Chapter 5 : Definitive maps today
Scroll down for the supplement to Chapter 5.
Links and downloads referred to in the text of Chapter 5
| Page | ||
| 107 | Forms for applying for a modification order | download |
| 108 | Land Registry annual report 2005-06 | download |
| 110 | Register of definitive map modification order applications : Guidance for English surveying authorities to accompany Statutory Instrument 2005 No 2461 : Defra, December 2005 | download |
| 115 | Part 6 of the Natural Environment and Rural Communities Act 2006 and Restricted Byways : A guide for local authorities, enforcement agencies, rights of way users and practitioners (Defra, 5th edition, May 2008) | download |
| 122 | Checklist for order-making authorities (Planning Inspectorate, revised October 2007) | link |
| 134 | Discovering Lost Ways project (Natural England) | link |
| 134 | Discovering Lost Ways Wales research report (Countryside Council for Wales) | link |
| 134 | Defra letter of 28 November 2006 to surveying authorities re list of streets and the ‘cut-off ‘ provisions | download |
| 134 | A guide to definitive maps and changes to rights of way (Natural England, NE112, 2008) | download |
| 134 | A guide to the information we keep and how you can obtain it (Land Registry) | download |
| 135 | Advice Note 5 : Definitive map and definitive statement – precedence (Planning Inspectorate, 2005) | download |
| 135 | Advice Note 7 : Mayhew v Secretary of State for the Environment, Lasham Parish Meeting v Hampshire County Council (Planning Inspectorate, 2005) | download |
| 135 | Advice Note 8 : Advice on the definition of byway open to all traffic – the effect of Masters v Secretary of State for the Environment, Transport and the Regions (Planning Inspectorate, 2001) | download |
| 135 | Advice Note 9 : General guidance to Inspectors on public rights of way matters (Planning Inspectorate, 2005) | download |
| 135 | Advice Note 10 : Wildlife and Countryside Act 1981 – Inquiries and hearings into proposed modifications – Marriott v Secretary of State for the Environment, Transport and the Regions (Planning Inspectorate, 2001) | download |
| 135 | Advice Note 16 : Widths on orders (Planning Inspectorate, 2007) | download |
| 135 | Advice Note 19 : Human Rights Act 1998 (Planning Inspectorate, 2005) | download |
| 135 | Advice Note 20 : Inspectors’ power to modify definitive map modification orders (Planning Inspectorate, 2005) | download |
| 135 | Consultation paper on proposed amendments to legislation when 'Roads Used as Public Paths' are reclassified as restricted byways (Defra, 2003) | download |
| 135 | Definitive Map Orders (Planning Inspectorate, revised 2007) | link |
| 135 | Part 6 of the Natural Environment and Rural Communities Act 2006 and Restricted Byways : A guide for local authorities, enforcement agencies, rights of way users and practitioners (Defra, 5th edition May 2008) | download |
| 135 | Practice Guidance Note 3: Minimising Objections to Definitive Map Modification and Reclassification Orders (Rights of Way Review Committee, revised December 2007) | link |
Supplement to the text of Chapter 5
| Page | ||
| 98 | 5.1.3 footnote 4 The guidance previously in circular 2/1993 is now, for authorities in England, in Defra circular 1/09, paragraph 4.09. | download |
| 99 | 5.2.1 The level of accuracy of the map and statement should be of the highest level in practice attainable. The level of the degree of accuracy attainable will depend on the circumstances, in particular the nature of the evidence as to the line and other particulars of the route. In Perkins v Secretary of State for the Environment, Food and Rural Affairs (2009), Sir George Newman said, ‘…if it is possible, it will generally be desirable to show an order route to a high level of precision, but that will be the position if there is evidence to support such precise delineation actually relating to the right of way in question. Where, as is often the case, the existence of the right of way is shown by historical maps of varying quality, vintage and produced for varying purposes, in my judgment, there is certainly no requirement in law to show the route with a greater degree of particularity than can be justified on the basis of the available evidence.’ | link to judgment |
