Chapter 8 : How opposed orders are determined

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Links and downloads referred to in the text of Chapter 8

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235 Advice Note 1 : Conduct of inquiries into rights of way orders where order-making authorities do not actively support an order (Planning Inspectorate, revised 2011) download

235 Advice Note 2 : Conduct of site visits relating to rights of way orders (Planning Inspectorate, 4th revision, 2011) download

235 Advice Note 3 : Advice on: (a) introduction of case law by the parties to an order; (b) legal submissions at inquiries; (c) consideration of new evidence by Inspectors in rights of way decision letters (Planning Inspectorate, 4th revision, 2011) download

236 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, revised 2009) download

236 Checklist for order-making authorities (Planning Inspectorate, revised 2011) download

236 Costs awards in planning appeals – a guide for appellants (DCLG, 2009) download

236 Public inquiry facility note (Planning Inspectorate, not dated) download

Supplement to the text of Chapter 8

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226 8.1 The Planning Inspectorate is now making decisions on definitive map modification and public path orders for England and Wales available on its website. link to decisions (choose English site)

link to decisions (choose Welsh site)

226 8.1 footnote 1. The previous advice in Circular 2/1993 about what to send with orders has been replaced, for authorities in England, by advice in paragraphs 4.26 and 5.30 of Defra circular 1/09 to authorities to use the Inspectorate’s checklist. download circular 1/09

226-232 8.1, 8.2, 8.3 The Rights of Way (Hearing and Inquiry Procedure) (England) Rules 2007 apply to modification and public path orders in England submitted to the Secretary of State on or after 1st October 2007. The Planning Inspectorate (PINS) has issued a publication (revised in November 2008 and in 2011) which explains the rules, includes copies of the rules and a Defra circular, and also sets out a procedure, similar to the rules, for orders determined by the written representations procedure. PINS is also making available on its website the notices giving the dates for orders. link to rules

download PINS guidance

link for notices

The Rules require notice to be given of the following matters:

Notice to be given by the Secretary of State (or PINS on his behalf):

(a) Preliminary notice indicating whether an inquiry or hearing will be held and its date, time and place [Rule 4]

(b) Any pre-inquiry meeting [Rule 15]

(c) Intention to disagree with the inspector [Rules 11 and 23]

(d) Proposed modifications [Rule 27]

(e) Decision [Rules 13, 14, 25 and 26]

Notice to be given by the Inspector:

Decision to take into account any subsequent material [Rules 12 and 24]

Notice to be given by the order-making authority:

Notice of hearing or inquiry on site and in a local newspaper [Rules 5(3) and 16(3)]

The order-making authority has the following duties:

(a) to ensure that, within eight weeks of the start date, the Secretary of State has received its statement of case [Rules 6(2) and 17(1)]

(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]

(c) to ensure that notice of the date, time and place of a hearing or inquiry is placed on site and in a local newspaper not less than four weeks before it starts [Rules 5(3) and 16(3)]

The order-making authority has the following rights:

(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 any other statement of case [Rules 6(6)(b) and 17(6)(b)]

(c) 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)]

(d) to appear at a hearing and give oral evidence or call someone else to do so [Rules 8(1)(a) and 9(6)(a)]

(e) to receive notice of any pre-inquiry meeting [Rule 15(2)]

(f) to appear at an inquiry, and unless determined otherwise by the inspector, to begin proceedings [Rules 19(1)(a) and 21(4)]

(g) 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)]

(h) 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)]

(i) 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)]

(j) to receive notice of the decision [Rules 13(2), 14(2), 25(2) and 26(2)]

The dates for hearings and inquiries have to be:

(a) for a hearing, within 20 weeks of the ‘start date’ (the date of the preliminary notice, or, where that is not practicable, the earliest possible date [Rule 5(1)]

(b) for an inquiry, within 26 weeks of the ‘start date’ (the date of the preliminary notice, or, where that is not practicable, the earliest possible date [Rule 16(1)]

The date, time or place of an inquiry or hearing may be changed, subject to notice being given [Rules 5(2) and 16(2)]

Where a proof of evidence is more than 1,500 words long, it has to be accompanied by a summary [Rule 20(4)]

