to be extraordinary circumstances for why such late evidence could not have been made available within the inquiry or hearing timetable set out in the Rules.

5.6.2. We will only pass any written representation, evidence or any other document sent to us after the hearing or inquiry has closed to the Inspector if the author has extraordinary circumstances for its late submission. The Inspector may disregard any material received after the close of the proceedings, even if it raises new issues. However, if there are extraordinary circumstances and the Inspector proposes to consider this material in the decision, and concludes that it is relevant to the decision, we notify the local authority, the applicant, everyone who appeared at the hearing or inquiry and anyone who sent in written evidence. We will give them three weeks to make written representations or ask for the hearing or inquiry to be re-opened.

5.6.3. If the Inspector decides that the hearing or inquiry should be re- opened, we send a written statement of the matters to be considered to everyone whom we notified about the new evidence. We also make arrangements for the reopened hearing or inquiry.

5.7 Will the hearing or inquiry be recorded?

5.7.1. Hearings and inquiries are open to journalists and the wider public, as well as interested people. Provided that it does not disrupt proceedings, anyone will be allowed to report, record and film proceedings including the use of digital and social media. Inspectors will advise people present at the start of the event that the proceedings may be recorded and/or filmed, and that anyone using social media during or after the end of the proceedings should do so responsibly.

5.7.2. If anyone wants to record or film the event on equipment larger than a smart phone, tablet, compact camera, or similar, especially if that is likely to involve moving around the venue to record or film from different angles, they should contact us and the order making authority in advance to discuss arrangements.

5.8 Legal submissions

5.8.1. A challenge to an order or a representation or objection on a question in law is known as a “legal submission”. If you want to make a legal submission you should submit it with your statement of case (so that it can be circulated in advance of the event) (10 As far as possible, a legal submission should be submitted as a separate document alongside the statement of case, rather than being an integral part of it). Otherwise it should be put it in writing and copies handed to the Inspector and the other parties at the start of the hearing or inquiry.

5.8.2. To ensure a timely and efficient process for determining orders, we will return legal submissions received after the date for statements of case with a request that copies are submitted at the start of the inquiry/hearing or raised in closing submissions (if evidential only). The only exception to this will be where the submission casts clear doubt over the validity of the order, and therefore the need for the hearing or inquiry. Such submissions will be circulated for comments in advance of the hearing/inquiry (if there is sufficient time).

5.8.3. The Inspector will not give a ruling on legal submissions, but usually responds to them in the decision. However, if the submission calls the running of the hearing or inquiry into question, the Inspector will consider whether to continue with the hearing or inquiry. Further advice on legal submissions can be found in Annex J.

Question 6

6. What the Inspector considers in reaching a decision

Accepted Answer

Please refer to the relevant Act under which the order is made

6.1 The Wildlife and Countryside Act 1981

Definitive map modification orders made under section 53

6.1.1. Section 53 of the Act places local authorities under a duty to keep their definitive maps and statements under continuous review and to modify the map and statement to:

record ways which should be shown but are not;
amend the status of ways recorded on the map incorrectly;
delete ways that should not be recorded on the map; and
delete or amend any other details which are wrong.

6.1.2. In making a decision on a definitive map modification order, an Inspector can only consider whether the disputed rights of way do or do not exist. The Inspector cannot consider the suitability of the way for public use or any other effects of confirming an order. Where we receive representations or objections that appear to us not to relate to any matters that the Inspector can take into consideration, we write to those objectors to let them know. We give them the opportunity to amend their representation or objection so that it does include such matters, to say why they think it is relevant, or alternatively invite them to withdraw their representation or objection (11 The duty to inform objectors about the non-relevance of their objections was placed on the Secretary of State in the High Court judgment Lasham Parish Meeting v Hampshire County Council (1992)).

Orders to reclassify Roads Used as Public Paths(RUPPs) made under section 54

6.1.3. Section 47 of the Countryside and Rights of Way Act 2000 is now in force and local authorities are relieved of their duty under section 54 of the 1981 Act to reclassify RUPPs. All RUPPs are now designated as restricted byways. Any applications or orders for RUPPs which are still outstanding have to be determined.

6.2 The evidence which can be put forward

Documents

6.2.1. Many different types of maps, plans and other documents are presented as evidence to prove that public rights of way do or do not exist, or that the definitive map and statement needs modifying in some other way. How relevant a document is depends on what type of document it is, why it was produced and what information it contains about the way shown in the order. It is not unusual for each side to argue a differing meaning for the same document.

6.2.2. If you present a document as evidence, you should also provide an explanation to show the Inspector its meaning and relevance to the decision. The document should be in a form as close to the original as possible. For example, a black and white photocopy of a colour- coded map would be of limited value.

User evidence

6.2.3. This is evidence of the actual use of the way, supporting the claim that the landowner has allowed a public right of way to become established over his/her land.

6.2.4. User evidence can take the form of:

written or spoken statements by witnesses; or
legal declarations by users about how and when they used the way.

Where the order is being considered at an inquiry or hearing user evidence given orally can be very helpful to the Inspector. Witnesses can speak about their evidence and answer questions (or be cross-examined). Evidence which has been heard and questioned may carry more weight than evidence which has not.

6.2.5. The Inspector considers all the evidence for and against the order before reaching a decision. Inspectors are experienced in dealing with user evidence and understand that people’s memories of past events are likely to differ. Because it relies on people’s memories, user evidence may contradict other evidence that is presented about the use or status of the way.

6.3 Orders made following an appeal under paragraph 4(1) of Schedule 14

6.3.1. Anyone can apply to the relevant authority for a definitive map modification order to be made. If the authority refuses to make an order, the applicant may appeal to the Secretary of State (through the Planning Inspectorate) to direct the authority to make one. The order may then come to the Inspectorate for a decision because there have been representations and objections to it. The fact that the Secretary of State directed the authority to make the order has no bearing on the Inspector’s decision: based on the evidence presented the Inspector can confirm it, confirm it with modifications, or not confirm it.

6.3.2. If an authority fails to determine an application within 12 months, the applicant can ask the Secretary of State (through the Planning Inspectorate) to direct the authority to determine the application within a given period of time.

6.4 The Highways Act 1980 (as amended)

Creation orders made under section 26

6.4.1. Section 26 of the Highways Act 1980 gives an authority the power to create a footpath, bridleway or restricted byway. To confirm a creation order, an Inspector must be satisfied that:

There is a need for a footpath, bridleway or restricted byway and it is expedient to create it having regard to:

(a) the extent to which the path or way would add to the convenience or enjoyment of a substantial section of the public or to the convenience of persons resident in the local area; and

(b) the effect the creation of the path or way would have on the rights of persons interested in the land, account being taken of the provisions as to compensation.

6.4.2. The Inspector must also have regard to any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the proposed footpath, bridleway or restricted byway would be created (26(3A)).

Extinguishment orders made under section 118

6.4.3. Section 118 gives an authority the power to extinguish a footpath, bridleway or restricted byway. In making the order the authority must be satisfied that it is expedient that the way should be stopped up because it is not needed for public use. To confirm an extinguishment order, an Inspector must be satisfied that:

It is expedient that a path or way should be stopped up having regard to:

(a) the extent that it appears that the path or way would, apart from the order, be likely to be used by the public; and

(b) the effect which the extinguishment of the right of way would have as respects land served by the path or way, account being taken of the provisions as to compensation. Also

(c) Section 118(6), which allows for temporary circumstances preventing the use of the way being disregarded.

6.4.4. The Inspector normally ignores any obstructions blocking the way and considers how much more the path would be used if the obstructions were not there. The Inspector also has to have regard to any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the order would extinguish a public right of way.

Rail crossing extinguishment orders made under section 118A

6.4.5. Special powers to close or divert footpaths, bridleways or restricted byways that cross railway lines on the level were introduced in the Highways Act 1980 by the Transport and Works Act 1992. Section 118A gives an authority the power to extinguish a footpath, bridleway or restricted byway which crosses a railway line, otherwise than by tunnel or bridge. In making the order the authority must be satisfied that it is expedient to do so in the interests of the safety of members of the public using it or likely to use it. So as to avoid creating a cul-de-sac that might encourage people to trespass onto the railway, an order may also provide for the extinguishment or diversion of any sections of path that lead up to the level crossing. To confirm a rail crossing extinguishment order, an Inspector must be satisfied that:

It is expedient to stop up the path or way having regard to all the circumstances, in particular:

(a) whether it is reasonably practicable to make the crossing safe for use by the public; and

(b) what arrangements have been made for ensuring that, if the order is confirmed, any appropriate barriers and signs are erected and maintained.

6.4.6. The Secretary of State may consult the Secretary of State for Transport on whether a bridge or tunnel should be provided at or reasonably near to the crossing as an alternative.

Special extinguishment orders made under section 118B

6.4.7. Section 118B gives an authority the power to extinguish a footpath, bridleway or restricted byway for the purposes of crime prevention or school security. Before making a special extinguishment order, the authority must consult the police authority for the area in which the highway lies.

Crime prevention – section 118B(1)(a)

6.4.8. An order under this section can be made only in respect of a highway in an area designated by the Secretary of State for the purpose. In making the order, the authority must be satisfied that it is expedient, for the purpose of preventing or reducing crime which would otherwise disrupt the life of the community, that the highway should be stopped up and that the following conditions are met:

(a) that premises adjoining or adjacent to the highway are affected by high levels of crime; and

(b) that the existence of the highway is facilitating the persistent commission of criminal offences.

6.4.9. To confirm a crime prevention extinguishment order, an Inspector must be satisfied that conditions (a) and (b) above are satisfied and that:

(a) it is expedient for the purpose of preventing or reducing crime which would otherwise disrupt the life of the community, that the highway be stopped up; and

(b) that it is expedient to confirm the order having regard to all the circumstances, in particular:

whether and, if so, to what extent the order is consistent with any strategy for the reduction of crime and disorder prepared under section 6 of the Crime and Disorder Act 1998;
the availability of a reasonably convenient alternative route or, if no reasonably convenient route is available, whether it would be reasonably practicable to divert the highway under section 119B rather than stopping it up; and
the effect which the extinguishment of the right of way would have as respects land served by the highway, account being taken of the provisions as to compensation.

School security – section 118B(1)(b)

6.4.10. An order under this section can be made only in respect of a highway which crosses land occupied for the purposes of a school. In making the order, the authority must be satisfied that it is expedient to stop up the highway, for the purpose of protecting the pupils or staff from:

(i) violence or the threat of violence,

(ii) harassment,

(iii) alarm or distress arising from unlawful activity, or

(iv) any other risk to their health or safety arising from such activity.

6.4.11. To confirm a school security extinguishment order, an Inspector has to be satisfied that:

(a) it is expedient, for the purpose of protecting the pupils or staff from (i)-(iv) above, that the highway should be stopped up; and

(b) it is expedient to confirm the order having regard to all the circumstances, in particular:

any other measures that have been or could be taken for improving or maintaining the security of the school;
whether it is likely that the coming into operation of the order will result in a substantial improvement in that security,
the availability of a reasonably convenient alternative route or, if no reasonably alternative route is available, whether it would be reasonably practicable to divert the highway under section 119B rather than stopping it up; and
the effect the extinguishment of the right of way would have as respects land served by the highway, account being taken of the provisions as to compensation.

Diversion orders made under section 119

6.4.12. Section 119 of the Highways Act gives an authority the power to divert a footpath, bridleway or restricted byway in the interests of the owner, tenant or person using the land crossed by the way or in the interests of the public.

6.4.13. In making the order, the authority must make sure that the alternative way is not already a public right of way. Otherwise the order would have the effect of removing a way, rather than diverting one (but part of the alternative way can follow an existing right of way).

6.4.14. The authority must also be sure that, unless the existing way connects with another highway, the diverted route ends at the same place. If the existing way connects with another highway and the order changes the place that it ends, it must still connect to another point on the same highway or a highway which is connected to it, and which is substantially as convenient to the public (12 Whether that connection is substantially as convenient for the public is a matter of judgement for the Inspector subject to the test of reasonableness).

6.4.15. To confirm a diversion order, an Inspector has to be satisfied that:

(a) it is expedient in the interests of (the owner, lessee or occupier of the land crossed by the path or of the public) that the line of the path or way, or part of that line should be diverted; and

(b) that the path or way will not be substantially less convenient to the public; and

(c) that it is expedient to confirm the order having regard to the effect which:

the diversion would have on public enjoyment of the path or way as a whole; and
the coming into operation of the order would have as respects other land served by the existing right of way; and
any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it, account being taken of the provisions as to compensation.

6.4.16. Whilst there is no direct read across from section 118(6) to section 119 as far as temporary obstructions are concerned (paragraph 6.1.3 above), when considering under section 119(6) whether the right of way will not be substantially less convenient to the public in consequence of the diversion, a fair comparison between the existing and proposed routes can only be made by similarly disregarding any temporary circumstances preventing or diminishing the use of the existing route by the public. Therefore, in all cases where this test is to be applied, the convenience of the existing route is to be assessed as if the way were unobstructed and maintained to a standard suitable for those users who have the right to use it.

6.4.17. The Inspector has to have regard to any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the order would create or extinguish a public right of way.

Rail crossing diversion orders made under section 119A

6.4.18. Section 119A gives an authority the power to divert a footpath, bridleway or restricted byway which crosses a railway line otherwise than by a tunnel or bridge. In making the order the authority must be satisfied that it is expedient to do so in the interests of the safety of members of the public using it or likely to use it.

6.4.19. The authority must be sure that, unless the existing way connects with another like right of way, the diverted route ends at the same place. If the existing way connects with another highway and the order changes the place that it ends, it must still connect to another point on the same highway or a highway which is connected to it.

6.4.20. To confirm a rail crossing diversion, an Inspector has to be satisfied that:

It is expedient to divert the path or way having regard to all the circumstances, in particular:

(a) whether it is reasonably practicable to make the crossing safe for use by the public; and

(b) what arrangements have been made for ensuring that, if the order is confirmed, any appropriate barriers and signs are erected and maintained.

6.4.21. The Secretary of State may consult the Secretary of State for Transport on whether a bridge or tunnel should be provided at or reasonably near to the crossing as an alternative measure.

Special diversion orders made under section 119B

6.4.22. Section 119B gives an authority the power to divert a footpath, bridleway or restricted byway for the purposes of crime prevention or school security. Before making a special diversion order, the authority must consult the police authority for the area in which the highway lies.

6.4.23. The authority must be sure that, unless the existing way connects with another highway, the diverted route ends at the same place. If the existing way connects with another highway and the order changes the place that it ends, it must still connect to another point on the same highway or a highway which is connected to it.

Crime prevention – s119B(1)(a)

6.4.24. An order under this section can only be made in respect of a highway in an area designated by the Secretary of State for the purpose. In making the order, the authority must be satisfied that it is expedient, for the purpose of preventing or reducing crime which would otherwise disrupt the life of the community, that the line of the highway, or part of that line should be diverted and that the following conditions are met:

(a) that premises adjoining or adjacent to the highway are affected by high levels of crime, and

(b) that the existence of the highway is facilitating the persistent commission of criminal offences.

6.4.25. To confirm a crime diversion order, an Inspector has to be satisfied that conditions (a) and (b) above are satisfied and that:

(a) it is expedient for the purpose of preventing or reducing crime which would otherwise disrupt the life of the community, that the line of the highway, or part of that line should be diverted; and

(b) that it is expedient to confirm the order having regard to all the circumstances, in particular:

whether and, if so, to what extent the order is consistent with any strategy for the reduction of crime and disorder prepared under section 6 of the Crime and Disorder Act 1998;
the effect which the coming into operation of the order would have as respects land served by the existing public right of way; and
the effect which any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it, taking into account the provisions as to compensation.

School security – s119B(1)(b)

6.4.26. An order under this section can only be made in respect of a highway which crosses land occupied for the purposes of a school. In making the order, the authority must be satisfied that it is expedient that the line of the highway, or part of that line be diverted, for the purpose of protecting the pupils or staff from:

(i) violence or the threat of violence,

(ii) harassment,

(iii) alarm or distress arising from unlawful activity, or

(iv) any other risk to their health or safety arising from such activity.

6.4.27. To confirm a school security diversion order, an Inspector has to be satisfied that:

(a) it is expedient, for the purpose of protecting the pupils or staff from (i)-(iv) above, that the line of the highway, or part of that line should be diverted; and

(b) it is expedient to confirm the order having regard to all the circumstances, in particular:

any other measures that have been or could be taken for improving or maintaining the security of the school;
whether it is likely that the coming into operation of the order will result in a substantial improvement in that security;
the effect which the coming into operation of the order would have as respects land served by the existing public right of way; and
the effect which any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it, account being taken of the provisions as to compensation.

SSSI diversion order made under section 119D

6.4.28. Section 119D gives an authority, on application from Natural England, the power to divert a highway which is in, forms part of, or is close to or adjoining a Site of Special Scientific Interest (SSSI) for the purpose of protection. In making the order the authority must be satisfied that:

(a) public use of the highway is causing, or that continued use of the highway is likely to cause, significant damage to the flora, fauna or geological or physiographical features by reason of which the site of special scientific interest is of special interest; and

(b) it is expedient that the line of the highway, or part of that line should be diverted for the purpose of preventing such damage.

6.4.29. The authority must be sure that, unless the existing way connects with another highway, the diverted route ends at the same place. If the existing way does connect with another highway and the order changes the place that it ends, it must still connect to another point on the same highway or a highway which is connected to it.

6.4.30. To confirm a SSSI diversion order, an Inspector must be satisfied that the conditions in (a) and (b) above are satisfied and that:

It is expedient to confirm the order having regard to the effect which:

(a) the diversion would have on public enjoyment of the right of way as a whole;

(b) the coming into operation of the order would have as respects other land served by the existing public right of way; and

(c) any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it, account being taken of the provisions as to compensation.

6.5 Concurrent Highways Act orders

6.5.1. Creation and diversion orders can be considered together with extinguishment orders. The Inspector can consider the extent to which creation or diversion orders made in association with an extinguishment order would, if confirmed, provide an alternative way to that proposed for closure. Where, having considered the alternative, the Inspector cannot confirm the extinguishment order, he/she will not generally confirm the creation or diversion orders.

6.6 The Town and Country Planning Act 1990

Stopping up and diversion orders made under section 257

6.6.1. Section 257 gives an authority the power to divert or extinguish footpaths, bridleways or restricted byways if it is satisfied that it is necessary to do so in order to enable development be carried out:

(1)(a) in accordance with planning permission granted under Part III (of the Act); or

(b) by a government department.

6.6.2. Section 257, as amended by Section 12 of the Growth and Infrastructure Act 2013, also gives an authority the power to make such an order if they are satisfied that;

(1A)(a) an application for planning permission has been made under Part 3, and

(b) if the application were granted it would be necessary to authorise the stopping up or diversion in order to enable the development to be carried out.

6.6.3. Where land which is not owned by the authority or the person who has been granted planning permission that is needed to divert the right of way, the landowner’s permission for the new route must have been given.

6.6.4. To confirm a stopping up or diversion order made under S257 (1), an Inspector must be satisfied that the criteria in (1)(a) and (b) above are met. To confirm a stopping up or diversion order made under (1A), an Inspector must be satisfied that planning permission in respect of the development has been granted; and it is necessary to authorise the stopping up or diversion in order to enable the development to be carried out in accordance with the permission.

6.6.5. The Inspector does not consider the need for the development. However, account must be taken of the effect of the order on those entitled to the rights which would be extinguished (Defra Circular 1/09 (version 2) paragraph 7.4.1).

Extinguishment orders made under section 258

6.6.6. Section 258 gives an authority the power to stop up a footpath, bridleway or restricted byway on its own land if it plans to develop the land.

6.6.7. To confirm an extinguishment order, an Inspector must be satisfied that:

(a) an alternative right of way has been or will be provided; or

(b) the provision of an alternative right of way is not required.

Temporary stopping-up orders made under section 257

6.6.8. Section 261 gives an authority the power to make orders under section 257 to stop up or divert a footpath, bridleway or restricted byway for a period of time so that minerals can be worked from the surface. The Inspector, must be satisfied that:

(a) the way needs to be stopped up to enable minerals to be worked by surface working; and

(b) the way can be restored afterwards to a condition not substantially less convenient to the public.

6.6.9 Further general guidance can be found in Annex K and in Circular 1.09 Version 2.

Question 7

7. The decision

Accepted Answer

7.0.1. We send copies of the decision and a copy of the order map to the local authority, all statutory objectors, the applicant (where applicable), any supporters or interested parties listed on our records, prescribed organisations and any other person who has asked for a copy. A copy of the decision will also be published online at https://www.gov.uk/guidance/2020-rights-of-way-order-information-decisions-and-maps

7.0.2. In their decision the Inspector will:

briefly describe the effect of the order;
set out the main issues and cover the relevant points raised by the different parties; and
set out the conclusions and decision.

7.1 The types of decision

7.1.1. A decision can be to:

confirm the order; or
confirm the order with modifications which do not require advertisement (such as correcting a spelling error or adding a grid reference); or
confirm the order with modifications which do require advertisement (see paragraph 7.1.2 – 7.1.5 below), or
not confirm the order.

7.1.2. In such cases where the Inspector’s modifications do have to be advertised we will write to everyone who received notice of the hearing or inquiry or has made written representations to explain why he/she proposes to modify the order.

7.1.3. Types of modification that may need to be advertised are: – not all of those listed do need to be advertised; it depends whether they are Highways Act, Town and Country Planning Act orders or Wildlife and Countryside Act orders.

those affecting land that is not the subject of the original order. For example; moving the line of the way, adding a width to an order, widening a way or increasing its length.
those changing the described status of the way. For example a footpath to a bridleway;
those that delete all or part of a way; and
those that show a way not previously shown or not to show one that was previously shown.

7.1.4. Representations and objections can be made to advertised modifications in the same way as to the original order. We arrange for a notice to be published in a newspaper circulating in the local area. The notice explains how and when representations or objections to the proposed modifications can be made. A copy of the notice is sent to everyone who received a copy of the Inspector’s letter. A copy is also published online at https://www.gov.uk/guidance/2020-rights-of-way-order-information-start-date-notices-inquiry-hearing-notices-and-rejection-letters and posted on site.

7.1.5. If no objections are received to the proposed modifications, the Inspector will confirm the order with the advertised modifications.

7.2 How we deal with representations and objections we receive after modifications to the order have been proposed

7.2.1. If we receive representations or objections to modifications proposed by the Inspector in his/her interim decision, we may arrange a further hearing, inquiry or exchange of written representations before the Inspector reaches a final decision.

Orders made under the Wildlife and Countryside Act 1981

7.2.2 Everyone who objects to modifications proposed by the Inspector or has new evidence to submit in relation to the original order, can ask to be heard, either at a hearing or local public inquiry, but only if their objection or representation is duly made and clearly explains how it is relevant to the matters at issue. (A duly made objection is one made in writing, includes the name and address of the sender, and is received before the publicised deadline.)

7.2.3 Even if an inquiry or hearing is not requested, the Inspector may decide that it is necessary to hold such an event to hear the new evidence. Otherwise, we will deal with the matter by written representations except where an objection has been made by a local authority in which case an inquiry will be arranged.

7.2.4 At this stage the Inspector can only consider new evidence or new legal submissions. He or she cannot re-consider evidence or submissions which were heard or presented before the interim decision was issued.

7.2.5. After these further representations or objections have been considered, we issue a decision.

Orders made under the Highways Act 1980 and Town and Country Planning Act 1990

7.2.6. Everyone who objects to modifications proposed by the Inspector can ask to be heard, either at a hearing or local public inquiry but only if their objection or representation is duly made. [A duly made objection is one made in writing, includes the name and address of the sender, and is received before the publicised deadline.]

7.2.7. It is not a statutory requirement that the grounds for objection are relevant to the matters before the Inspector but asking for a hearing or local inquiry if your arguments cannot be taken into consideration may be seen as unreasonable and could put you at risk of a claim for costs against you (see section 8 below).

7.2.8 Even if an inquiry or hearing is not requested by an objector, the Inspector may decide that it is necessary to hold such an event to hear the objections. However, generally we will deal with the matter by written representations except where an objection has been made by a local authority in which case an inquiry will be arranged.

7.2.9. At this stage the Inspector will not re-consider evidence or arguments which have already been heard or presented.