| 104 | 5.2.6 DOE Circular 18/1990 has been replaced, for authorities in England, by Defra Circular 1/09, see paragraph 4.30 onwards. Paragraph 4.35 of the new circular expresses an amended view that, in the context of deletions from the definitive map, it is not possible for a right of way to be dedicated when use is by virtue of its already being shown on a definitive map. Defra’s view is now that use of the way in such circumstances can no longer be seen to be as of right. In circular 1/09 the view is expressed that this applies from the date of first recording on the definitive map, this term being defined as ‘either the date of the original publication of the first definitive map, the date of publication of a review, or the relevant date of an order adding the path to the definitive map, whichever was appropriate’. | download |
| 106 | 5.3 The Rights of Way (Hearing and Inquiry Procedure) (England) Rules 2007 gives rights to applicants for modification orders which are opposed. See 5.7.8 below. | |
| 107 | 5.3.1 Defra wrote to surveying authorities in England in April 2007 to express the view that “where an application under section 53(5) of the Wildlife & Countryside Act 1981 is accompanied by a list or summary analysis of documentary evidence sufficient to make a credible case for an Order under section 53(2) of the '81 Act, then this constitutes an application that is compliant with schedule 14, paragraph 1..” Note that this advice was superseded by the Winchester College case below, and see Defra circular 1/09, paragraph 4.7. R (Warden and Fellows of Winchester College) v Hampshire CC (2008) concerned an application to re-classify as a byway open to all traffic a route shown on the definitive map in a part as bridleway and the remainder as a restricted byway. Paragraph 1(b) of WCA 1981 Sch 14 requires that an application for a definitive map definitive map modification order should be accompanied by ‘copies of any documentary evidence … which the applicant wishes to adduce in support of the application’. The landowner contended that the requirement had not been complied with in that the application had been accompanied, not by copies of the evidence, but by a list of the documents. Therefore, the landowner contended, the exception to NERCA 2006 s 67 where, before 20 January 2005, an application under section 53(5) of the Wildlife and Countryside Act 1981 had been made for the reclassification of a right of way as a byway open to all traffic did not apply, with the result that section 67 had operated to extinguish vehicular rights. Thus the decision by the authority to make an order modifying the definitive map as a byway open to all traffic had been unlawful. The Court of Appeal, reversing the decision of the High Court (R (Warden and Fellows of Winchester College) v Hampshire CC (2007)), held that the words of WCA 1981 Sch 14 para 1(b) were to be given their clear and ordinary meaning. The requirements of the paragraph were therefore to be adhered to strictly. Thus the application for the way to be shown as a BOAT had not been validly made. The consequence was that the exception in section 67(3)(a) did not apply, so that, since an application to have the way shown as a BOAT had not been made by 20 January 2005, vehicular rights over the way had been extinguished by section 67(1). The appeal by the landowner against the refusal by the High Court to allow its claim for judicial review of the decision of the authority not to reconsider its decision to make the order was accordingly allowed. |
download Defra letter link to CA judgment |
| 108 | 5.3.2 In R (Warden and Fellows of Winchester College) v Hampshire CC (2008), the Court of Appeal held (upholding the decision of the High Court in R (Warden and Fellows of Winchester College) v Hampshire CC (2007)) that where a landowner had received notification from the authority that an application for a modification order had been made, this was sufficient for the authority validly to determine the application and make the order, notwithstanding that the notification to the landowner had been by the authority and not, as required by Sch 14 para 2(1), by the applicant. | |
| 109 | 5.3.4 In Maroudas v Secretary of State for Environment, Food and Rural Affairs and Oxfordshire CC [2009] the High Court (Mackie J) considered whether an application had been validly made by compliance with WCA 81 Sch 14 and regulation 8 of the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993. The Court concluded that it was necessary for the application and the circumstances attending its submission to be looked at as a whole. Notwithstanding defects in the application, including a failure to sign and date the form in the relevant boxes, the circumstances, taken as a whole and including subsequent correspondence between the applicant and the authority that established the essentials of the application, warranted an inspector in finding that the application had been validly made. The consequence was that the exception to NERCA 2006 s 67 did not operate to extinguish vehicular rights over the way in respect of which the application had been lodged, as the exception in sub-section 67(3)(a) had been engaged. | link to judgment |
