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Date: Mon, 31 Mar 1997 03:49:32 -0500
From: Chris Marsden <Byway@compuserve.com>
Subject: Annex B
ANNEX B
REVISION OF DEFINITIVE MAPS AND STATEMENTS OF PUBLIC RIGHTS OF WAY
Introduction
1. This annex describes in detail the provisions in Part III of the
Wildlife and Countryside Act 1981 for the revision by county, metropolitan
and London borough councils, as the surveying authorities for their areas,
of definitive rights of way maps and the review and reclassification of
roads used as public paths (RUPPs). It includes, where appropriate, advice
on the operation of the procedures. The relevant provisions are at sections
5-58 and 66, and Schedules 14 and 15 of the Act. A guide to definitive map
procedures is also available from the Countryside Commission.
2. The provisions in both the National Parks and Access to the
Countryside Act 1949 (the 1949 Act) and the Countryside Act 1968 (the 1968
Act) relating to the preparation and review of definition maps and
statements were repealed by the 1981 Act. Surveys and reviews started
before the commencement of the new arrangements were not affected by the
repeal and continued to be dealt with as before, until they were either
completed or abandoned under the transitional provisions in section 55 of
the 1981 Act. Section 57(7) of the Act required surveying authorities, as
soon as the new procedures came into operation in their area, to bring them
attention of the public.
Modification of definitive maps and statements
3. Section 53 of the Act requires surveying authorities to keep their
definitive maps and statements under continuous review and to modify them
by way of orders as events of the relevant kind occur. The starting point
is the "definitive map and statement" for a particular area as defined in
section 53(1), until it is replaced by a modified map and statement
prepared in accordance with the provisions of section 57(3). Definitive
maps and statements for this purpose are:
(i) the latest revised definitive map and statement following the
completion of a review carried out under section 33 of the 1949 Act as
originally enacted or as amended by the 1968 Act; or
(ii) where no review took place, the original definitive map and
statement prepared under section 32 of the 1949 Act; or
(iii) for those former county boroughs and other excluded areas for which
the survey provisions were never adopted or for areas where a survey was
begun, but abandoned, the map and statement prepared under section 55(3).
The Courts have held (in R v SSE ex parte Simms and Burrows [1990) JPL 746)
that surveying authorities have a duty to keep their documents as up to
date as possible, referring to all the available evidence so as to maintain
an authoritative map and statement of the highest attainable accuracy.
4. The reference in section 53(1) to "any area" stems from the fact
that where under section 27(5) of the 1949 Act surveying authorities
prepared original definitive maps and statements for different parts of
their area at the same or different times, they have never been required to
amalgamate them into a single definitive map and statement for the whole of
their area even though they were required to review them concurrently. Thus
some surveying authorities may have several definitive maps and statements
which together embrace the whole of their area. Statutorily there is no
reason why a single order cannot be used to modify more than one definitive
map and statement provided that fact is made apparent in the order. However
there is no provision in the Act to allow their amalgamation into a new
composite map.
5. Section 53(2) of the 1981 Act requires surveying authorities to
modify their definitive maps and statements by order as soon as reasonably
practicable after the occurrence of any of the events specified in section
53(3). Section 53(2) is in two parts covering respectively events which
occurred before and those which occurred after the commencement date of the
new system. The second part also includes the requirement for definitive
maps and statements to be kept under continuous review. However authorities
were not required to complete the modification of their maps and statements
for events which preceded the commencement of the new procedure before
embarking on modifications relating to subsequent events: the process is
simultaneous. Moreover, in making orders there is no need for authorities
to differentiate between events which preceded and those which succeeded
the commencement of the new procedure. It is possible for both to feature
in the same order. The modifications to be made to definitive maps and
statements are those which the authority consider to be requisite.
Consequently the obligation to make orders does not extend to proposals
which, in the view of the authority, cannot, on the face of the evidence,
be sustained.
6. The procedure for making orders, apart from those which take effect
on being made, is set out in Schedule 15 and is explained in greater detail
later on in this Annex. The use of an omnibus order (ie one embracing
several proposals within a local area) has a clear advantage over a single
event order in terms of costs and its use, whenever possible, is
recommended.
7. It has been suggested that in instances where there is general
agreement between the surveying authority, the landowner and path-users
that the line of a footpath or bridleway proposed for addition to the
definitive map and statement is not the most suitable, a public path order
diverting the path or way to the preferred line should be made and
considered at the same time as the order adding the right of way to the
definitive map. Although in principle the making of concurrent orders is
not unacceptable it is not a prerequisite of diversion orders that the
footpath or bridleway should first be shown on the definitive map and
statement. It is not therefore necessary to add the path to the definitive
map by means of a definitive map order before considering the diversion
order. However the order-making authority must, before proceeding, be
satisfied that it is a public footpath or bridleway and that it would be
expedient to divert it.
8. The events to be taken into consideration in connection with the
modification of definitive maps and statements are set out in section 53(3)
of the 1981 Act.
9. Subsection 3(a) covers statutory changes to the rights of way network
arising from, amongst other things, public path orders under Highways and
other legislation, magistrates' courts orders and private legislation. The
modification of the map and statement in consequence of such "legal events"
should not however take place before the order, enactment, etc., has taken
effect.
10. Subsection 3(b) concerns the presumed dedication of footpaths and
bridleways at common law or by virtue of the provisions of section 31 of
the Highways Act 1980. It applies not only to ways not shown on definitive
maps and statements but also to paths already shown over which other rights
are alleged to have been acquired.
11. Subsection 3(c) relates to the discovery by surveying authorities
of evidence which shows that a right of way not shown on the map and
statement subsists, or is reasonably alleged to subsist, and should
therefore be shown; or that a right of way already shown is of a different
status and should be up or down-graded; or that it does not in fact exist
and should be taken off; or that the particulars contained in the statement
require modification. These provisions apply to footpaths, bridleways and
byways open to all traffic (BOATs).
12. By definition BOATs are vehicular rights of way which are used by
the public mainly for the purposes for which footpaths and bridleways are
used. The principal factor surveying authorities should bear in mind when
deciding whether a way ought to be shown on definitive maps and statements
as a BOAT is therefore the purposes for which it is used. Thus if it is
used mainly by vehicular traffic as opposed to walkers and horse riders it
should as a general rule not be shown. Instances may occur where a way
presumed to have been dedicated as a highway for all purposes under section
31 of the Highways Act 1980 also satisfies the definition of a BOAT. In
such circumstances, it would be open to surveying authorities to add the
way to the definitive map and statement under section 53(3)(c)(i) of the
Act. Section 53(3)(c) also allows for ways presently shown on definitive
maps and statements as footpaths and bridleways, but which enjoy vehicular
rights, to be upgraded to BOATs.
13. Surveying authorities, whenever they discover or are presented with
evidence which suggests that a definitive map and statement should be
modified, are required to take into consideration all other relevant
evidence available to them concerning the status of the right of way
involved. Moreover before making an order they must be satisfied that the
evidence shows on the balance of probability that a right of way of a
particular description exists or that a way shown on the map is not in fact
a public right of way. The mere assertion, without any supporting evidence,
that a right of way does or does not exist would be insufficient to satisfy
that test. In the case of deletions, the conclusive evidential effect of
definitive maps and statements means that the evidence must show that no
right of way existed as at the relevant date of the definitive map on which
the way was first shown. If the evidence does support this, consideration
should also be given to whether the way has acquired such rights in the
intervening period. Further advice on deletions is contained in DOE
Circular 18/90 [Welsh Office Circular 45/90].
14. As the "legal events" specified in section 53(3)(a) are matters of
fact and therefore beyond doubt there is no need for the order giving
effect to them to be publicised. For this reason section 53(6) provides
that orders which relate solely to such events shall take effect on being
made but that other orders shall be subject to the provisions of Schedule
15. To combine both legal and evidential events in the same order would
serve no useful purpose and it is clearly preferable that the former be
dealt with separately from the latter. Although definitive maps and
statements will not reflect the actual effect of orders immediately, on
being made or confirmed the orders effectively modify the definitive map
and statement to which they relate and are, for the purposes of section
56(1) of the Act, part of the definitive map and statement. In this
connection all orders should be given a relevant date which must be no
earlier than six months before the date on which the order is made.