7.2.10. After the further representations or objections to the proposed modifications have been considered, we issue a decision.

7.3 Procedure for second and subsequent hearings and inquiries following modifications

7.3.1. The procedure for a second or subsequent hearing or inquiry will be the same as the procedure for the first hearing or inquiry (refer to sections 3 and 4 of this booklet). The only difference is that unless we decide otherwise, the local authority, the applicant, relevant persons and any other person have to ensure their statements of case is received by us not later than 8 weeks after the date of our notice. We will write to you with the timetable. (Please note paragraph 28 of the Rules states that the Secretary of State may allow further time for the taking of any step).

7.3.2. In some instances, where objections or representations are received to proposed modifications, the Inspector may consider it appropriate to restrict the scope of further submissions to particular issues. For example, in a Wildlife and Countryside Act case in which the width of a way is proposed to be modified, the Inspector may restrict matters to this aspect of the Order. In this situation the Inspector will send a written statement outlining the matters to be discussed and the matters on which further evidence is invited (i.e., what should be covered in the statements of case) to the local authority, the applicant, any other person who appeared at the original hearing or inquiry and any person who submitted written representations, evidence or any other document. In most cases this written statement will be issued when we notify the parties about the procedure (i.e., hearing, inquiry, written representations) to be followed.

7.3.3. If you are happy with the Inspector’s proposals and do not wish to submit any further evidence you may still want to attend the re- opened hearing or inquiry. The Inspector’s proposals are not confirmed until a final decision has been issued. Evidence may be submitted at the hearing or inquiry which leads the Inspector to a different conclusion to that contained in his/her previous decision.

7.4 Procedure for written representations following modifications

7.4.1. The procedure will be as set out in section 2 of this booklet. The only difference is that unless we decide otherwise, the local authority, the applicant, relevant persons and any other person have to ensure their statements are received by us not later than 8 weeks after the date of our notice. We will write to you with the timetable.

7.4.2. As the Inspector will already have visited the site, it is unlikely that they will need to do so again.

7.4.3 Further guidance can also be found in Annex P and Circular 1.09 version 2.

Question 8

8. Costs

Accepted Answer

8.0.1. The object of the award of costs regime is to reinforce the obligations on all parties to an order which are codified in the Procedure Rules for hearings and inquiries and explained in this booklet.

8.0.2. All the parties to a hearing or inquiry (local authorities, applicants, relevant persons and anyone else) normally pay their own expenses, no matter what the decision on the order is. But if the order is decided by way of a hearing or an inquiry, anyone can apply for an award of costs against another party. To be awarded costs, you need to show that you incurred unnecessary or wasted expense because another party acted unreasonably. The costs must be quantifiable and incurred in the hearing or inquiry process. (If the case is decided by written representations, no-one can apply for costs.)

8.0.3. Any party may have to pay costs if a hearing or an inquiry could reasonably have been avoided or if it is unreasonably delayed or extended. For example, the local authority could be at risk if an Inspector halts a hearing or an inquiry because they find that the order is defective. Anyone who does not comply with the timetables set out in the Rules (unless there is a good reason why they could not do so) could also be at risk if they cause a hearing or inquiry to be adjourned, or to last longer than it would have done if they had complied with the timetables, and by doing so they cause others to incur unnecessary or wasted expense in the process.

8.0.4. Applicants and relevant persons do not have to attend a hearing or an inquiry. They may decide to rely on their written evidence, although if they do they should tell us in good time. But if an applicant asks to be heard (and an inquiry or hearing is held as a result) or a relevant person exercises their right to be heard and then fails to turn up or be represented without good reason, they risk an award of costs for unreasonable behaviour. Similarly, a person who has made an irrelevant objection and who unreasonably insists on being heard at a hearing or an inquiry risks an award of costs. (If we believe that your representation or objection is irrelevant, we write to you to give you the opportunity to withdraw or amend it.) There is also a risk of an award of costs in the event that an inquiry or hearing has to be cancelled as a result of an objection being withdrawn at a late stage in the proceedings.

8.0.5. Where an award of costs has not been sought but the Inspector considered that a party has behaved unreasonably, they may make an award of costs against the party.

8.1 Applying for costs

8.1.1. Applying for costs is easy - there is no application form. If you believe that a party has acted unreasonably and caused you to incur unnecessary expense, and you want to apply for an award of the expense incurred, you should tell the Inspector before they close the hearing or inquiry. You can advise the other party at any time before the hearing or inquiry closes that you intend to apply for costs and why. But you should make your application to the Inspector. The Inspector will ask you to explain why you believe the party has acted unreasonably and put you to unnecessary expense. The Inspector will listen to your case and will invite the party you have named to respond. If that person is no longer at the hearing or inquiry, we will invite them to write to us after the close of the proceedings.

8.1.2. It is very helpful, and indeed encouraged, if you can provide in advance of the inquiry or hearing notification to the opposing party of the possibility of your intention to apply for costs and the reasons for it. Also, to have ready to hand to the Inspector at the appropriate part of the proceedings, a written statement setting out the basis for the costs application, referring to the relevant passages in the Planning Practice Guidance (see paragraph 8.3.2 below). Having been previously made aware of the possibility of a costs application being made, the opposing party will then be properly prepared to give their response – again, preferably in writing. In this way the inquiry/hearing time can be saved by avoiding the possible need for an adjournment for a response to be prepared.

8.1.3. If you apply for costs you do not have to provide evidence to support the amount involved. The Inspector does not determine the amount, only the broad extent of any award (if made). You only need to show that you have incurred quantifiable expense as result of the other party’s unreasonable behaviour.

8.1.4. After the proceedings have closed, the Inspector decides the application or, if appropriate, writes a report on it. If a report is made, the Inspectorate’s Costs and Decisions Team issues the decision on costs, after considering the report and any further correspondence with the parties.

8.1.5. Costs decisions are only issued when the Inspector has issued their final decision on the order. If the Inspector proposes modifications to an order that need to be advertised, a decision on the costs application will be delayed.

8.2 Applications for costs after the hearing or inquiry has closed

8.2.1. We accept applications for costs after a hearing or an inquiry has closed only if you can show you had a good reason for not applying before the close of the proceedings. If, exceptionally, your application is accepted, we tell the other people involved and arrange for them to make written representations before we reach a decision.

8.3 Orders where compensation may be involved

8.3.1. Anyone who can show that the value of his/her interest in land is depreciated or that he/she has suffered damage by being disturbed in his/her enjoyment of land as a result of a Highways Act 1980 creation, extinguishment or diversion order may claim compensation from the local authority which made the order. Compensation may be paid only where a loss can be shown. If you think you may be such a person, you should write to the local authority. The Inspectorate does not handle claims for compensation.

8.3.2. If you are such a person and you make representations or objections to an order where compensation for loss of rights or interest would be payable but the order is not confirmed, the costs you have incurred in making your representations or objections will normally be paid by the local authority. We will write to you if this is the case and invite you to apply for costs, but an award of costs in these cases does not mean that the local authority has acted unreasonably.

8.3.3. More information about costs can be found in the Planning Practice Guidance on our website.

Question 9

9. Feedback and Complaints

Accepted Answer

9.1. The Planning Inspectorate aims to provide the best possible service for its customers. We try hard to ensure that everyone is satisfied with the service they receive and of course we welcome feedback.

9.2. We fully appreciate that many of our customers will not be experts on rights of way orders, and for some it will be their first experience of the procedure. It is inevitable that there will sometimes be queries and concerns about our processes and the decisions we make. We will carefully consider and respond to any matters that you wish to raise.

9.3. Before contacting us however, we would ask that you take time to look at Annex H to this guide, which contains information that you will find useful.

9.4. You can contact us by using our customer contact form, or by telephone on 0303 444 5000, our customer team line is open between 09:00 and 16:00, Monday to Friday (closed on weekends and public holidays),. Please include our case reference number in any correspondence. If you are happy for us to contact you by telephone, please include your number. It would be helpful to us if you could set out any concerns fully at the outset.

9.5. Our Customer team will acknowledge your correspondence, carefully consider the points you have raised (investigating further where necessary) and reply in full as soon as possible. You should receive a response within 40 working days; if this is not possible we will let you know. The Customer team works independently of Inspectors and casework teams, ensuring that all matters are dealt with impartially.

9.6. It should be noted that the Planning Inspectorate does not have the legal authority to revoke and reconsider an order decision after it has been issued. A decision can be reconsidered if it is first overturned in the High Court on a point of law; see section 10 below, do not delay applying to the High Court waiting for a response from the Customer Team.

9.7 If you remain unhappy, you can ask your Member of Parliament to take your complaint to the independent Parliamentary and Health Service Ombudsman (PHSO) to review the handling of your complaint. The PHSO can be contacted at:

The Parliamentary and Health Service Ombudsman Millbank Tower Millbank London SW1P 4QP

Customer helpline: 0345 015 4033

Email: phso.enquiries@ombudsman.org.uk

Website: https://www.ombudsman.org.uk/

Feedback

As well as learning from complaints we also welcome ideas and constructive feedback on how we might do things better. Please send these to feedback@planninginspectorate.gov.uk.

Service standards

Please read our Customer Charter for information about our service standards.

Question 10

10. Challenging the decision

Accepted Answer

10.1 The High Court

10.1.1. Once an order decision is issued we have no power to amend or change it. The only way that a decision may be reviewed is following a successful challenge or a judicial review. To be successful, you would have to show that the Inspector had misinterpreted the law or that some relevant criteria had not been met. If the Court considers that any errors of fact or judgment are significant enough to substantially prejudice the interests of a party, it will either quash the decision and return the case to us to be decided again or it will quash the order. You should apply to:

The Administrative Court at the Royal Courts of Justice
Queen’s Bench Division
Strand
London
WC2A 2LL

Phone: 020 7947 6655

Website: http://www.justice.gov.uk/about/hmcts/

10.1.2. If the order has been confirmed, you must apply to challenge the decision in the High Court within 6 weeks of the date on which the local authority publishes notice of the decision. If the decision was not to confirm the order, and the order was made under either the Highways Act 1980 or the Wildlife and Countryside Act 1981, you must to apply to the High Court for a Judicial Review promptly and in any event not later than 3 months from the date of the decision. If the decision was not to confirm the order, and the order was made under the Town and Country Planning Act 1990, you must apply to the High Court for a Judicial Review promptly, but in any event not later than 6 weeks from the date of the decision.

10.1.3. If you wish to pursue this course of action, you may want to consider seeking advice from a solicitor or the Citizens Advice Bureau.

Question 11

11. Communicating with us electronically (which is our preferred method of sending in documents)

Accepted Answer

System availability

11.1. You can send your documents by email at any time within the deadlines given. Our online facilities will usually be available 24 hours a day. We will sometimes need to take the system out of service for a while to implement upgrades. Wherever possible, we will do this outside of usual office hours.

System requirements

11.2. Before you start, you should ensure that you have the following system requirements:

• Adobe Acrobat (Version 9 or higher recommended); • An internet browser (Internet Explorer/Chrome/Firefox recommended); • An email account; • Ensure that your internet browser has JavaScript enabled, which is usually the default setting; • Ensure that cookies are allowed;

Guidelines for submitting documents

11.3. Please see the detailed advice in the table below:

Acceptable file formats

PDF .pdf Microsoft Word .doc or .docx TIF .tif or .tiff JPEG .jpg or .jpeg PNG .png ZIP .zip

File sizes

Documents submitted may be no bigger that 15mb each. It is your responsibility to keep your documents to a manageable size.

If you have documents that are larger than this, you can try the following:

Break long documents into several files but note the naming conventions below.
Try and use black and white wherever possible (unless submitting photographs).
If submitting images, your software may have file/image compression facilities to make them smaller.
Note scanned documents are usually bigger than non-scanned versions.
Provided you are using the acceptable files types above, you can use ZIP files to compress documents.

Security

Remove any document security and enable macros if necessary. Documents should not be password protected. They should not be formatted as ‘read only’ and printing should be enabled.

Copyright

Ensure you have the owner’s permission and have paid any copyright licence fee before sending in documents.

File names

Ensure all documents have descriptive names, including the type of document you are sending, e.g. ‘Statement of case 17 February 2017’.
Number appendices and submit them as separate documents. Ensure the first page includes the appendix number. Name them to indicate what they form part of, and their sequence e.g. ‘Statement of case Appendix 2 User evidence.’
Use ‘Part 1’, ‘Part 2’ etc in the file name if you have split up a large document e.g. ‘Proof of evidence Part 1 of 2’.
Include the required paper size in the document name for maps or other documents larger than A4 e.g. ‘Ordnance survey map A3 size 1 June 2016’.
Do not use a colon ‘:’ in any file names.

Scanning

Ensure documents are complete and legible and avoid scanning more than one document into a single file. Use black and white unless colour is essential.

Ordnance Survey

People may only scan an Ordnance Survey map if they have a licence to make copies. More information on map licensing is available on the [Ordnance Survey website]http://www.ordnancesurvey.co.uk/support/licensing.html)

Images

Send pictures, photographs or maps as individual files. Avoid using bitmap images as they are very large.

Hyperlinks

You should not use hyperlinks within documents you send to us. Instead, you should download such documents yourself and attach them separately.
You should not use hyperlinks to a website page containing multiple documents or links.

Formatting

You should ensure that you number all pages accordingly.

Question 12

12. Virtual Events

Accepted Answer

Virtual events and how to join

How evidence is dealt with at a virtual event

What equipment is required to take part in a virtual event and what help will be available to guide participants through the event

Procedure if there are technical problems or things go wrong

Privacy

Site Visits

If you have additional questions, please contact the case officer.

12.1 Virtual events and how to join

12.1.1. A virtual event will be held using a system that enables people to participate from their own homes or offices by clicking on a link in an email invitation or dialling in via a given phone number. The Planning Inspectorate uses Microsoft Teams to provide access to virtual events. This is a digital conference and meetings application that operates similarly, to other platforms such as WhatsApp, Skype and Zoom. It allows several people to speak to one another in a virtual forum and involvement can be by video or audio or a mixture of both. Anyone interested in attending will need to have registered with the Inspectorate in advance to receive a link for the event. You will be provided with a provided with a Guide to participating in a Planning Inspectorate virtual event, privacy notice, and joining instructions and be able to join via video conference link or telephone. Parties are requested to join the event before the scheduled start time. You should aim to be in the Microsoft Teams ‘virtual lobby’ at least 15 minutes before it is scheduled to start (or earlier if requested) to allow time to register. The inspector will be the last to join the event and the first to leave at the end of each session.

12.1.2. When you register you will need to indicate what type of involvement you wish to have. You can join and just observe, make a statement about your concerns, or make a statement about your concerns and ask questions on the evidence of the witnesses. If the latter, you may be asked to confirm the topics on which you wish to ask questions. The individual joining instructions provided will also include an etiquette to be observed.

12.2 Taking part in a virtual event – what to expect

12.2.1. There will be help/guidance in participating in a virtual event. You will be invited to attend a ‘generic test event’ in advance of the virtual event itself when there will be an opportunity to run through the protocols and familiarise yourself with the technology. This will last around 30-45 minutes. The generic event may include references to planning terms which may not be relevant to the case you will take part in. However, it will assist participants in rights of way and commons cases to familiarise themselves with using the technology. It would also be helpful for participants to re-familiarise themselves with the main features of Microsoft Teams in advance of the virtual event itself. If you do not understand something or need assistance in preparing to be involved in a virtual event, contact the case officer in good time before the event takes place. However, please note the Planning Inspectorate cannot provide technical support.

12.2.2. In most cases there will not be a pre-meeting to discuss procedural aspects of the case prior to the virtual event itself. However, in advance of the virtual event the inspector may issue an agenda where a hearing is being held, or a ‘pre-inquiry note’ - a list of matters on which further information is required - where an inquiry is being held. There may be some occasions when a pre-inquiry meeting is necessary.

12.2.3. Prior to the event you may receive an agenda (for hearings) or a ‘pre-inquiry note’ (for inquiries) listing the matters on which the inspector requires further information.

12.2.4. The event may be recorded by the Planning Inspectorate for training and quality assurance purposes and the recording retained until the judicial review period for the decision has expired. If the event is to be recorded, we will tell you.

12.2.5. You will be visible to other participants during the virtual event, unless you do not wish your face to appear on video, in which case you can disable the camera function and use voice only. It is helpful if participants turn their cameras off when they are not speaking and mute their microphones.

12.2.6. You will be able to speak at the virtual event. Those with a video enabled computer will be able to access and speak at the event over the internet using a video link. The link will be sent to participants, and others wishing to attend, with their invitation and agenda or ‘pre-inquiry note’. It is helpful if participants turn their cameras off when they are not speaking and mute their microphones. Please also ensure that any mobile phones, desk or house phones nearby and smart devices are switched to silent mode; and, if possible, close email software or set it to avoid notification sounds to help prevent the event being disrupted.

12.2.7. The inspector will invite people to speak as necessary. If you wish to speak at other times, there is a facility on the Microsoft Teams control bar to ‘raise your hand’. This will alert the inspector that you have a question or something to say. You may find that your microphone is muted when you join the meeting. If the inspector invites you to speak, you can un-mute your microphone by clicking on the microphone button on the Microsoft Teams control bar, then mute your microphone when you have finished speaking.

12.2.8. You will not be able to use the ‘chat’ function on Microsoft Teams during the virtual event, as this. will not be available for participants of either the generic test event or the virtual event itself.

12.2.9. How long the virtual event lasts, will depend on the case, how long it was originally scheduled to take, and what information the inspector needs. However, it is likely to take longer than a physical event. Working in a virtual environment is likely to be a new and potentially challenging experience for many people. Therefore, it is likely that the hearing or inquiry will comprise sessions of around 1 to 1½ hours, with breaks if necessary, followed by adjournments of up to 1 hour. This means that the day is likely to be shorter than would have been the case for a physical event in order to ensure the health and safety of all participants. A typical day may comprise a morning and an afternoon session. For longer events, up to three sessions may be held each day, two in the morning (the first commencing at 9.30am), and one after lunch. Should there be serious technical problems or in the absence of a main party, the inspector may have to adjourn the event.

12.2.10. You will be notified of the date and time of the virtual event. It may be held on any weekday, and longer events may commence on a Monday for example.

12.3 How evidence is dealt with at a virtual event

12.3.1. Written submissions are any written material in support of your case, proofs of evidence etc. However, wherever possible these should be submitted in electronic format in advance (in accordance with the timetable or requirements) for accessibility and inclusivity purposes as they will need to be available to be accessed digitally. Paper submissions or hard copies are less easy to share in a virtual event.

12.3.2. A ‘Start Notice’ is a notice setting out the start date and the date of the initial letter setting out the timetable for the Order, a description of the land to which the Order relates, the effect of the Order, where documents relating to the matter can be inspected and copied, when statements of case and proofs of evidence must be submitted, and the of event to be held.

12.3.3. We hope that documents relating to the event will be available on- line via the local authority website in a format that makes them readily accessible to all parties. They may also, or alternatively, be available as electronic documents and/or paper copies. Further information will be provided about the ‘virtual documents table’.

12.3.4. The inspector will be able to ‘share’ documents with participants who will be able to see them on their screen. The ‘share screen’ function will not automatically be enabled for participants. However, the inspector will have the ability to enable that function for others during the event on an ‘ad-hoc’ basis to allow all parties to view a particular document that is being referred to at a time if it is considered appropriate and necessary to do so. Those who are participating via a telephone link should ensure they have access to the documents via the local authority website.

12.3.5. Parties should make every effort to ensure that all documents relevant to their cases are submitted beforehand in accordance with the timetable or requirements. If, in exceptional circumstances, you wish to submit a late document, it will be for the inspector to decide whether to accept it. If it is accepted, you will be invited to email it to the case officer and arrangements will be made for it to be added to the existing documents. However, it should be noted that any party may have to pay costs if a hearing or inquiry is, for example, unreasonably delayed or extended by the submission of late evidence. Anyone who does not comply with the timetable set out (unless there is good reason why they could not do so) could be at risk if they cause a hearing or inquiry to be adjourned, or to last longer than it would have done if they had complied with the timetable or requirements, and by doing so they cause others to incur unnecessary or wasted expense in the process.

12.4 What equipment is required to take part in a virtual event and what help will be available to guide participants through the event

12.4.1. If you have a digital device (desktop, laptop, tablet, smartphone) and access to the internet you will be able to take part or join the event by invitation via a video link through Microsoft Teams (this is similar to Zoom, Skype and WhatsApp video calling). The Microsoft Teams application is free of charge, but alternatively you can access Teams through your web browser. You do not need to download any other software to take part.

12.4.2. If you do not have access to a laptop or other digital technology and/or do not have access to the internet and you have a telephone with a keypad. Alongside those who do have internet access, you can take part from your own home, office or other location that best suits your needs. You will be provided with a telephone number to ring in your invitation to join the event, and if you wish to hide your telephone number, you can dial 141 or whatever alternative number your network uses. The inspector will be aware that some participants will be using the telephone and will do all they can to ensure they are able to follow and participate in the event as necessary. Please be aware that there are some limitations in taking part via the telephone, for example, unless you have already arranged access to the documents you will not be able to see them when referred to by the Inspector or other parties during the event. Please note that joining by telephone to the 020 number that will be used will incur charges. You should check actual rates with your provider www.gov.uk/call-charges.

12.4.3. If you are not confident using a digital device, you can still take part in a virtual event, if you have a telephone with a keypad you can use the telephone number provided in your invitation to join the event, following the instructions above. If you wish to speak you will need to unmute your microphone and ask to be heard by the inspector.

12.4.4. If you are participating in the virtual event via the telephone, you can access documents that are to be, or are likely to be, referred to during the virtual event.

12.4.5. The inspector will provide a list of documents in advance. We hope that these can be accessed via the local authority website. If there are problems with access to documents, for example documents submitted late or on the day of the event itself, the inspector may adjourn and allow an opportunity for everyone to comment on them by means of written representations before closing the event in writing.

12.5 Procedure if there are technical problems or things go wrong

12.5.1. If you cannot connect to the event for some reason, or lose connection to the virtual event, contact the case officer by email or telephone and they will assist if they can.

12.5.2. If you lose your internet connection, as with any event, there may be unforeseen issues and problems with technology. If anyone suffers from IT problems and loses their connection to the event, the Inspector will adjourn for around 5 minutes, during which time you should log straight back into the event in the same way that you did when initially joining. You can try turning off your video camera, turn off any other devices that may be affecting your connection, reboot your router, or dial in using the telephone instead. If you cannot re-join the event at all, the Inspector will consider the most appropriate way for you to still be able to participate.

12.5.3. Depending on the performance of your device or the internet in your locality, it may be that you join the virtual event by video and audio, or audio alone. If you have a slow or intermittent connection, switching off your video camera and using just your audio connection only can improve the quality and reliability of your participation. If it becomes impossible to proceed as a virtual event due to technical problems, the inspector will adjourn the event and the case officer will contact everyone as soon as possible to explain the situation and how the inspector will proceed. It may be that the virtual event, or part of it, will be adjourned to another date or format.

12.5.4. If you are unable to participate in the virtual event your circumstances have changed, you will need to contact the case officer explaining your circumstances. We will do our best to accommodate your needs and enable a different means of involvement.

12.6 Privacy

12.6.1. The Planning Inspectorate takes its data protection responsibilities for the information you provide us with very seriously. To find out more about how we use and manage your personal data, please go to our privacy notice. Cookies are collected by Microsoft, which is covered in their Privacy Statement here

12.6.2. Other parties may see the email address you use to join the virtual event. If you do not wish the email address that the Planning Inspectorate is using to correspond with you to be seen by other parties, you may wish to join via the website or set up a free email account on-line to join with.

12.7 Site Visits

12.7.1. Where necessary a site visit will take place. This may occur several weeks before the virtual event itself so that the inspector can raise any relevant issues arising from that visit in the agenda or ‘pre- inquiry note’. In the unlikely event of there being a need to carry out a further visit, this time accompanied by the parties (depending on the circumstances of the case), it will be conducted in accordance with Government guidance. Alternatively, and again only if necessary, the inspector may conduct a further site visit unaccompanied.

