Chapter 7 : Changes to the network
Click here for the supplement to Chapter 7.
Links and downloads referred to in the text of Chapter 7
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| 187 | PINS decision in Stanton Long case | download |
| 189, 218 | Countryside and Rights of Way Act 2000 – DETR circular 04/2001 | download |
| 224 | A guide to definitive maps and changes to rights of way (Natural England, NE112, 2008) | download |
| 224 | A guide to Transport and Works Act Orders procedures (Department for Transport, 2006) | link |
| 224 | Advice Note 9 : General guidance to Inspectors on public rights of way matters (Planning Inspectorate, 7th revision, 2009) | download |
| 225 | Advice Note 16 : Widths on orders (Planning Inspectorate, 5th revision, 2009) | download |
| 225 | Advice Note 19 : Human Rights Act 1998 (Planning Inspectorate, 2005) | download |
| 225 | Checklist for order-making authorities (Planning Inspectorate, revised 2011) | download |
| 225 | Creation of new public rights of way: A code of practice for local highway authorities and landholders involved in negotiating compensation (Natural England and Countryside Council for Wales, 2005) | download |
| 225 | Guidance for local highway authorities on crime prevention on public rights of way – designation of areas (Defra circular 1/2003) | download |
| 225 | Guidance relating to the making of gating orders (Home Office, 2006) | download |
| 225 | Planning for Open Space, Sport and Recreation (Department for Communities and Local Government, PPG 17, 2002) | link |
| 225 | Planning Obligations (Office of the Deputy Prime Minister, circular 05/2005) | link |
| 225 | Practice Guidance Note 1: Code of Practice on consultation over changes to rights of way (Rights of Way Review Committee, revised December 2007) | link |
| 225 | Practice Guidance Note 4: Securing agreement to public path orders (Rights of Way Review Committee, revised December 2007) | link |
| 225 | Regulating motor vehicles on rights of way and off road (DEFRA, 2005) | download |
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| 168 | 7.2.1 Annex C of Circular 2/1993 has been replaced, for authorities in England, by Chapters 3 and 5 of Defra circular 1/09 | download circular 1/09 |
| 169 | 7.2.2 The Secretary of State’s advice that he will exercise his powers to make orders under the Highways Act only exceptionally is now, for authorities in England, in paragraph 10.2 of Defra circular 1/09. | download circular 1/09 |
| 169 | 7.2.3 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). The Advice Note was further revised in September 2009. | download the Defra guidance |
| 169 | 7.2.3 In September 2011 the Planning Inspectorate wrote to order-making authorities about the correct use of notation on order maps. In December 2011 the Inspectorate issued a new Advice Note 22 on the subject. | download the PINS letter download Advice Note 22 |
| 171 | 7.2.4 footnote 27 The view that an authority may decide not to proceed with an order under the Highways Act is now, for authorities in England, in paragraph 5.29 of Defra circular 1/09. | download circular 1/09 |
| 173 | 7.2.5 A table listing when order-making authorities should send copies of orders to the Ordnance Survey is, for authorities in England, in Defra circular 1/09, paragraph 5.59. | download circular 1/09 |
| 173 | 7.2.5 The Planning Inspectorate is now making decisions on public path orders for England and Wales available on its website. | link to decisions (choose English site) link to decisions (choose Welsh site) |
| 173 | 7.2.6 The Secretary of State’s advice on his powers to modify orders is now, for authorities in England, contained in chapter 10 of Defra circular 1/09. | download circular 1/09 |
| 175 | 7.2.7 Guidance on the use of the certification procedure for s 119 orders is contained, for authorities in England, in Defra circular 1/09, paragraph 5.28 | download circular 1/09 |
| 176 | 7.2.8 The provision for combined orders, whereby certain public path orders made by surveying authorities may include modification of the definitive map, was brought into force in England from 6th April 2008: Public Rights of Way (Combined Orders) (England) Regulations 2008. Amendment regulations came into force, and revised guidance was published, in October 2010. | link to 2008 regulations link to amending regulations download Defra guidance |
| 176 | 7.2.9 The Planning Inspectorate has amended its leaflet about applying to the High Court to include more information on how to challenge a decision. | download the leaflet |
| 177 | 7.2.12 Advice on charging applicants is now, for authorities in England, in Defra circular 1/09, paragraphs 5.34 to 5.41 | download circular 1/09 |
| 178 | 7.3.1 The advice previously in circular 2/1993 is now, for authorities in England, in Defra Circular 1/09, chapter 5. | download circular 1/09 |
