Naturenet: Changing the Definitive Map and Statements

Changing the Definitive Map and Statements

ights may exist over a way not shown on the map at all, or additional rights may exist over a way shown on the definitive map, even though they are not recorded there. Where such rights are alleged to exist, there are procedures to enable the allegations to be tested. These are set out in the Wildlife and Countryside Act 1981. They allow for a surveying authority to make an order, known as a definitive map modification order, to amend the map so as to show those rights.

There is also provision in section 53(3)(c)(ii) and (iii) of the 1981 Act which allows modification orders to be made:

To delete a right of way from the definitive map and statement on the ground that it was included in error;
To downgrade its classification from bridleway or road used as a public path (RUPP) to footpath, or from byway to bridleway or footpath, where its status has been incorrectly recorded;
To correct an error in the map or statement without changing the status of the way.

The stages through which all orders have to go are described in the section below. It is possible for anyone to make an application to a surveying authority for an order to be made.

'Legal Events' orders

You may sometimes hear about the surveying authority

making what are known as 'Legal Events' orders. These are orders under section 53(3)(a) of the Wildlife and Countryside Act 1981

and are made, as their name implies, simply to record on the definitive map

legal changes that have already taken place under some other legislation. An example would be to record the fact that a way has been diverted or extinguished.

They follow a simpler procedure to that set out below. They do not have to be advertised, are not subject to objections, and take effect as soon as they are made. Orders have to be on display for public inspection, together with the definitive map and statement, in exactly the same way as all other modification and reclassification orders. If you know of a case where a 'Legal Event' order might be appropriate, but has not been made, you should discuss it with the surveying authority.

The stages of a Definitive Map Modification Order

The terminology used in the legislation can be confusing. An authority 'makes an order', but, apart from orders made under section 53(3)(a) which take effect on being made, this is the initial stage, not the end of the process. The right to object comes when the order is made. The conclusion of the process comes when a decision is made to confirm the order (or not to confirm it). Subject to section 53(3)(a), only a confirmed order has any effect on the content of the definitive map

and statement.

Before making an order, the surveying authority has to consider some new evidence suggesting that the map and statement may need modification. That evidence may be found by the authority itself, or it may be brought to its attention through a formal application.

Consultation
Before making an order, the surveying authority is required to consult every other local authority covering the area in which the way is situated. This means the district council in non metropolitan counties, the parish council if there is one, and the parish meeting of a parish not having a parish council. They will normally also consult the owner and occupier, and may consult organisations representing users of rights of way.

Making the order and giving notice
The order has to be made in the form set out in the regulations. Once it has been made, the authority has to give notice of its general effect, stating where it can be inspected free of charge and a copy purchased, and specifying the time within which representations or objections with respect to the order may be made. A period of at least 42 days from the date of first publication of the notice must be allowed for objections.

The notice must be:
   1. Published in at least one local paper circulating in the area concerned;
   2. Displayed at the ends of each way affected by the order, with a plan showing the effect of the order on that way;
   3. Served, with a copy of the order and plan:
      — on every owner and occupier of any land affected by the order,
      — on every local authority concerned (as defined above),
      — on bodies prescribed by the regulations to receive such orders, and
      — on any other body the authority considers appropriate;
   4. Served on any individuals who have, on prepayment, required the authority to give them notice of such orders.

Inspecting the evidence
During the period allowed for objections to be considered by an independent Inspector. to ask the surveying authority to tell them what documents, including forms testifying to use of the way. If some of the proposals are opposed, but not all, account in deciding to make the order and either to allow them to inspect and copy them if it has them in its possession, or to tell them where they can be inspected. It must comply with this duty within 14 days of being asked. However, the authority is not prevented by this requirement from bringing forward other evidence at any inquiry or hearing which is subsequently held.