Version 4 ROW final 8/09/20

Annex A

Question 13

13. Annex A: Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007

Accepted Answer

Link to web site for Rules:

http://www.legislation.gov.uk/uksi/2007/2008/contents/made

http://www.legislation.gov.uk/uksi/2007/2008/pdfs/uksi_20072008_en.pdf (printable version)

Notes

Please see the Defra Circular issued to accompany these Rules at Annex G.
There is no equivalent Statutory Instrument for cases proceeding by written representations. The Procedure for written representations can be seen at Annex B.

Question 14

14. Annex B: Procedure for written representations

Accepted Answer

Public Rights of Way

Orders to be Decided by the Secretary of State

Procedures for Written Representations

Contents

Interpretation
Application of this procedure
Notice to be given by the Secretary of State
Submission of statements of case
Commenting on statements of case
Provision of further information
Procedure after exchanges of statements of case and comments – decisions by the Secretary of State
Procedure after exchanges of statements of case and comments – transferred decisions
Notification of decision – decisions by the Secretary of State
Notification of decision – transferred decisions
Site inspections
Modification of Orders
Further time
Inspection and copying of documents
Notices
Use of electronic communications

1. Interpretation

1.1 In these Procedures unless the context otherwise requires: “the 1980 Act” means the Highways Act 1980;

“the 1981 Act” means the Wildlife and Countryside Act 1981; “the 1990 Act” means the Town and Country Planning Act 1990; “applicant” has the meaning given by Procedure 3.4(b);

“the authority” means the authority who made the order in question;

“a decision by the Secretary of State as respects an order” does not include a transferred decision;

“inspector” means—

(a) a person appointed by the Secretary of State to make a transferred decision, or

(b) a person making a report to the Secretary of State in order for him/her to make a decision on whether or not to confirm the order in question;

“order”, save where the context otherwise requires, means an order (other than an order made by the Secretary of State) to which the provisions of Schedule 6 to the 1980 Act, Schedule 15 to the 1981 Act or Schedule 14 to the 1990 Act apply;

“relevant person” has the meaning given in Procedure 3.4(f); “start date” has the meaning given in Procedure 3.3(a);

“statement of case” means a written statement containing full particulars of the case which a person proposes to put forward and includes—

(a) copies of any supporting documents which that person intends to refer to or put in evidence, and

(b) a list of those documents;

“transferred decision” means a decision made by a person appointed by the Secretary of State pursuant to paragraph 2A of Schedule 6 to the 1980 Act, paragraph 10 of Schedule 15 to the 1981 Act or paragraph 4 of Schedule 14 to the 1990 Act.

2. Application of this procedure

2.1 This Procedure applies in relation to orders made by local authorities under Schedule 6 to the Highways Act 1980, Schedule 15 to the Wildlife and Countryside Act 1981 and Schedule 14 of the Town and Country Planning Act 1990 which have been submitted to the Secretary of State for decision, and where the authority, relevant persons, applicant and the Secretary of State agree that the order should be decided after exchanges of statements of case and comments on statements of case.

2.2 These Procedures cease to apply if the Secretary of State informs the authority, the applicant and relevant persons that he proposes to terminate them and arrange for a hearing or an inquiry to be held.

3. Notice to be given by the Secretary of State

3.1 The Secretary of State shall give notice which complies with Procedure 3.3, to the persons mentioned in Procedure 3.4.

3.2 The notice shall be given as soon as practicable after an order has been submitted to the Secretary of State for confirmation in accordance with—

(a) regulation 4 of the Public Path Orders Regulations 1993;

(b) regulation 7 of, and Schedule 4 to, the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993; or

(c) regulation 4 of the Town and Country Planning (Public Path Orders) Regulations 1993;

3.3 Subject to Procedure 3.5, the notice under Procedure 3.1 shall—

(a) be dated, and such date shall be the “start date” for the purposes of this procedure;

(b) state that the consideration of the order will take the form of exchanges of statements of case and comments on statements of case;

(c) give a brief description of—

(i) the land to which the order relates; and

(ii) the effect of the order;

(d) state the address (including an e-mail address) to which communications are to be sent;

(e) state the time and place where the order, statements of case and comments on statements of case are to be made available by the authority under Procedure 14 (inspection and copying of documents);

(f) explain the requirements of Procedures 4 and 5 (exchanges of statements of case and comments on statements of case).

3.4 The notice under Procedure 3.1 shall be given to—

(a) the authority;

(b) every person (in this procedure referred to as “the applicant”) who applied for an order under—

(i) sections 118ZA or 119ZA of the 1980 Act (application for a public path extinguishment order or public path diversion order);

(ii) sections 118C and 119C of the 1980 Act (application by a proprietor of a school for a special extinguishment or a special diversion order); or

(iii) section 53(5) of the 1981 Act (which relates to applications for a definitive map modification order);

(c) in the case of an order to which the provisions of Schedule 6 to the 1980 Act (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways) apply, every person who was required to be given notice of that order by paragraph 1(3)(b)(i), (ii) and (iv) of that Schedule;

(d) in the case of an order to which the provisions of Schedule 15 to the 1981 Act (procedure in connection with certain orders under Part III) apply, every person who was required to be given notice of that order by paragraph 3(2)(b)(i), (ii) and (iv) of that Schedule;

(e) in the case of an order to which the provisions of Schedule 14 to the 1990 Act (procedure for footpaths, bridleways and restricted byways orders) apply, every person who was required to be given notice of that order by paragraph 1(2)(b)(i) to (iii) and (v) of that Schedule; and

(f) every person (in this procedure referred to as a “relevant person”) who has duly made, and not withdrawn, any representation or objection in respect of an order as mentioned in paragraph 2(2) of Schedule 6 to the 1980 Act (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways), paragraph 7(1) of Schedule 15 to the 1981 Act (procedure in connection with certain orders under Part III), or paragraph 3(1) of Schedule 14 to the 1990 Act (procedure for footpaths, bridleways and restricted byways orders), as the case may be.

3.5 Procedures 3.4(c),(d) and (e) (as the case may be) do not apply in the case of an order in respect of which the Secretary of State has given a direction to which this paragraph applies.

3.6 Procedure 3.5 applies to-

(a) a direction under paragraph 1(3C) of Schedule 6 to the 1980 Act (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways) that it shall not be necessary to comply with paragraph 1(3)(b)(i) of that Schedule;

(b) a direction under paragraph 3(4) of Schedule 15 to the 1981 Act (procedure in connection with certain orders under Part III) that it shall not be necessary to comply with paragraph 3(2)(b)(i) of that Schedule; and

(c) a direction under paragraph 1(6) of Schedule 14 to the 1990 Act (procedure for footpaths, bridleways and restricted byways orders) that it shall not be necessary to comply with paragraph 1(2)(b)(i) of that Schedule.

3.7 Where the Secretary of State has given a direction referred to in Procedure 3.6, the authority shall give a notice complying with Procedure 3.3 addressed to the “owners and any occupiers” of the land in question, by affixing a copy or copies of the notice to some conspicuous object or objects on the land.

3.8 The Secretary of State shall ensure that a copy of the notice given by him/her under Procedure 3.1 is available for inspection on a website maintained by him/her until the decision is notified under Procedure 9 or 10 (as the case may be).

4. Submission of statements of case

4.1 The authority shall ensure that, within 2 weeks after the start date, the Secretary of State has received their statement of case, and the Secretary of State shall, as soon as practicable, send a copy of that statement to the applicant and to every relevant person.

4.2 The applicant shall ensure that, within 8 weeks of the start date, the Secretary of State has received his/her statement of case, and the Secretary of State shall, as soon as practicable, send a copy of that statement to the authority and to every relevant person.

4.3 Every relevant person and every other person who wishes to give evidence shall ensure that, within 8 weeks of the start date, the Secretary of State has received his/her statement of case and the Secretary of State shall, as soon as practicable, send a copy of that statement to the authority, to the applicant and to every other relevant person.

5. Commenting on statements of case

5.1 The authority, the applicant and relevant persons shall ensure that, within 14 weeks of the start date, the Secretary of State has received their comments on any or every other statement of case.

5.2 As soon as practicable after receipt, the Secretary of State shall send a copy of these comments to the authority, the applicant and relevant persons.

6. Provision of further information

6.1 The Secretary of State may require such further information as he may specify from any person in respect of his/her statement of case as mentioned in Procedure 4 and that information shall be provided in writing within such period as the Secretary of State may reasonably require.

6.2 The Secretary of State or the inspector shall, as soon as practicable after receipt of the further information required under Procedure 6.1, send a copy to the authority, the applicant and relevant persons.

7. Procedure after exchanges of statements of case and comments – decisions by the Secretary of State

7.1 This Procedure applies where a decision is to be made by the Secretary of State as respects an order.

7.2 After receipt of statements of case and comments described in Procedures 4 and 5, and any further information described in Procedure 6, the inspector shall make a report in writing to the Secretary of State which shall include his/her conclusions and either his/her recommendations or his/her reasons for not making any recommendations.

7.3 When making their decision the Secretary of State may disregard any written representations, evidence or other document received after 14 weeks of the start date.

7.4 Procedure 7.5 applies where the Secretary of State–

(a) differs from the inspector on any matter of fact mentioned in, or appearing to them to be material to, a conclusion reached by the inspector, and is, for that reason, minded to disagree with a recommendation made by the Inspector, or

(b) takes into consideration any subsequent material which they consider to be relevant to the decision.

7.5. Where this Procedure applies, the Secretary of State shall not come to a decision without first giving notice to the authority, the applicant and relevant persons and any other person who submitted a statement of case or commented on a statement of case –

(i) that they are minded to disagree with a recommendation made by the inspector, and of the reasons for being so minded, or

(ii) of the subsequent material which they consider to be relevant to the decision; and affording them an opportunity to make written representations to them or of asking to be heard.

7.6 Those persons making written representations or requesting to be heard under Procedure 7.5 shall ensure that such representations or requests are received by the Secretary of State within three weeks of the date of the Secretary of State’s notice under that Procedure.

7.7 The Secretary of State may, if he thinks fit, cause a hearing or inquiry to be opened, and he shall do so if asked in the circumstances mentioned in Procedure 7.5 and within the period mentioned in Procedure 7.6 [and where a hearing or inquiry is opened the Secretary of State shall send to every person who is entitled to appear a written statement of the matters with respect to which further evidence or argument is invited.]

8. Procedure after exchanges of statements of case and comments—transferred decisions

8.1 This Procedure applies where a decision has been transferred to an inspector.

8.2 When making his/her decision the inspector may disregard any written representation, evidence or other document received after 14 weeks of the start date.

8.3 If the inspector proposes to take into consideration any new evidence or matter of fact which was not received within 14 weeks of the start date and which the inspector considers to be material to the decision, he/she shall not come to a decision without first–

(a) giving notice of the subsequent material they consider to be relevant to the decision to the authority, the applicant and every relevant person and any other person who submitted a statement of case or commented on a statement of case;

(b) affording such persons an opportunity to make written representations to them or of asking to be heard.

8.4 Those persons making written representations or requesting to be heard under Procedure 8.3 shall ensure that such representations or requests are received by the Secretary of State within three weeks of the date of the notification in Procedure 8.3.

8.5 The inspector may, if he/she thinks fit, cause a hearing or inquiry to be opened and shall do so if asked in the circumstances and within the period mentioned in Procedure 8.0.4 [and where a hearing or inquiry is opened the Secretary of State shall send to every person who is entitled to appear a written statement of the matters with respect to which further evidence or argument is invited.]

9. Notification of decision—decisions by the Secretary of State

9.1 This Procedure applies where a decision is to be made by the Secretary of State as respects an order.

9.2 The Secretary of State shall, as soon as practicable, give notice of their decision and their reasons for reaching it, to –

(a) the authority;

(b) the applicant;

(c) every relevant person;

(d) every person who submitted a statement of case;

(e) every person who submitted comments; and

(f) every other person who was notified by the Secretary of State in accordance with Procedure 3.4(b) to (f).

9.3 Where a copy of the inspector’s report is not sent with the notice of the decision given under Procedure 9.2, that notice shall include a statement of his/her conclusions and of any recommendations made by him/her; and if a person entitled to be notified of the decision has not received a copy of that report, he/she shall be supplied with a copy of it on written application made to the Secretary of State.

9.4 As soon as practicable after giving notice of the decision under Procedure 9.2, the Secretary of State shall make a copy of that notice available for inspection for a period of three months on a website maintained by them.

9.5 In this procedure, “report” does not include any documents appended to the inspector’s report; but any person who has received a copy of the report may apply in writing to the Secretary of State for an opportunity to inspect any such documents and the Secretary of State shall afford him/her that opportunity.

10. Notification of decision—transferred decisions

10.1 This procedure applies where a decision has been transferred to an inspector.

10.2 The inspector shall, as soon as practicable, give notice of his/her decision and his/her reasons for it, to—

(a) the authority

(b) every person who submitted a statement of case;

(c) every person who submitted comments; and

(d) every other person who was notified by the Secretary of State in accordance with Procedure 3.4 (b) to (f).

10.3 Any person entitled to be notified of the inspector’s decision under Procedure 10.2 may apply in writing to the Secretary of State for an opportunity of inspecting any documents referred to in that notification and the Secretary of State shall afford him/her that opportunity.

10.4 The Secretary of State shall ensure that, as soon as practicable after the notice has been given under Procedure 10.2, a copy of that notice is made available for inspection for a period of 3 months on a website maintained by him/her.

11. Site inspections

11.1 The inspector may make an unaccompanied inspection of the land to which the order relates during or after exchanges of statements of case and comments have been completed without giving notice of his/her intention to do so.

11.2 The inspector—

(a) may inspect the land to which the order relates in the company of the authority and any person entitled or permitted to submit a statement of case or comments; and

(b) shall make such an inspection if so requested by the authority, the applicant or a relevant person.

11.3 In all cases where the inspector intends to make an accompanied inspection under Procedure 11.2, he/she shall, giving not less than 2 weeks notice, announce the date and time at which he/she proposes to make it.

11.4 The inspector shall not be bound to defer an inspection if any person entitled or permitted to attend is not present at the appointed time.

12. Modification of Orders

12.1 This procedure applies where the Secretary of State has given notice of their proposal to modify an order under paragraph 2(3)(a) of Schedule 6 to the 1980 Act, paragraph 8(2)(a) of Schedule 15 to the 1981 Act or paragraph 3(6)(a) of Schedule 14 to the 1990 Act.

12.2 Where in accordance with the notice referred to in Procedure 12.1 any person has duly made and not withdrawn any representation or objection with respect to the proposal to modify the order, and where the authority, relevant persons, applicant and Secretary of State agree that the order should be decided after exchanges of statements of case and comments on statements of case, the Secretary of State shall, subject to Procedure 3.5, give notice to the persons referred to in Procedure 3.4.

12.3 Procedure 3.3 (requirements of the notice) shall apply to a notice given under Procedure 12.2 above as it applies to a notice given under Procedure 3.1 except that the notice given under Procedure 12.2 shall also describe the effect of the proposal of the Secretary of State to modify the order.

12.4 Procedures 3.8, 4 to 11 and 13 to 16 shall apply to written exchanges of statements of case and comments of statements of case held under Procedure 12.1 above, except that in the application of Procedure 4.1, for the reference to “2 weeks of the start date” there shall be substituted “8 weeks of the start date”.

13. Further time

13.1 The Secretary of State may, at any time in any particular case, allow further time for the taking of any step or the doing of anything which is required or enabled to be taken or done by virtue of these Procedures; and references in these Procedures to a period within which any step or thing is required or enabled to be taken or done shall be construed accordingly.

14. Inspection and copying of documents

14.1 The authority shall afford any person who so requests, an opportunity to inspect and take copies of—

(a) the order as submitted to the Secretary of State for confirmation;

(b) any representations or objections duly made and not withdrawn in respect of the order;

(c) the notice given by the Secretary of State pursuant to Procedure 3.1 and 12.2;

(d) any statement of case or comments as mentioned in Procedures 4 and 5;

(e) any further information as mentioned in Procedure 6;

(f) any representations which have been made in consequence of Procedure 7 & 8; and

(g) any other document which is in the possession of the authority and which relates to the decision of the Secretary of State or the inspector’s report in respect of the order.

15. Notices

15.1 Subject to Procedure 16, any notice required under these Procedures shall be in writing.

16. Use of electronic communications

16.1 Any requirement imposed under these Procedures as to the giving or sending by one person to another of a notice or other document may be met by means of an electronic communication if–

(a) the use of such a communication results in the information contained in that notice or document being available to the other person in all material respects as it would appear in a notice or document given or sent in printed form; and

(b) the other person has consented to the information being made available to him/her by such means.

16.2 Where, under procedure 16.1, an electronic communication is used for the purposes of giving or sending a document, any requirement for the notice or document to be given or sent by a particular time shall be met in respect of an electronic communication only if the conditions mentioned in procedure 16.1 are met by that time.

16.3 For the purposes of Procedure 16.1(a) “in all material respects” means in all respects material to an exact reproduction of the information that the notice or document would contain were it to be given or sent in printed form.

Planning Inspectorate

1 October 2007 (revised July 2011 to take account of change of Secretary of State)

Question 15

15. Annex C: Some relevant publications

Accepted Answer

15.1 Acts of Parliament, statutory instruments, circulars

You may be able to purchase them from some bookstores, you can view them online at Legislation.gov.uk. or you may be able to look at copies at your local library (charges may apply for copying).

15.2 Highways Act 1980

The Public Path Order Regulations 1993 (Statutory Instrument 1993 No. 11)

The Rail Crossing Extinguishment and Diversion Orders Regulations 1993 (Statutory Instrument 1993 No. 9)

The Rail Crossing Extinguishment and Diversion Orders, the Public Path Orders and the Definitive Maps and Statements (Amendment) Regulations 1995 (Statutory Instrument 1995 No. 451)

The Highways, Crime Prevention etc. (Special Extinguishment and Special Diversion Orders) Regulations 2003 (Statutory Instrument 2003/1479)

15.3 The Town and Country Planning Act 1990

The Town and Country Planning (Public Path Orders) Regulations 1993 (Statutory Instrument 1993 No. 10)

The Town and Country Planning (Public Path Orders) Regulations 1993 (Statutory Instrument 2013 No. 2201)

15.4 The Wildlife and Countryside Act 1981

The Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (Statutory Instrument 1993 No. 12)

The Public Rights of Way (Combined Orders) (England) (Amendment) Regulations 2010 (Statutory Instrument 2010 No. 2127)

15.5 Circulars

Department for Environment, Food and Rural Affairs Rights of Way Circular 1/09 – Guidance for Local Authorities Version 2, October 2009

Circular for procedure rules for rights of way orders (Defra) dated July 2007 (please see link to Circular at Annex G).

15.6 Other publications

Consistency Guidelines: they have now been withdrawn and archived and are still available to view here.(It should be noted they have not been updated since April 2016 and does not necessarily reflect current guidance.)

Facility Note for Public Inquiries and Hearings: Available on our website

A guide to definitive maps and changes to public rights of way – 2008 Revision (NE112). Available to download at www.gov.uk/government/organisations/natural-england

For hard copies please contact Natural England as follows:

Enquiries
Natural England
County Hall
Spetchley Road
Worcester
WR5 2NP

Email: enquiries@naturalengland.org.uk

Telephone: 0300 060 3900

Question 16

16. Annex D – Timetable and action to be taken leading up to hearings and inquiries and decisions in written representations*

Accepted Answer

Written representations

Timetable	Action to be taken
Notice of intention to use the written representations procedure (start date)	We notify the local authority, other local authorities, landowners and occupiers, the applicant, each relevant person, each prescribed organisation and any other person who has asked to be notified that the written representations procedure is to be used. The notice includes the places where all documents relating to the order can be inspected and a timetable for the submission of statements of case and comments.
Within 2 weeks of the start date	The local authority submits its statement of case, including a copy of the accompanying documents and a list of those documents. As soon as possible after the deadline we copy the statement, with the list of documents, to the applicant and each relevant person and any other person who has indicated that they wish to make written representations.
Within 8 weeks of the start date	The applicant, each relevant person and any other person submits their statements of case, including a list of those documents on the local authority’s list and a copy of any other document that make up their evidence. As soon as possible after the deadline we copy the statements and the documents to the local authority. We send the statements of case only to the applicant, every relevant person and every other person who has submitted a statement.
Within 14 weeks of the start date	The local authority, the applicant, each relevant person and any other person submits any comments on any or every statement of case. As soon as possible after the deadline we copy these comments to the local authority, the applicant, relevant persons and anyone else who has submitted comments.
Within 18 weeks of the start date	The site visit is held.

Hearings

Timetable	Action to be taken
Notice of intention to use hold a hearing given (start date)	We notify the local authority, other local authorities, landowners and occupiers, the applicant, each relevant person, each prescribed organisation and any other person who has asked to be notified. The notice includes the places where all documents relating to the hearing can be inspected and a timetable for the submission of statements of case.
Within 8 weeks of the start date	The local authority submits its statement of case, including a copy of the accompanying documents and a list of those documents. As soon as possible after the deadline we copy the statement, with the list of documents, to the applicant and each relevant person and any other person who has indicated that they wish to appear at the hearing. We will return late statements.
Within 12 weeks of the start date	The applicant, each relevant person and any other person submits their statements of case, including a list of those documents on the local authority’s list and a copy of any other document that make up their evidence. As soon as possible after the deadline we copy the statements and the documents to the local authority. We send the statements of case only to the applicant, every relevant person and every other person who has submitted a statement. We will return late statements.
4 weeks before the hearing	The local authority, advertises the hearing in a local paper, at both ends of the way and in a place where notices are normally placed in the local area.
Within 20 weeks of the start date	The hearing is held.

Inquiries

Timetable	Action to be taken
Notice of intention to hold an inquiry given (start date)	We notify the local authority, other local authorities, landowners and occupiers, the applicant, each relevant person, each prescribed organisation and any other person who has asked to be notified. The notice includes the places where all documents relating to the inquiry can be inspected and the timetable for the submission of statements of case and proofs of evidence.
Within 8 weeks of the start date	The local authority submits its statement of case, including a copy of all the accompanying documents and a list of those documents. As soon as possible after the deadline we copy the statement and the list of documents to the applicant, each relevant person and any other person who has indicated that they wish to appear at the inquiry. We will return late statements.
Within 14 weeks of the start date	The applicant, each relevant person and any other person who has indicated that they wish to appear at the inquiry submits their statement of case, including a list of those documents on the local authority’s list and a copy of any other document that make up their evidence. As soon as possible after the deadline we copy the statements and the documents to the local authority. We copy the statements only to the applicant, each relevant person and every other person who has submitted a statement. We will return late statements.
4 weeks before the inquiry	The local authority, each relevant person and any other person submits their proofs of evidence and any summary. As soon as possible after the deadline we copy the local authority’s proof and any summary to the relevant and other persons and their proofs and any summaries to the local authority. We will return late proofs of evidence. The local authority advertises the inquiry in a local paper, at both ends of the way and in a place where notices are normally placed in the local area.
Within 26 weeks of the start date	The inquiry is opened.

*In the event of written representations, hearings or inquiries held following proposed modifications, and unless we decide otherwise, the local authority, the applicant, relevant persons and any other person have to ensure that their statements of case are received by us not later than 8 weeks after the date of our notice. This also applies to re-opened hearings or inquiries. Section 7 refers.

Question 17

17. Annex E - Preparing statements of case and proofs of evidence

Accepted Answer

17.1 Statements of case

17.1.1. Statements of case should contain the full particulars of the case which the local authority, those making representations or objections, the applicant, and anyone else proposes to put forward at a hearing or inquiry, or in written representations. They should include the Inspectorate’s reference number for the order. Statements should include copies of documentary evidence and a list of those documents (see paragraph 17.1.4 below). If you refer to a web-link then you must ensure that you also include copies of these documents. If you are referring to a section of a document, then you should also indicate what page number/section you are referring to. The local authority does not need to prepare a statement of case if it has nothing to add to the statement of reasons which it sent in with the order.

17.1.2. Statements may also cite the case law that a party intends to call in support of its arguments. If case law is cited, the full report reference should be given. A copy of the case report should be included as an appendix. Further information can be found in Annex J.

17.1.3. The order making authority’s statement should be set out so as to include an introduction, background information (where necessary), details of the claim or application, the legal tests to be applied, the documentary evidence, user evidence, comments on objections or representations and include a summary. This list is not exhaustive and should only be used as a guide.