Procedure for definitive map orders
General
15. The procedure governing the making and determination of orders for
the modification of definitive maps and statements which do not take effect
on being made is set out in Schedule 15 to the Act. It applies also to
orders reclassifying roads used as public paths (RUPPs). The Schedule
provides for the publication of notices announcing the making of orders,
the consideration of objections and representations and the modification of
orders. Supplementary procedures relating to the submission of orders to
the Secretary of State are prescribed in regulation 7 and set out in
Schedule 4 of the Wildlife and Countryside (0efinitive Maps and Statements)
Regulations
1993.
Confirmation of Orders
16. Orders to which there are objections must be submitted to the
Secretary of State for confirmation in accordance with paragraph 7(1) of
Schedule 15. Orders that are unopposed, or to which all the objections and
representations have been withdrawn, may be confirmed by the surveying
authority, but without modification. Orders which are unopposed, but
require modification, have to be submitted to the Secretary of State for
confirmation.
17. To avoid unnecessary delays in confirming unopposed proposals in
omnibus orders, these may be treated as two separate orders; the one
comprising the proposals which have attracted objections and
representations and the other the remaining (unopposed) proposals. The
procedure is described in more detail in paragraphs 26 and 27.
Forms of Orders
18. The forms of the various orders provided for by the Act, including
those which take effect on being made, are prescribed in Regulations 4 and
5 and set out respectively in Schedules 2 and 3 of the Regulations. Where
appropriate the prescribed form makes provision for separate entries in the
schedule to the order for the different modifications that can be made to
definitive maps and statements-ie. additions, deletions, changes in status
and the modification of written statements as the circumstances of each
case may require. The order schedule should include a description of the
path or way concerned by reference to the administrative area in which it
is located; its position, length and width; nature of the surface; the
location of any stiles, gates, fences or other lawful obstructions;
particulars of any limitations or conditions pertaining to its use as a
public right of way and any other information that would normally be
included in the written statement.
Maps
19. The scale of the map referred to in the order is prescribed in the
Regulations and must be not less than 1:25,000 although larger scale maps
should be used whenever practicable. The scale, orientation and grid
references should be clearly shown on the map. Apart from deletions the
notation used to depict the various classes of right of way is prescribed
in the Regulations for definitive maps and statements. For deletions a
continuous bold black line is recommended.
20. Since there is no procedure for the correction of errors once an
order has been confirmed, other than as a result of the discovery of
evidence, particular attention should be paid to the preparation of orders
to ensure that the order map and schedule do not conflict. Moreover since
orders effectively modify the definitive map and statement on confirmation
and are therefore subject to the provisions of section 56(1) of the Act
regarding the conclusive evidential effect of definitive maps and
statements, the order map and schedule serve the same function respectively
as the definitive map and statement.
Consultation
21. The only statutory consultation surveying authorities are required
to undertake before making an order is with other local authorities
(including parish or community councils, or parish meetings) in whose area
the right of way concerned is located. Authorities will nevertheless find
preliminary consultation with landowners and other interested persons and
organisations helpful in reducing conflict, clarifying evidence and
resolving objections, and are recommended to undertake this, whether
investigating evidence or determining applications. Separate guidance on
such consultation is set out in the voluntary Code of Practice provided by
the Rights of Way Review Committee, copies of which can be obtained do the
Ramblers' Association (for address, see Annex E).
Publicity for Orders
22. The various matters to be specified in the notice announcing the
making of orders and the requirements regarding the publicity to be given
to such notices are set out in paragraph 3 of Schedule 15 to the Act. The
notice must be published in at least one local newspaper circulating in the
area in which the land to which the order relates is situated and a copy,
together with a copy of the order or relevant extract from the order,
served on every owner and occupier of that land; the relevant district,
parish or community council, or parish meeting; the national and regional
bodies prescribed in regulation 7 of and Schedule 6 to the Regulations and
listed in Annex E to this Circular; and such other "persons" as the
authority consider appropriate. This latter category should comprise the
county and other local organisations which are recognised as representative
of user interests. Any person, on payment of a reasonable charge, may also
require the surveying authority to notify him or her of the making of
orders over a given period. The requirement may apply to every order made
by the authority or just those of a particular description and may relate
to the whole or any part of their area.
23. A copy of the notice must, in addition, be displayed in a prominent
position at both ends of each way concerned. This must be accompanied by a
plan illustrating the effect of the order on the particular way. The notice
must also be displayed at council offices in the locality and any other
places considered by the surveying authority to be appropriate. It is
considered that "council office" could include any office or building owned
or provided by any local authority (including a parish or community
council). It should be reasonably accessible to local residents.
Objection Period
24. The period for the submission of representations and objections
must be fixed so as to allow at least 42 days from the date on which the
notice is first published in the local newspaper and also at least 42 days
after service and display of the notice has taken place.
Examination of Documentary Evidence
25. Since orders do not as such justify the proposals they encompass
there is no way in which persons can assess whether or not a particular
proposal is justified without access to the evidence in question. Paragraph
3(8) of Schedule 15 therefore provides for any person, at any time before
the objection period expires, to require the surveying authority to
furnish, within 14 days of the receipt of the request, details of any
documents it took into account in formulating its proposals. There is also
provision for applicants who may wish to do so to inspect and take copies
of documents in the possession of the surveying authority and to be
informed by the authority of the whereabouts of documents not in its
possession. This facility imposes no limitation, however, on the evidence
that may be adduced subsequently.
Severance of Orders
26. The procedure mentioned in paragraph 17 of this Annex, whereby
omnibus orders may be treated as two separate orders, is set out in
paragraph 5 of Schedule 15. Surveying authorities who decide to take
advantage of this facility are required before doing so to notify the
Secretary of State. The provision does not enable the order actually to
become two separate orders; it provides for the order to be confirmed by
the surveying authority in relation to the unopposed proposals, before it
is submitted to the Secretary of State for confirmation to the extent that
it is opposed. The confirmation by the surveying authority would need
clearly to identify the proposals to which it relates since statutorily the
definitive map and statement is modified by virtue of that confirmation.
Furthermore, following confirmation, copies of the order would need to be
placed on deposit for public inspection until such time as the details are
actually recorded on the map and statement when it is reproduced (see
paragraphs 47-50).
27. If the surveying authority secures the withdrawal of objections
before submitting an order to the Secretary of State for confirmation,
paragraph 5(2) of the Schedule enables the "separate order" for the opposed
proposals then to be treated in the same manner as the (original) order and
thus to be confirmed a second time by the surveying authority with respect
to the further unopposed proposals. Once the authority is satisfied that it
can take the matter no further the order should be submitted to the
Secretary of State for confirmation in respect of the opposed proposals.
Alternatively authorities may find it simpler to delay notifying the
Secretary of State of their intention to use the power of severance until
after the completion of any negotiations with objectors, notwithstanding
that confirmation of the unopposed proposals would be delayed.
Submission of Orders to the Secretaries of State for Confirmation
28. Orders requiring the Secretary of State's confirmation must be
sent, as appropriate, to:
England Wales
The Planning Inspectorate and Welsh Office
Executive Agency Legal Group
Department of the Environment Crown Buildings
Room 1321 Cathays Park
Tollgate House Cardiff CFI 3NQ
Houlton Street
Bristol B52 9DJ
29. In addition to the sealed and dated order, in duplicate, the
following documents and information must accompany all orders submitted to
the Secretary of State for confirmation:
(a) two copies of the order with associated maps;
(b) any representations and objections made with respect to the Order
and the surveying authority's comments thereon;
(c) a statement of the grounds on which the authority consider that the
order should be confirmed;
(d) a copy of the notice publicising the order and a certificate that
the notices have been published, served and posted in accordance with the
requirements of the Act;
(e) a certificate that every local authority whose area includes the
land to which the order relates has been consulted; and
(f) a copy of that section of the definitive map and statement which
the order when confirmed will modify.
Decisions on Orders
30. The different requirements for publicising confirmed orders and the
non-confirmation of orders are specified in paragraph 11 of Schedule 15.
