The Planning Inspectorate

Document Cited authorities (12) Cited in Related
AuthorAngela Sydenham
Pages125-143
9 The Planning Inspectorate

9.1 Introduction

Once a local authority has made a public path order, or a definitive map order, to which objections are duly made, the order has to be referred to the Secretary of State for confirmation, modification or refusal of confirmation (unless, in the case of a public path order, the council decides to withdraw the order1). The Secretary of State may deal with the matters by written representations, public inquiry or a hearing. The Secretary of State or the Welsh ministers have discretion as to whether to hold a public inquiry or hearing into a definitive map modification order if the only objections are not relevant to the decision whether to confirm the order.2

If there are no objections to an order, the local authority may itself confirm the order. Where objections are received to a public path order, it may decide to withdraw the order by formal resolution.3However, once the order has been passed to the Secretary of State for confirmation, this option is no longer available unless all objections are withdrawn.

The Rights of Way (Hearing and Inquiry Procedure) (England) Rules 20074apply to modification and public path orders in England submitted to the Secretary of State on or after 1 October 2007. The aim of the rules is to ensure that all the parties have as much information as possible before the start of the inquiry or hearing.

The Planning Inspectorate’s publication5explains the rules and gives a timetable for the various steps which must be taken by the parties. Similar guidance is given where the matter is dealt with by written representations (which are not covered by the rules).

1R (Hargrave) v Stroud District Council [2002] EWCA Civ 1281.

2CROWA 2000, s 51, and Sch 5, para 11, inserting para 7(2A) into WLCA 1981,

Sch 15.

3R (Hargrave) v Stroud District Council [2002] EWCA Civ 1281.

4(SI 2007/2008).

5The Planning Inspectorate, ‘Guidance on procedures for considering objections to definitive map and public path orders in England’ (October 2018), available at www.gov.uk.

126 Public Rights of Way: The Essential Law

Set out below is a summary of the main rules which apply to inquiries and hearings.

Rule 4 relates to the initial stages of a hearing or inquiry and provides for notification in relation to the hearing or inquiry to be given by the Secretary of State to the authority which made the order, to any applicant for the order, to every person who has made (and not withdrawn) representations or objections to the order and to certain other persons required to be notified in consequence of the HA 1980, the WLCA 1981 or the TCPA 1990.

Part 3 (rules 5 to 14) sets out the procedure for hearings and includes provision for submission of statements of case (rule 6), appearances at the hearing (rule 8) and site inspections and adjourning the hearing to the land (rule 9).

Part 4 (rules 15 to 26) sets out the procedure for inquiries and includes provision for pre-inquiry meetings (rule 15), submission of statements of case for the inquiry (rule 17), appearances at the inquiry (rule 19), proofs of evidence (rule 20), adjournments (rule 21) and site inspections and adjourning the inquiry to the land (rule 22).

Part 5 (rule 27) sets out the procedures for hearings and inquiries where a rights of way order is modified.

Part 6 (rules 28 to 32) relates to general matters and includes provision for allowing further time for taking steps under the rules (rule 28), inspection and copying of documents (rule 29) and the use of electronic communications (rule 31).

9.2 Public path orders

The local authority has power to make public path orders under sections 26, 118, 118A, 118B, 119, 119A, 119B and 119D of the HA 1980 and sections 257, 258 and 261 of the TCPA 1990.

Where the order is referred to the Secretary of State because there are objections to the order, the Planning Inspectorate will check that the order complies with the relevant regulations.6

If the Planning Inspectorate considers that the order does not comply with the regulations, it will be returned to the authority. The authority may then make another order.

6See Defra, Rights of Way Circular 1/09, ‘Guidance for Local Authorities’ (Defra,

2009) Ch 5.