| 181 | 7.3.2 The advice previously in circular 2/1993 is now, for authorities in England, in Defra Circular 1/09, chapter 5. Paragraph 5.32 expresses the view that the Inspector’s role is not ‘confined to auditing the reasons for which the order making authority made the order. The Inspector is entitled to his or her own view, on the basis of the evidence submitted by interested parties, and may confirm an order, even where the reasons, under section 119(1), for doing so may not align with those of the order-making authority, provided that the Inspector is satisfied that in the interests of the owner, lessee or occupier or the public, it is expedient to divert the way’. | download circular 1/09 |
| 184 | 7.3.2 What if the existing path is obstructed?, third paragraph. In a revised Advice Note 9 (use link in list above) the Planning Inspectorate has given the following guidance: “Whereas section 118(6) provides that, for the purposes of deciding whether a right of way should be stopped up, any temporary circumstances preventing or diminishing its use by the public shall be disregarded, section 119 contains no equivalent provision. However, it is the Inspectorate’s view that, when considering orders made under section 119(6), whether the right of way will be/ will not be substantially less convenient to the public in consequence of the diversion, an equitable comparison between the existing and proposed routes can only be made by similarly disregarding any temporary circumstances preventing or diminishing the use of the existing route by the public. Therefore, in all cases where this test is to be applied, the convenience of the existing route is to be assessed as if the way were unobstructed and maintained to a standard suitable for those users who have the right to use it.” See also Defra circular 1/09, paragraph 5.25. | |
| 185 | 7.3.3 The advice previously in circular 2/1993 is now, for authorities in England, in Defra Circular 1/09, chapter 5. | download circular 1/09 |
| 185 | 7.3.3 Where, to exercise the power conferred by HA 80, section 26 to make an order that creates a public footpath, the authority is required to show that there is a need for the path, and that it is expedient that the order should be made, the need that must be shown relates to both the need for the path to exist [i.e. on the route proposed], and the need for the created path to be of the dimensions proposed [e.g. with regard to its width]. R (MJI Farming Limited) v Secretary of State for Environment, Food and Rural Affairs (2009): order creating a public footpath quashed since no need had been shown for the order path to be of the width proposed (4 metres), the width being that needed to accommodate a bridleway should one later be created. | link to judgment |
| 186 | 7.3.4 The advice previously in circular 2/1993 is now, for authorities in England, in Defra Circular 1/09, paragraph 5.54. | download circular 1/09 |
| 189 | 7.3.6 The advice previously in circular 2/1993 is now, for authorities in England, in Defra Circular 1/09, paragraphs 5.48 to 5.50. | download circular 1/09 |
| 191 | 7.3.7 The advice previously in circular 2/1993 is now, for authorities in England, in Defra Circular 1/09, paragraphs 5.51 to 5.53. | download circular 1/09 |
| 192 | 7.3.8 In R (Manchester City Council) v Secretary of State for Environment, Food and Rural Affairs (2007), the City Council sought, through judicial review, an order quashing the decision of an inspector not to confirm an order made by the council under HA 1980 s 118B to close a footpath for the purpose of crime prevention. The inspector found that there would be sufficient benefits in preventing and reducing crime that disrupted the life of the community, to make it expedient, under section 118B(a), that the path should be stopped up for the purposes of preventing crime. However, in considering whether, under section 118B(7), it was expedient, having regard to all the circumstances, to confirm the order, he concluded it would not be expedient for the path to be closed. The reasons were that the footpath provided a utility and recreational function; that the proposed alternative route was twice the distance and alongside roads, (one part carrying heavy traffic), and was less attractive to users of existing footpaths; that the order path had a real purpose for a significant number of local people and that its closure would be detrimental to the amenity of some local residents. In the High Court, Sullivan J found that there was evidence on which the inspector was entitled to reach the conclusion he did. The issue before the inspector had been one of balance. It was possible that another inspector might well have reached a different conclusion. But that was not to say that the inspector’s conclusion was unreasonable. His reasoning was entirely intelligible and the application was therefore dismissed |