Orders that are confirmed receive the same publicity as that given to the
making of orders (see paragraphs 22 and 23 above). In addition copies of
confirmed orders must be sent to the Ordnance Survey (see also paragraph 7
of Annex C). Surveying authorities are also asked to provide them with
copies of "legal event" orders. As regards decisions not to confirm an
order a copy of the decision must be served on the persons on whom notice
of the making of the order was served.
Applications for definitive map orders
31. Section 53(5) enables any person to apply to the surveying
authority for an order to be made modifying a definitive map and statement
as respects any of the "evidential events" specified in paragraphs (b) and
(c) of section 53(3). The procedure for the making and determination of
applications is set out in Schedule 14. It includes the right for
applicants to appeal to the Secretary of State against the refusal of the
surveying authority to make an order.
32. This facility does not extend to "legal events" (section 53(3)(a)).
Persons may nonetheless bring to the notice of surveying authorities any
evidence or information which they believe to be relevant and the authority
should consider whether such evidence or information constitutes an event
(asset out in section 53(3)) for the purposes of section 53(2).
Form and Submission of Applications
33. The form of application is prescribed in regulation 8 of the
Regulations and set out in Schedule 7 thereto. Submitted applications must
be accompanied by a map to a scale of not less than 1:25,000 showing the
rights of way which are the subject of the application, copies of any
supporting documentary evidence, including statements of witnesses and a
certificate that notice of the application has been served on the owners
and occupiers of the land involved.
Notice of Application
34. Notice that an application for an order has been made must be
served by the applicant on every owner and occupier of the land involved.
Applicants who cannot find out the name or address of the owner or occupier
of the land may apply to the surveying authority for exemption from the
requirement to serve a personal notice, and for consent to serve notice
instead by addressing it to the owner or occupier of the land (as described
in the notice) and affixing it to a conspicuous object on the land. Consent
should not normally be withheld if the applicant can show that he or she
has made every reasonable effort to identify the owner and occupier of the
land. The forms of the notice and certificate are prescribed by the
Regulations and are set out in Schedules 8 and 9 thereto.
Consideration and Determination of Applications
35. Surveying authorities are required, as soon as reasonably
practicable after receiving the above-mentioned certificate, to investigate
the application and, after consulting the relevant district and parish or
community councils, or parish meetings, decide whether or not to make the
order sought. Decisions on applications must be served on the applicant and
on the owner and occupier of the land involved, and, in the case of a
refusal to make an order, the reasons for the decision should be given. The
orders themselves should be made as soon as reasonably practicable after
the announcement of the decision, to comply with the requirements of
section 53(2)(b) of the Act.
36. If after 12 months an application is undecided the applicant may
make representations to the Secretary of State for a direction requiring
the authority to determine the application by a specified date. The
Secretary of State is required to consult the relevant surveying authority
before issuing any direction.
Appeal to the Secretary of State
37. In the event of an authority refusing to make an order the
applicant has a right of appeal to the Secretary of State against that
decision. Appeals must be lodged with the appropriate Regional Office of
the DOE, or with the Welsh Office, within 28 days from the date on which
the authority issues its decision. They should be made in writing, giving
the grounds for the appeal, and be accompanied by copies of the
application, the map showing the way concerned, the supporting
documentation and the authority's decision. A copy of the notice of appeal
must also be served on the surveying authority but without the
accompaniments. The Secretary of State, on consideration of an appeal, is
required to decide on the available information whether an order should be
made and if so direct the authority accordingly. He is not empowered to
authorise the modification of the definitive map and statement or to make
an order himself.
Reclassification of roads used as public paths
38. Section 54 of the 1981 Act concerns the reclassification of roads
used as public paths (RUPPs). The need for reclassification stems from the
uncertainty about the rights that exist over these ways. The sole purpose
of reclassification is to establish precisely the rights that exist, and
questions relating to the suitability or amenity of the route are
irrelevant insofar as this process is concerned.
39. Under the provisions of section 54 surveying authorities are
required as soon as reasonably practicable to carry out a review of their
RUPPs and make orders reclassifying them as byways open to all traffic
(BOATs), bridleways or footpaths. The requirement extends only to ways
shown on definitive maps and statements as RUPPs. Ways shown as footpaths
or bridleways, and over which vehicular rights are alleged to exist, should
be considered for upgrading to BOATS under the general review procedures.
40. The criteria to be applied to reclassifications are set out in
section 54(3) of the Act. If evidence is available which shows that public
vehicular rights exist, the way should be reclassified as a BOAT; otherwise
it should be reclassified as a bridleway unless evidence shows that no
bridleway rights exist, in which case it should be shown as a footpath.
41. In ascertaining what rights exist over their RUPPs, authorities
should take into account all the evidence at their disposal; that is the
evidence which resulted in the way being shown on the definitive map and
statement as a RUPP in the first place, plus any additional evidence
discovered in the meantime, including evidence of use by vehicular traffic,
and evidence of status in historic documents such as Inclosure and Tithe
Awards.
42. BOATs, bridleways and footpaths that derive from the
reclassification of RUPPs are maintainable by highway authorities at public
expense, irrespective of whether they were similarly maintainable prior to
reclassification, but section 54(7) of the 1981 Act states that highway
authorities are not obliged to metal BOATS or to surface them to make them
suitable for the passage of vehicles.
43. Not all BOATs will be suitable for present day vehicular traffic.
In these circumstances powers are available in the Road Traffic Regulation
Act 1984 for highway authorities to make traffic regulation orders to
control, regulate or prohibit use by vehicular traffic. Alternatively, it
may be possible to show that vehicular rights are unnecessary, in which
case powers are available under section 116 of the' Highways Act 1980 to
extinguish the vehicular rights whilst preserving the bridleway and/or
footpath rights. The disadvantage of the latter course is that it may
expose the way to ploughing with the result that its character and
appearance as a landscape feature may be irrevocably destroyed. Highway
authorities are asked to have regard to this possibility in deciding what
course of action, if any, is appropriate.
Preparation of Definitive Maps and Statements for Excluded Areas
44. The requirement for surveying authorities to produce a definitive
map and statement for those parts of their area hitherto excluded from the
survey provisions of the 1949 Act is contained in sections 55(3) and 58 of
the 1981 Act. Since the area of the former London County Council, ie
broadly the area of the present Inner London Boroughs, remains excluded
under section 58, this requirement extends only to (a) former county
borough areas for which the survey provisions have never been adopted, (b)
those built up areas exempted following a resolution under section 35(4) of
the 1949 Act where that resolution had not been rescinded, and (c) where in
either case the survey provisions have been adopted but the actual survey
has not commenced.
45. Whilst this procedure does not apply within the former London
County Council area, section 58(2) enables the London Borough Councils now
responsible for this area by resolution to adopt the provisions of sections
53-57 for the whole or any part of their area. Such resolutions do not
require the Secretary of State's consent but councils are asked to inform
the Secretary of State of any resolutions made.
46. The arrangements for the preparation of a definitive map and
statement are relatively simple, inasmuch as they enable surveying
authorities to build up from nothing a comprehensive record of the rights
of way within such areas. The procedures entail the addition of rights of
way to a previously blank map and statement by means of orders made under
section 53 of the Act. Once "modified" that map and statement becomes the
definitive map and statement for the area and is then modified in the
normal way.
Preparation of modified definitive maps and statements
47. From time to time, as orders accumulate to the point at which it is
difficult to follow the various changes that have been made, it will be
necessary for surveying authorities to replace the modified definitive map
and statement with a consolidated map and statement depicting the actual
consequences of the modifications made. Section 57(3) authorises this to be
done and further specifies that each time an up to date map and statement
is prepared it becomes, for the purposes of the review procedure, the
definitive map and statement for that area. On each occasion however the
relevant date should be brought forward to a date not more that six months
before the updated map and statement is prepared. The date selected should
always be later than the relevant date of the latest modification order to
be consolidated.