Besides checking that the order complies with the regulations, the Planning Inspectorate will ensure that all the correct documents accompany the order. These include the statement of reasons why the authority considers the order should be confirmed, the objections and the authority’s comments on the objections. The Planning Inspectorate has produced a checklist of documents which must accompany the order.7

The local authority should also confirm that it has complied with any requirements under the relevant Act for consulting other local authorities and statutory undertakers.

If an order has been made under the HA 1980, the authority must send the Inspectorate a certificate showing that the organisations specified under the regulations have been consulted.

Sometimes, the authority which makes the order will not be supporting it. In such situations, the authority must state who will be supporting the order.8The authority may take a neutral stance or appear at the inquiry or hearing as an objector.

9.3 Definitive map orders9

The surveying authority is under a duty, if the criteria set out in the WLCA 1981 are met, to make orders modifying the definitive map.10

If objections are made to the order, the order is sent to the Secretary of State for confirmation. The Planning Inspectorate will check that it conforms with the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993.11

If the Planning Inspectorate considers that the order does not comply with the regulations, it will be returned to the authority. The authority may then make another order.

7The Planning Inspectorate, ‘Rights of way: order making authority checklist’

(updated May 2017), available at www.gov.uk.

8See the Planning Inspectorate, Rights of way advice note 1, ‘Conduct of inquiries into orders’ (November 2018), available at www.gov.uk.

9See the Planning Inspectorate, ‘Definitive map orders: consistency guidelines’, available at www.gov.uk/government/publications/definitive-map-orders-consistency-guidelines.

10WLCA 1981, s 53.

11(SI 1993/12).

128 Public Rights of Way: The Essential Law

As with public path orders, the Planning Inspectorate also checks that all the necessary documents, including statement of reasons, objections and the authority’s comments on the objections, have been sent with the order.

Sometimes, the authority which makes the order will not be supporting it. In such situations, the authority must state who will be supporting the order.12This is likely to occur where an authority has refused to make an order and the applicant has made an appeal to the Secretary of State.13

The authority may take a neutral stance or appear at the inquiry or hearing as an objector. It may also happen that, after the authority has made the order, more evidence is discovered which results in the authority considering that the order should not be confirmed.

9.4 The procedures

The Secretary of State will decide whether to confirm the order on the basis of written representations, public inquiry or a hearing. He will write to the authority, or supporters of the order, where the local authority is not supporting a modification order, and the objectors stating the procedure to be followed. Generally, he will appoint an inspector, selected from the Lord Chancellor’s panel of independent inspectors, to act on his behalf.

Procedural irregularities in regard to applications to modify the definitive map under Schedule 14 to the WLCA 1981 are not a matter for the inspector.14Any challenge must be by way of judicial review of the authority’s decision. The procedural requirements relating to the order-making stage under Schedule 14 or Schedule 15 are a matter for the inspector.15Where they cannot be remedied without prejudice to the parties, the order should not be confirmed.

The same principles apply to applications for public rights of way orders. Procedural defects at the application stage can only be challenged by judicial review. Procedural defects at the order-making stage should be corrected if possible; if not, the order cannot be confirmed.

12See the Planning Inspectorate, Rights of way advice note 1, ‘Conduct of inquiries into orders’ (November 2018), available at www.gov.uk.

13The Planning Inspectorate, Rights of way advice note 1, ‘Conduct of inquiries into orders’ (November 2018), paras 23, 24 and 25, available at www.gov.uk.

14The exception is where the inspector is considering whether the transitional provisions under NERCA 2006, s 67 apply.

15See the Planning Inspectorate, Rights of way advice note 21 ‘Procedural irregularities’ (May 2013), available at www.gov.uk.

This procedure may be followed where the orders have attracted only a few objections, with none from the county or district council. It is not suitable where there is complex or lengthy evidence. The local authority or objectors may insist that the matter should be heard by an inspector.

Where the Planning Inspectorate considers that the order is suitable for determination by written representations, it will write to the local authority, the applicant and any other relevant persons asking for their agreement to the procedure, including the rules for the...

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