| 113 | 5.5.1 Advice to surveying authorities in England on the action to be taken where, with respect to former RUPPs, there is any ambiguity between the definitive map and statement is contained in Defra circular 1/09, paragraph 4.41. | download |
| 118 | 5.6.4 Defra wrote to surveying authorities in England in April 2007 to express the view that “where an application under section 53(5) of the Wildlife & Countryside Act 1981 is accompanied by a list or summary analysis of documentary evidence sufficient to make a credible case for an Order under section 53(2) of the '81 Act, then this constitutes an application that is compliant with schedule 14, paragraph 1, and hence with sections 67(3)(a) and (6) of the NERC Act.” Note that this advice was superseded by the Winchester College case above, and see Defra circular 1/09, paragraph 4.7. | download Defra letter |
| 118 | 5.6.4 In October 2007 Defra wrote to the Planning Inspectorate to express a view on whether the exemption in section 67(3)(a) applied where an application had been made, but also determined, before the 20th January 2005 date. Defra’s view is that the exemption does not apply in such a case: for an application to qualify it must not have been determined at the date specified in the Act. | download the Defra letter |
| 121 | 5.7.4 Non Statutory Guidance on the recording of widths on public path, rail crossing and definitive map modification orders was issued by Defra in February 2007 alongside a revision of the Planning Inspectorate’s Advice Note 16 (see above). | download the Defra guidance |
| 122 | 5.7.5 footnote 54 The previous advice in Circular 2/1993 about ‘appropriate bodies’ for the receipt of orders has been replaced, for authorities in England, by advice in paragraph 4.20 of Defra circular 1/09 to authorities to consider wider publicity for orders through ‘local organisations which are recognised as being representative of user interests’. | download |
| 122 | 5.7.8 footnote 60 The previous advice in Circular 2/1993 about what to send with orders has been replaced, for authorities in England, by advice in paragraph 4.26 of Defra circular 1/09 to authorities to use the Inspectorate’s checklist. | download |
| 122 | 5.7.8 The Rights of Way (Hearing and Inquiry Procedure) (England) Rules 2007 apply to modification orders in England submitted to the Secretary of State on or after 1st October 2007. For general details of the rules see the supplement to chapter 8. Under the Rules the applicant for an order [defined in rule 4(4)(b)] has the following rights: | link to rules and to PINS guidance |
| (a) to receive preliminary notice indicating whether an inquiry or hearing will be held and its date, time and place [Rule 4(4)(b)] | ||
| (b) to receive from the Secretary of State a copy of the order-making authority’s statement of case or proof of evidence [Rules 6(2), 17(2) and 20(3)(a)] | ||
| (c) to receive from the Secretary of State a copy of any other statement of case [Rules 6(6)(b) and 17(6)(b)] | ||
| (d) if the applicant has submitted a statement of case or notice of reliance on the order-making authority’s case, to receive from the Secretary of State a copy of any further information he required any person to supply [Rules 7(3) and 18(3)] | ||
| (e) to appear at a hearing and give oral evidence or call someone else to do so [Rules 8(1)(b) and 9(6)(b)] | ||
| (f) to receive notice of any pre-inquiry meeting [Rule 15(2)] | ||
| (g) to appear at an inquiry [Rule 19(1)(b)] | ||
| (h) if appearing at an inquiry, to give or call another person to give, oral evidence and to present, or call another person to present, any matter; and to cross-examine any person giving evidence or presenting any matter to the inquiry [Rules 21(5) and 21(6)] | ||
| (i) to receive notice of the intention of the Secretary of State to disagree with the inspector and to be given an opportunity to make representations; and to receive notice of any re-opened hearing or inquiry [Rules 11(6), 11(9), 23(6) and 23(9)] | ||