In Powell v Secretary of State for Environment, Food and Rural Affairs and Doncaster Metropolitan District Council (2009) the claimant had purchased a house through the curtilage of which ran a way the subject of a modification order to add it to the definitive map. He had been assured by the vendor that the vendor’s solicitors would maintain an objection they had lodged to the order, but subsequently discovered that they had failed to submit documents to the Inspectorate in accordance with the inquiry rules. A request by the claimant’s representative for an adjournment to allow time for proper preparation had been refused both by the Inspectorate in advance of the public inquiry arranged to hear objections and by the Inspector at the inquiry. The High Court (Michael Supperstone QC, sitting as a deputy judge) held that whilst the impact of the order on the claimants might not be relevant to the substantive issue before the Inspector, it had been relevant to matters of procedural fairness arising during the proceedings, and in particular to the determination of the application for an adjournment. In his view, the refusal of the application for an adjournment amounted to a breach of the rules of natural justice and the Inspector’s decision to confirm the order was quashed. link to judgment

227 8.2.1 The Planning Inspectorate issued a revised version of Advice Note 1 (see above list) in September 2009 and a further revision in February 2011.

231, 232 8.2.11 footnotes 14 and 15 Advice formerly in circular 2/1993 is now, for authorities in England, in Defra circular 1/09, chapter 9. The chapter was amended in a revised version of the circular issued in October 2009. download circular 1/09

235 Further Reading The Planning Inspectorate issued revised versions of Advice Notes 1,2,3 and 10 (see above list) in September 2009 and further revisions of Advice Note 1 in February 2011, and Advice Notes 2 and 3 in April 2011.

236 Further Reading The Planning Inspectorate’s checklist for order-making authorities (see above list) was revised in March 2007 and in October 2007. In April 2010 it was revised to make it clear that where an authority proposes to rely solely on their statement of grounds/reasons, they must also submit a list of the documents/evidence on which their statement is based. A further revision was made in February 2011.

236 Further Reading The Planning Inspectorate’s Definitive Map Orders and Public Path Orders guides have been superseded for English orders submitted to the Inspectorate from 1 October 2007 by new guidance (revised in November 2008 and in 2011). download PINS guidance

236 Further Reading The Planning Inspectorate issued a new Advice Note 21 in June 2009 advising Inspectors how to deal with cases where it is alleged that there were procedural irregularities in respect of public path or definitive map orders. download the Advice Note

236 Further Reading Department of the Environment Circular 8/93 on the award of costs was superseded in 2009 by circular 03/09 : Costs Awards in Appeals and Other Planning Proceedings link to the Circular

Chapter 8 : How opposed orders are determined

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Rights Of Way Book

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235	Advice Note 1 : Conduct of inquiries into rights of way orders where order-making authorities do not actively support an order (Planning Inspectorate, revised 2011)	download
235	Advice Note 2 : Conduct of site visits relating to rights of way orders (Planning Inspectorate, 4th revision, 2011)	download
235	Advice Note 3 : Advice on: (a) introduction of case law by the parties to an order; (b) legal submissions at inquiries; (c) consideration of new evidence by Inspectors in rights of way decision letters (Planning Inspectorate, 4th revision, 2011)	download
236	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, revised 2009)	download
236	Checklist for order-making authorities (Planning Inspectorate, revised 2011)	download
236	Costs awards in planning appeals – a guide for appellants (DCLG, 2009)	download
236	Public inquiry facility note (Planning Inspectorate, not dated)	download