48. In addition section 57(5) requires surveying authorities to make
copies of each definitive map and statement and all relevant orders
available for public inspection at one or more places within each district
in their area and, if practicable, with each parish or community. In
complying with this provision authorities are required to do no more than
ensure that the relevant extracts from the map and statement, together with
copies of the relevant orders, are available for inspection within each
district or parish/community. Although it is not mandatory, surveying
authorities are asked, insofar as it is practicable, to ensure that the
documents made available for inspection within each district are deposited
at the offices of the district council. The extent to which it is
practicable for copies to be made available within parishes or communities
will be governed largely by the availability of places, such as public
libraries, to which the public have regular access. Section 57(7) requires
surveying authorities to bring to the attention of the public the fact that
copies of definitive maps and statements and orders are available for
inspection. It is recommended that a notice should be inserted in the local
press every time a consolidated map and statement is prepared listing the
places where the relevant extracts from that map and statement and any
subsequent orders can be inspected free of charge at all reasonable hours.
Authorities are requested to send two copies of the consolidated maps and
statements to the Secretary of State and one copy to the Ordnance Survey.
49. Surveying authorities may find it helpful to keep a working copy of
the definitive map available for public inspection, showing any recent
changes that have been made but have yet to be consolidated. The original
map must not be altered, however, otherwise than as outlined in paragraph
47 above.
50. The requirements regarding the availability of definitive maps and
statements and copies of orders for public inspection at different places
in the surveying authority's area do not extend to the maps and statements
and orders replaced by the consolidated maps and statements. Nonetheless at
least one copy of the previous maps and statements together with the orders
modifying them is required by section 57(6) to be kept available for public
inspection.
Sales of definitive maps and statements
51. It is clearly in the best interests of landowners and the public
that the information recorded in definitive maps and statements is readily
accessible. The sale of copies of definitive maps and statements is one way
of fulfilling this objective. While the Act does not make it mandatory for
surveying authorities to place copies on sale, they are asked to make
copies available for purchase if there is sufficient demand.
Evidential effect of definitive maps and statements
52. Definitive maps are, by virtue of section 56 of the Act, conclusive
evidence as at the relevant date of the map and statement of the existence
of a highway of the description shown and of the rights of way existing
over those highways. In the case of footpaths, bridleways and RUPPs, the
evidential effect of the map is without prejudice to any question whether
the public has at the relevant date any right of way other than the rights
specified. This proviso does no more than protect other rights, where they
exist, against the conclusive evidential effect of the definitive map. In
the event of such rights being challenged, the persons using the path or
way would be required to demonstrate to the satisfaction of the courts that
such use was lawful.
53. The statement is similarly conclusive evidence of any particulars
recorded concerning the position or width of the highway and of any
limitations or conditions affecting the public right of way.
END OF ANNEX B
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Date: Mon, 31 Mar 1997 03:49:54 -0500
From: Chris Marsden <Byway@compuserve.com>
Subject: DoE Circ 2/93 + Annex A.
Herewith a copy of the DoE Circular 2/93. This is not a new circular.
The main body of the circular was sent to those who asked recently, but
there is also important information in the two Annex, A and B, not sent
previously. Annex C deals with rail crossings, and D with development,
these have not been sent. (It has been scanned, it is possible there could
be scanning errors, please advise if in doubt.) Annex B follows as a
separate message.
Chris
Circular 2/93
(Department of the Environment)
Circular 5/93 (Welsh Office)
Joint Circular from the
Department of the Environment
2 Marsham Street, London SW1P 3EB
Welsh Office
Cathays Park, Cardiff CF1 3NQ
25 January 1993
PUBLIC RIGHTS OF WAY
Introduction
1. This circular consolidates and amplifies, where necessary, previous
advice and guidance on recording, maintaining, protecting and modifying the
rights of way network. It also draws attention to and describes the new
provisions in section 47 of; and Schedule 2 to, the Transport and Works Act
1992. These amend the Highways Act 1980 and enable local authorities to
stop up or divert a footpath or bridleway in their area which crosses a
railway, otherwise than by tunnel or bridge, where this is considered
expedient in the interest of public safety. The commencement order which
gave effect to these provisions came into operation on 22 December 1992.
2. Attention is also drawn to the Town and Country Planning (Public
Path Orders) Regulations 1993 (SI 1993 No. 10), the Public Path Orders
Regulations 1993 (SI 1993 No.11), the Wildlife and Countryside (Definitive
Maps and Statements) Regulations 1993 (SI 1993 No.12) (which replace and
re-enact the 1983 Regulations) and to the Rail Crossing Extinguishment and
Diversion Orders Regulations 1993(S11993 No.9). The circular also provides
guidance on the making and confirmation of orders (Annex A); the revision
of definitive maps (Annex B); the statutory procedures relating to public
path and rail crossing orders (Annex C); and the relationship between
development and public rights of way (Annex D). It also lists the addresses
of those organisations to which copies of statutory notices of the making
and confirmation of orders must be sent (Annex E).
3. The provisions described in this circular are not considered to
necessitate, of themselves, any additional local authority manpower or
increased expenditure. However some authorities may need to adjust their
priorities to take account of the likely demand for rail crossing orders in
their areas, following discussions with railway operators. All authorities
should seek to ensure that sufficient resources are available to meet their
statutory duties with regard to the protection and recording of public
rights, and that the rights of way network is in a fit condition for those
who wish to use it.
MANAGEMENT OF PUBLIC RIGHTS OF WAY
4. Our extensive network of public rights of way is a unique legacy,
which provides a major recreational resource and the opportunity to
experience the immense variety of our landscape and the settlements within
it. It is a legacy to be used as well as cherished. In its White Paper
"This Common Inheritance" (CM 1200), and in its response to the National
Park Review Panel's report, the Government endorsed the Countryside
Commission's and the Countryside Council for Wales' objectives that the
entire rights of way network in England should be brought into good order
by the year 2000, and in Wales and the National Parks by 1995. All
parties-including local authorities, landowners, path users and voluntary
bodies-are therefore urged to work together to ensure that rights of way
are legally defined, properly maintained and signposted and kept open and
available for public use.
5. Rights of way continue to serve their primary function of providing
access for people within their local community, but this role has changed
dramatically during the present century. Many rights of way are now used
principally for recreational purposes and constitute a valuable resource
which is being enjoyed by a large and increasing number of people. If the
full recreational potential of public rights of way is to be realised it is
desirable that they are considered and managed by local authorities as an
integral part of the whole complex of recreational facilities within a
given area. Authorities are therefore encouraged to draw up rights of way
strategies which will enable them to address overall needs, the work to be
done and the most effective way of using all the resources at their
disposal, including the valuable help and assistance of the voluntary
sector. They should also be aware of; and consider supporting, initiatives
by the Countryside Commission, such as the Parish Paths Partnership, and by
the Countryside Council for Wales; and capitalise on local interest,
experience and knowledge by acknowledging the valuable part local people
can play in improving their paths.
Liaison Groups
6. The Secretaries of State welcome the establishment of liaison
groups which draw together the representatives of all interests in the
rights of way network. These are particularly valuable in developing mutual
understanding and co-operation, resolving problems that arise quickly and
efficiently and helping authorities determine priorities for action. In
those areas where changes are needed to the present network to ensure that
it is better suited to the varying needs of the different user groups, or
to help achieve the efficient use of land for agriculture or protect
wildlife, liaison groups can also play a valuable role in helping to define
proposals and in ensuring that they represent the best possible balance
between, and confer the greatest mutual benefit to, all interests.
Guide to Procedures
7. Greater understanding of the statutory criteria which apply to the
making of creation, extinguishment and diversion orders, should further
reduce disagreement and conflict and secure beneficial changes at minimum
cost. Path users are also likely to be more receptive to changes where
existing rights of way are already open and available for use The
Countryside Commission will be publishing a guide to the procedures for
making public path orders which will help to highlight best practice.
Practical advice will also be provided in the Countryside Council for
Wales' proposed guide for devising local routes and trails.
Publicity for Paths
8. Authorities should aim to provide the public with information on
the full range of choices available for enjoying the rights of way network.
All such information should be accessible, comprehensive and well promoted.
Authorities should also take careful account of the views of local people
including landowners, and should ensure, before undertaking publicity for
particular routes, that there is a clear commitment to future maintenance,
having regard to the possible increase in use. There may also be a need to
obtain planning permission for any additional facilities to be provided
along well used routes. The opportunity should be taken to promote
understanding of the countryside and environmental concerns. publicity can
also be used to draw attention to any restrictions due to the operation of
local byelaws.
