Surveying Authority
| Author | Angela Sydenham |
| Pages | 111-124 |
8.1 Introduction
The councils which are the highway authorities are also the surveying authorities. These are the ‘council of the county, metropolitan district or London borough’. In Wales, the county or county borough is the surveying authority.
The surveying authorities have duties and powers. Duties impose an obligation on the councils; powers give them a discretion. Both the duties and powers relate to the definitive map, i.e. the map which records rights of way. The purpose is to make sure that public rights of way are properly identified and do not disappear through non-use. The system for registering public rights of way was introduced by the NPACA 1949. The surveying authorities were under a duty to prepare a definitive map and statement covering the rights of way in their area. They have a continuing duty to keep it up to date.
The DA 2015, which at the time of writing has not been brought into effect, has made several changes which impact on the surveying authorities’ duties. Part 3 of the WLCA 1981 has been amended so as to:
(a) alter the test that applies where a local authority is deciding whether to modify a definitive map and statement on the basis of evidence relating to the existence of a right of way not currently shown on the map;
(b) enable regulations to be made to simplify the procedure that applies where a modification of a definitive map and statement is needed because of an administrative error;
(c) enable regulations to be made so that applications made to a local authority seeking a modification of a definitive map and statement do not need to be included in the register of applications unless the authority have given notice that there is a reasonable basis for the applicant’s belief that the map should be modified;
112 Public Rights of Way: The Essential Law
(d) facilitate the making of modifications of a definitive map and statement by consent in cases based on documentary evidence of the existence of a right of way before 1949.
In short, the DA 2015 has introduced in England new streamlined and simplified procedures for updating the definitive map where applications are made for modification orders. These, it is hoped, will result in better quality applications and a reduction in conflict and disputes. In England, Schedules 14 and 15 to the WLCA 1981 will be replaced by new Schedules 13A and 14A. Schedules 14 and 15 continue to apply in Wales.
8.2 The duties
8.2.1 To keep the map and statement under continuous review
The surveying authority is under a duty to keep the map up to date, taking into account events which occurred before the coming into event of the WLCA 1981 as well as subsequently.
Alterations to the map are made by means of modification orders. There are powers for the surveying authority to prepare an updated version of the map or maps
A surveying authority may make modifications orders of its own accord, and is under a duty to do so where there has been a legal event order under section 53(3)(a) of the WLCA 1981.
Any person may apply for a modification order under section 53(3)(b) and
(c) of the WLCA 1981. The application has to be made on a form prescribed by regulations
Regulations 1993 (SI 1993/12).
The authority must keep a register of applications for modification orders.
8.2.2 To comply with the new preliminary assessment procedure (provisions not in force at time of writing)
Parts 2 and 3 of Schedule 7 to the DA 2015 have introduced a new Schedule 13A in England replacing Schedule 14 which still applies in Wales. There is no preliminary assessment procedure in Wales.
An applicant for a modification order must be made on a prescribed form with a map drawn to prescribed scale, and must include copies of any documentary evidence in support of the application, unless the authority have informed the applicant that the authority already have access to a particular document. Each application must contain an explanation as to why the applicant believes that the definitive map and statement should be modified.
A surveying authority must, within three months of receiving an application for a modification order, decide whether there is a reasonable basis for the applicant’s belief that the definitive map should be altered on the statutory grounds set out in the WLCA 1981.
the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path or restricted byway;
... or the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows—
(i) that a right of way which is not shown in the map and statement subsists
Sch 7, Pt 2, para 6.
Pt 1, para 2 (not yet in force), but retained for Wales.
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a restricted byway or, subject to section 54A, a byway open to all traffic;
(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.
In making such a decision, the surveying authority must have regard to any guidance given by the Secretary of State.
If the authority decides there is no basis for the decision, it must inform the applicant giving its reasons.
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