17.1.4. Case reports, and other supporting material should be put in appendices to the evidence with one volume for each witness’ evidence. (Except where a party is relying on evidence already contained in the local authority’s statement of case. In this case, the appendix should refer to the document and where it can be found in appendices to the local authority’s statement. each page should be numbered separately to make it easier for cross referencing).

17.1.5. We prefer to receive documents electronically, see section 11, however if you are unable to submit electronically and need to send the documents to us in hard copy then both statements and appendices should be A4 size and bound so that when opened they can be laid flat. To enable notes to be made on them, statements should be typed on only one side of the paper. Where appendices include larger documents such as plans, these should be folded to A4. (A transparent, plastic wallet to hold them may be useful.) Photographs should be mounted on A4 card and should be prefaced by a plan showing the viewpoints from which they were taken. Other relevant details, such as their time and date, should be given.

17.1.6. In relation to the submission of documents as evidence, Section 46 of the Copyright, Designs and Patents Act 1988 states that ‘(1) Copyright is not infringed by anything done for the purposes of the proceedings of a Royal Commission or statutory inquiry..’. It is our view that this applies to rights of way inquiries and arguably cases dealt with by hearing or written representations.

17.1.7. However, use of copyright material outside of our statutory functions may need permission from the copyright holder. You are reminded that if you are copying material to send to us, this must only be done with the owner’s permission, with any licence fee paid. Documents obtained from any previous rights of way case must not be further copied without the permission of the copyright holder (such as Ordnance Survey maps, articles by the Rights of Way Law Review or copies of judgments owned by the transcribers etc).

17.2 Proofs of evidence

17.2.1. A proof of evidence is the document containing the written evidence which a person appearing at a public inquiry will speak about. There is no equivalent document for hearings or written representations.

17.2.2. Proofs of evidence should be concise and concentrate on points in dispute (which those appearing at the inquiry will have identified from examining the other statements of case). They should not rehearse all of the matters which are not in dispute, nor should they refer to new material not previously mentioned in the statement of case. Where it is important to include facts in detail, the proof should focus on what is necessary to make the case. Where the proof makes a point, which relies on a document included in a statement of case, the page and paragraph number in that document should be given. If you plan on calling witnesses at the Inquiry, then you may include witness statements with your proof of evidence.

17.2.3. The pages and paragraphs of proofs should be numbered. Proofs should not exceed 3000 words and a summary should be provided when a proof exceeds 1500 words. Any summary should be proportionate to the length of the proof but should not exceed 1500 words. Summaries should accurately condense the gist of the proof of evidence, concentrating on the main points at issue. Where a party has provided a summary, it is normally only the summary which is read out at the inquiry. The summary should be provided at the same time as the main proof of evidence is submitted.

17.3 Inspecting statements of case and proofs of evidence

17.3.1. We copy the order making authority’s statement of case, without all the supporting documents but including the list of documents put in evidence by the local authority, to all the parties involved in a hearing or inquiry. (We do not copy the order making authority’s appendices of evidence – these can be inspected at the order making authority’s offices.) The order making authority makes copies of all their documents, including appendices containing documentary evidence, available for public inspection either in hard copy or online. We copy the other parties’ statements of case and documents put in as evidence to the order making authority, who will also make these available for public inspection. We also copy relevant persons’ statements of case to the applicant and the applicant’s statement of case to relevant persons. We copy every proof of evidence to everyone entitled to appear at the inquiry, and the local authority makes copies available for inspection.

17.3.2. Details for inspecting documents are set out in the ‘Notice of Order’.

17.4 Inflammatory, discriminatory or abusive comments

17.4.1. If we consider anything submitted by you to contain inflammatory, discriminatory or abusive comments, we will send the document back to you before the Inspector or anyone else sees it. If you take out the inflammatory, discriminatory or abusive comments, you can send your representations back to us; but you must send them back before the time limit ends.

17.5 Anonymous representations

17.5.1. We do not accept anonymous representations, but you may ask for your name and address to be withheld. If you ask us to do this, you should make sure that your representations do not include any other information which may identify you. We will copy your representations, with your name and address removed, to the parties, and they will be seen by the Inspector who may give them less weight as a result.

17.6 Use of artificial intelligence (AI) in casework evidence

17.6.1. If you use AI to create or alter any part of your documents, information or data, you should tell us that you have done this when you provide the material to us. See the detailed guidance for further information.

Question 18

18. Annex F - Data protection and privacy in the Planning Inspectorate

Accepted Answer

How we use your information

18.1.1. The Planning Inspectorate takes its data protection responsibilities for the information you provide us with very seriously. To find out more about how we use and manage your personal data, please go to our privacy notice.

Question 19

19. Annex G – Circular for procedure rules for rights of way orders issued July 2007

Accepted Answer

19.1 Circular for procedure rules for rights of way orders

Introduction

19.1.1. This Circular accompanies the procedural Rules for determining rights of way orders submitted to the Secretary of State for confirmation under the Highways Act 1980, the Wildlife and Countryside Act 1981 and the Town and Country Planning Act 1990. Hearings and inquiries are conducted in accordance with the Public Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 (S.I. No. 2008). There are no procedural Rules for written representations, but parties are encouraged to agree to operate the voluntary procedure which has been developed in parallel with the Rules. Orders are handled by the Planning Inspectorate, which acts on behalf of the Secretary of State for Environment, Food and Rural Affairs. The Inspectorate issues the decisions on almost all orders, but a few are handled by the Government Office for the North East, usually because the order is associated with a planning case being handled by the office.

19.1.2. The procedures implement the Government’s commitment to set out a framework for handling rights of way orders, whilst safeguarding public participation and the principles of fairness, openness and consistency. At the same time, it has become increasingly clear that without impairing either the quality of decision or the parties’ ability to present their case fully and fairly, it is possible for all involved to assist in speeding up the process. The best use of resources means that matters should be handled as efficiently as possible. That requires a disciplined and constructive approach. All parties to the process have a responsibility to meet the deadlines set. Written material received after the due dates will normally be returned to the sender.

19.1.3. The Department will monitor the effectiveness of the procedures. If necessary, further measures will be brought forward in the light of experience.

19.2 Transitional arrangements

19.2.1. These procedures apply to orders received by the Secretary of State on or after 1 October 2007. Orders received before then will continue to be processed under the pre-existing arrangements. Orders received before then but which are subsequently quashed will be redetermined as if they had been submitted to the Secretary of State after 1 October 2007.

19.2.2. Where this Circular refers to individuals as “he” this also means “she”.

19.3 Choice of procedure

19.3.1. Anyone making a duly made representation or objection has a statutory right to appear before and be heard by a person appointed by the Secretary of State. Where parties exercise their right to be heard, the Secretary of State determines the choice of procedure – hearing or inquiry, taking into account the circumstances of each order, including any preferences expressed by the parties. If every party agrees not to exercise the right to be heard, and the Secretary of State does not consider it necessary to hold a hearing or an inquiry, he will determine the order by written representations.

19.3.2. It is the Secretary of State’s policy to use the hearing procedure rather than the inquiry procedure in all suitable cases. The hearing procedure is suitable where complex legal, technical or policy issues are unlikely to arise; and there is unlikely to be any advantage in formal cross-examination to test the evidence. The hearing procedure is more straightforward and quicker than the inquiry procedure. The hearing usually takes the form of a round-the-table discussion led by the inspector. Each party presents their case fully and fairly in a more relaxed and less formal atmosphere than at an inquiry.

19.3.3. If, having embarked in the hearing procedure, the Secretary of State concludes that it is no longer suitable, he will inform the parties that the inquiry procedure will be used instead. If, having consulted the order-making authority, the relevant persons and others present at a hearing, the inspector concludes that an inquiry should be arranged instead, he will inform the parties that he is closing the hearing and that the inquiry procedure will be used instead.

19.4 Agreeing a date

19.4.1. The Secretary of State arranges a date, time and place for hearings and inquiries in consultation with the order-making authority. Once a date has been fixed, it will be changed only for exceptional reasons. The decision to change a date rests with the Secretary of State.

19.4.2. The Secretary of State’s aim, in every case, is to fix a hearing or an inquiry date as soon as possible after he has received an order. For hearings this is not later than 20 weeks from the start date, and for inquiries it is not later than 26 weeks from the start date. The start date is defined as the date of the notice given by the Secretary of State. The notice includes the date of the hearing/inquiry, the address for communications to be sent, and where the authority will make documents available.

19.5 Preparing the evidence

19.5.1. The time limits placed on the processes leading up to the hearing or inquiry allow sufficient time for parties to prepare their cases. All the relevant issues should be described in statements of case. Written material should be succinct and to the point, should not include irrelevant detail, and should avoid duplication.

19.5.2. All parties submit documents to the Secretary of State. Then in accordance with the Rules it is the Secretary of State who sends copies to other parties. Order- making authorities are required to make documents available for inspection. Thus, every party has the opportunity to examine the other parties’ cases well in advance of the hearing or inquiry. And the inspector will be fully appraised of the relevant issues and arguments before he opens proceedings. This helps everyone to focus on the matters which are in dispute.

19.6 Timeliness

19.6.1. The Secretary of State, order-making authorities and all other parties are responsible for meeting the deadlines laid out in the Rules. In particular, it is the order-making authorities and all other parties’ responsibility to ensure that the Secretary of State receives their hearings statements, statements of case and proofs of evidence within the deadlines set out in the Rules. Failure to comply will normally result in a party’s statement of case or proof of evidence being returned without being considered by the inspector or copies to other parties.

Orders where the order-making authority delegates responsibility for preparing evidence

19.6.2. Order-making authorities may delegate responsibility for preparing statements of case and proofs of evidence. They are most likely to do so when the authority does not support an order that it has made. But order-making authorities continue to be responsible for ensuring that documents are submitted according to the timetables set out in the Rules.

Late submission of evidence

19.6.3. Each case will be considered on its particular facts, but late material will be accepted only in extraordinary circumstances. Extraordinary circumstances include where papers are delayed because of a postal strike, or where the ill-health of a party prevent him/her preparing evidence in time, or where there is a material change in circumstances that the inspector ought to know about and which could not have been identified at an earlier stage.

19.7 Conduct at the hearing or inquiry

19.7.1. Under the Rules inspectors have discretion when conducting hearings and inquiries. Whilst observing the rules of natural justice they will exercise tight control over advocacy and cross-examination. In particular, inspectors will curtail repetitious or irrelevant evidence, ensure that presentations are succinct and to the point, and halt excessive or aggressive cross-examination.

19.8 Costs

19.8.1. The Secretary of State has the power to award costs in hearing or inquiry procedures, but not written representations. Anyone can apply for costs, but he has to show that the party against whom he is claiming costs acted unreasonably, vexatiously or frivolously, causing him/her to incur unnecessary and additional expense. In addition, causing the hearing or inquiry process to be delayed unnecessarily - for example, as a result of an adjournment to hear late evidence, or where withdrawing a representation or objection results in the late cancellation of a hearing or inquiry – could well amount to unreasonable behaviour.

19.8.2. DOE Circular 8/93 “Award of Costs Incurred in Planning and Other (Including Compulsory Purchase Order) Proceedings” gives detailed guidance on the award of costs.

19.9 Financial and manpower implications

19.9.1. The introduction of Rules should not have an adverse effect on local government manpower or expenditure. Neither should it create a burden for landowners, users or the private sector generally. Rather the improvements in procedures and the gains in time taken to handle orders, which the Rules are designed to bring about, should lead to positive benefits for all concerned.

Defra July 2007

Question 20

20. Annex H: Feedback and complaint: Frequently Asked Questions

Accepted Answer

We hope you find the following information helpful.

I do not agree with the order decision. Can it be reconsidered?

The Planning Inspectorate does not have the legal authority to revoke and reconsider a rights of way decision after it has been issued. A decision can be reconsidered following a successful challenge in the High Court on a point of law (see section 10 of this guide)

What is the point of drawing your attention to mistakes if you cannot change the decision?

We have a clear duty to support the Government’s aim of making decisions of the best quality possible. There are inevitably times when mistakes occur and when identified, we can learn from them and take action to improve our performance on future casework.

I strongly disagree with the Inspector’s reasoning and conclusions. Can my views be considered again?

We fully appreciate that many of the cases we deal with raise strong feelings. It is almost inevitable that either those in favour of the order or those against it will be disappointed with the outcome. Once the decision is made, however, it stands unless successfully challenged in the High Court.

What sort of concerns can you look into?

The list below gives examples (although it does not cover every possibility):

failure to take into account something that is important to the case;
took into account something irrelevant to the case
misinterpretation of legislation;
failure to comply with the rules of ‘natural justice’ that allow everyone to have a fair chance to express their views;
concerns about the conduct of the Inspector or other Inspectorate staff;
failure to follow our procedures;
processing delays.

Is there a time limit for making a complaint?

No. However, it is best to raise any concerns promptly. An Inspector’s recollection of events will of course be better, and files are only retained for a limited period (usually one year). It may be difficult to look into matters if we no longer have the original documents.

Can I see the evidence that was considered by the Inspector?

Yes. The order making authority is required to make the documents available for anyone who wishes to see them and take copies.

I disagree with a procedure decision that has been made by one of your administrative staff.

Contact the Case Officer directly in the first instance, giving clear reasons why you think we should review and change our approach. If you remain dissatisfied after receiving his/her reply, the Customer Quality Team can look into your concerns (contact details in section 9 of this guide).

It is possible to apply for a Judicial Review of decisions made by our administrative staff. This should normally be considered as a last resort.

Can I complain to you about the order making authority?

No. We can only look into concerns about our own actions and decisions. Any concerns that you have about your local authority should be raised with them directly.

I am disappointed that the order was not confirmed by the Inspector. I do not wish to try and get the decision overturned in the High Court. Is there anything else I can do to?

The order decision sets out the reasons why the Inspector did not confirm the order. It may be possible to address these points by providing further evidence or making changes to a proposed diversion. We would advise that you discuss any ideas with an officer at the order making authority in the first instance.

I have noticed a typographical or factual error in the decision. Is there a way to correct this without going to the High Court?

The law does not allow us to correct even minor errors after the decision is issued. That said, we can learn from our mistakes and take action to improve our performance on future casework.

What right does the Inspector have to go against the wishes of the local order making authority?

An Inspector may come to a different view from the order making authority and decide that an order should not be confirmed. However, this does not mean their views have been ignored. Rather, the Inspector has accorded different weight to the issues in coming to the decision.

Why was the order confirmed when local residents were very much against it?

The views of the local community are an important consideration. However, the Inspector must base his/her decision on the relevant issues (see section 6 to this guide). In other words, decisions are not simply about the strength of support or opposition.

How can Inspectors know about local issues if they don’t live in the area?

For reasons of fairness and impartiality, we ensure that Inspectors do not have any significant connection with the areas in which they work, or with any of the parties involved. However, they will be aware of the background and issues relating to the order from the evidence submitted, including the representations from the local community. A site visit is also carried out so that the order can be put into its context ‘on the ground’.

I submitted a letter/ e-mail explaining my views, why didn’t the Inspector mention this in the decision?

The Inspector must take into account all of the representations that have been submitted. An order decision only sets out his/her principal reasoning on the main issues; it will not be a comprehensive record of all the points made in the evidence.

I am concerned by an Inspector’s conduct and that there may have been unfair bias. What action can be taken?

We will take very seriously any concerns raised about an Inspector’s conduct and impartiality. The key guiding principles for Inspectors and all who work within the Planning Inspectorate are openness, fairness and impartiality. Our Code of Conduct sets out the conduct expected of Inspectors. Our staff must also comply with the Civil Service Code.

There is important evidence that the Inspector wasn’t made aware of, and I believe the order should have been confirmed. What can be done about this? Why didn’t the Inspector seek out further information to establish the facts? If he/she had done this, I believe a different decision would have been reached.

An Inspector can only take into account the evidence that is submitted. It is the responsibility of each party to provide everything they want taken into account at the appropriate time in the procedure.

You may wish to discuss the evidence with the order making authority, to see if it is appropriate for a new order to be made. The Inspector’s decision could only be reconsidered if it is first overturned in the High Court on a point of law.

I do not wish to complain about the decision, but I do have a query about the confirmed order.

Once a decision has been made, jurisdiction for the order passes back to the order making authority. Any queries you have about the order should be addressed to them.

Question 21

21. Annex I: Conduct of hearings and inquiries into orders where order making authorities do not actively support an order.

Accepted Answer

21.1 Background

21.1.1. In most cases, an OMA will not make an order unless it is satisfied that the circumstances justify it. Exceptions to this occur when an OMA declines to make the requested order but the applicant successfully appeals to the Secretary of State. This will result, in the case of definitive map orders, in the OMA being directed to make the order under Schedule 14 of the Wildlife and Countryside Act 1981.

21.1.2. In such circumstances, where an OMA has previously assessed the facts of the case and decided the making of an order is not justified, it may opt to oppose confirmation of the order, or it may choose to adopt a neutral stance whereby it neither supports nor objects to confirmation.

21.1.3. There may also be occasions where the OMA supported the initial making of the order but subsequently found new information, further evidence or valid objections which caused it to conclude that confirmation was not justified. Again, the OMA may opt to oppose confirmation of the order, or it may choose to remain neutral as regards confirmation.

21.1.4. Sometimes an OMA is content to make the requested order but is not prepared to support it at an inquiry if it is opposed. This often occurs when an order is made under the Town and Country Planning Act 1990 to enable development to proceed, or an order to divert a path is made under the Highways Act 1980 in the interests of a landowner; the developer or the landowner is often asked to make the case for confirmation. The OMA may choose to remain neutral as regards confirmation of the order, to passively support it or even to oppose it if new information or objections following advertisement cause a change of mind.

21.1.5. Similar circumstances may arise where, after having considered the details of a case, the Inspector proposes modifications to an order but advertisement results in objections to these modifications leading to a second or subsequent hearing or inquiry (see paragraphs 5.1 to 5.5 below). In this scenario, the parties concerned (including the OMA) may support, oppose, or take a neutral position as regards the proposed modifications.

21.2 The role of the OMA

21.2.1. In normal circumstances, where an OMA supports confirmation of the order at an inquiry, its advocate will present the case in support and call witnesses as required, cross-examine witnesses who oppose the order, and finally draw together the proceedings at the end of the inquiry, summing up the case in support and making any legal submissions as appropriate. At a hearing the OMA’s rights of way officer would normally present its case, without introducing witnesses or cross-examining other witnesses.

21.2.2. If at any point the OMA decide that they can no longer support the order if it is to be heard at a local inquiry or hearing, they should let the Planning Inspectorate know immediately.

21.2.3. Where an OMA has decided not to support confirmation of the order at a forthcoming hearing or inquiry (or otherwise) the Planning Inspectorate should be informed at the earliest opportunity. A clear statement indicating whether the OMA intends to actively oppose the order or to adopt a neutral stance is required, together with an indication of its reasons for doing so.

21.2.4. When this occurs, the Planning Inspectorate will ask the OMA to secure the agreement of the applicant or another supporter of the order to take the lead in presenting the case. Should that not be possible, the Planning Inspectorate will try to secure such agreement. If no-one is prepared to take the lead (and assuming the case cannot instead be determined by exchange of written representations) at the hearing or inquiry the Inspector will summarise the case for the order from the information before him or her, with the applicant or any other supporters being invited to take part in the discussion (at a hearing) or give their own evidence (at an inquiry) in due course. The Planning Inspectorate will ask the OMA to find a venue for the inquiry or hearing, and to provide administrative assistance such as photocopying at the venue.

21.3 At the start of the inquiry or hearing

21.3.1. At the start of an inquiry, it is normal practice to hear the case for the order from those who support it before hearing the case against from the objectors. Where the OMA is appearing as a supporter or objector to the order, it will be invited to present its case in accordance with that convention.

21.3.2. Where the OMA has given notice that it will take a neutral stance at an inquiry, the Inspector will allow its representative to make an opening statement before both the supporters and objectors. However, this statement should be limited to a summary of the background to the making of the order and the reasons for the OMA choosing to remain neutral as regards its confirmation and should not be necessary if the Inspector has summarised these matters in his or her opening remarks. If the OMA does make a statement in these circumstances, it should not contain submissions for or against the order but be a factual account of the history of the order and the key issues which influenced the OMA’s conclusions leading to its neutral position.

21.3.3. Where the OMA has given notice that it will take a neutral stance at a hearing, the Inspector will allow its representative to contribute to the discussion. However, comments should be limited to a summary of the background to the making of the order and the reasons for the OMA choosing to remain neutral as regards its confirmation.

21.3.4. At hearings or inquiries it will be helpful if the OMA makes it known that its representative will be happy to answer factual questions about the background to the order.

21.3.5. If circumstances arise immediately prior to the hearing or inquiry that cause the OMA to revise its position so that it no longer intends to remain neutral, the Inspector should be informed at the start of the proceedings so that the OMA can be heard as either a supporter or objector in the usual sequence of events.

21.3.6. Should the reverse situation occur, where information comes to light at the last minute causing an OMA to withdraw its support for the order, thereby becoming an objector or taking a neutral stance, the Inspector must be advised at the earliest possible opportunity.

21.3.7. Unless arrangements can be made before the event (see paragraph 21.1.3.) when an OMA takes a neutral position, the Inspector will enquire at the start of the hearing or inquiry whether any of the supporters present are prepared to take the lead in presenting the case in support of the order. A request for an adjournment is unlikely to be refused although the length of any adjournment will depend on the circumstances of the individual case. It may vary from a few minutes to allow the applicant or supporter to gather his or her thoughts, to several days or longer to enable a full case to be prepared.

21.3.8. If there is no-one prepared to lead the case in support of the order, the Inspector may decide to adjourn until a suitable volunteer can be found or, alternatively, to summarise the main points in support of the order him- or herself, after which the individual supporters will give their evidence to the inquiry or contribute to the discussion at the hearing. In some cases, it may be appropriate to close the hearing or inquiry altogether and make alternative arrangements for determining the order.

21.3.9. Any last minute changes which significantly delay matters or affect the smooth running of the hearing or inquiry can put the party responsible at risk of a claim for costs against them unless the issues could not reasonably have been foreseen. However, this should not cause any party to withhold late evidence which has a significant bearing on the determination of the order.

21.4 During the hearing or inquiry

21.4.1. Particularly in the case of definitive map orders, there may be archival or other documentary evidence which is held by (or has been otherwise discovered by) the OMA that needs to be taken into account by the Inspector when determining the order. Where the OMA takes a neutral stance at an inquiry or hearing following a successful Schedule 14 appeal, it is important that the applicant or supporter ensures that this evidence is put before the Inspector (as the Inspector will not have received copies of the Schedule 14 application evidence unless it is submitted to the Secretary of State with the order). Where the OMA takes a neutral stance for any other reason, for example because it has discovered further evidence following the making of the order, it is incumbent upon the OMA to provide it. Powers exist [Local Government Act 1972, section 250] under which it may be compelled to do so.

21.4.2. The Inspector will decide on the appropriate time for any such evidence to be presented to the hearing or inquiry depending on the nature of the case. Whilst neutral OMAs are still obliged to make such documents available for inspection by the Inspector (if necessary, by arrangement with local record offices), there is no requirement for these to be presented by professional witnesses. Depending on the complexity of the documents concerned, it may be helpful to the Inspector if the OMA is able to provide an officer to answer any factual questions in relation to the documents.

21.4.3. The most frequent reason for an OMA taking a neutral stance is where an applicant has been successful in obtaining a direction from the Secretary of State/ under Schedule 14 of the Wildlife and Countryside Act 1981. In such cases, it is not appropriate for any of the parties to simply produce the appeal decision as evidence. The evidence that was submitted to the Secretary of State to support the appeal, together with any other relevant information that has been discovered since, must also be presented to the hearing or inquiry so that the Inspector appointed to determine the order has all the available evidence before him or her so as to reach an independent and impartial decision. It should not be assumed that appeal documents will automatically be transferred.

21.4.4. The Inspector is not bound by the decision on the appeal. He or she will have the advantage of hearing evidence given in person by witnesses and (at an inquiry) tested under cross-examination, seeing the order route on site and inspecting at first hand any other relevant evidence. There may therefore be many reasons why an Inspector’s conclusions following an inquiry or hearing may be different to those identified in an appeal decision.