| (j) to receive notice of a decision by an Inspector to take into account any subsequent material and to be given an opportunity to make representations, and to receive notice of any re-opened hearing or inquiry [Rules 12(3), 12(6)(a), 24(3) and 24(6)(a)] | ||
| (k) to receive notice of the decision [Rules 13(2), 14(2), 25(2) and 26(2)] | ||
| An applicant is given similar rights by the procedure for written representations adopted by the Planning Inspectorate for opposed orders determined by that method – see new publication for details. | ||
| The applicant also has the following duties: | ||
| (a) to ensure that, within 14 weeks of the start date, the Secretary of State has received either their statement of case or notification that they intend to rely on the order-making authority’s statement of case [Rules 6(3) and 17(3)] | ||
| (b) to ensure that the Secretary of State receives any proofs of evidence (and summary if necessary) not less than four weeks before the start of the inquiry [Rule 20] | ||
| 122 | 5.7.8 footnote 60 The Planning Inspectorate’s checklist for order-making authorities (see above list) was revised in March 2007 and again in October 2007. | |
| 123 | 5.7.8 The Planning Inspectorate is now making decisions on definitive map modification orders for England and for Wales available on its website. |
link to English decisions link to Welsh decisions |
| 123 | 5.7.8 In a revised version of circular 1/09 in October 2009 Defra revised paragraph 4.27 to make it clear that if orders are severed, each part must be separately capable of confirmation. | download |
| 124 | 5.7.9 The Planning Inspectorate issued a revised version of Advice Note 20 (see above list) in September 2009. | |
| 124 | 5.7.11 An appeal under Schedule 15 is in the nature of a statutory judicial review and is limited to ordinary public law grounds: Powell v Secretary of State for Environment, Food and Rural Affairs and Doncaster MDC (2009), para 9; Norman and Anr v Secretary of State for Environment, Food & Rural Affairs (2007), para 3. For the grounds, see 13.1.3, p 332. |
link to judgment in Powell case link to decision quashed in Powell case |
| 124 | 5.7.11 The effect of an order of the court under WCA 1981 Sch 15 para 12 (2) quashing an inspector’s decision to confirm an order is to quash not merely the decision of the inspector, but the order itself (thus requiring the order, if the authority so decides, to be re-made): Jones v Welsh Assembly Government (2008). | link to judgment |
| 127 | 5.8.3 The OS and IDEA have published guidance to local authorities on making OS-based definitive map information available to the public | download |
| 127 | 5.8.3 The advice previously in circular 2/1993 has been replaced, for authorities in England, by paragraph 2.3 of Defra circular 1/09, which no longer recommends that maps be sold to the public. | download |
| 131 | 5.9.4 footnote 87 Circular 2/1993 has been replaced, for authorities in England, by Defra circular 1/09, paragraph 6.17 of which restates the advice about obstructions apparently recorded in the definitive statement. Paragraph 4.16 of circular 1/09 advises surveying authorities on the inclusion of limitations in modification orders. | download |
| 132 | 5.11.1 Natural England has withdrawn from further archive research in the Discovering Lost Ways project, and is seeking a review of legislation. Defra has announced that the implementation of sections 53 to 56 of the 2000 Act will be deferred at least until that review has reported. |
download Defra letter link to Natural England decision and review |
| 134 | Further Reading Natural England published a new edition of A guide to definitive maps and changes to rights of way (NE 112) in 2008 (link above) | |
| 135 | Further Reading Defra issued version 5 of its guidance to the NERC Act (see above list) in May 2008 | |
| 135 | Further Reading The Planning Inspectorate issued revised versions of Advice Notes 5,7,9,10,16, and 20 (see above list) in September and October 2009. | |
| 135 | Further Reading The Planning Inspectorate’s Definitive Map Orders guide (see above list) has been revised. It has been superseded for English orders submitted to the Inspectorate from 1 October 2007 by new guidance (itself revised in November 2008). | link to new PINS guidance |
| 135 | Further Reading The Planning Inspectorate issued a revised version of Advice Note 15 on breaks in user caused by foot and mouth disease in June 2009 | link to Advice Note |