link to judgment |
| 192 | 7.3.8 School security. R (Hockerill College) v Hertfordshire CC (2008) concerned a public footpath that crossed the grounds of a school. The school applied to the CC for a special extinguishment order under HA 1980 s 118B(1)(b). The council declined to make the order. The school applied to the court, in proceedings for judicial review, for an order quashing the decision. In granting the order, the court held that the council had erred. When considering (at the first stage) whether it was expedient, for the purposes specified (protecting pupils or staff), that the order should be made, it had taken into account matters (set out in s 118B(8)(a)-(d)) required to be considered when deciding (at the second stage of the process) whether to confirm the order. When considering, at the first stage, whether it was expedient that the order should be made, the council was entitled to bear in mind the requirements of sub-section (8) to the extent that it would not be reasonable to make the order if there was no chance of the sub-section (8) requirements being met. Nevertheless, the two stages of the process were distinct. The council, in giving reasons for finding it inexpedient to make the order, had cited matters that fell within subsection (8) (the fact that the path was well used; the need for improved security, and the absence of a reasonably convenient alternative route). The order was accordingly quashed (and the matter directed to be remitted to the council for reconsideration). |
link to judgment |
| 193 | 7.3.8, footnote 72, an area in Darlington has been designated by the Crime Prevention (Designated Areas) Order 2007 | link to order |
| 193 | 7.3.9 In August 2008 Defra announced, following a consultation exercise, that it had concluded that the right to apply provisions should not be implemented as they stood, and that further primary legislation was needed to secure an effective framework for applications. | download Defra conclusions |
| 194 | 7.3.10 The power to divert ways in SSSIs was brought into effect in England on 21 May 2007 by the Countryside and Rights of Way Act 2000 (Commencement No. 12) Order 2007. The Highways (SSSI Diversion Orders) (England) Regulations 2007 have been made to prescribe the form of applications and orders. Defra has issued guidance on the use of the power (Non-statutory advice on new provisions relating to diversions of rights of way for the protection of sites of special scientific interest (SSSIs)). | download the guidance link to regulations link to commencement order |
| 196 | 7.4 The advice previously in circular 2/1993 is now, for authorities in England, in Defra Circular 1/09, in particular chapter 7. | download circular 1/09 |
| 196 | 7.4.1 The Department for Communities and Local Government has issued guidance (revised in 2010) to local planning authorities in England on the validation of planning applications. The guidance states (page 23) that applications for full planning permission should be accompanied by a site plan on a scale of 1:200 or 1:500 showing accurately all public rights of way crossing or adjoining the site. The Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2008 requires all planning applications in England after 6 April 2008 to be made on a standard form published by the Secretary of State. See also Defra circular 1/09, paragraph 7.4. | download the guidance link to the Order |
| 199 | 7.4.2 From February 2011 the Planning Inspectorate administered, on behalf of the Secretary of State, orders under TCPA 1990 ss 247, 251 and 261 that affected rights of way. | link to PINS announcement |
| 200 | 7.4.2 Procedure In Beckley Parish Council v Secretary of State for Transport [2010] EWHC 606 (Admin) a draft order was published under TCPA 1990 s 247 stopping up a length of byway open to all traffic and substituting a length of footpath. The parish council objected: just before an inquiry opened modifications were proposed by the county council to make the substitute route a (wider) bridleway. The order was made with those modifications. The parish council challenged the decision, arguing that the proposed modifications should have been advertised, in line with the guidance in paragraph 10.11 of Defra circular 1/09. Nicol J dismissed their application, stating that s 252(8), which gave the Secretary of State power to make the order with modifications, did not require him to advertise any proposed modifications, and a circular could not fetter a statutory discretion. In any event, there had been an adjournment of the inquiry to allow the district council to consider its position, and thus there had been no prejudice. | link to judgment |