21.5  Closing submissions at inquiries

21.5.1. As the promoter (and a supporter) of the order, the OMA is given the opportunity to make the final closing statement after any made on behalf of the objectors. This may include submissions on points of law relevant to the case as well as summarising the evidence leading to the request for confirmation.

21.5.2. Where an OMA has opposed an order, the final closing statement should be made by the applicant or any supporters who took the lead in presenting the case for the order. In these circumstances, the OMA has effectively given up the normal “right of final reply” and will present its closing submissions before the supporters.

21.5.3. In the case of an OMA which has taken a neutral stance throughout, the Inspector will first hear closing statements from the objectors and then the supporters before finally allowing the OMA to make any closing observations. In line with its neutral position, any that are made must not seek to make the case for or against confirmation but are likely to be limited to clarifying factual matters, drawing the Inspector’s attention to the main issues of the case and highlighting relevant case law that may have been missed by the other parties.

21.6 Second or subsequent hearings or inquiries into advertised modifications to orders

21.6.1. As noted above, an Inspector’s proposed modifications to an order may result in there being no supporters for the proposed changes at the subsequent inquiry or hearing. In most cases, after explaining the purpose of the inquiry or hearing and dealing with the opening formalities, the Inspector will summarise the reasons for these modifications, based on the matters contained in the interim order decision.

21.6.2. If, at a second inquiry, the OMA supports the proposed modifications, it will be given the opportunity to open the case for the supporters and will be invited to make the final closing statement. At a hearing it would contribute to the discussion in the usual way.

21.6.3. If, however, the OMA intends to make representations against the proposed modifications, its objections will be heard at the same stage as other objectors, that is, after any representations in support of the modifications have been made. If at an inquiry the OMA wishes to make a closing statement, it may do so along with any other objectors but before the closing submissions of the supporters.

21.6.4. Where the OMA takes a neutral stance on proposed modifications to an order, it would not be expected to present any evidence either for or against the proposed changes. The Inspector may, nonetheless, ask whether it would be prepared to assist in clarifying matters not concerned with the merits of the order. At the end of an inquiry, the Inspector will allow the OMA to make any final comments after inviting closing statements from the objectors and then the supporters. Again (see paragraph 21.6.3 above) these must not be partial and are likely to be limited to clarifying factual matters, drawing the Inspector’s attention to the main issues of the case and highlighting relevant case law that may have been missed by the other parties.

21.6.5. Where a second hearing or inquiry is held to consider both the original order and modifications proposed by the Inspector, the sequence in which the parties are heard is a matter to be determined by the Inspector at the start of the proceedings, in consultation with those concerned.

21.7 Circumstances will differ from one hearing or inquiry to another. This guidance is not therefore intended to be exhaustive; it is only a guide. Inspectors will continue to exercise their judgement and discretion in these matters, based on each individual case.

Question 22

22. Annex J: A) Introduction of Case Law by the Parties to an Order, B) Legal Submissions at Inquiries and Hearings, C) Consideration of New Legal Issues either During or After the Inquiry, Hearing or Site Visit

Accepted Answer

22.1 Introduction of Case Law by the parties to an order

22.1.1. Where a party at an inquiry, hearing or in written representations wishes to introduce case law in support of their arguments, a full copy of the judgment should be provided to the Inspector by that party, or at least a sufficient extract, to ensure that what is being quoted is not being taken out of context. Its production may also help informed cross-examination. Where parties are unable to provide copies of the judgment, they should at least provide the Inspector with an accurate reference to the court proceedings being quoted. Where the principles established by a particular judgment are well known, then it may be sufficient to raise only those principles.

22.2 Legal Submissions at Inquiries and Hearings

22.2.1. Only the Courts can interpret the law authoritatively, but Inspectors reach a conclusion on the relevance of any legal submission made as it relates to the order before them.

22.2.2. The Rules govern the process for submitting evidence in relation to a hearing or an inquiry. Whilst not explicitly covered in the Rules, it is PINs’ view that legal submissions form part of the ‘material’ expected to be distributed as early as possible and in accordance with the timescales set out in the Rules. This is particularly so where they relate to the validity or jurisdiction of an order.

22.2.3. Legal submissions relating to validity and jurisdiction should therefore be included in a statement of case (A statement of case is a written statement containing full particulars of the case which a person proposes to put forward at a hearing, inquiry or as part of the written representations procedure. As far as possible, a legal submission should be submitted as a separate document alongside the statement of case, rather than being an integral part of it) so that they can be circulated to the other parties for comments in advance of the hearing/inquiry. However, if necessary, they can be made right at the start of the inquiry/hearing, since this may determine whether there is any purpose in continuing with the inquiry/hearing. They should be submitted to the Inspector in writing and copies of any legal authorities or legal judgments referred to should be provided where appropriate. This undoubtedly saves inquiry/hearing time, as the Inspector does not have to make notes of the submissions being made, and it helps reduce the possibility of error in recording the submission.

22.2.4. If not submitted at statement of case stage, legal submissions relating to the evidence may be submitted at the hearing/inquiry itself. Evidential legal submissions are generally given as part of closing statements at the end of a hearing or inquiry because it is usual to make references to the evidence that has been heard. An evidential legal submission submitted at statement of case stage may be added to or amended during closing statements.

22.2.5. To ensure a timely and efficient process for determining orders, we will return any material whether in the nature of evidence or legal submission received after the date for statements of case with a request that copies are either submitted at the start of the inquiry/hearing or raised in closing submissions (if evidential only). The only exception to this will be where the submission casts clear doubt over the validity of the order, and therefore the need for the hearing/inquiry. Such submissions will be circulated for comments in advance of the hearing or inquiry (if there is sufficient time).

22.2.6. Where the party presenting its case first receives legal submissions from other parties only at the opening of the inquiry/hearing, additional time may be needed for reading. That will be a matter for the Inspector.

22.2.7. Inspectors do not allow cross-questioning on legal submissions. Where there is disagreement on points of law, parties should make the relevant points in their own submission. In the event that an Inspector wishes to seek clarification of a legal point this will be done by engaging advocates from the parties equally in discussion. Persons representing themselves will have the same opportunity to make out their case as those who are professionally represented. Should a party include points of law in an evidential statement; the Inspector will draw all the parties’ attention to this and remind them that cross-questioning on legal submissions is not allowed.

22.2.8. In some inquiries, one or more parties may be represented by one person who will present both evidence and legal submissions. Where this occurs, that person performs the separate roles of advocate and witness and these roles are treated separately, just as if performed by different people. If necessary, Inspectors will point this out. Where possible, legal and evidential statements should be kept separate and the parties should be encouraged to present legal and evidential statements separately. The normal running order for presentation of each party’s case is: (1) legal arguments, (2) evidence, (3) closing submission, including comment on the opposing case(s) and any legal issues that arose during the hearing/inquiry.

22.3 Legal Submissions and the Written Representations Procedure

22.3.1. Legal submissions may also be relevant in written representation cases, although less common. In line with Procedure for Written Representations (see Annex B of our booklet) any submissions should be included in a statement of case so that they can be circulated to the other parties for comments. Legal submissions received after the deadline for statements of case will be circulated to the other parties for comment only if the issues are central to the consideration of the case. This is a matter for the Inspector. Consideration may be needed on whether the written procedure is still appropriate for determining the order or whether a hearing or inquiry is more appropriate depending upon the complexity of the case.

22.4 Consideration of new legal issues either during or after the inquiry, hearing or site visit

22.4.1. Decisions are based on facts and arguments put before the Inspector at the inquiry, the hearing, or in the exchange of written representations. Fairness dictates that relevant new matters, including case law, must be distributed to all parties for comment

22.4.2. It is possible that a new matter may be raised by the Inspector who becomes aware of a particular case or other matter of substance to the decision even if that matter has not been raised by any of the parties. This would usually happen before closing submissions. A common example is deemed dedication, where the evidence relates to Section 31 of the Highways Act 1980, and the issue of dedication at common law has not been raised specifically. In such circumstances, the Inspector may ask the parties for their comments on deemed dedication at common law.

22.4.3. In the unlikely event an Inspector recognises (after the event) that an important matter has not been addressed such as a relevant legal case, or other matter of substance, and the issues appear to be central to the consideration of the case, the Inspector will ask the Defra Team to write to the parties on his/her behalf to seek their comments.

22.4.4. Similarly, where one of the parties submits a document after the event such as a legal judgment, it will be circulated for comments if the Inspector confirms that  it raises issues which appear to be central to the consideration of the case. Where the submission is not considered to be material to the Inspector’s consideration of the case, then it will not be circulated, and the sender will be informed accordingly.

22.4.5. The Inspector will not accept any other material received after the event except in extraordinary circumstances (please see Annex G of the guidance booklet.

Question 23

23. Annex K: General guidance on public rights of way matters

Accepted Answer

23.0.1. This section provides some general background information on public rights of way and some of the various types of rights of way orders which are submitted to the Secretary of State (SoS) for confirmation. Further guidance on rights of way orders can be found in Department for Environment Circular 1/09 sections 4 and 5. Information may also be found in ‘A guide to Definitive Maps and changes to Public Rights of Way’ published by Natural England (revised October 2008). The relevant criteria which an Inspector needs to consider in determining an opposed order are set out at section 6 of this guidance booklet.

23.0.2. It also includes three appendices; Appendix 1 gives various statutory definitions of rights of way, Appendix 2 provides a definition of local authorities in the context of the relevant legislation and Appendix 3 sets out relevant primary and secondary legislation and guidance.

23.0.3. This guidance should only be regarded as a basic guide to, rather than an authoritative interpretation of, the law on public rights of way, it is publicly available but has no legal force.

23.0.4. Some 140,000 miles of the Rights of Way network are recorded on definitive maps in England. These were originally prepared under Part IV of the National Parks and Access to the Countryside Act 1949. The Act covered England but there were some areas, notably the administrative county of London and those of county boroughs, in respect of which there was a choice of whether to adopt the relevant provisions. Fully developed areas could also be excluded by resolution of county councils.

23.0.5. Under section 56 of the Wildlife and Countryside Act 1981 (WCA 81), a definitive map and statement is conclusive evidence of certain particulars contained in it, as at the relevant date (defined in section 56(2)). The general rule is that where a map shows a way as of a particular category of highway it is conclusive of certain public rights of way over it at the relevant date, but that is without prejudice to the existence of higher rights. So, for example, where it shows a footpath that is conclusive of public rights of way on foot, but not that there are not bridleway or carriageway rights.

23.0.6. There is the maxim “once a highway, always a highway”. Once a highway has come into being by whatever means it continues indefinitely no matter whether it is used or not. In the case of Harvey v Truro RDC ([1903] 2 Ch 638) Mr Justice Joyce said:

Mere disuse of a highway cannot deprive the public of their rights. Where there has once been a highway no length of time during which it may not have been used will preclude the public from resuming the exercise of the right to use it if and when they think proper.

23.0.7 Public rights of way can be divided into:

Footpaths (FPs)
Bridleways (BWs); and
Restricted byways (RBs); and
Byways open to all traffic (BOATs)

Statutory definitions for these categories of highway can be found in Appendix 1.

23.0.8. In addition, ways described as roads used as a public paths (RUPPs) can be found in many early definitive maps. Section 54 of WCA 81 required that all RUPPs be reclassified as a FP, BW or BOAT and many were, but this requirement was superseded in May 2006 when sections 47-51 of the Countryside and Rights of Way Act 2000 came into force. This provided for all RUPPs still shown on definitive maps on 2 May in England to be automatically converted to restricted byways. The expression “road used as a public path” is no longer used to describe ways in definitive maps.

23.0.9. Rights of way can be created, extinguished or diverted by order under statute; DMs can be modified by orders under Part III of the WCA 81. The procedures to be followed and the extent or nature of the changes which may be made will be determined by the relevant statutory provision, and of course how the courts have interpreted it. Before an order made by a local authority may take effect, there is usually a requirement that it is confirmed, and where it is opposed (that is to say objections have been made to) confirmation is required by the SoS.

Note: In this guidance, “objections” includes “representations”. Representations can be taken to mean letters or statements of support for the proposal or of a neutral nature neither supporting nor opposing the order. Even if the order making authority manage to overcome all the objections to an order it will still need to be confirmed by the SoS if there are any “representations” outstanding.

23.0.10. Decisions by the SoS on the confirmation of opposed RoW orders are usually taken by an Inspector appointed by the SoS for the purpose.

23.0.11. The legislation relating to public rights of way was amended by the Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006 so as to apply most of the existing provisions applicable to footpaths and bridleways also to restricted byways. These Regulations came into force on 2 May 2006 in England.

23.1 Statutory Provisions

Highways Act 1980 Creation of Rights of Way

23.1.1 FPs, BWs and RBs may be created by agreement between a local authority and anyone having power to dedicate such a way over the land in question, being in the local authority’s area (Highways Act 1980 (HA 80), section 25). Parish/community councils also have powers to create FPs and BWs by agreement if in their opinion it would be beneficial to the inhabitants of the parish or community (HA 80, section 30). Since they are created by agreement, these cases are not submitted to the Inspectorate for determination but may be relevant to other proposals.

23.1.2 A local authority may also create by order, under section 26 of the HA 80, a FP, BW or RB. An authority may only make an order if it appears to it that there is a need for such a way over land in its area and provided it is satisfied that it is expedient that a new right of way should be created (see section 26(1)). In deciding whether or not it is expedient, the authority must have regard to the extent to which the way would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of persons resident in the area and, the effect which the creation of the way would have on the rights of persons interested in the land. In looking at this last factor, specific account is to be taken of the provisions for compensation under section 28 of the HA80.

23.1.3. In addition to the above, section 29 of the HA 80 (as amended by section 57 of the Countryside and Rights of Way Act 2000) places a duty on local authorities in making an order to have due regard to the needs of agriculture (“agriculture” includes the breeding or keeping of horses) and forestry and to the desirability of conserving flora, fauna and geological and physiographical features. (Section 29 does not place any such duty on the SoS).

23.1.4. As with all Highways Act orders, if objections or representations have been “duly made” (i.e. they have been submitted in time and in the manner set out in the notice), and the order making authority (OMA) still wish to continue with the order, it has to come to the SoS for confirmation. Unless the objections/representations are withdrawn, either a public inquiry or hearing will be held, or if the parties agree, the matter will be dealt with by way of written representations. Where, at an inquiry or hearing questions of compensation under section 28 arise, Inspectors should refer them to the OMA and indicate that if agreement cannot be reached it would be a matter for the Lands Tribunal.

Public Path Extinguishment Orders

23.1.15. A footpath, bridleway or restricted byway can be stopped up by an order made by a council, if it appears to them that it is expedient on the ground that the way is not needed for public use (HA 80, section 118(1)). For extinguishment of ways over railways or tramways see HA 80, S118A. Once again, if objections are received and not withdrawn the order will come to the SoS for confirmation.

23.1.16. Section 118(2) sets out conditions for confirmation of an order. The decision-maker must be satisfied that it is expedient to confirm the order. Whether it is expedient is to be answered, though not exclusively, by reference to a number of matters. These are: the extent which the way would, apart from the order, be likely to be used by the public and; the effect that extinguishment would have on the land served by the way, account being taken of the provision for compensation in section 28 as applied by section 121 of the HA 80.

23.1.17. These two tests, which appear in both subsections 118(1) and 118(2), were considered R v Secretary of State for the Environment ex parte Stewart [1980] JPL 175 and R v Secretary of State for the Environment ex parte Cheshire County Council [1991] JPL 537. The use of the word ‘expedient’ in subsection (2) means that other relevant considerations can be taken into account when deciding whether an order is expedient, in addition to those expressly set out in the subsection. However, this test in subsection 118(2) is not the same as in subsection 118(1). At the confirmation stage, the decision-maker does not have to be satisfied that the way is not being used in order to conclude that it is not needed for public use. An Inspector could confirm an order even if he/she thought the way was likely to be used to a limited degree but was not actually needed.

23.1.18. The Stewart case also considered the situation where a footpath could not be used because it was obstructed. Section 118(6) requires temporary obstructions to be disregarded when considering the merits of the order. In Stewart, the court found that a pine tree with a girth of 2’6”, a hedge 4’ wide and 12’ high and an electricity substation were capable of being temporary obstructions and could be disregarded under subsection (6).

23.1.19. As with section 26 creation orders (see paragraph 23.1.1 above) if a question of compensation arises at an inquiry, Inspectors should refer them to the OMA and indicate that if agreement cannot be reached it would be a matter for the Lands Tribunal.

Public Path Diversion Orders

23.1.20. Footpaths, bridleways and restricted byways may be diverted by order of a council, under section 119(1) of the HA 80, if it appears to them to be expedient to do so in the interests of either the owner, lessee or occupier of land crossed by the way or of the public.

23.1.21. Section 119(2) specifies certain restrictions on what orders under section 119 may do in terms of altering a point of termination of the way. Subsections (2)(a) and (b) specify, respectively, that an order cannot alter the point of termination of the way:

if that point is not on a highway (e.g. it ends at the sea shore, or at a viewing point), or
(where it is on a highway) otherwise than to another point which is on the same highway, or another one connected with it, and which is substantially as convenient to the public.

23.1.22. It is the Inspectorate’s view that section 119(2)(b) does not restrict the point of connection of the diverted footpath, bridleway or restricted byway to a highway that is immediately connected to the highway to which the path formerly terminated. However, there must be some connection between the highway on which the way in question terminated before its diversion and that on which it would terminate after the diversion. Whether that connection is as substantially as convenient for the public is a matter of judgement for the Inspector subject to the test of reasonableness.

23.1.23. Section 119(6) requires that before confirming a public path diversion order, the decision-maker must be satisfied that it is expedient in the interests of the owner, lessee or occupier of land crossed by the way or of the public. The Secretary of State takes the view that an inspector can confirm an order stated to have been made in both parties’ interests, even if, in the Inspector’s opinion, the diversion is expedient only in the interests of either of the owner/lessee/occupier or the public.

23.1.24. In addition, he must be satisfied that the way will not be substantially less convenient to the public in consequence of the diversion and that it is expedient to confirm the order having regard to the effect which:

The diversion would have on the public enjoyment of the way as a whole;
The coming into operation of the order would have upon other land served by the existing way; and
The new way created by the order would have upon the land over which it is created.

23.1.25. In relation to the last two factors the subsection requires account to be taken of the compensation provisions in section 28 as applied by section 121 of the HA 80. As with creation orders and extinguishment orders (see paragraphs 2.1.1 and 2.1.4 above), where the question of compensation arises at an inquiry, Inspectors should refer them to the OMA and indicate that if agreement cannot be reached it would be a matter for the Lands Tribunal.

23.1.26. In terms of the expression ‘substantially less convenient to the public’, features which readily fall within the natural and ordinary meaning of the word ‘convenient’ are matters such as the length of the diverted path, the difficulty of walking it and its purpose.

23.1.27. The decision in Ramblers Association v SSEFRA, Weston and others [2012] EWHC 3333 (Admin) acknowledges that section 119(6) involves three separate tests (as endorsed by the High Court in The Open Spaces Society v Secretary of State for Environment, Food And Rural Affairs [2020] EWHC 1085 (Admin)):

Test 1: whether the diversion is expedient in the interests of the owner, lessee or occupier of land crossed by the path or of the public (as set out in section 119(1) and subject to section 119(2) – see paragraphs 2.31 and 2.32 above). This was described in R (Hargrave) v Stroud District Council [2001] EWHC Admin 1128, [2002] JPL 1081 as being a low test.

Test 2: whether the proposed diversion is ‘substantially less convenient to the public’. In order to meet this test, the path or way must not be substantially less convenient to the public in consequence of the diversion (as per the wording in section 119(6)).

Both of these tests can be described as gateway tests - unless they are passed the decision-maker does not get to the third test.

Test 3: whether it is expedient to confirm the Order having regard to the effect: (a) of the diversion on the public enjoyment of the path or way as a whole;

(b) of the Order on other land served by the existing public right of way; and

(c) of any new public right of way on the land over which it is to be created and any land held with it.

Any material provisions of a rights of way improvement plan must also be taken into account.

23.1.28. Those specified factors in Test 3 must be taken into account by the decision-maker but the expediency test is not limited to those matters, as confirmed by the Court of Appeal in The Open Spaces Society v SSEFRA [2021] EWCA Civ 241. The decision-maker may have regard to any other relevant matter including, if appropriate, the interests of the owner over which the path currently passes, or the wider public interest. Use of the word “expedient” indicates that a broad judgement is to be made and it will be for the decision-maker to weigh the different considerations.

23.1.29. It is possible that a proposed diversion may be as convenient as the existing path but less enjoyable, perhaps because it was less scenic. In that scenario, it is correct for the decision-maker to take account of the degree of benefit to the owner and the extent of loss of public enjoyment together with any other factors both for and against the diversion to arrive at a finding on the expediency of confirming the Order under Test 3.

23.1.30. Conversely, a proposed diversion may give greater public enjoyment but be substantially less convenient (perhaps because the diverted route would be less accessible or longer than the existing path/way, for example). In such circumstances, the diversion order should not be confirmed, since a diversion order cannot be confirmed under section 119(6) if the path or way will be substantially less convenient to the public in consequence of the diversion. The issue of convenience in Test 2 is separate from the question of expediency in Test 3 (see R (on the application of Young) v SSEFRA [2002] EWHC 844).

23.1.31. Whereas section 118(6) provides that, for the purposes of deciding whether a right of way should be stopped up, any temporary circumstances preventing or diminishing its use by the public shall be disregarded, section 119 contains no equivalent provision. However, [it is the Inspectorate’s view that] when considering orders made under section 119(6), whether the right of way will be/ will not be substantially less convenient to the public in consequence of the diversion, an equitable comparison between the existing and proposed routes can only be made by similarly disregarding any temporary circumstances preventing or diminishing the use of the existing route by the public. Therefore, in all cases where this test is to be applied, the convenience of the existing route is to be assessed as if the way were unobstructed and maintained to a standard suitable for those users who have the right to use it.

23.1.32. It is the Inspectorate’s view that a way created by a diversion order, may in part follow an existing path or road, the order should not be used to close a path where the whole of the alternative route is already subject to a public right of way (see R v Lake District Special Planning Board, ex parte Bernstein, The Times, February 3 1982). The effect, otherwise, would be to enable the tests in section 118 to be side stepped as such an order would, in effect, be stopping up a right of way.

23.1.33. A diversion order can only amend the definitive map and statement insofar as the course or line of the right of way is concerned, it cannot alter the status of the way. For example, a diversion order can neither downgrade a bridleway to a footpath, nor upgrade a footpath to a bridleway. However, where, as set out above, a diverted route is coincident in part with an existing right of way, the status of either the existing or diverted right of way may in practice change as a consequence of the other right of way having a different status. Clearly, where two rights of way of differing status were coincident, the higher rights would prevail along the coincident section.

23.1.34. Express provision is made in section 118(5) of HA 80 for public path extinguishment orders to be dealt with concurrently with creation and diversion orders (both public path and rail crossing). When considering the confirmation of a public path extinguishment order, in particular the extent to which the highway would be likely to be used by the public apart from the order, regard should be had to the extent that the creation or diversion would provide an alternative to the way being extinguished (HA 80, section 118(5)).

23.1.35. When dealing with such orders concurrently, each order should be considered separately on its own merits and decisions made in each case. Consequently, a decision letter should specifically cover for each order those matters relevant to the consideration of whether it should be confirmed.

Rail Crossing extinguishment orders

23.1.36. Section 118A of the HA 80, inserted by the Transport and Works Act 1992 (TWA 92), gives councils the power to stop up, by order, a FP, BW or RB which crosses a railway, other than by tunnel or bridge. An order may be made if it appears to the council expedient in the interests of the safety of those members of the public who use or are likely to use the highway in question. In order to avoid the creation of a cul-de-sac, the section gives power to stop up the whole way up to the nearest highway over which there subsists a like right of way. An order may not be confirmed unless the decision-maker is satisfied that it is expedient with regard to all the circumstances. Factors expressly required to be taken into account include whether it is reasonably practicable to make the crossing safe for the public. Also relevant may be whether a diversion is more appropriate.