9. The promotion of paths which pass over heavily used major roads or
railways may result in increased numbers of people using these crossings,
thereby increasing the risk of accidents. Highway authorities should
therefore have regard to the potential threat to public safety when
promoting such routes and take such steps as they consider necessary to
reduce the risk to the public in crossing such roads. In the case of
railway crossings, authorities should consult the Health and Safety
Executive's Railways Inspectorate and the British Railways Board who will
advise on the implications for safety of increased use. Further guidance on
level crossing safety and the planning system is provided in DOE Circular
27/92 Welsh Office Circular 62/9].
Wardens
10. The countryside serves many purposes, as workplace and home as well
as a place for recreation. Local authorities have powers to appoint
wardens, both within the countryside generally and, by virtue of section 62
of the Wildlife and Countryside Act 1981 (the 1981 Act), to act on public
rights of way. Wardens can help advise and assist members of the public on
the use of public rights of way. They can also guard against thoughtless
and irresponsible behaviour which so often sours relationships between
landowners and rights of way users.
Bulls on land crossed by public Rights of Way
11. Agricultural operations should not interfere with the use of
public rights of way (but see paragraph 12 below on the ploughing of public
paths). It is an offence under section 59 of the 1981 Act for an occupier
to permit a bull to be at large in a field or enclosure crossed by a public
right of way except where the bull (a) does not exceed 10 months, or (b) is
not of a recognised dairy breed and is accompanied by cows or heifers.
These provisions do not affect the obligations that employers and others
have under the Health and Safety at Work Act 1974 not to put at risk the
health and safety of third parties. In addition, under certain
circumstances, the keeper of any animal may be liable, under section 2(2)
of the Animals Act 1971, for any damage caused by that animal.
Ploughing of Public Rights of Way
12. Ploughing of paths and encroachment by crops significantly
interferes with public enjoyment of the countryside. The Rights of Way Act
1990 replaced the provisions in sections 134 and 135 of the Highways Act
1980. The Act allows disturbance of a cross-field footpath or bridleway in
the course of agricultural operations, but only if it is inconvenient to
avoid such disturbance. There is, however, no right to disturb the surface
of a field edge path. The occupier is under a duty to restore the surface
of any disturbed path or way quickly and ensure that their line is apparent
on the ground, and to keep all rights of way clear of crops other than
grass. The highway authority has a duty to make sure that these objectives
are complied with and, where they are not, the authority may enter onto the
land, carry out any necessary works and recover its costs. The new section
135 provides a power for the highway authority to authorise by order other
works for the purposes of agriculture which may disturb the surface of a
footpath or bridleway and they may also authorise the temporary diversion
of the path. Further guidance is provided in DOE Circular 17/90 [Welsh
Office Circular 44/90).
Traffic Regulation Orders
13. Conflicts over the type of use may occur on some public rights of
way and authorities should look to solve these where possible by management
measures, based on cooperation and agreement. User groups will often agree
to measures involving voluntary restraint, which they themselves will help
monitor. Under the Road Traffic Regulation Act 1984 orders can also be made
to prohibit, restrict or regulate traffic using particular highways,
including footpaths, bridleways and byways open to all traffic (BOATs). The
term "traffic" includes pedestrians and persons driving, riding or leading
horses or other animals of draught or burden. The Act sets out the purposes
for which such orders may be made. These include preventing danger to
persons or other traffic using the road, preserving the character of the
road for use by persons on horseback or foot and preserving the amenities
of the area through which the road runs. The Secretaries of State commend
the use of such orders to prevent inappropriate use and to protect the
countryside where this is necessary and other management measures have
failed or are considered inadequate.
14. Sections 14 and 15 of the Act, as substituted by Schedule 1 of the
Road Traffic temporary Restrictions) Act 1991, also enable temporary
traffic orders to be made for periods of up to six months in respect of
footpaths, bridleways, cycle tracks and BOATs, or up to 18 months for other
highways. In considering such orders highway authorities are required to
have regard to the existence of alternative routes suitable for the traffic
which would be affected by the order. See also Department of Transport
Circular 4/92 [Welsh Office Circular 31/92] on temporary traffic
restrictions.
MAINTENANCE OF PUBLIC RIGHTS OF WAY
15. Most public rights of way are maintainable at public expense
although some still remain privately maintainable. The duty rests with
county, metropolitan district and London borough councils, as the highway
authorities for their areas, by virtue of sections 1,36 and 41 of the
Highways Act 1980. Under the terms of subsection 36(6) of the 1980 Act,
highway authorities are also required to keep an up to date list of the
streets in their area (which include public rights of way) that are
maintainable at public expense.
16. Non-metropolitan district councils may, none the less, assume
responsibility for the maintenance of footpaths and bridleways in their
area in accordance with section 42 of the Act. They may also undertake the
work on behalf of the highway authority on an agency basis under section
101 of the Local Government Act 1972. In addition section 43 of the 1980
Act empowers parish or community councils to maintain footpaths and
bridleways within their area without the prior consent or agreement of the
highway authority, but the maintenance of footpaths and bridleways by such
councils does not absolve highway authorities from discharging their
responsibilities. Responsibility for the maintenance of gates and stiles,
however, rests with the landowner who may also be required to cut back any
hedges or trees on his or her land which overhang or obstruct a
highway-sections 146 and 154 of the 1980 Act refer.
17. Section 50 of the 1980 Act also empowers district, parish and
community councils to maintain footpaths and bridleways not maintainable at
public expense (without prejudice to the responsible owners' rights and
duties). Where rights of way exist that are not publicly maintainable but
are nevertheless an important part of the path network, authorities are
asked to give sympathetic consideration to the maintenance needs that can
arise and be prepared to take appropriate action albeit that they do not
have a statutory duty to do so.
18. The Secretaries of State do not regard it as practicable to
recommend specific standards for the maintenance or restoration of the
different kinds of public rights of way. The main consideration in
determining the degree of maintenance for individual paths or ways is that
they should serve the purpose for which they are primarily used and not
that they should conform to an arbitrary standard of construction or
maintenance. Generally speaking they should be capable of meeting the use
that is normally made of them throughout the year. In addition whatever
work is done should harmonize with the general appearance and character of
the surroundings. Authorities should also seek to use any assistance which
may be available from landowners and voluntary groups, in carrying out
their work.
Protected Species and Sites of Special Scientific Interest (SSSIs)
19. Part I of the Wildlife and Countryside Act 1981 sets out the
protection afforded to wild fauna and flora and the Schedules to the Act
list those birds (Schedule 1), animals (Schedule 5) and plants (Schedule 8)
given special protection. The deliberate killing, injury or taking of
protected species, or damage, destruction or obstruction of places used by
such species for shelter or protection is an offence under the Act, as is
the disturbance of such species. The Act does, however, provide a defence
if it can be shown that the action which caused the harm was the incidental
result of a lawful operation, which may include the duty to maintain a
highway, and could not reasonably have been avoided. This provision does
not apply to bat species, however, unless prior notification has been given
to English Nature or the Countryside Council for Wales. Similar protection
is also afforded to badgers and their setts under the Protection of Badgers
Act 1992.
20. Section 28 of the Wildlife and Countryside Act 1981 (as amended)
provides for the notification of SSSIs and requires the owner or occupier
of the land in question to obtain permission from English Nature, or the
Countryside Council for Wales, before certain potentially damaging
operations can be carried out. These operations, which are notified to
every owner or occupier within the SSSI, may include those activities
normally associated with the creation or routine maintenance of highways.
Highway authorities are therefore advised to consult informally with
English Nature, or the Countryside Council for Wales, before carrying out
any operation affecting an SSSI, including path maintenance. Further
guidance on development and SSSIs will be provided in a Planning Policy
Guidance Note on Nature Conservation which is to be published shortly.