| 204 | 7.4.4 In Carpenter v Calico Quays Ltd (2011) it was held that in deciding what is a 'reasonably convenient' means of access under HA 1980 s 125(3)(b), it was relevant to have regard to what existed before the change. | link to judgment |
| 206 | 7.4.5 Harbours and docks The Secretary of State for Transport has delegated to the Marine Management Organisation (MMO) his functions under the Harbours Act 1964 relating to harbour revision and harbour empowerment orders: Harbours Act (Delegation of Functions) Order 2010 SI 2010 No 674. The MMO guide has published a guide to its new functions, revised in April 2011. | download the MMO guide |
| 212 | 7.5.1 footnote 131 The advice previously in circular 2/1993 is now, for authorities in England, in Defra Circular 1/09, paragraph 5.57. Paragraph 9.9 of the circular advises on costs arising from s 116 applications. | download circular 1/09 |
| 214 | 7.5.3 In R (Ramblers’ Association) v Secretary of State for Defence (2007), it was held that (a) the power in section 16 of the 1842 Act to stop up or divert footpaths or bridleways is not confined to land that is in the process of being acquired; (b) the requirement of section 17 that where, in exercise of the power conferred by section 16, a way is stopped up, 'another path or road shall be provided’, is not satisfied by the existence of an alternative route on existing public rights of way: while some of the alternative route could be on existing rights of way, some part of the route had to be new, how much being ‘a question of fact and degree’;(c) there is no requirement that the other ‘path or road’ should be of the same legal nature as that stopped or diverted, provided the use permitted is of no lesser nature than that on the path diverted or stopped up. Thus a footpath can be replaced by a bridleway, but not a bridleway by a footpath. | link to judgment |
| 217 | 7.7.1 In Wilson and Motoring Organisations’ Land Access and Recreation Association v Yorkshire Dales National Park Authority (2009), the failure of the authority to give proper consideration to the duty imposed by section 122 was a ground on which the court quashed orders that restricted the use of certain ways to non-motorised vehicles (the other ground being that the reasoning of the authority in reaching decisions to make orders had not been rational). | link to judgment |
| 220 | 7.7.1 and footnote 163. In February 2011 the Department for Transport withdrew the circular on special events orders. | link to announcement of withdrawal of circular |
| 221 | 7.7.1 The power for a national park authority in England to make traffic regulation orders was brought into operation on 1 October 2007: Natural Environment and Rural Communities Act 2006 (Commencement No. 1) (England) Order 2007. Regulations, the National Park Authorities' Traffic Orders (Procedure) (England) Regulations 2007, require the RA and OSS, among others to be consulted on proposed orders. Defra has issued guidance to national park authorities on their new order-making powers. | link to regulations download Defra guidance |
| 221 | 7.7.2 In Ramblers’ Association v Coventry City Council (2008) Mr Michael Supperstone QC, sitting as a deputy High Court judge, considered a challenge by the RA to the making of a gating order by the Council. In rejecting the challenge, he made the following points. First, when considering whether “the existence of the highway is facilitating the persistent commission of criminal offences or anti-social behaviour” (section 129A(3)(b)), a council should consider the position as at the date of the making of the order. Second, the word “persistent” in section 129A(3)(b) is an ordinary English word, commonly understood to mean “continuing or recurring; prolonged”, that does not require further definition. Third, what was “expedient” would depend, as the section stated, on “all the circumstances”. He accepted that utility, cost and practicality of a lesser restriction were all factors that could be taken into account when considering whether or not to impose a blanket restriction. | link to judgment |
| 224 | 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) | |
| 224 | Further Reading The Planning Inspectorate issued revised versions of Advice Notes 9 and 16 (see above list) in September and October 2009. | |
| 225 | Further Reading The Planning Inspectorate’s checklist for order-making authorities (see above list) was revised in March 2007, in October 2007 and again in February 2011. | |
| 225 | Further Reading The Planning Inspectorate’s Public Path Orders guide was revised in 2007, and has been superseded for English orders submitted to the Inspectorate from 1 October 2007 by new guidance (itself revised in November 2008 and again in 2011). | download new PINS guidance |