Rail crossing diversion orders

23.1.37. Similar powers to those contained in section 118A are contained in section 119A of the HA 80, also inserted by the TWA 92. Here the power is to make a diversion order. Again a council may only make an order if it appears to it expedient in the interests of public safety using or likely to use the FP, BW or RB. Such orders should only be confirmed if the criteria set out in section 119A(4) has been fulfilled. Again the test is one of overall expediency, in the determination of which the subsection sets out particular (but not all) factors to be taken into account.

Bridge or tunnel orders

23.1.38. In dealing with applications for rail crossing orders authorities will need to consider whether a bridge or tunnel could be provided in place of a level crossing being stopped up or diverted. In this context, section 48 of the TWA 92 empowers the SoS to make an order requiring the operator to provide a bridge or a tunnel or to improve an existing bridge or tunnel.

23.2 Creation agreements

23.2.1. Section 25 of the HA80 allows highway authorities to enter into agreements with landowners to create new public footpaths and bridleways. These agreements are essentially a matter for the parties concerned. They do not require confirmation and do not come to the Secretary of State for determination. Although sometimes linked to diversion or extinguishment orders, there was, until recently, no express provision for such agreements to be taken into consideration when determining orders. Following a recent court of appeal judgement in the case known as Tyttenhanger (Hertfordshire County Council v Secretary of State for Environment Food and Rural Affairs [2006]). The judges agreed that creation agreements which are conditional and rely on the confirmation of the order cannot be taken into account when determining orders. A sealed unconditional creation agreement already in force can be considered however.

23.3 Town and Country Planning Act 1990 Cases

23.3.1 Stopping up or diversion of FP or BW to enable development to be carried out

23.3.2. Following a grant of planning permission, the local planning authority (LPA) may make an order to stop up or divert a FP, BW or RB if they are satisfied that it is necessary to enable that development to be carried out (TCPA 90, section 257). Similar powers are available to the SoS (TCPA 90, section 247).

23.3.3. Before an order can be confirmed, or indeed made, it must be apparent that there is a conflict between the development and the right of way, such as an obstruction. An outline permission might not give the degree of certainty necessary to evaluate the impact that the development will have upon the way. However, the development does not need to be in the form of a physical interference such as a building on the right of way. For example, a change of use may be sufficient.

23.3.4. Alternatively, following the amendments of section 257 by the Growth and Infrastructure Act 2013, an order may be made in anticipation of planning permission. However, an order made in advance of planning permission cannot be confirmed by either the authority or the SoS until that permission has been granted.

23.3.5. When Inspectors consider an order made under section 257, they should be mindful that the planning merits of the development itself are not at issue in the RoW case and Inspectors should not allow that matter to be re-opened. The weighing up of the planning merits and demerits will have been determined in favour of the development (where planning permission has already been granted), see Vasiliou v Secretary of State for Transport [1991] 2 All ER 77

23.3.6. However, the Inspector does have latitude to consider wider issues. He should consider the overall public interest in diverting or stopping up a right of way and how it will affect those concerned. Considerations could include, for example, matters such as how the confirmation of the order would result in the loss of passing trade (which might be particularly relevant in view of the fact that there is no provision for compensation in relation to this type of order). Such issues may not be a material consideration at the planning stage. Furthermore, there are bound to be some matters which are overlapping – i.e. relevant to both the planning merits and the merit of whether or not an order should be confirmed.

23.3.7. The Inspector is not obliged to confirm an order, even if it appears necessary to enable the development to take place. There is discretion, see K C Holdings Ltd v Secretary of State for Wales (DC) [1990] JPL 353. Non-confirmation of the order might be justified where the way proposed to be stopped up could be diverted instead, or the proposed diversion would not be the most suitable and the order could not be modified.

23.3.8. The power contained in section 257 is only available if the development, insofar as it affects the path or way, is not yet substantially completed (see Ashby and Dalby v Secretary of State for the Environment [1980] 1 WLR 673 and Hall v Secretary of State for the Environment [1998] JPL 1055). If the development has been substantially completed another type of order would have to be made (e.g. under sections 116, 118 or 119 of the HA 1980).

23.4 Land held for a planning purpose

23.4.1. Section 258 of the TCPA 90 gives power to local authorities to make an order extinguishing footpaths, bridleways or restricted byways over land which they hold for planning purposes. An order may not be made unless the authority is satisfied either that an alternative is not required or that an alternative has been or will be provided.

23.5 Surface mineral workings

23.5.1. Section 261 of the TCPA 90 allows for orders to be made under section 247 or section 257 to temporarily stop up or divert a highway (in the case of section 257 orders, for footpaths, bridleways and restricted byways) for the purpose of enabling surface minerals to be worked. This is provided so that the highway can be restored to a condition not substantially less convenient to the public, after the minerals have been worked.

23.6 Acquisition of Land Act 1981 Cases

Extinguishment of non-vehicular rights of way

23.6.1. Section 32 of the above Act enables acquiring authorities to make orders for the extinguishment of non-vehicular rights of way over land that is, or could be, or is proposed to be acquired compulsorily. Before making an order, the acquiring authority must be satisfied that a suitable alternative has been or will be provided (or that an alternative is not required) e.g. by way of a public path agreement or order.

23.6.2. Section 32 provides for restrictions on the order making power, such as on the time an order may affect an extinguishment and that the power contained therein may not be used where sections 251 or 258 of the TCPA 1990 apply.

23.6.3. Schedule 6 of the HA 1980 (see section 32(2) of the Acquisition of Land Act 1981) applies to the making, confirmation, validity and date of operation of orders under section 32.

23.7 Wildlife and Countryside Act 1981 Cases

Definitive Map Orders

23.7.1. Surveying authorities (SAs) (usually a county council) are under a duty to keep their definitive maps under continuous review through making orders to modify them (see section 53(2) of the WCA 81). The duty includes making what are known as legal event orders. These orders in effect record changes to the network of RoW that are the result of the coming into operation of any enactment, instrument or similar event, such as a stopping up, creation or diversion order. Such orders do not come before the SoS because they do not require confirmation to take effect (see section 53(6)).

23.7.2. Individuals may make applications for orders under section 53 to modify a definitive map, except for legal event orders (see section 53(5) of the WCA 81). If the SA refuses to make an order the applicant may appeal to the SoS, who then has to be satisfied that an order should be made on the basis of the evidence submitted (see paragraph 4 of Schedule 14 to the WCA 81). This is normally done by means of written representations (a non statutory hearing/inquiry may occasionally be held if the Inspector considers it to be appropriate). If the SoS considers that an order should be made, “he shall give to the authority such directions as appear to him necessary for the purpose”.

23.7.3. Once an order (other than a legal event order) has been made, Schedule 15 to the WCA 81 requires that it is publicised. If it attracts objections or representations it must come to the SoS for confirmation. Decisions on the opposed orders which come before the SoS are usually taken by an Inspector appointed by the SoS/ for the purpose, following a local inquiry.

Modification orders under Section 53

23.7.4. Orders to modify DMs made under section 53 of the WCA 81 fall into three distinct categories, which are set out in subsections 3(a), (b) and (c). These are:

(a) orders to take account of “legal events”, such as a creation, extinguishment or diversion orders, which have already taken effect;

(b) orders based on the creation of new or increased public path rights either on the basis of section 31 of the HA 1980 or by implied dedication at common law;

(c) orders based on the discovery by the SA of evidence, which when considered with all other evidence, shows that the DM should be modified in one of the ways specified in section 53(3)(c)(i) to (iii).

23.7.5. Section 53(3)(c)(i) to (iii) covers such matters as the addition of a way to a definitive map, its deletion, or its upgrading or downgrading to another category of RoW.

23.7.6. It is important to note that the purpose of definitive map modification orders and reclassification orders is to ascertain what rights exist. It is not, for example, to determine the suitability of a way for particular types of traffic or whether use of a way may result in loss of amenity or environmental damage). If, for example, motor vehicular rights are found to exist over a way (and remain, despite the extinguishing effect of NERC 2006) but such use is thought inappropriate, then the local traffic authority could consider exercise of its powers under the Road Traffic Regulation Act 1984.

23.7.7.  The effect of the Natural Environment and Rural Communities Act 2006 (Nerc)

23.7.8. Sections 66 - 71 came into effect in England on 2 May 2006. Section 67(1) extinguished all public rights for mechanically propelled vehicles that were not already recorded on the definitive map on that day, subject to certain exceptions which are listed in sub-sections 67(2) and 67(3). Provisions are made for private rights to be retained where MPV access to land is necessary.

23.7.9. In dealing with WCA 81 orders where vehicular rights are at issue, it will still be necessary to reach a conclusion on whether a public vehicular right of way has been shown to exist (prior to 2 May 2006) before then going on to decide whether the MPV rights have been extinguished by virtue of S67 of NERC 2006. If they have not, because one or more of the exemptions apply, BOAT status may be appropriate; if extinguished, the way may be proposed as a restricted byway. Further information can be found in Part 6 of the Natural Environment and Rural Communities Act 2006 and Restricted Byways (PDF, 194 KB).

Evidence

23.7.10. Guidance on various documents frequently submitted as evidence in connection with orders under the 1981 Act, and how paths become dedicated through long user evidence, is set out in the Consistency Guidelines, which have now been withdrawn and archived, it should be noted that they haven’t been updated since April 2016.and should not be relied on..

23.7.11. Use of footpaths or bridleways by mechanically propelled vehicles has been illegal since the 1930’s. Sections 66 and 67 of Nerc 2006 put a stop to the implied creation of new public rights of way for mechanically propelled vehicles, preventing post-1930 use of a way by a mechanically propelled vehicle from giving rise to any future public right of way.

Appendix 1: Definitions

Public rights of way are defined as follows:

Footpath	A highway over which the public have a right of way on foot only, not being a footway (see section 329(1) of the HA80 and section 336(1) of the TCPA90), or a highway over which the public have a right of way on foot only, other than such a highway at the side of a public road (see section 66(1) of the WCA81). “Footway” means a way comprised in a highway which also comprises a carriageway, being a way over which the public have a right of way on foot only (section 329(1) of the HA80).
Bridleway	A highway over which the public have the following, but no other, rights of way, that is to say, a right of way on foot and a right of way on horseback or leading a horse, with or without a right to drive animals of any description along the highway (see section 329(1) of the HA80, section 66(1) of the WCA81 and section 336(1) of the TCPA90). It should also be noted that section 30(1) of the Countryside Act 1968 gives the public the right to ride a bicycle on any bridleway but, in exercising that right, cyclists must give way to pedestrians and persons on horseback. Section 30(4) provides that section 30(1) shall not affect any definition of “bridleway” in the Countryside Act 1968 or any other Act.
Restricted Byway	A highway over which the public have (a) a right of way on foot, (b) a right of way on horseback or leading a horse, and (c) a right of way for vehicles other than mechanically propelled vehicles; with or without a right to drive animals of any description along the highway but no other rights of way (see section 48(4) of CROW 2000).
Byway Open to all Traffic (BOAT)	A highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths and bridleways are so used (see section 66(1) of the WCA81).
Public Path	A highway being either a footpath, bridleway or restricted byway (see section 66(1) of the WCA81, as amended by paragraph 9 of Schedule 5 CROW 2000, and section 27(6) of the NPACA 49).
Road Used as a Public Path (RUPP)	A highway, other than a public path, used by the public mainly for the purposes for which footpaths or bridleways are so used (see section 27(6) of the National Parks and Access to the Countryside Act 1949 (NPACA49). Note: On commencement of section 47 of CROW 2000 on 2 May 2006 (in England) and 11 May 2006 (in Wales) the expression RUPP ceased to be used in any definitive map or statement to describe any way. Those ways shown as RUPPs on the commencement dates were instead to be regarded as restricted byways.

Occasionally the symbols CRF (carriageway used mainly as a footpath) and CRB (carriageway used mainly as a bridleway) are used on definitive maps alongside the notation for RUPPs. These symbols were recommended for use (see cancelled Circular 81/50 of January 1950 and accompanying memorandum) by parish and district councils when compiling information on public rights of way in their area, and for use by surveying authorities in the preparation of their draft (definitive) map and statements to identify public carriage or cart roads according to whether they were mainly used as footpaths or bridleways. They were not intended for subsequent use by surveying authorities as an addendum to the record in the definitive map and statement, to supplement the notation required under statute.

In practice some authorities misunderstood the advice and used the symbols on their definitive map and statement. The symbols had no statutory status. Consequently, where they have been used they do not confirm the existence of public vehicular rights of way.

Appendix 2: Definitions - a local authority

When comparing the procedures for Order making and confirmation within the three different Acts it is helpful to outline the different definitions of a local authority (and a council where appropriate). These can be found below.

Wildlife and Countryside Act 1981
With respect to: Sections 53 and 54 and Schedule 14 and 15	“Local authority” means a non-metropolitan district council, a parish council or the parish meeting of a parish not having a separate parish council. (see Schedule 14(5) and 15(13))

Highways Act 1980

With respect to: Sections 26, 118, 118A, 118B, 119, 119A and 119B and Schedule 6

“Council” means a county council or local authority. “local authority” means - (i) a billing authority or a precepting authority, as defined in section 69 of the Local Government Finance Act 1992;…[See Paragraph 3(3) of Schedule 6] Section 69 (1) of the 1992 Act states that a precepting authority means a “major precepting authority” which has the meaning given by section 39(1), namely – (a) a county council in England …; (c) a parish or community council;: (d) the chairman of a parish meeting …, or a “local precepting authority” which has the meaning given by section 39(2) of the Local Government Finance Act 1992.

Town and Country Planning Act 1990

With respect to: Sections 257, 258 and 261 and Schedule 14

“Competent authority” means (a) in the case of development authorised by a planning permission, the local planning authority who granted the permission or, in the case of a permission granted by the Secretary of State, who would have had power to grant it; and (b) in the case of development carried out by a government department, the local planning authority who would have had power to grant planning permission on an application in respect of the development in question if such an application had fallen to be made. (see Section 257(4)) “Local Authority” means (except in section 252…) (a) a billing or precepting authority (except the Receiver for the Metropolitan Police District), as defined in section 69 of the Local Government Finance Act 1992….. (see Section 336 (1)) “Precepting Authority” means (a) a county council…a “local precepting authority” means ….. (c) a parish or community council; (d) the chairman of a parish meeting… (see Section 39(2) Local Government Finance Act 1992) Section 69 of the 1992 Act states that a “local precepting authority” has the meaning given by section 39(2) above.

Appendix 3: References

Legislation

The National Parks and Access to the Countryside Act 1949 (NPACA 49)

The Countryside Act 1968 (CA 68)

The Highways Act 1980 (HA 80)

The Wildlife and Countryside Act 1981 (WCA 81)

The Acquisition of Land Act 1981 (ALA 81)

The Town and Country Planning Act 1990 (TCPA 90)

The Rights of Way Act 1990 (RWA 90)

The Transport and Works Act 1992 (TWA 92)

The Countryside and Rights of Way Act 2000 (CROW 2000)

The Natural Environment and Rural Communities Act 2006 (NERC 2006)

The Growth and Infrastructure Act 2013

Statutory Instruments (SIs)

1492/1992: The Town and Country Planning General Regulations 1992

9/1993: The Rail Crossing Extinguishment and Diversion Orders Regulations 1993

10/1993: The Town and Country Planning (Public Path Orders) Regulations 1993

11/1993: The Public Path Orders Regulations 1993

12/1993: The Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993

407/1993: The Local Authorities (Recovery of Costs for Public Path Orders) Regulations

451/1995: The Rail Crossing Extinguishment and Diversion Orders, the Public Path Orders and the Definitive Maps and Statements (Amendment) Regulations 1995

1978/1996: The Local Authority (Charges for Overseas Assistance and Public Path Orders) Regulations 1996

1479/2003: The Highways, Crime Prevention etc. (Special Extinguishment and Special Diversion Orders) Regulations 2003 (applies to England only)

1172/2006: The Countryside and Rights of Way Act 2000 (Commencement No.11 and Savings) Order 2006

1176/2006: The Natural Environment and Rural Communities Act 2006 (Commencement No.1) Order 2006

1177/2006: The Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006

1279/2006: The Countryside and Rights of Way Act 2000 (Commencement No.8 and Transitional Provisions) (Wales) Order 2006

2201/2013: The Town and Country Planning (Public Path Orders)(Amendment)(England) Regulations 2013

Department of the Environment Circulars

17/90: Rights of Way Act 1990

18/90: Modifications to the Definitive Map: Wildlife and Countryside Act 1981

7/95: Public Rights of Way - Amendment Regulations and Advice on Public Path Orders

11/96: Recovery of Costs for Public Path and Rail Crossing Orders-Amendment Regulations

Welsh Office Circulars

44/90 Rights of Way Act 1990

45/90 Modifications to the Definitive Map: Wildlife and Countryside Act 1981

5/93 Public Rights of Way

6/93 Recovery of Costs of Public Path and Rail Crossing Orders

47/96 Recovery of Costs for Public Path and Rail Crossing Orders-Amendment Regulations

Department for Environment, Food and Rural Affairs Circulars

1/2002 Guidance for Local Highway Authorities: on crime prevention on public rights of way – designation of areas (applies to England only)

1/09 Rights of Way Circular: Guidance for Local Authorities (applies to England only)

Department of Transport

1/1994 Transport and Works Act 1992 – bridge and tunnel orders under Section 48 – stopping up and diversion of footpaths and bridleways crossing railways and tramways

Question 24

24. Annex L Widths on Orders

Accepted Answer

24.1 Introduction

24.1.1. This guidance clarifies the Planning Inspectorate’s position on the need for widths to be shown on all public path, definitive map and rail crossing orders, but has no legal force. It is not an authoritative interpretation of the law.

24.2 Consideration

24.2.1. DEFRA Circular 1/09, paragraphs 4.16 relating to definitive map modification orders relating to public path and rail crossing orders, state that the width of a path should be included in the order schedule. The legal authority for this advice can be found in the regulations for the relevant types of order (Town and Country Planning (Public Path Orders) Regulations 1993 (SI 1993 No.10); Public Path Orders Regulations 1993 (SI 1993 No.11); Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (SI 1993 No. 12); The Rail Crossing Extinguishment and Diversion Orders Regulations 1993 (SI 1993 No. 9)). Effective future management of the rights of way network and of the land over which the rights of way pass requires that widths of routes are recorded as accurately as possible. The extent to which this is feasible may vary depending upon the type of order. Consequently, in applying this advice Inspectors will need to take into account the nature of the order under consideration and the specific circumstances of the case. Accordingly, this guidance deals separately with public path and rail crossing orders and with definitive map modification orders. More detailed guidance on expressing widths in orders is set out in Defra’s non-statutory guidance to order making authorities on widths in orders, dated February 2007, appendix 1.

24.3 Public Path and Rail Crossing Orders

24.3.1. Both public path orders and rail crossing orders involve the express creation of new rights of way. As such, the width of the new way should be determined as part of the order making process. Where an order is received without a specified width, the Inspector may, where appropriate, use his power of modification (Paragraph 2(2) of Schedule 6 to the Highways Act 1980, paragraph 7(3) of Schedule 15 to the Wildlife and Countryside Act 1981 and paragraph 3(4) of Schedule 14 to the Town and Country Planning Act 1990.) to add one. If this is not appropriate, the Inspector may refuse to confirm the order.

24.3.2. The relevant regulations do not prescribe the manner in which the width of the way to be created is described. Apart from specific instances such as the reinstatement of a right of way after ploughing under Schedule 12A to the Highways Act 1980 (as inserted by the Rights of Way Act 1990), there are no statutory widths for rights of way. Inspectors may exercise their discretion in determining whether the description is reasonable in all the circumstances of the case. Nonetheless, a minimum or approximate width should not be used in an order. Including a minimum or approximate width in an order can lead to uncertainty regarding the position, area, maintenance and obstruction of a right of way. If Inspectors come across orders where a minimum or approximate width is shown then the Inspector should modify the order and put in an actual width.

24.3.3. In some cases, the width of the new way may vary frequently along its length making a simple written description difficult. In such cases a suitable form of wording might say ‘varying between X metres and Y metres as shown on the order plan’. Whether this is feasible or not depends upon the scale, detail and quality of the order plan. Reference to fixed physical boundaries can sometimes be acceptable but walls, fences, hedges and buildings may be removed or re-positioned in future and are therefore not always reliable as a permanent marker.

24.3.4. A proposal to modify a public path or rail crossing order to include a width may need to be advertised by virtue of paragraph 2(3)(a) of Schedule 6 to the Highways Act 1980 (the 1980 Act) or paragraph 3(6)(a) of Schedule 14 to the Town and Country Planning Act 1990 (the 1990 Act).

24.4  Definitive Map Modification Orders

24.4.1. Definitive map modification orders do not extinguish or create ways; they merely record them. As such, they are based on evidence and any width recorded in such an order should also be based on evidence. It is recognised that there are significant differences between modification orders based on documentary evidence and those based on evidence of use. These differences may impact on the ability of the order making authority and the Inspector to determine the width of the route. Nonetheless, the principle that widths should be recorded as accurately as possible in all the circumstances still applies to both types of modification order.

24.4.2. Accordingly, where an order is received without a specified width, the Inspector should use his power of modification2 to add one. Determination of the width will, if not defined by any inclosure award, physical boundary or statute, be based on evidence provided during the confirmation process, or, where there is no such clear evidence, the type of user and what is reasonable. Circumstances, such as the nature of the surface and other physical features, may dictate what may be considered reasonable. In the absence of evidence to the contrary, Inspectors should ensure that the width recorded is sufficient to enable two users to pass comfortably, occasional pinch points excepted. This width may well be greater than the width of the “trodden path”. Apart from specific instances such as the reinstatement of a right of way after ploughing under Schedule 12A to the Highways Act 19803, there are no statutory widths for rights of way.

24.4.3. A minimum or approximate width may be used in an order where the evidence indicates a minimum or approximate width. Historic documents tendered in evidence may use terms such as “at the least” or “thereabouts” to qualify the stated width and thus it may be appropriate for the order to be drafted in similar terms. Care should be taken in such cases to distinguish between the legal width of the highway and specific “making up” requirements.

24.4.4. In some cases, the width of the way to be recorded may vary frequently along its length making a simple written description difficult. In such cases a suitable form of wording might say ‘varying between X metres and Y metres as shown on the order plan’. Whether this is feasible or not depends upon the scale, detail and quality of the order plan. Reference to fixed physical boundaries can sometimes be acceptable but walls, fences, hedges and buildings may be removed or re-positioned in future and are therefore not always reliable as a permanent marker. Alternatively, reference may be made to other reliable sources of mapping that may be available, for instance the Ordnance Survey 25” County Series maps. Although it may not be possible to scale off precise measurements from such maps, they may indicate where significant variations of width occur between the minimum and maximum figures.

24.4.5. It is likely that, in modifying a definitive map modification or reclassification order to specify a width, notice of the proposed modification will be required by virtue of the provisions of paragraph 8(1)(a) of Schedule 15 to the Wildlife and Countryside Act 1981 (the 1981 Act). This is because public rights of passage will extend across the full breadth of the stated width, which means a modification stating a width could be said to ‘affect land not affected by the order’ (paragraph 8(1)(a)).

24.5 Extinguishments and Deletions

24.5.1. The requirement in the regulations to specify a width for ways being created or added to the definitive map is replicated in the requirements relating to extinguishments and deletions from the definitive map. It is considered acceptable to use a phrase such as “the whole width” where the intention is to extinguish or delete all of the affected section of the way. Clearly where the intention is to retain some part of the width of the way as a public right of way then the width to be extinguished or deleted needs to be more precisely described.

24.6 Conclusion

24.6.1. All public path orders, definitive map modification orders, definitive map reclassification orders and rail crossing orders should include a width.

24.6.2. Where Inspectors use their power of modification to include or vary a width, notice of modification may be required specifying the time and manner in which objections or representations can be made. If any objections or representations are duly made and not withdrawn, then a public inquiry must be held or an opportunity of being heard given to the person making the objection or representation pursuant to paragraph 8(2) of Schedule 15 to the 1981 Act, Paragraph 2(3) of Schedule 6 to the 1980 Act and paragraph 3(6) of Schedule 14 to the 1990 Act.

24.6.3. Although rarely necessary, an Inspector may add an additional plan to an order where they consider it necessary to ensure the width(s) of the path(s) can be properly reflected (and it is not possible to add this clarity to the order map as drafted).