Objections
Objections must reach the authority by the closing date set out in the notice. They should be in writing, and should state clearly the reason for the objection to the order. Definitive map modification orders are about whether rights already exist, not about whether they should be created or taken away. The suitability of a way for users who have a right to use it, or the names of those who wish to speak and, where appropriate, nuisance that they are alleged to cause, or to be likely to cause, are therefore irrelevant. So also is the need for public access, locally, if the order alleges that public rights do not exist.

Therefore, if you want to make an objection you should make sure that it is concerned with whether the rights with which the order is concerned, do or do not exist. You do not need to submit your evidence at this stage, but a short outline may be useful. The evidence may be expanded upon at a public inquiry, and you may call witnesses to support your case. Their names do not have to be given to the authority before the inquiry. If the route that is the subject of the order could, in your view, be improved by changing its line, you may suggest this to the authority, but it is a matter that comes under separate legislation, and is not something that can be considered at an inquiry into a definitive map modification order.

If no objections are duly made within the objection period, then the authority may confirm the order itself as an unopposed order.
If there are any objections the authority has to refer the order, together with the objections, to the Planning Inspectorate. They arrange for the Order and the objections to be considered by an independent inspector.

It is possible for one order to cover several alleged rights the authority can split the order into two parts, and confirm the unopposed part whilst referring the opposed part to the Planning Inspectorate.

Consideration by an Inspector
Normally the Inspector will hold a public inquiry in the locality, for example in the local village hall, to hear the evidence for or against the Order. Anyone can attend such an inquiry but only those who have made formal objections have a right to speak. Others may do so at the discretion of the Inspector.

Once the inquiry has opened, the Inspector has full jurisdiction over the proceedings. It may very occasionally be possible to make special arrangements for those who cannot get time off work. This should be raised with the Inspector at the start of the inquiry. At the inquiry the Inspector will ask the organisations they represent. An order of appearance will then be decided with allowances made for anyone who has limited time to attend the inquiry, wherever practicable.

A representative from the order-making authority will state its case, calling whichever witnesses it wishes. Statements made by such witnesses should be made available to objectors. The objectors are entitled to cross-examine the witnesses but not question the representative.

The objectors will then be called upon to make their case and witnesses may be called and cross examined.

The Inspector may question any of the participants at the inquiry. The authority will then make a closing statement. At the end of the inquiry the Inspector will announce the arrangements for the site inspection. This will either be alone or accompanied by both parties. During the visit the Inspector may ask questions about the route to clarify some of the points raised at the inquiry. However, there will be no re- opening of issues raised during the inquiry. The Inspector may also make an unaccompanied visit before the inquiry, without giving notice, or may choose to make an accompanied visit during the course of the inquiry.

In making the decision the Inspector will consider the oral evidence given and also any written submissions presented during the inquiry, or received beforehand.

The decision is contained in a decision letter, which gives a description of the way, summarises the evidence presented to the Inspector, and explains the reasons for the decision. A copy of the letter will be sent to the council, those who made formal objections, and anyone who requested a copy.

If the Inspector proposes to modify the order, for example, to show a proposed footpath as a bridleway instead, this modification must be advertised so that any further representations can be considered, if necessary by holding a further inquiry.

In a few special cases the decision will be made not by the Inspector, but by the Secretary of State, to whom the Inspector will report. In such cases the Secretary of State has to tell the objectors the reason for this.

The Inspector will sometimes decide that the order should be modified. He can make modifications as part of his decision unless the modifications affect land not affected by the order, or remove or add any way to it, or alter the type of way, eg from a footpath to a bridleway or vice-versa. If this is the case, the Inspector's proposals must be advertised, and the public given a chance to object. If there are objections, a second public inquiry may be held.

Confirmation
If and when the order is confirmed, either by an Inspector or by the authority, the authority must give notice of its confirmation in the same way as it gave notice of the making of the order. If the order is not confirmed, then the authority has to inform those people or bodies who were notified of the making of the order, but does not have to publish notice of the decision not to confirm in the press, nor put notices up on the way.

Once an order is confirmed, the definitive map and statement are modified in accordance with the provisions of the order, and a copy of the order is sent to the Ordnance Survey.

