Planning Inspectorate Newsletter - Issue 6
Rights of Way
Some 140,000 miles of public rights of way (ROWs) - footpaths, bridleways, restricted byways (formerly, roads used as public paths) and byways open to all traffic - are recorded on definitive maps in England and Wales. County and District or Unitary Councils (variously known as the order making authority, surveying authority, highway authority or just plain local authority, depending on the function they are carrying out) take the lead on local rights
of way matters and maintain definitive maps.
The rights of way network is a “living” amenity, with routes regularly added, diverted, created and extinguished. Any changes are made by way of two types of order: public path orders (PPOs) are made under the Highways Act 1980 or Town and Country Planning Act 1990 and can create, divert or extinguish footpaths, bridleways and restricted byways. Definitive map modification orders (DMMOs) under the Wildlife and Countryside Act 1981 record what rights exist where routes are established through public use or “discovered” through historic documents, deleted (because they were recorded in error) or their status otherwise changes (eg: where evidence shows a route should be a recorded as a bridleway rather than a footpath). A third type of order – a legal event order – modifies the definitive map following a PPO.
So where does the Planning Inspectorate come in? The Rights of Way Section deals with opposed orders (where objections or representations to the proposal are received by the relevant local authority) and orders submitted for modification, involving ROWs. We also prepare reports for the Secretary of State on appeals under Schedule 14 of the Wildlife and Countryside Act 1981, where the relevant local authority refuses to make an order modifying the definitive map and the applicant appeals against that decision.
Orders are validated by the casework team to ensure they are capable, under law, of confirmation; an Inspector appointed; a site visit, hearing or inquiry is arranged and, once the administrative arrangements are complete, the file goes to the Inspector for decision (whether or not to confirm the order) or report to the Secretary of State (for Environment, Food and Rural Affairs). Where the Inspector decides to confirm the order with modifications, we arrange to advertise that fact and further representations are invited. Because of the nature of rights of way cases, advertised modifications often prompt the introduction of new evidence which then needs to be considered at a new hearing or inquiry. Sometimes orders are subject to more than one suggested modification and hence more than one inquiry.
It follows from the maxim “once a highway, always a highway”, a principle which was confirmed by a leading court case from 1903, that where someone believes they have discovered the existence of a right of way which existed maybe two or three hundred years ago they can try to get it added to the definitive map by reference to ancient maps, title deeds and other evidence. Needless to say, the validity or meaning of the evidence is often contested. Alternatively, “new” rights of way may be established by long public use; this is another area which can lead to arguments between opposing parties over issues such as the length and intensity of use, whether the use was obtained without force, without stealth and without licence and a multitude of other variables.
Because the evidence in such cases is often open to interpretation and, inevitably, anything to do with “rights” (the right to use ancient paths opposed to the rights of landowners to protect their privacy) our decisions are sometimes unpopular with those who have not got the result they wanted. This can attract extensive correspondence, complaints or High Court challenges (we have recently been involved in a case that went all the way to the House of Lords).
In an attempt to try to set a baseline from which Inspectors and the parties to DMMOs can work, the Inspectorate introduced Consistency Guidelines in 2003, which are updated regularly. These give our interpretation of law and practice which may then be applied, or varied in the light of evidence, in individual cases.
Because the legislation and common law covering rights of way is complicated and arcane - and is further modified by numerous pieces of case law - it requires Inspectors and administrative staff to develop an extensive and detailed knowledge to be fully effective in dealing with rights of way casework. It is what makes working on rights of way on occasions demanding - but also fascinating and rewarding.
Martin Steer
Head of Specialist Casework Branch