Appendix 1

Question 25

25. Annex M: Inspectors’ power to modify definitive map modification orders

Accepted Answer

25.1 Introduction

25.1.1. This guidance covers how Inspectors will deal with orders made under s53(2) of the Wildlife and Countryside Act 1981 (the ‘1981 Act’) where, in respect of an order, either: (i) no event has been specified, (ii) the wrong event has been specified, (iii) more than one event should have been specified but was not, (iv) more than one event has been specified, but one or more of them is redundant, or (v) the order is specified to have been made under section 53(2)(a) of the 1981 Act, when the reference should have been to section 53(2)(b), or vice versa. ‘Event’ has the same meaning as in s53(3) of the 1981 Act. It has no legal force and is not itself an authoritative interpretation of the law.

25.2 Background

25.2.1. All of the above scenarios have occurred in the past, prompting the need to consider what, if any, powers are available to Inspectors to modify such orders. The following advice sets out the Planning Inspectorate’s view on each scenario.

25.3 General

25.3.1. Section 57(1) of the 1981 Act provides that: “An order under the foregoing provisions of this Part [which includes an order made under section 53(2) of the 1981 Act] shall be in such form as may be prescribed by regulations made by the Secretary of State ……”.

25.3.2. Regulation 4 of the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (SI 1993/12; the ‘Regulations’) provides that: “A modification order shall be in the form set out in Schedule 2 to these Regulations or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case.” “A form substantially to the like effect” is to be regarded in the colloquial sense of “a substantially similar form”; i.e. the form must make clear the effect of the order and must also contain a statement of the event(s) giving rise to the order. Schedule 2 to the Regulations provides, amongst other things, for the following form of wording to be used when a modification order is made: “This Order is made by (name of surveying authority) under section ((53(2)(a)) (53(2)(b)….) of the [1981 Act] because it appears to that authority that the (insert title of (definitive) map and statement) require modification in consequence of the occurrence of an event specified in section 53(3) (specify the relevant paragraph and sub-paragraph), namely (specify event)…..”.

25.3.3. Before going on to consider the scenarios in paragraph 1.1 above, it is important to note the guidance set out in paragraph 10.12 of DEFRA Circular 1/09, which points out that substantive errors may result in the rejection of an order by the Secretary of State.

25.3.4. It should be borne in mind that a modification order is published to allow the public: (i) to consider the reasons for the order and the effect of the order, and (ii) to raise objections if they wish. The prescribed form of order ensures that the public has sufficient information to enable an informed decision to be made about whether or not to object to the order.

25.3.5. Thus, if an order contains an error that does not (i) prejudice the interests of any person, (ii) render the order misleading in its purpose, or (iii) appear to result in incorrect information being recorded on the definitive map (hereafter a ‘minor’ error), it may be corrected by modification. However, if the error is ‘substantive’, the correct approach is for the order to be rejected and returned to the relevant surveying authority with a written explanation as to why the order was rejected, together with a written recommendation that the surveying authority should notify all relevant parties of such rejection and of the reasons for such rejection.

25.3.6. Of course, paragraph 8(1) of Schedule 15 to the 1981 Act provides that the Secretary of State shall not confirm an order with modifications so as: (a) to affect land not affected by the order; (b) not to show any way shown in the order or to show any way not so shown; or (c) to show as a highway of one description a way which is shown in the order as a highway of another description, except after complying with the requirements of sub-paragraph (2). Paragraph 8(2) requires the Secretary of State to give such notice as appears to him requisite of his proposal so to modify the order; there is then an opportunity (the minimum period being 28 days from the date of the first publication of the notice) for representations and objections to be made and, in certain circumstances, a local inquiry may be held. In such circumstances, there is clearly no question of a person’s interests being prejudiced, of the order being misleading in its purposes, or of incorrect information being recorded on the definitive map.

25.3.7. As Lord Phillips made clear in Trevelyan v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 266 “the scheme of the procedure under Sch 15 to the 1981 Act is that if, in the course of the inquiry, facts come to light which persuade the inspector that the definitive map should depart from the proposed order, he should modify it accordingly, subject to any consequent representations and objections leading to a further inquiry.” Of course, the facts which come to light may, subject to the relevant test(s) being fulfilled, require the relevant ‘event’ or ‘events’ to be modified on the order (e.g. an order may be made relying on the ‘event’ in section 53(3)(c)(ii) to “upgrade” a way, but during the course of the inquiry facts emerge which suggest that the line of the “upgraded” way differs from the line of the existing way, such that section 53(3)(c)(i) is also relevant). Where the required modification, which may or may not involve a change in the relevant ‘event’, falls within paragraph 8(1) of Schedule 15 to the WCA 1981, the correct approach is for the procedure set out in paragraph 8(2) to be followed prior to the confirmation of the order with modifications. However, where the proposed modification does not fall within paragraph 8(1) of Schedule 15 to the 1981 Act, there may not be the same opportunity for representations/objections to be made or for a local inquiry to be held in relation to the proposed modification. In such circumstances, the considerations set out in paragraphs 3.3  and 3.5 above will be relevant.

25.4 No event specified

25.4.1. An order that does not specify any event is clearly not in the form set out at Schedule 2 to the Regulations: it (i) is not “in a form substantially to the like effect”; (ii) cannot be regarded as containing the type of “necessary” omission contemplated by regulation 4 of the Regulations; and (iii) contains an error of substance.

25.4.2. Omitting the relevant event cannot be regarded as a necessary omission and clearly has the potential to prejudice an interested party’s interests, since the basis on which the order was made will not be known. Such an omission cannot be regarded as a minor error.

25.4.3. Where no event has been specified on an order, the correct approach is that which is set out in paragraph 25.3.5 above: the order should be rejected and returned to the relevant surveying authority with a written explanation as to why the order was rejected, together with a written recommendation that the surveying authority should notify all interested parties of such rejection and of the reasons for such rejection.

25.4.4. An example of a difficult case in this area would be an order that did not refer to an event, but instead stated that the order was made “in accordance with a direction made to the authority by the Secretary of State under paragraph 4(2) of Schedule 14 to the 1981 Act”. This situation could arise in the context of an application for an order under s53(5) of the 1981 Act.

25.4.5. By virtue of s53(5) of the 1981 Act, “Any person may apply to the authority for an order under [section 53(2) of the 1981 Act] which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within [section 53(3)(b) or (c) of the 1981 Act]”. Where an authority decides not to make an order, the applicant may serve notice of appeal against that decision on the Secretary of State and on the authority (paragraph 4(1) of Schedule 14 to the 1981 Act). If on considering the appeal the Secretary of State consider that an order should be made, paragraph 4(2) of Schedule 14 to the Act provides that “he shall give to the authority such directions as appear to him necessary for the purpose”.

25.4.6. Whilst the Secretary of State direct the authority to make an order, the order itself should nevertheless state, in accordance with Schedule 2 to the Regulations, the event which has given rise to the order (regardless of whether it is the authority or the Secretary of State that consider that an order should be made).

25.4.7. The difficulty in this area is perhaps caused by the words italicised in the following extract from the prescribed form (Schedule 2 to the Regulations): “This Order is made by (name of surveying authority) under section ((53(2)(a)) (53(2)(b)….) of the [1981 Act] because it appears to that authority…[that a modification order should be made in consequence of an event]”. Where the decision that an order should be made originates from the Secretary of State, rather than from the particular authority in question, an argument could perhaps be made that the order should read: “This Order is made by (name of surveying authority) under section ((53(2)(a)) (53(2)(b)….) of the [1981 Act] because it appears to the Secretary of State (who has directed the authority to that effect).…”. Such an amendment would be regarded as the sort of “insertion[..] or omission[..] as [is] necessary in [the] particular case” (regulation 2 of the Regulations) and the form would be regarded as “substantially to the like effect” as the prescribed form.

25.4.8. Whilst we are of the opinion that it would be acceptable to amend the name of the party that considers that an order should be made, the surveying authority must make the order, and the order must specify the event on which the order is based.

25.5 Wrong event specified

25.5.1. Where the wrong event has been specified, an Inspector may use his or her powers of modification only where the error is minor (see paragraph 3.5 above).

25.5.2. An example of an error of substance is where it is evident that the order making authority (‘OMA’) has cited the wrong event and so has applied the wrong criteria in making the order. For example, an order is made to reclassify a footpath as a byway but the event specified is s53(3)(c)(i) (which is for adding a way to the map where no right is recorded) rather than s53(3)(c)(ii) (which is for modifying rights already recorded). As the tests to be satisfied for these two subsections are different, they are not interchangeable.

25.5.3. On the other hand, a slip of the hand will not necessarily render an order invalid. Where it is evident from the remainder of the order and the surrounding circumstances that the requirements of the 1981 Act have been applied correctly, even though the wrong event has been stated, there seems to be no reason why an Inspector could not use his or her powers of modification. For example, an OMA cites s53(3)(c)(i) as the relevant event, yet it is apparent that what the OMA had in mind from the remainder of the order and the notice was that there is no public right of way over land shown in the map and statement as a highway of any description (s53(3)(c)(iii)).

25.5.4. The public has an interest in understanding the reasons that lie behind an order; if such reasons are mis-stated, the decision whether or not to challenge an order may be affected. Therefore, where the wrong event is specified, modification will rarely be appropriate.

25.5.5. For the situation where, during the course of an inquiry (or during the course of otherwise hearing representations/objections), facts come to light which suggest that the definitive map should depart from the proposed order (which may require the relevant ‘event’ or ‘events’ being amended), see paragraphs 3.6 and 3.7 above.

25.5.6. As a separate scenario, where an order has been made under s53(3)(b) of the 1981 Act, and the user evidence does not point towards the expiration of a sufficient period of time to raise a presumption that the way has been dedicated as a public right of way, but the accompanying documentary evidence does support dedication, the Inspector may modify the event to s53(3)(c)(i) provided that he or she is satisfied that the error is not substantive.

25.6 More than one ‘event’ should have been specified but was not

25.6.1. The question here is whether the error is minor or substantive. The public has an interest in understanding the reasons that lie behind an order; if such reasons are mis-stated, the decision whether or not to make a representation with respect to an order may be affected. Therefore, where more than one event should have been but was not specified, modification will rarely be appropriate.

25.6.2. For the situation where, during the course of an inquiry (or during the course of otherwise hearing representations/objections), facts come to light which suggest that the definitive map should depart from the proposed order (which may require the relevant ‘event’ or ‘events’ being amended), see paragraphs 3.6 and 3.7 above.

25.7 Order specifies more than one ‘event’, but one or more is redundant

25.7.1. Leading the public to believe that there are multiple reasons for the making of an order, when one or more of such reasons are (or later turn out to be) redundant, has the potential to prejudice the interests of the public, since the grounds for making an order may thereby appear stronger than they are, with a resultant effect on the public’s willingness to object. Therefore, where an order specifies more than one event, but one or more is (or turns out to be) redundant, modification will rarely be appropriate.

25.7.2. For the situation where, during the course of an inquiry (or during the course of otherwise hearing representations/objections), facts come to light which suggest that the definitive map should depart from the proposed order (which may require the relevant ‘event’ or ‘events’ being amended), see paragraphs 3.6 and 3.7 above.

25.8 Order cites section 53(2)(a) of the 1981 Act, when it should have cited section 53(2)(b), or vice versa

25.8.1. Very occasionally an order cites s53(2)(a) of the 1981 Act instead of s53(2)(b) or s53(2)(b) instead of s53(2)(a). This is not necessarily wrong. The correct subsection is determined by the date of the event giving rise to the order. If the wrong subsection has been cited, Inspectors will have to decide whether to modify the order in the light of the principles set out in paragraph 3.5 above.

25.9 Modifying the order map

25.9.1. Inspectors could use their powers of modification to modify order maps, however they cannot be replaced and modifications cannot be made which could not be shown on the order map i.e. if the path went off the map.

25.9.2. In Wildlife and Countryside Act cases, the orders effectively modify the definitive map and statement upon confirmation. Whilst it is true that the schedule takes precedence over the order map, paragraph 2 of Schedule 2 of the regulations (SI 1993/12) provides that the definitive map ‘..shall be modified as described in [Part I] [and] [Part II] of the schedule and shown on the map attached to the order’. The regulations are therefore quite clear on this point – the definitive map may only be modified to show that information in the schedule and on the order map.

25.9.3. Inspectors cannot propose modifications where those modifications cannot be shown completely on the order map.

Question 26

26. Annex N: Procedural irregularities in respect of Definitive Map Modification Orders and public Path Orders

Accepted Answer

26.0.1. Each statute sets out the various tests that have to be satisfied before an order can be confirmed, and the schedules to each Act describe the mechanisms and procedures that are to be followed when a surveying authority, a highway authority or a local planning authority contemplates making an order.

26.0.2. Occasionally Order Making Authorities fail to comply with procedural requirements set out in the schedules and this guidance sets out what we consider to be procedural irregularities would render an order invalid, and what solutions are available to address those irregularities which have occurred, but which are not fatal to the validity of an order.

26.1 Wildlife and Countryside Act 1981

26.1.1. Applications to modify the Definitive Map and Statement are subject to the provisions of schedule 14 to the 1981 Act; orders made under section 53(2) to modify the Definitive Map and Statement are subject to the provisions of schedule 15 to that Act. Both schedules specify the procedures to be followed at each stage in the process leading to the modification of the map and statement.

26.2 Schedule 14

26.2.1. Schedule 14, Paragraph 1 provides that an application shall be made in the prescribed form (prescribed by Schedule 7 to the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 SI 12 1993 (as amended)) and shall be accompanied by a map at the prescribed scale, together with copies of any documentary evidence and statements of witnesses that the applicant wishes to adduce in support. Paragraph 2(1) to Schedule 14 provides that the applicant shall serve a notice stating that the application had been made on every owner and occupier of land to which the application relates. Paragraph 3 provides for the determination by the surveying authority of the application and that the surveying authority shall consult with every other local authority (as defined in paragraph 5(1) of Schedule 14 to the 1981 Act) before determining whether or not to make an order to modify the map and statement.

26.2.2. In the case of R (on the application of the Warden and Fellows of Winchester College and Humphrey Feeds Ltd) v Hampshire County Council and the Secretary of State for Environment and Rural Affairs [2007] UKHL 28 (“the Winchester case”), the court considered whether a list of documents and the provision of a copy of part of the existing definitive map, as opposed to copies of the documents relied on, and a map of the claimed route at the prescribed scale (Schedule 7 to the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 SI 12 1993 (as amended)), was sufficient for an application to have been validly made, along with the effect of the failure by the applicant to serve notice on all the owners and occupiers of land affected by the claimed rights of way.

26.2.3. The Winchester case demonstrates that the process by which procedural irregularities at the Schedule 14 stage in Wildlife and Countryside Act cases can be challenged is by way of the judicial review of the surveying authority’s decision.

26.2.4. Inspectors appointed under paragraph 10(1) of Schedule 15 to the 1981 Act are not appointed to determine whether any or all of the procedural requirements of Schedule 14 have been carried out, and it is not the Inspector’s role to determine whether the application that led to the order was correctly made; or, in those cases where the OMA makes an application to itself in pursuance of its general duty to keep the map and statement under continuous review, to determine whether the OMA should or could have made such an application.

26.2.5. The correct course of action for any party aggrieved by procedural irregularities in the Schedule 14 process is to seek judicial review of the surveying authority’s decision. If this course of action has not been followed, then the opportunity to question the validity of any order on the grounds of procedural defects in the Schedule 14 stage will have lapsed.

26.2.6. Whilst Inspectors are not appointed to determine whether the procedural requirements at the Schedule 14 stage have been carried out, one exception to this general rule arises in those cases involving applications for the additions of Byways Open to All Traffic (“BOATs”) to the definitive map and statement where the application would give rise to one of the exceptions from the provisions of section 67 (1) of the Natural Environment and Rural Communities Act 2006 (“the 2006 Act”). In such cases an investigation of the Schedule 14 application is necessary is order to be able to determine the correct status of a route at issue.

26.2.7. In these circumstances, it will be necessary for an assessment of the application to be made to ensure that it fully complied with the requirements of schedule 14(1) and was thus a qualifying application under section 67(6) of the 2006 Act. Non-compliance would mean that the exception to the extinguishment of MPV rights found in section 67(3) would not apply, and MPV rights would not have been preserved. A non-compliant application would not however be grounds for rejecting any order arising from the application; the order would remain capable of determination but, if none of the other exceptions set out in section 67(2) were applicable, any right the public may have had to use MPVs over the order route would have been extinguished on 2 May 2006. In such cases, the route at issue could be recorded as a Restricted Byway if the evidence was such to show that carriageway rights existed over it.

26.3 Schedule 15

26.3.1. Paragraph 1 to Schedule 15 provides that “Before making an order, the authority shall consult with every local authority whose area includes the land to which the order relates”. “Local authority” is defined in schedule 15 as being a non-metropolitan district council, a parish or community council or the parish meeting of a parish not having a separate parish council. Paragraph 3 sets out the mechanism whereby publicity is given to the order once it has been made. It stipulates the parties on whom notice has to be served and that a period of not less than 42 days must be allowed from the first publication of the notice for objections or representations to be made to the order.

26.3.2. Paragraph 12 provides a means by which the validity of an order which has come into effect can be challenged by means of judicial review in the High Court on the grounds of procedural failings. Irrespective of the opportunity to apply to the High Court given by paragraph 12, Inspectors should satisfy themselves that any procedural aspects of the order making process have been complied with. Order making authorities should ensure that a certificate is submitted confirming that the requirements of paragraph 3 to Schedule 15 have been complied with, and should confirm at an inquiry or hearing that these provisions have been fulfilled.

26.3.3. The failure of an authority to stipulate in an order that they have undertaken the consultations required by paragraph 1 to Schedule 15 may to lead to the order being rejected as invalid, unless the order making authority can demonstrate to the Inspector’s satisfaction that such consultations had been carried out prior to making the order, and that the failure to record such consultations in the preamble to the order (Schedule 2 to the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (as amended)) had been an administrative oversight. In such cases, Inspectors should seek evidence of pre-order consultations before rejecting the Order, and if satisfied that the required consultations had been carried out, can exercise their powers to modify the order accordingly.

26.3.4. In those cases where the statutory requirement to consult before the order is made has not been carried out at all, the order should be rejected as invalid, as there is no opportunity for the order making authority to rectify such a failure; consultations with other local authorities after the order has been made would not be compliant with the provisions of paragraph 1 to Schedule 15.

26.3.5. If a failure to comply with the other procedural requirements of Schedule 15 is brought to light at inquiry or hearing or at any other point before the determination of the order, Inspectors should seek to remedy this; prejudice to the interests of a party to the order may be avoided by requiring the order making authority to carry out the procedures fully before the order is determined. Instances may arise, for example where the order making authority has failed to serve notice on a party, or failed to publicise the order on site or in the local newspaper, or had given less than 42 days from the date of publication of the order for objections or representations to be made. In such cases, it would be possible for the determination of the order to be delayed whilst the appropriate notices are served, if necessary by an adjournment of any hearing or inquiry being held into the order. In those cases where prejudice cannot be avoided, the order should be considered as flawed and incapable of confirmation.

26.4 Rights of way already shown on the definitive map and statement

26.4.1. As Inspectors are not appointed to inquire into the procedural aspects of the Schedule 14 stage, it follows that when considering whether a right of way already shown on the definitive map and statement should be deleted or shown as a way of a different description, Inspectors are not empowered to adjudicate on whether any procedural defects occurred at the time the right of way was originally added to the definitive map and statement. Unless evidence concerning a procedural defect is relevant to establishing the correct status of the right of way concerned (for example a key piece of documentary evidence indicating a different status had been ignored) there can be no reason for an inspector to consider it and a procedural defect would not of itself be grounds to re-open a case. There must be a presumption that the way is as shown on the definitive map and statement, even if the procedures were defective, unless there is evidence to establish that the way should be shown as being of a different status, or not shown at all.

26.5 Highways Act 1980

Applications for orders

26.5.1. Sections 118C, 119C and 119D of the Highways Act 1980 (as amended by the Countryside and Rights of Way Act 2000) set out the process whereby proprietors of a school can apply for a special extinguishment or special diversion order, and whereby an appropriate conservation body can apply for a public path diversion order for the protection of a site of special scientific interest.

26.5.2. The amendments made to the 1980 Act place the application process for public path extinguishment and diversion orders on a similar statutory footing to applications to modify the definitive map and statement found in Schedule 14 of the 1981 Act. Where an application has been made under the relevant provisions of the 1980 Act, any failure to comply with the procedural requirements of the application process are not matters for Inspectors to consider; the appropriate means of challenging the validity of any order resulting from a procedural failure at the application stage would be by means of judicial review.

Determination of Orders

26.5.3. Paragraph 1 of Schedule 6 to the 1980 Act sets out the mechanism whereby publicity is given to orders made under sections 26, 118, 118A, 118B, 119, 119A, 119B and 119D. It also stipulates that notice has to be given in at least one newspaper circulating in the area; sets out those parties on whom notice has to be served, and stipulates that a period of not less than 28 days is allowed from the first publication of the notice for objections or representations to be made to the order.

26.5.4. Paragraphs 26(3) and 120(2) of the 1980 Act provide that before making a public path creation order or public path diversion or extinguishment orders, the order making authority has to consult with other local authorities in whose area the land crossed by the path at issue is situated. Local authority is defined in section 329(1) of the 1980 Act as the council of a district or London borough or the Common Council, or a Welsh council. For special extinguishment or special diversion orders the order making authority is also required to consult with the relevant police authority before making an order (Section 118B(6) and 119B(6) of the 1980 Act).

26.5.5. The failure of an order making authority to stipulate in an order that they have undertaken the consultations required by sections 26(3) or 120(2) may to lead to the order being rejected as invalid, unless the order making authority can demonstrate to the Inspector’s satisfaction that such consultations had been carried out prior to making the order, and that the failure to record such consultations in the preamble to the order had been an administrative oversight (Schedule 1 to regulation 2(1) of the Public Path Orders Regulations 1993 SI 11 1993 (as amended); Schedule 2 to regulation 3(1) of the Rail Crossing Extinguishment and Diversion Orders Regulations 1993 (as amended); the Highways, Crime Prevention etc. (Special Extinguishment and Special Diversion Orders) Regulations 2003 SI 1479 2003). In such cases, Inspectors should seek evidence of pre-order consultations before rejecting the order, and if satisfied that the required consultations had been carried out, can exercise their powers to modify the order accordingly.

26.5.6. In those cases where the statutory requirement to consult before the order is made has not been carried out at all, the order should be rejected as invalid, as there is no opportunity for the order making authority to rectify such a failure; consultations with other local authorities after the order has been made would not be compliant with the provisions of Sections 26(3) or 120(2).

26.5.7. If a failure to comply with the other procedural requirements of the relevant sections of the 1980 Act is brought to light at inquiry or hearing or at any other point before the determination of the order, Inspectors should seek to remedy this; the guidance offered in paragraph 4.13 above should be followed. In those cases where prejudice cannot be avoided, the order should be considered as flawed and incapable of confirmation.

26.6 Town and Country Planning Act 1990

26.6.1. Orders made under section 257 of the 1990 Act will come before Inspectors as a result of planning permission having been granted and where it is considered that the diversion or extinguishment of a right of way is required in order for the permitted development to be carried out. Where land has been acquired for planning purposes by a local authority and is held by the authority for the purpose for which it was acquired, a public right of way over the land may be extinguished or diverted under section 258 of the 1990 Act if the authority is satisfied that an alternative way has been or will be provided, or that the provision of an alternative way is not required.

26.6.2. When giving consideration to a section 257 or section 258 order, Inspectors are not appointed to consider the merits of the planning application or the permissions granted, and their sole responsibility is to determine the diversion or extinguishment order. Arguments that are sought to be aired at an inquiry or hearing into the validity of the order on the grounds that planning permission should not have been granted are irrelevant and should be dismissed.

26.6.3. Paragraph 1 of Schedule 14 to the 1990 Act sets out the mechanism whereby publicity is given to orders made under sections 257 or 258 of the 1990 Act. It stipulates that notice has to be given in at least one newspaper circulating in the area and gives details of those parties on whom notice has to be served which includes any statutory undertakers whose apparatus is found on, in or under the land. A period of not less than 28 days is allowed from the first publication of the notice for objections or representations to be made to the order.

