2.1, The law and facts of a case largely determine the preparation and making of an Order, the consideration of representations, and the eventual decision on the Order. Mandatory, directory and advisory considerations generally give an Inspector little latitude in exercising judgment.

Mandatory Guidance	Statute law and case law where the judgment is a binding precedent to be disturbed only by a higher court of record (see Section 3 ‘Case Law’).
Directory Guidance	Other judgments where the reasoning pursued clearly appears to have a bearing on the matters before an Inspector (see Section 3 ‘Case Law’), Regulations and Schedules.
Advisory Guidance	Circulars and Advice Notes that explain procedures and government policy and which may assimilate the outcomes of advisory bodies and consultations.

2.2, There is often other reference material which can assist, but does not bind, an Inspector. It falls into two broad categories.

Explanatory:	Subject papers by authors of recognised legal and/or academic standing and research papers into social and environmental aspects of highways.
Of interest:	Articles on behalf of statutorily recognised user groups or affiliated organisations or interested parties and anecdotal pieces, often in the form of recorded journeys or local histories .

Statute Law

2.3, Familiarity with the content, timeframe and limitations of relevant past and present legislation is essential. Wildlife and Countryside Act 1981 (WCA 81) sets out the tests which must be addressed.

Case Law

2.4, These interpretations of statutes provide the legal framework within which to consider hearing or inquiry evidence. As interpretation is a high art, Inspectors should adopt a circumspect approach (see Section 3 ‘Case Law’).

Regulations

2.5, Minor deviation from regulatory guidance may not necessarily make an Order incapable of confirmation, but the limited flexibility should be used cautiously.

Circulars and other Departmental Guidance

2.6, Department of the Environment (DoE) Circular 2/93 on ‘Public Rights of Way’/Welsh Office (WO) Circular 5/93 and Circular 8/93/WO Circular 23/93 on ‘Award of Costs incurred in Planning and other (Including Compulsory Purchase Orders) Proceedings’ both promulgate Government policy. Other relevant policy Circulars are introduced in the appropriate section of these guidelines. ‘Other Guidance’ is similarly introduced.

Other Publications

2.7, There is a plethora of articles, books etc on rights of way issues. These are often produced by authors who are recognised as having considerable specialist professional knowledge of rights of way matters. Occasionally, however, articles are written from a particular viewpoint. Moreover for a variety of reasons experts do not always agree amongst themselves and when tested in the Courts their opinions do not always survive (see Part 3). Consequently, Inspectors should be very cautious in accepting articles as authoritative, even respected journals. A view in an article should not be accepted as authoritative unless it has received judicial approval. Expert evidence deserves due respect, but Inspectors should not be overawed by it and should always use their critical judgment in considering such evidence.

2.8, A more localised type of expertise may legitimately be claimed by those who have researched evidence relating to a particular Order. These individuals may appear at a hearing or inquiry on behalf of campaigning organisations or as concerned individuals. Their experience and research can produce evidence and other contributions that are most helpful to an Inspector, though, as with all evidence, their contributions have to be critically scrutinised and assessed. Inspectors must be careful that the enthusiasm of the contributors does not inadvertently affect their own dispassionate, critical approach.

2.9, Some enthusiasts now share their opinions on the internet or in informal publications. This widespread dissemination can lead to several witnesses at a hearing or inquiry drawing on the same source for their opinions. Whether they have the same source can sometimes be usefully explored but, whatever their source, the repetition of opinions does not affect their factual or intellectual merit, one way or the other.

2.10, British literary heritage is rich in personal recollections of 18th and 19th century travellers. Informal local histories may also be tendered in evidence. Such works should not generally be relied upon as primary sources of evidence. Nevertheless they not infrequently provide useful corroboration of evidence gleaned from documents of superior provenance.

Concluding Comment

2.11, Inspectors must make their decisions on the evidence of fact put before them, within the framework of Statute Law as interpreted by the Court and with the assistance of other reputable guidance. The purpose of this section and all following sections is to assist Inspectors in that process.

(October 2005)