Challenge in the courts
A decision on an order can only be challenged on legal grounds in the High Court. To be successful, you would have to show:

(a) that the Inspector or the Secretary of State exceeded their powers in some way; or
(b) that any of the relevant requirements were not complied with, and that consequently your interests were substantially prejudiced.

If you do wish to challenge a decision you have to apply to the High Court within six weeks of the confirmation of an order. However, you would be wise to seek legal advice before starting a High Court challenge. The High Court cannot change the decision: it can only direct the Secretary of State to reconsider the case. If the Court does not uphold the challenge, there is no other way that the decision can be overturned.

Evidence is the key
The definitive map is a legal recognition of existing public rights to walk, ride and use vehicles. As such, any proposal to modify it by means of a definitive map modification order to add a right of way has to be judged by the legal test: "Do the rights set out in the order already exist?". If they do, then the map must be modified, regardless of any effect on anyone's property interests, or whether or not the routes physically exist at the present time on the ground. Similarly, if the evidence in support of the order proves to be insufficient, and the test is not satisfied, then the map remains as it is, however desirable it may seem for the public to have those additional rights.

Evidence is also the key where the proposal is to delete or downgrade a right of way already shown on the map. In this case it must demonstrate clearly that a right of way, of that status, did not exist when it was first shown on the definitive map, and that an error was made.

The Department of the Environment (now DEFRA) has prepared guidance notes on evidence which are available to Inspectors considering opposed definitive map modification orders. They are also available to the public and may be obtained from the Planning Inspectorate.

Applications and appeals
It is possible for anyone to apply to a surveying authority for a definitive map modification order to be made. The procedure for applications is set out below. The form such an application must take is set out in the regulations, and most surveying authorities have their own forms for applicants to use. However, it is open to an authority to act upon evidence without having received it by way of a formal application.

Anyone making an application must serve a notice on every owner and occupier of land affected by the application, and certify to the authority that notice has been properly served. In case of difficulty with tracing the owner or occupier, the authority has power to direct that a notice be placed on the land instead.

Once the authority has received the certificate of service of notice, it must investigate the matters in the application and, after consulting with every local authority concerned, must decide whether to make the order that has been applied for.

If an authority fails to make a decision on an application within 12 months of receiving the certificate of service of notice, then the applicant may apply to the Secretary of State (at the appropriate Government Office for the Region) for the authority to be given a deadline for its determination of the application. If you use this procedure, it is helpful to provide a copy of the application form and give any reasons why you consider it should be determined quickly. The Secretary of State has to consult the authority before deciding whether to set a deadline.

When the authority has made its decision, it must tell the applicant and also everyone on whom notice of the application was served by the applicant. If the authority decides not to make the Order, the applicant may, within 28 days of the service of the notice of that decision, appeal to the Secretary of State. The appeal should be addressed to the Government Office for the Region (details of which should be given with the authority's notice of decision). it 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. Although not essential, an appeal form can be obtained from the Government Office for the Region on request, which gives details of what needs to be submitted. A copy of the notice of appeal only must also be served on the surveying authority at the same time.

Once the appeal is received the Secretary of State will ask the authority to submit a statement explaining their decision not to make the Order. This will be copied to the appellant for comments and these will, in turn, be copied to the authority. In operating the appeal system the Secretary of State tries to give the appellant the final say. There may be a site visit by an officer from the Government Office for the Region but there is no specific provision for a public inquiry to be held at appeal stage. Once the exchange of representations has been completed, the Secretary of State will re-examine the evidence submitted with the application and contained in the representations, to decide whether there is a case for the making of the Order, and if so the direct the authority accordingly. The Secretary of State is not empowered to authorise the modification of the definitive map and statement, nor make the Order. There is no charge to apply for a modification order, a direction or an appeal against a surveying authority's decision.

Planning Inspectorate
Temple Quay House
2 The Square
Temple Quay
Bristol
BS1 6PN

Telephone: 0117 372 6372
Fax: 0117 372 8782

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