Signposting
21. Section 27 of the Countryside Act 1968 (as amended) requires
highway authorities to signpost footpaths, bridleways and BOATs, where they
leave metalled roads, and where it is considered necessary to assist anyone
unfamiliar with the locality to follow the line of the path or way. There
is also a power to place signs along a path or way. The owner or occupier
of the land crossed by the right of way must always be consulted before any
sign is erected and their consent must be obtained if the sign is to be
placed on their property. A signpost need not be erected at the junction of
a path or way with a metalled road where the parish or community council,
or the chairman of the parish meeting, agree with the highway authority
that this is not necessary. The Secretaries of State note that progress has
been uneven and again urge authorities to utilise any assistance offered by
landowners and voluntary groups to ensure that this statutory requirement
is met within the time frame set out at paragraph 4 above.
22. The term "signpost" also includes other signs such as a painted
waymark. Further guidance relating to rights of way in England is provided
in a leaflet entitled "Waymarking Public Rights of Way", copies of which
are available from the Countryside Commission. Signposting and waymarking
of public rights of way are of considerable benefit to path users, and also
to landowners by helping to prevent trespass. Authorities should ensure
that members of the public are provided with sufficient information, by
means of appropriate signs or notices, particularly at path junctions, to
enable them to use the local rights of way network. This is especially
important where paths have been altered by means of statutory orders.
RECORDING OF PUBLIC RIGHTS OF WAY: DEFINITIVE MAPS AND STATEMENTS
23. Definitive maps are valuable in two respects: firstly, as
documentary records of public rights of way, which have to be made publicly
available (Section 57(5) of the 1981 Act), and secondly, as conclusive
evidence of the existence of those rights as at the relevant date assigned
to each definitive map. They indicate where the public may lawfully walk or
ride, though they do not exclude the possibility that other rights may
exist. Definitive maps and statements must be kept under continuous review
and modified by way of orders as and when events of the relevant kind
occur. Anyone with substantive evidence of an error or omission may apply
to the surveying authority for an order to modify the definitive map and
statement, and there is a subsequent right of appeal to the Secretary of
State in the event of a refusal.
24. These procedures should enable continuous progress to be made in
keeping definitive maps up to date. Where a backlog of proposals for
amending the definitive map has built up, surveying authorities are urged
to take appropriate action to make available the necessary resources, to
ensure that their definitive maps are brought up to date by the target
dates in paragraph 4. It is also recommended that authorities should
periodically publish a statement setting out their priorities for bringing
and keeping the definitive map up to date in accordance with these targets,
and with section 53(2) of the Act-ie as soon as reasonably practicable.
Potential applicants should have regard to that statement in deciding when
to submit their applications for orders. The Secretaries of State will take
into account the existence of any such statement in considering requests
for a direction where no decision has been made within the stipulated 12
months period.
Deemed Dedication
25. Section 31 of the Highways Act 1980 provides that a way may be
presumed to have been dedicated as a highway if it has actually been
enjoyed by the public as of right and without interruption for a full
period of 20 years calculated retrospectively from the date on which the
right of the public to use the way is brought into question. Alternatively,
a public right of way may be established over a shorter period if its
status can be established at common law-ie there is clear evidence that the
way was in fact dedicated at some time in the past. Evidence of such use
will be considered in keeping definitive maps under review. Landowners can,
however, take steps to negate the intention to dedicate a right to way by,
for example, closing the way for one or more days a year, or erecting
notices which clearly indicate that no public right of way exists. Further,
under section 31(6) a landowner may deposit with the highway authority a
map (of a scale of not less than 1:10560 [6 inches to the mile]) and
statement showing those ways, if any, which he or she agrees are dedicated
as highways. This statement must be followed by statutory declarations, at
not more than 6 yearly intervals, that no additional rights of way have
been dedicated. By virtue of section 228 of the Local Government Act 1972
these maps, statements and declarations must be kept available for public
inspection. Authorities are recommended to compile a register of these
records.
PROTECTION OF PUBLIC RIGHTS OF WAY
26. By virtue of section 130(1) of the Highways Act 1980 county,
metropolitan district and London borough councils have a duty, as highway
authorities, to assert and protect the rights of the public to use and
enjoy those public rights of way for which they are responsible. They also
have a similar duty under section 130(3) of the Act to prevent, as far as
possible, the stopping-up or obstruction of those public rights of way for
which they are responsible. Highway authorities are also empowered to
safeguard public enjoyment of those highways for which they are not
responsible, and to prevent the stopping up or obstruction of such highways
where this is considered to be prejudicial to the interests of their area.
It is also an offence under section 137 of the Act for a person to obstruct
a highway without lawful authority.
27. District councils may also assert and protect these public rights
but are under no statutory obligation to do so unless they are acting on
behalf of the highway authority. In addition highway authorities are
required under subsection (6) to take remedial action whenever they receive
representations from a parish or community council or parish meeting that a
path or way has been obstructed or stopped-up, or that unlawful
encroachment on to roadside waste has taken place, unless satisfied that
the representations are incorrect. The Act empowers highway and other
authorities to institute legal proceedings or take whatever steps they deem
expedient in discharging these duties.
28. The most common problem that authorities are likely to encounter in
discharging these duties is the obstruction of public rights of way. Since
it is important that public rights of way should remain unobstructed and
open for public use the Secretaries of State look to authorities to ensure
that any obstructions they discover or have reported to them are removed
without undue delay. In this connection section 143 enables highway
authorities, or district councils acting on their behalf when maintaining
the highway, to secure the removal of structures on the highway by serving
notice on the person responsible and by removing the obstruction themselves
at the person's expense should that person fail to comply with the notice.
Section 149 also enables an authority to have any "thing" so deposited on a
highway as to constitute a nuisance or danger to users removed forthwith.
29. The public are entitled to expect that all rights of way will be
kept open and available for use. It is therefore important that authorities
act quickly to investigate any complaint made to them, and to resolve the
problem if the complaint is found to be justified. It will often be
possible to do so amicably with the co-operation of the person concerned
and, providing they do so quickly, this will normally be sufficient. Where
further action by the authority is necessary, however, preference should be
given to using whatever default powers the authority has available to carry
out the works itself and recover its costs. Legal proceedings are
invariably time consuming and should therefore be used only where other
means are not available or where the problem persistently recurs.
30. Evidence may be available to suggest that a public right of way
shown on the definitive map does not exist. However, the map is conclusive
as to the rights of way shown to exist on it (without prejudice to the
existence of other rights-see section 56(1) of the 1981 Act) and the path
or way must remain open and available for use until the definitive map has
been amended, or closure procedures have been complied with.
31. In some cases the alleged obstruction is recorded in the definitive
map and statement. Since a statement is conclusive evidence of any recorded
limitations or conditions affecting the public right of way, the use of the
path or way is, as a result, subject to the obstruction even though it may
be inconsistent with the status of the right of way. The statement may of
course be amended by means of a modification order, if there is evidence
that it is incorrect.
CHANGING PUBLIC RIGHTS OF WAY
Rail Crossing Orders
32. The changes to the Highways Act 1980 made by section 47 and
Schedule 2 to the Transport and Works Act 1992 introduce two new types of
public path order, to be known as rail crossing extinguishment orders and
rail crossing diversion orders. The procedures for making these orders are
much the same as those for public path orders, and are described in more
detail in Annex C. However, the confirming authority must be satisfied that
it is expedient to make an order having regard to all the circumstances, in
particular to whether it is reasonably practicable to make the crossing
safe for use by the public: and to the arrangements to be made for ensuring
that, if the order is confirmed, any appropriate barriers and signs are
erected and maintained. In the case of a rail crossing diversion order, the
authority may also require the operator of the railway to maintain all or
part of the public path created by the order.
33. The Rail Crossing Extinguishment and Diversion Orders Regulations
1993 also prescribe the type of information the rail operator must supply
when making a request for a rail crossing order. Where the council has
neither confirmed the order, nor submitted it to the Secretary of State for
confirmation, within six months of receiving the application, the Act
empowers the Secretary of State to make the order himself without
consulting the council, although the Secretaries of State would normally
only use this reserve power in response to a written request from the
operator.
Public Path Orders
34. Procedures for making public path orders remain unchanged, but the
1983 regulations have been revoked and re-enacted to take account of the
consolidation of the Town and Country Planning legislation in the 1990 Act.
The wording of the prescribed orders and notices has also been simplified
and the list of organisations (Annex E) who must be notified of the making
and confirmation of orders extended to include the British Driving Society
(definitive map orders only) and Cyclists Touring Club.