Page
226	8.1 The Planning Inspectorate is now making decisions on definitive map modification and public path orders for England and Wales available on its website.	link to decisions (choose English site) link to decisions (choose Welsh site)
226	8.1 footnote 1. The previous advice in Circular 2/1993 about what to send with orders has been replaced, for authorities in England, by advice in paragraphs 4.26 and 5.30 of Defra circular 1/09 to authorities to use the Inspectorate’s checklist.	download circular 1/09
226-232	8.1, 8.2, 8.3 The Rights of Way (Hearing and Inquiry Procedure) (England) Rules 2007 apply to modification and public path orders in England submitted to the Secretary of State on or after 1st October 2007. The Planning Inspectorate (PINS) has issued a publication (revised in November 2008 and in 2011) which explains the rules, includes copies of the rules and a Defra circular, and also sets out a procedure, similar to the rules, for orders determined by the written representations procedure. PINS is also making available on its website the notices giving the dates for orders.	link to rules download PINS guidance link for notices
	The Rules require notice to be given of the following matters:
	Notice to be given by the Secretary of State (or PINS on his behalf):
	(a) Preliminary notice indicating whether an inquiry or hearing will be held and its date, time and place [Rule 4]
	(b) Any pre-inquiry meeting [Rule 15]
	(c) Intention to disagree with the inspector [Rules 11 and 23]
	(d) Proposed modifications [Rule 27]
	(e) Decision [Rules 13, 14, 25 and 26]
	Notice to be given by the Inspector:
	Decision to take into account any subsequent material [Rules 12 and 24]
	Notice to be given by the order-making authority:
	Notice of hearing or inquiry on site and in a local newspaper [Rules 5(3) and 16(3)]
	The order-making authority has the following duties:
	(a) to ensure that, within eight weeks of the start date, the Secretary of State has received its statement of case [Rules 6(2) and 17(1)]
	(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]
	(c) to ensure that notice of the date, time and place of a hearing or inquiry is placed on site and in a local newspaper not less than four weeks before it starts [Rules 5(3) and 16(3)]
	The order-making authority has the following rights:
	(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 any other statement of case [Rules 6(6)(b) and 17(6)(b)]
	(c) 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)]
	(d) to appear at a hearing and give oral evidence or call someone else to do so [Rules 8(1)(a) and 9(6)(a)]
	(e) to receive notice of any pre-inquiry meeting [Rule 15(2)]
	(f) to appear at an inquiry, and unless determined otherwise by the inspector, to begin proceedings [Rules 19(1)(a) and 21(4)]
	(g) 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)]
	(h) 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)]
	(i) 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)]
	(j) to receive notice of the decision [Rules 13(2), 14(2), 25(2) and 26(2)]
	The dates for hearings and inquiries have to be:
	(a) for a hearing, within 20 weeks of the ‘start date’ (the date of the preliminary notice, or, where that is not practicable, the earliest possible date [Rule 5(1)]
	(b) for an inquiry, within 26 weeks of the ‘start date’ (the date of the preliminary notice, or, where that is not practicable, the earliest possible date [Rule 16(1)]
	The date, time or place of an inquiry or hearing may be changed, subject to notice being given [Rules 5(2) and 16(2)]
	Where a proof of evidence is more than 1,500 words long, it has to be accompanied by a summary [Rule 20(4)]
	In Powell v Secretary of State for Environment, Food and Rural Affairs and Doncaster Metropolitan District Council (2009) the claimant had purchased a house through the curtilage of which ran a way the subject of a modification order to add it to the definitive map. He had been assured by the vendor that the vendor’s solicitors would maintain an objection they had lodged to the order, but subsequently discovered that they had failed to submit documents to the Inspectorate in accordance with the inquiry rules. A request by the claimant’s representative for an adjournment to allow time for proper preparation had been refused both by the Inspectorate in advance of the public inquiry arranged to hear objections and by the Inspector at the inquiry. The High Court (Michael Supperstone QC, sitting as a deputy judge) held that whilst the impact of the order on the claimants might not be relevant to the substantive issue before the Inspector, it had been relevant to matters of procedural fairness arising during the proceedings, and in particular to the determination of the application for an adjournment. In his view, the refusal of the application for an adjournment amounted to a breach of the rules of natural justice and the Inspector’s decision to confirm the order was quashed.	link to judgment
227	8.2.1 The Planning Inspectorate issued a revised version of Advice Note 1 (see above list) in September 2009 and a further revision in February 2011.
231, 232	8.2.11 footnotes 14 and 15 Advice formerly in circular 2/1993 is now, for authorities in England, in Defra circular 1/09, chapter 9. The chapter was amended in a revised version of the circular issued in October 2009.	download circular 1/09
235	Further Reading The Planning Inspectorate issued revised versions of Advice Notes 1,2,3 and 10 (see above list) in September 2009 and further revisions of Advice Note 1 in February 2011, and Advice Notes 2 and 3 in April 2011.
236	Further Reading The Planning Inspectorate’s checklist for order-making authorities (see above list) was revised in March 2007 and in October 2007. In April 2010 it was revised to make it clear that where an authority proposes to rely solely on their statement of grounds/reasons, they must also submit a list of the documents/evidence on which their statement is based. A further revision was made in February 2011.
236	Further Reading The Planning Inspectorate’s Definitive Map Orders and Public Path Orders guides have been superseded for English orders submitted to the Inspectorate from 1 October 2007 by new guidance (revised in November 2008 and in 2011).	download PINS guidance
236	Further Reading The Planning Inspectorate issued a new Advice Note 21 in June 2009 advising Inspectors how to deal with cases where it is alleged that there were procedural irregularities in respect of public path or definitive map orders.	download the Advice Note
236	Further Reading Department of the Environment Circular 8/93 on the award of costs was superseded in 2009 by circular 03/09 : Costs Awards in Appeals and Other Planning Proceedings	link to the Circular