26.6.4. It is not necessary for an order making authority to consult with other councils before making an order under sections 257 or 258, but notice of the making of the order must be served on the council of any county, district, London borough, parish or community or parish meeting whose area includes the land affected by the order.

26.6.5. If a failure to comply with any of the procedural requirements of the relevant sections of the 1990 Act is brought to light at inquiry or hearing, or at any other point before the determination of the order, Inspectors should seek to remedy this; the guidance offered in paragraph 14 above should be followed. In those cases where prejudice cannot be avoided, the order should be considered as flawed and incapable of confirmation.

Question 27

27. Annex O - Use of correct Notation on Definitive Map Modification Orders, Public Path Orders and combined orders.

Accepted Answer

27.0.1. All new opposed orders are checked by us to ensure they are valid in terms of the relevant regulations. One of the things we check is the notation used on the order map to depict the way being stopped-up/deleted, added, diverted, upgraded, or downgraded.

27.0.2 .This guidance sets out the Planning Inspectorate’s expectations and supersedes the advice contained in our letter of 7 September 2011 which was issued to all OMAs in England,

27.1 Definitive Map Modification Orders

27.1.1. Regulation 3 of the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (SI 1993 No.12) states that ‘Rights of Way to which part III of the Act (public rights of way) applies shall be shown on the definitive map as indicated in Schedule 1 of these Regulations’. Schedule 1 sets out the various lines styles to be used to depict footpaths, bridleways, restricted byways and byway open to byway open to all traffic. The notation for a restricted byway is the same as that previously used to depict a road used as a public path – either a green broken line or a broken line and small arrow heads as thus: v_v_v_v_. Different options are provided for each type of way.

27.1.2. Regulation 6 of SI 1993 No.12 clearly states that ‘Regulations 2 (map scale) and 3 (notation) above shall apply to the map contained in the modification…order as they apply to a definitive map’.

27.1.3. On this basis, an order is considered to be fatally flawed if the wrong notation or non-standard notation (i.e. notation other than that set out in SI 1993 No.12) is used to depict the routes affected by the order. We will therefore reject any order containing incorrect notation.

27.1.4. The only exception to this rule is deletions. Paragraph 4.17 of Circular 1/09 recommends the use of a continuous bold black line to depict a route to be deleted.

27.1.5. In our view, the unaffected routes should also be shown using the appropriate notation as it helps with clarity. In all cases, the map key should clearly identify the different notation types used and what they mean. For additional clarity, the map key should also clearly describe the points of the order route i.e. A-B-C against the relevant notation style.

27.1.6. In addition to using the correct notation, OMAs are reminded that the Regulations also set out specific colours for the various line styles. These must be adhered to. The Regulations do not refer to the use of red ink for any line style but, in any event, we prefer you not to use this colour as it is used by Inspectors if they need to modify an order.

27.1.7. It has been argued that the increasing reliance on the use of digitally prepared maps makes it difficult to apply the correct notations. We do not consider this to be an acceptable excuse for not adhering to the notations set out in the Regulations.

27.1.8. Another concern that has been expressed is the fact that a map produced in colour may become unclear if reproduced in black and white. We do not consider this to be a problem so long as the map key clearly identifies the different line styles used and what they mean. Again the map key should clearly describe the points of the order route i.e. A-B-C against the relevant notation style.

27.2 Public Path Orders

27.2.1. Authorities should ensure that they follow the appropriate Regulations (SI 1993 No.10 for orders under the Town and Country Planning Act 1990 and SI 1993 No.11 for orders under the Highways Act 1980) when preparing public path orders. Public path orders are considered to be fatally flawed if the wrong notation or non-standard notation is used to depict the routes affected by the order. We will therefore reject any order containing incorrect notation.

27.2.2. Again, our view is that the unaffected routes should be shown using the appropriate notation as set out in SI 1993 No.12 as this helps with clarity (paragraph 1.5 above refers).

27.3 Combined Orders

27.3.1. Combined orders are covered by the Public Rights of Way (Combined Orders)(England) Regulations 2008 as amended by the Public Rights of Way (Combined Orders)(England) (Amendment) Regulations 2010. Whilst they do not specifically state what notation should be used on order maps, Regulation 5 (of the 2008 Regulations) requires that, where a combined order is to be made, the combined order shall be in the form prescribed for an order of the type in question (e.g. a creation order or a diversion order). This is supported by the Guidance for English Surveying Authorities issued in October 2010 which contains, at Annex 1, model forms for each type of order. These clearly state that routes to be stopped-up/diverted under the Highways Act 1980 shall be shown by a bold continuous line and ways to be added as a bold broken line Routes to be stopped-up/diverted under the Town and Country Planning Act 1990 shall be shown by bold black line and ways to be added as bold black dashes.

27.3.2. On this basis, and unless further guidance is produced by Defra, OMAs will be expected to use the notation set out in the form of order under the relevant public path order regulations.

Question 28

28. Annex P: Representations and Objections: Processing by the Planning Inspectorate

Accepted Answer

28.1 Where objections and/or re presentations have been submitted following advertisement of an order being made

Under Schedule 15 to the Wildlife and Countryside Act 1981

28.1.1. Jurisdiction for the confirmation of orders transfers from the order-making authority to the Secretary of State in one of two situations: either (a) where there are no (un-withdrawn) duly made objections but the order-making authority seeks a modification of the order (in which case paragraph (6)(1)(b) of Schedule 15 applies), or (b) where there is at least one un-withdrawn duly made objection (in which case paragraph 7 of the Schedule applies).

28.1.2. In the case of the former, the unopposed order will be processed by the Inspectorate on the basis of the papers provided. There will be no further exchanges of evidence unless there are exceptional circumstances. Where the modifications requested by the authority (or proposed by the Inspector) are of a type described in paragraph 8(1) of the Schedule and require further advertisement (as provided by paragraph 8) a site visit may be considered necessary but otherwise no inspection will be undertaken.

28.1.3. Where the order is opposed, paragraph 7 of Schedule 15 sets out the procedures to be followed. These procedures are wholly dependent on the premise that at least one objection is duly made (otherwise the authority would have been in a position to confirm the order without referral to the Secretary of State.

28.1.4. When first submitted to the order-making authority, it is not necessary or appropriate for them to to determine whether or not the representation(s) or objections(s) raises matters which are relevant to the substance of the order. But is is for the authority to establish whether or not it is duly made so as to decide how best to proceed.

28.1.5. This is a principle established in the case of Lasham Parish Meeting v Hampshire CC [1992] 65 P & CR 344; [1993] JPL 831; [1993] COD 45.

28.1.6. A “duly made” objection (or representation) is one made in relation to the order (a) within the time period specified in the statutory notice, (b) in the manner specified, for example, “in writing (or by email) to the Chief Legal Officer of the Council”, and (c) includes details of the grounds on which it is made.

28.1.7. Following amendments introduced by Schedule 5 to the Countryside and Rights of Way Act 2000, the legislation is now clear that representations or objections to an order must include “particulars of the grounds relied on”. However it does not specify how detailed these grounds should be. As long as an objection gives a genuine reason, saying more than just ‘I object’, it will be considered to be ‘duly made’ (assuming it is submitted in time and in the correct form).

28.1.8. Where no such grounds are stated, the status of the author will be recorded as an ‘interested party’ rather than a ‘duly made’ objector. Interested parties are not offered the opportunity of being heard by an Inspector.

28.1.9. It is only “any person by whom a representation or objection has been duly made and not withdrawn” who may be offered an opportunity of being heard by a person appointed. Alternatively the Secretary of State (or the appointed Inspector) may decide to cause a local inquiry or hearing to be held.

28.1.10. Thus it is essential that when opposed orders are submitted to the Secretary of State (through the Inspectorate) the authority makes clear which of the objections or representations (if there is more than one) it regards as being duly made and those it does not (if any). It should be noted that a representation or objection that is not duly made (or indeed a letter of support), may still be considered by the Inspector if it contains relevant information, but such objections or representations will not determine the procedures to be followed.

28.1.11. Where there is only one objection, unless otherwise stated on submission to the Inspectorate, it will be assumed that the authority has accepted this as duly made (otherwise it would have confirmed the order as unopposed).

28.1.12. The Secretary of State (through the Inspectorate) will need to ascertain whether a duly made objection or representation is likely to be relevant to the decision on whether or not to confirm the order.

28.1.13. If none of the objection(s) contain matters which are relevant to the determination of the order, paragraph 7(2A) allows the Secretary of State the discretion not to call an inquiry or to offer the objector(s) an opportunity to be heard.

28.1.14. If the relevance (or irrelevance) of a duly made objection forwarded to the Inspectorate cannot be readily established (because the grounds are briefly stated), the objector will be asked for clarification of the nature of the objection within a reasonable timescale.

28.1.15. In the Lasham case (referred to above) Potts J explained that the Secretary of State is entitled to consider the nature of the objection in deciding whether to hold a public inquiry or a hearing. The fact that an objection is irrelevant can inform the decision on the procedure to adopted.

28.1.16. On receipt of clarification which reveals that the objection is likely to be relevant, the objector will be offered the opportunity to be heard by an Inspector, (unless for other reasons it has already been decided to hold a local inquiry as provided under paragraph 7(2)(a)).

28.1.17. Alternatively, if, in the Inspectorate’s view, the objection appears to relate solely to matters that would not be relevant to the determination of the order, the objector will be informed accordingly.

28.1.18. As noted in the Lasham case, the Secretary of State is entitled to ask the person making the objection whether they wish to maintain it or withdraw it and give them the opportunity to modify the grounds of their objection. The Inspectorate would do this before deciding upon the procedure to be followed.

28.1.19. The Secretary of State is also entitled to remind the objector of the power to award costs under paragraph 9 of Schedule 15 to the 1981 Act.

28.1.20. Except where all objections/representations are considered irrelevant, and paragraph 7(2A) applies, irrelevant objections will not be disregarded unless they are formally withdrawn. Only objections on relevant grounds are likely to justify a public inquiry or hearing.

Under Schedule 6 of the Highways Act 1980 and Schedule 14 of the Town and Country Planning Act 1990

28.1.21. There is similarity between the statutory language used in Schedule 15 to the 1981 Act and that governing the procedures for the confirmation of public path orders (under paragraphs 1 and 2 of Schedule 6 to the Highways Act 1980) and orders made under section 257 of the Town and Country Planning Act 1990 (in Schedule 14 to that Act). However, there are significant differences.

28.1.22. Neither the prescribed forms of notices under Schedule 6 sub-paragraph (1)(1) or Schedule 14 sub-paragraph (1)(1) make it mandatory for a representation or objection to a public path order to include the ‘particulars of the grounds relied upon’ in order to qualify as ‘duly made’.

28.1.23. It is for the order-making authority to decide whether a representation or objection is duly made so as to establish whether the order must be submitted to the Secretary of State for confirmation or whether the authority itself can confirm it.

28.1.24. In relation to public path orders, authorities have the discretion not to proceed with opposed orders and may choose not to forward a case to the Secretary of State but instead to bring the procedure to a close by formal resolution.

28.1.25. This process was recognised in the case of R (Hargrave & Hargrave) v Stroud DC [2002] EWCA Civ 1281).

28.1.26. For Highways Act orders, sub-paragraph (2)(1) of Schedule 6 enables either the Secretary of State, or the order-making authority, to confirm an order to which there remain no un-withdrawn duly made representations or objections. But if modifications to the order are required, only the Secretary of State may make, (or propose) such alterations and determine whether or not the order should be confirmed.

28.1.27. Similarly for Town and Country Planning Act orders, paragraph 2 of Schedule 14 empowers the order making authority to confirm (without modification) an order to which no un-withdrawn duly made, objections remain.

28.1.28. For orders made under both Acts, where duly made representations or objections are not withdrawn, the procedure to be followed mirrors that for objections made under Schedule 15 of the 1981 Act save where an objection is made by a local authority (and, in the case of 1990 Act orders, a national park authority) in which case an inquiry will be held in all instances.

28.1.29. In generally terms the procedure for processing objections to public path orders are not determined by the relevance of the objection. However, this may be a consideration if an application for costs is made.

28.2 Where Objections and/or representations are submitted following advertisement of proposed modifications to an order

Under Schedule 15 to the Wildlife and Countryside Act 1981

28.2.1. When determining an order on the basis of the information made available, an Inspector may reach the conclusion that the order should be confirmed but with certain modifications. This will be set out in an interim decision.

28.2.2. Where these modifications are of a particular nature, the changes proposed must be advertised and a period allowed for further objection before a final conclusion is reached. Minor modifications do not generally need to be advertised and such alterations may be made without further advertisement. However, those which fall into the categories listed in paragraph 8(1) of Schedule 15 must be published.

28.2.3. In effect this means that if the order route it to be (a) re-aligned or widened or (b) all, or part of a route is deleted or a new route is added or (c) the status of all or part of the Order route is altered, notice must be given of the modification proposed by the Inspector.

28.2.4. Where duly made and relevant objections or representations are submitted to an interim decision, and which include particulars of the grounds relied upon, paragraph 8(2)(b) of Schedule 15 requires the Secretary of State either to arrange a public inquiry or otherwise to afford the objector(s) an opportunity to be heard by an appointed Inspector by public inquiry or hearing if they wish.

The scope of objections to proposed modifications

28.2.5. Depending on the nature of the proposed modification, it is possible that an objection may relate only to the proposed change without affecting the underlying decision on the order as a whole.

28.2.6. For example, an objection may contest a proposed alteration to the width of a way whilst accepting that the status and alignment of the right of way should be recorded on the definitive map and statement as shown in the order.

28.2.7. A second example may arise where an order proposes to record several routes and the Inspector proposes a modification to remove one (or more) of these because there is insufficient evidence. An objection may relate only to the route to be deleted from the order but not challenge others which remain unchanged.

28.2.8. In both these examples, the objections would relate only to the proposed modifications.

28.2.9. However, in most other cases, it is often difficult to separate objections solely to the proposed modification from those relating to the order as a whole. For example, having considered all the available evidence, an Inspector may decide to confirm an order to add a path to the definitive map but concludes the route is of a higher status than that identified in the order. In this instance it would be difficult to object to this change without also challenging the order as a whole.

28.2.10. Similarly, it is unlikely that modifications to increase or decrease the length of the route, add or delete sections of the route, or to re-align all or part of the route could be separated from consideration of the whole order.

28.2.11. The distinction was clarified in the case of Marriott v Secretary of State [2000] EWHC 654 (Admin), [2001] JPEL 559 (Marriott): where matters relate solely to the proposed modifications, the procedures set out under paragraph 8 of Schedule 15 would apply, but if only the unmodified parts of the Order were affected, then the Inspector would need to consider re-opening the inquiry previously held under paragraph 7. If the objection related to both modified and unmodified parts of the order, then any further inquiry should be held under both paragraphs 7 and 8.

28.2.12. In the more recent case of Whitworth v Secretary of State for Environment, Food and Rural Affairs [2010] EWHC Civ 1468, Carnwath LJ set out the position, stating:

“The scope of the further inquiry under paragraph 8 … was considered by Sullivan J in (Marriott). He held that, while such an inquiry was in itself limited to consideration of the modifications, that did not preclude the inspector considering new evidence relating to other matters relevant to his previous decision, and if necessary, reopening the first (paragraph 7) inquiry for that purpose.”

28.2.13. Since then, in R (oao Elevenden Farm Limited) v Secretary of State for Environment, Food and Rural Affairs [2012] EWHC 644 (Admin), Mr Justice Charles said:

“It seems to me … that the process under paragraph 8 did not limit objections that could be made and does not limit them to the modifications proposed by the inspector”.

Procedure on receipt of objections to orders where modifications are proposed

28.2.14. To streamline the processing of objections to orders where modifications are proposed, the Inspectorate will adopt a presumption in favour of dealing with all such objections and representations as potentially raising issues requiring consideration under both the provisions of paragraph 7 and paragraph 8 of Schedule 15 unless the circumstances show it to be advantageous to do otherwise in the interests of overall efficiency but without prejudice to any party.

28.2.15. The categories of objection where it is most likely that matters will be dealt with exclusively under paragraph 8 are as follows: (i) those which address a proposed change in width of the Order route, and (ii) those which are concerned with just one (or some but not all) of the routes where the order as made proposes the recording of several public rights of way but the Inspector has proposed to delete one or more (but not all).

28.2.16. On receipt of objections which are duly made, include particulars of the grounds relied upon, and raise matters which are relevant, the objector will be asked whether they wish to be heard by an Inspector at either a public inquiry or hearing. Even if not requested, an Inspector may decide that the matters raised would be best considered at an inquiry or hearing. Alternatively, if no such event is required by the Inspector or requested by an objector, the matter will generally be dealt with through the exchange of written representations unless there is no necessity to invite further submissions.

28.2.17. Relevant matters may include new evidence or new legal submissions; however simply repeating arguments previously put before the Inspector will not be treated as ‘new’ and therefore will not be sufficient to ensure the objection is regarded as relevant.

Under Schedule 6 of the Highways Act 1980 and Schedule 14 of the Town and Country Planning Act 1990

28.2.18. By analogy, the above approach will also be taken in relation to inquiries and hearings held under paragraph 2(3) of Schedule 6 to the Highways Act 1980 and paragraph 3(6) of Schedule 14 to the Town and Country Planning Act 1990.

28.3 Further guidance

28.3.1. Relevant government advice is set out in Department of the Environment, Food and Rural Affairs Circular 1.09 version 2.

28.4 How we use your information

28.4.1. The Planning Inspectorate takes its data protection responsibilities for the information you provide us with very seriously. To find out more about how we use and manage your personal data, please go to our privacy notice.

Question 29

29. Annex Q: The Hierarchy of Guidance

Accepted Answer

29.0.1. The law and facts of a case largely determine the preparation and making of an Order, the consideration of representations, and the eventual decision on the Order. Mandatory, directory and advisory considerations generally give an Inspector little latitude in exercising judgment.

29.0.2. Mandatory Guidance: Statute law and case law where the judgment is a binding precedent to be disturbed only by a higher court of record (see Section 29.2 ‘Case Law’).

29.0.3. Directory Guidance: Other judgments where the reasoning pursued clearly appears to have a bearing on the matters before an Inspector (see Section 29.2 ‘Case Law’), Regulations and Schedules.

29.0.4. Advisory Guidance: Circulars and Advice Notes that explain procedures and government policy and which may assimilate the outcomes of advisory bodies and consultations.

1.1 There is often other reference material which can assist, but does not bind, an Inspector. It falls into two broad categories:

29.0.5. Explanatory: Subject papers by authors of recognised legal and/or academic standing and research papers into social and environmental aspects of highways.

29.0.6. Of interest: Articles on behalf of statutorily recognised user groups or affiliated organisations or interested parties and anecdotal pieces, often in the form of recorded journeys or local histories.

29.1 Statute Law

29.1.1. Statute law is law arising from Acts of Parliament or any regulations arising from an Act. Statute law also includes byelaws made by any local authority.

29.2 Case Law

29.2.1. Case law arises from judicial judgments handed down by the various Courts of Record (principally the High Court, Court of Appeal and the Supreme Court (formerly the House of Lords)) The judgments provide a legal framework as to the interpretation of statute law. (see Section 3 ‘Case Law’).

29.3 Regulations

29.3.1. Statutory Instruments are secondary, or subordinate, legislation made under authority contained in Acts of Parliament. Regulations are Statutory Instruments.

29.4 Circulars and other Departmental Guidance

29.4.1. Circulars and Departmental Guidance set out the policy of Government departments and offer a view as to the interpretation of legislation. The main guidance in respect of rights of way is provided by the Department for Environment Food and Rural Affairs Circular 1/09 V2 on ‘Public Rights of Way’

29.5 Other Publications

29.5.1. There is a plethora of articles, books etc on rights of way issues. These are often produced by authors who are recognised as having considerable specialist professional knowledge of rights of way matters. Experts do not always agree amongst themselves and when tested in the Courts their opinions do not always survive (see Part 3). A view in an article should not be accepted as authoritative unless it has received judicial approval. Expert evidence deserves due respect, but Inspectors should always use their critical judgment in considering such evidence.

29.5.2. A more localised type of expertise may legitimately be claimed by those who have researched evidence relating to a particular Order. These individuals may appear at a hearing or inquiry on behalf of campaigning organisations or as concerned individuals. However, their contributions have to be critically scrutinised and assessed as with all other evidence.

29.5.3. Some enthusiasts now share their opinions on the internet or in informal publications. This widespread dissemination can lead to several witnesses at a hearing or inquiry drawing on the same source for their opinions. Whether they have the same source can sometimes be usefully explored but, whatever their source, the repetition of opinions does not affect their factual or intellectual merit, one way or the other.

29.5.4. British literary heritage is rich in personal recollections of 18th and 19th century travellers. Informal local histories may also be tendered in evidence. Such works should not generally be relied upon as primary sources of evidence. Nevertheless, they not infrequently provide useful corroboration of evidence gleaned from documents of superior provenance.

29.6 Concluding Comment

29.6.1. Inspectors must make their decisions on the evidence of fact put before them, within the framework of Statute Law as interpreted by the Court and with the assistance of other reputable guidance.

Cookies on GOV.UK

Applies to England and Wales

1. When we receive an order

1.1 The correct form

1.2 The supporting documents

1.3 Options for dealing with representations or objections

1.4 Written Representations

1.5 Inquiries and hearings

1.6 Wildlife and Countryside Act orders

2. Written representations

2.1 Preparing the evidence

2.2 Inflammatory, discriminatory or abusive comments

2.3 Anonymous representations

2.4 What happens if you think written representations is no longer appropriate?

2.5 What happens if people do not abide by the Procedure for Written Representations?

2.6 Late evidence on cases being dealt with by way of written representations

2.7 Legal submissions

2.8 What happens next?

3. The hearing procedure

3.1 Arranging the date, time and place

3.2 Who can attend

3.3 Preparing the evidence

3.4 Inflammatory, discriminatory or abusive comments

3.5 Anonymous representations

3.6 What happens if you think a hearing is no longer appropriate?

3.7 Advertising the hearing

3.8 At the hearing

3.9 Site visits

3.10 What happens next?

4. Local public inquiries

4.1 How long is an inquiry?

4.2 Meetings before an inquiry

4.3 Arranging the date, time and place

4.4 Who can attend

4.5 Preparing the evidence

4.6 Inflammatory, discriminatory or abusive Comments

4.7 Anonymous representations

4.8 Advertising the inquiry

4.9 At the inquiry

4.10 Presenting the cases

4.11 Site visits

4.12 What happens next?

5. Other issues relevant to hearings and inquiries

5.1 Orders which the local authority does not support

5.2 What if I am one of the main parties, (OMA, relevant person etc) and have late evidence or cannot meet the dates for sending evidence for cases being dealt with by way of a hearing or local inquiry?

5.3 What if I am not a relevant person and have relevant evidence but I do not want to appear at the hearing or inquiry?

5.4 What if I do not turn up?

5.5 What happens if someone disrupts the hearing or inquiry?

5.6 What if I discover new evidence after the close of the hearing or inquiry?

5.7 Will the hearing or inquiry be recorded?

5.8 Legal submissions

6. What the Inspector considers in reaching a decision

6.1 The Wildlife and Countryside Act 1981

6.2 The evidence which can be put forward

6.3 Orders made following an appeal under paragraph 4(1) of Schedule 14

6.4 The Highways Act 1980 (as amended)

6.5 Concurrent Highways Act orders

6.6 The Town and Country Planning Act 1990

7. The decision

7.1 The types of decision

7.2 How we deal with representations and objections we receive after modifications to the order have been proposed

7.3 Procedure for second and subsequent hearings and inquiries following modifications

7.4 Procedure for written representations following modifications

8. Costs

8.1 Applying for costs

8.2 Applications for costs after the hearing or inquiry has closed

8.3 Orders where compensation may be involved

9. Feedback and Complaints

10. Challenging the decision

10.1 The High Court

11. Communicating with us electronically (which is our preferred method of sending in documents)

12. Virtual Events

12.1 Virtual events and how to join

12.2 Taking part in a virtual event – what to expect

12.3 How evidence is dealt with at a virtual event

12.4 What equipment is required to take part in a virtual event and what help will be available to guide participants through the event

12.5 Procedure if there are technical problems or things go wrong

12.6 Privacy

12.7 Site Visits

Annex A

21.5  Closing submissions at inquiries