Magistrates' Court Applications
35. Section 116 of the Highways Act 1980 enables a highway authority-a
London borough, metropolitan district or county council-to apply to a
magistrates' court for an order to stop up or divert a highway of any
description, other than a trunk or special road. The provisions apply
therefore to footpaths and bridleways, even though powers are available in
Highways and other legislation for securing the extinguishment or diversion
of footpaths and bridleways. While it is recognised that there may be
circumstances where it is appropriate to use the magistrates' court
procedure, for example the extinguishment or diversion of a footpath or
bridleway (or to retain such rights) simultaneously with the extinguishment
of a vehicular right of way, the Secretaries of State consider that
authorities should make use of the other powers available unless there are
good reasons for not doing so.
__________________________________________________
ANNEX A
GENERAL INFORMATION ON THE MAKING AND CONFIRMATION
OF ORDERS
Transfer of Secretary of State's Jurisdiction to Inspectors
1. Decisions on the confirmation of opposed public path and definitive
map orders are usually taken by an Inspector appointed by the Secretary of
State for the purpose. This arrangement in no way affects the right of
persons to object to orders. In their consideration and determination of
orders, the Inspectors appointed will observe the procedural requirements
set out in the relevant statute.
2. There is provision for the Secretary of State to recover
jurisdiction, where appropriate, and determine orders himself. In that
event the order making authority and the persons by whom objections and
representations were made, will be notified and advised of the Secretary of
State's reasons for recovering jurisdiction. Decisions on rail crossing
orders, whether made by an authority or the Secretary of State, are not
transferrable to Inspectors and such orders will be determined by the
Secretary of State.
Secretary of State's Power of Modification
3. The Secretary of State has powers of modification in respect of
four
different types of rights of way orders, namely:
(i) orders which require his confirmation under paragraph 2 of Schedule
6 to the Highways Act 1980 (orders under sections 26 and 118-1 19A of the
Act or section 32 of the Acquisition of Land Act 1981);
(ii) orders which require his confirmation under paragraph 7(3) of
Schedule 15 to the Wildlife and Countryside Act 1981;
(iii) orders made by him under (a) sections 26(2) and 120(3) of the 1980
Act, or (b) section 247 of the Town and Country Planning Act 1990; and
(iv) orders which require his confirmation under paragraph 3(4) of
Schedule 14 to the 1990 Act (orders under section 257 or 258 of the Act).
In the case of orders within i, ii, iii(a) and iv above, if a proposed
modification to a submitted order would affect land which was not affected
by the order when made (eg. by virtue of a proposed modification to vary
the line or increase the width or length of the right of way), the
requirements in each of the relevant statutory provisions as to the giving
of notice, and the time specified within which, and the manner in which
objections may be made etc, must be complied with and, if there are
objections to the proposed modification, it may be necessary for a further
inquiry to be held.
4. In addition to the above, in the case of orders made under sections
53 or 54 of the 1981 Act, where a modification has the effect of (a)
deleting a way originally shown in the order, or adding a way not so shown;
or (b) showing a right of way as being of a different status to that
originally shown, the Secretary of State must give such notice as he
considers requisite of his proposal and a further inquiry may be held to
consider any representations or objections.
5. In relation to draft orders made under section 247 of the 1990 Act
(iii(b) above) the relevant section relating to procedure (section 252)
does not contain similar provision for the giving of notice when a
modification is proposed which would affect land not originally affected by
the order as drafted. Nevertheless, since the modified order would not be
the same as that originally proposed, the Secretary of State would be bound
by the requirements of section 252 to treat it as a new order, and would
therefore ensure that the owner of the land, and anyone who objected to the
original proposal, was allowed the opportunity of making further objections
or representations.
6. Authorities may care to note that the Secretaries of State do not
regard the power of modification vested in them as available to make good
orders which would otherwise be incapable of confirmation because they are
defective in a matter of substance. The Secretaries of State, in their
consideration of orders, normally disregard errors or defects of a minor
nature provided they do not, in their view, prejudice the interests of any
person, render the order misleading in its purpose or appear to result in
incorrect information being recorded on the definitive map. Nonetheless
care should be taken in drafting orders to ensure they are correct and free
from errors and defects, to reduce the possibility of their validity being
challenged at a later stage in the procedure.
Opposed Orders
7. Objections to orders can often be forestalled by prior discussion
and negotiation with landowners and path users, or those organisations
representing them. Separate guidance on such consultation is set out in the
voluntary Code of Practice drawn up by the Rights of Way Review Committee,
copies of which can be obtained do The Ramblers' Association (for address,
see Annex E).
8. Once an order has been advertised, local authorities are also
expected to make every effort to resolve objections and to secure their
withdrawal. A representation or objection is duly made to an order provided
it is within the time, and in the manner, specified in the notice. If duly
made objections are not withdrawn, the order must be referred to the
Secretary of State (But see paragraph 3 of Annex C for further
clarification, with regard to public path orders.) The authority has no
locus to determine whether or not the grounds of the objection or
representation are relevant (see Lasham Parish Meeting V Hants County
Council, 10 July 1992).
9. Opposed orders which are referred to the appropriate Secretary of
State for confirmation, will usually be considered at a public inquiry.
Occasionally, however, it may be possible-with the agreement of the
objectors-for the matter to be determined by written representations. In
addition, the Secretary of State will look carefully at the objections and
may give an objector the opportunity to modify grounds of objection where
he considers these are not legally relevant. He would welcome comments from
the authority on this point, in the observations on the objections which it
is asked, in the appropriate Regulations, to provide. However he has no
power, if the objection is not modified or withdrawn, to determine the
order without giving the objector an opportunity of being heard.
10. Once an order has been submitted to the Secretary of State, with
objections, then jurisdiction passes to him.
Applications for Costs
11. The parties at inquiries relating to public rights of way orders
made by local authorities are normally expected to meet their own expenses
irrespective of the outcome. Subject to the exceptions outlined at
paragraph 14 below, costs are awarded only on grounds of "unreasonable"
behaviour. An award of costs does not therefore follow the event of the
decision on merits. Applications for costs on grounds of "unreasonable"
behaviour should be made to the Inspector at the inquiry who will report to
the Secretary of State accordingly. The Inspector is not empowered to award
costs at the inquiry. Examples of "unreasonable" behaviour, by reference to
what is expected generally of parties in appeals and other planning
proceedings (which are applicable, by analogy, to public rights of way
proceedings), and general procedural guidance, are shortly to be provided
in a revised Circular to replace DOE Circulars 2/87 and 23/91 [Welsh Office
Circulars 5/87 and 77/91], entitled "Awards of costs incurred in planning
and other proceedings (including compulsory purchase orders)".
12. In general, and consistently with the statutory and policy
framework for rights of way explained in this Circular and Annexes, the
principal parties (that is, the local authority or a statutory objector)
will not be at risk of an award of costs being made against them, unless
the proceedings could reasonably have been avoided-for example, where there
is a fundamental defect in the order which renders it incapable of
confirmation, or where there is a failure to comply with the normal
procedural requirements of inquiries-and, as a consequence, this results in
unnecessary, additional expense to the party applying. Similarly, objectors
who exercise their right to be heard, but subsequently fail to appear at
the inquiry, will be at risk of an award of costs against them for
"unreasonable" behaviour.
13. The right of objection to an order is a statutory right, but it
should be exercised in a reasonable manner. Objectors who have been given
the opportunity (in accordance with paragraph 9 above) to modify grounds of
objection, which are not legally relevant, but have declined to do so, will
be at risk of an award of the authority's costs being made against them
(under section 250(5) of the Local Government Act 1972, as applied by
paragraph 9 of Schedule 15 to the 1981 Act) if they pursue the objection,
unmodified, to an inquiry, but it must have been obvious that the
objection, so pursued, had no reasonable prospect of success.
"Analogous" Orders
14. Public path creation orders made under section 26 of the Highways
Act
1980 are considered to be analogous to compulsory purchase orders, in that
the making or confirmation of the order would take away from an objector
some right or interest in land for which the statute gives a right to
compensation. Extinguishment and diversion orders made under sections
118-11 9A of the 1980 Act may also be analogous, depending on the
particular circumstances. The other types of order listed at paragraph 3
above are not considered to be analogous, however.
15. Therefore if a person with an interest in the land over which a
path is to be created, extinguished or diverted successfully objects to
such an order-that is the person attends, or is represented at, an inquiry
and is heard as a statutory objector, and the order is not confirmed-an
award of costs will be made in that person's favour unless there are
exceptional reasons for not doing so. No application for costs need be made
at the inquiry by such an objector as the Secretary of State will write to
the parties concerned. The award would be made against the authority making
the order, although this would not, of itself, imply unreasonable behaviour
by the authority. General guidance on the award of costs in respect of
compulsory purchase and analogous order procedure is provided in the
separate guidance referred to at paragraph 11 above.
Charging for Orders
16. New regulations are being prepared under section 150 of the Local
Government and Housing Act 1989, which will enable local authorities to
recover the advertising and some of the administrative costs of making
certain types of orders. Further guidance will be issued shortly.
Powers of the Secretaries of State to make Orders
17. Orders under section 247 of the 1990 Act can be made by the
Secretary of State in appropriate cases, for example where an application
for planning permission is before him either on appeal or following call-in
and it is considered expedient to invoke the concurrent procedure under
section 253 of the Act in anticipation of planning permission. Otherwise,
it is only in exceptional circumstances, for example in relation to
development of strategic or national importance, that the Secretaries of
State would expect to be asked to exercise this power. It should not be
regarded by planning authorities as an alternative to the exercise by them
of their ordermaking powers under section 257 of the Act. In such
circumstances the Secretaries of State expect the authority to make the
order.
18. The Secretaries of State have similar powers under sections 26(2)
and 120(3) of the Highways Act 1980 to make public path and rail crossing
orders. As with their powers in the Town and Country Planning Act these
powers will be exercised only exceptionally.
Annex B follows separately.
------------------------------
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From: TimLARA@aol.com
Date: Mon, 31 Mar 1997 07:09:47 -0500 (EST)
Subject: Re: TRO's Map 135, Aberystwyth.
The county council - Ceridigion, or in old english, Cardigan - have not yet
considered Voluntary Restraint, but this may be because:
i. They are not aware of Welsh Office Circular 5/93 (same as DoE 2/93)
ii. They are not aware of the value of VR, or they do not believe the WO
advice
iii. They believe that VR would not be effective
There may be other reasons. As a 'new' authority, created from the 'new in
1974' Dyfed, they may not have the necessary knowledge, attitudes, staff,
etc.
I am sure that anyone writing in will be able to remind them of the relevant
factors
Copies of the Voluntary Restraint application form and a sample sign are
available in return for an A5 sae from:
LARA Info Office
99 Cheshire Street
Market Drayton
TF9 1AE
(or in emergency, phone: 01630 657627. The phone is usually manned 9am - 9pm
every day, outside these hours there is an answerphone.)
Anyone writing might remind the CC of this information, too.
Tim Stevens
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From: TimLARA@aol.com
Date: Mon, 31 Mar 1997 07:09:53 -0500 (EST)
Subject: Re: Why motors can legally use un-tarred roads
Here are a few thoughts, facts, etc, about why motors can use un-tarred
roads:
1. Parliament says they can. Parliament has considered many times the use of
motor vehicles on roads, from mid-Victorian times when it introduced the
requirement for a man with a red flag and a speed limit of 4 mph (to avoid
the problem of traction engines frightening the horses), and particularly in
1896 when this law was changed, in 1903 when the Motor Car Act made us have
number plates, etc. By this date there was no Tarmac, and experiments with
variations on sealed surfaces were just beginning.
2. The use of tar, bitumen, asphalt, concrete, etc started with one major aim
in view. This was to solve 'The Dust Problem'. Horses, steel tyres, and
hob-nailed boots all had the effect of grinding the road-stone (or road
metal) of macadam (compacted crushed stone) into powder. When Mr Plod wasn't
looking, early motor cars went faster than the 15 mph which a good horse
could sustain, the rubber tyres loosened the dust, and the wake distributed
it all over the neighbourhood. The Roads Improvement Association consisted
mainly of motorists, as did the AA and AC (not yet Royal) and it was pressure
from them, as well as those who lived along the roads, all of which were dirt
roads, that resulted in the Road Board, funded by the Road Fund which we all
still have to pay. Had there been anything which made the use of motors on
dirt roads illegal, then there would never have grown up this pressure for
improvement with (eventually) Parliament's backing.
Quotes:
H E Stilgoe, City Engineer & Surveyor, Birmingham, 1909 - The application of
coal gas tar to the surface of macadamised roads, practiced some five years
ago in almost an experimental manner, has become an established principle in
many parts of the country.
H P Maybury, County Surveyor, Kent, same date - By arranging and becoming
responsible for the cost of the Tar Spreading Trials and Competitions in
Middlesex and Berkshire in 1907, the Roads Improvement Association materially
assisted road engineers.
Had driving on unsealed surfaces been illegal, none of this would have
happened.
The process of tarring roads has not stopped, but few have been done since
about 1960 except for farm tracks to get the milk lorry down.
3. There are roads on which it is certain no formal 'surface' has ever been
provided, and yet they are vehicular and open to motors. One in particular is
the road from Lancaster across the sands of Morecambe Bay, and across the
sands of the Duddon Estuary. These routes are provided with guides funded by
the Crown (as Duchy of Lancaster) having been previously funded by the
Monastery at Furness Abbey pre the Dissolution. No evidence was given by the
official guide at the recent Public Inquiry to the effect that any sort of
traffic had ever been prohibited or regulated. About 14 km of the route runs
over the foreshore, and is covered by the sea twice a day. The sand was (and
is) firm enough for a coach service in the early 1800s and no surfacing has
ever been necessary.
When the law says something is legal, there is no need to find other reasons.
I hope the above is helpful. I feel that the history of highway management is
due for another book. If somebody would like to arrange for no Public
Inquiries for two years I might even find time to write one.
Tim Stevens, LARA Information Officer, 31.3.97
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Date: Mon, 31 Mar 1997 18:41:08 +0100
From: Brian Lewis <brian@limb.demon.co.uk>
Subject: Re: RUPP Reclass. in Norfolk.
In message <970330172114_1683143301@emout02.mail.aol.com>,
Charlietrf@aol.com writes
>I don't know if this is about the RUPP Reclass. Tim's earlier e-mail was
>about, but for what it's worth here's the text of an article on the front
[ truncated by list-digester (was 23 lines)]
>map. In the absence of such evidence, bridleway status only exists and an
>offence will be committed if a motor vehicle is driven on the route."
>Charlie Morriss.
does this also apply if the road is a UCR?
Brian
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From: postmaster@steve-rawlings.compulink.co.uk
Date: Mon, 31 Mar 1997 20:59:08 +0000
Subject: Re: TRO's Map 135, Aberystwyth.
> Date: Mon, 31 Mar 1997 07:09:47 -0500 (EST)
> To: RoW@playground.sun.com
> Subject: Re: TRO's Map 135, Aberystwyth.
> From: TimLARA@aol.com
> The county council - Ceridigion, or in old english, Cardigan - have not yet
> considered Voluntary Restraint, but this may be because:
[ truncated by list-digester (was 11 lines)]
> etc.
> I am sure that anyone writing in will be able to remind them of the relevant
> factors
Dunno why there should be any ignorance whatsoever. The WTRA used to
be reasonably active in that area. I suppose that they have gone the
way of too many competition members with little interest in RoW
beyond Enduro "practice"!
Sad!
steve rawlings
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From: TimLARA@aol.com
Date: Mon, 31 Mar 1997 17:27:25 -0500 (EST)
Subject: Re: RUPP Reclass. in Norfolk.
I firmly believe that Birketts are wrong, and so is the Inspector in this
case.
What is illegal is motoring on a footpath or bridleway which definitely does
not have vehicular rights (eg one expressly dedicated by the landowner) and
RUPPs are not this.
It does not apply to UCRs either unless it can be shown (not guessed or
hoped) that NO vehicular rights exist. It IS possible for a UCR to be ONLY a
bridleway, but very rare.
Cheers, tim
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