Guidance

Rights of Way Section: Advice Note No 23 - Representations and Objections: Processing by the Planning Inspectorate

Updated 1 July 2022

Applies to England

The purpose of this Advice Note is to explain how the Planning Inspectorate deals with objections and representations to definitive map modification and public path orders.

It also sets out the procedures to be followed where an Inspector has proposed modifications to an order and where, following advertisement of these proposed changes, objections have been submitted.

This Advice Note is publicly available but has no legal force.

1. Where objections and/or representations have been submitted following advertisement of an order being made

1.1 Under Schedule 15 to the Wildlife and Countryside Act 1981

1.1.1. Jurisdiction for the confirmation of orders transfers from the order-making authority to the Secretary of State in one of two situations: either (a) where there are no (un-withdrawn) duly made objections but the order-making authority seeks a modification of the order (in which case paragraph (6)(1)(b) of Schedule 15 applies), or (b) where there is at least one un-withdrawn duly made objection (in which case paragraph 7 of the Schedule applies).

1.1.2. In the case of the former, the unopposed order will be processed by the Inspectorate on the basis of the papers provided. There will be no further exchanges of evidence unless there are exceptional circumstances. Where the modifications requested by the authority (or proposed by the Inspector) are of a type described in paragraph 8(1) of the Schedule and require further advertisement (as provided by paragraph 8) a site visit may be considered necessary but otherwise no inspection will be undertaken.

1.1.3. Where the order is opposed, paragraph 7 of Schedule 15 sets out the procedures to be followed. These procedures are wholly dependent on the premise that at least one objection is duly made (otherwise the authority would have been in a position to confirm the order without referral to the Secretary of State.

1.1.4. When first submitted to the order-making authority, it is not necessary or appropriate for them to to determine whether or not the representation(s) or objections(s) raises matters which are relevant to the substance of the order. But is is for the authority to establish whether or not it is duly made so as to decide how best to proceed.

1.1.5. This is a principle established in the case of Lasham Parish Meeting v Hampshire CC [1992] 65 P & CR 344; [1993] JPL 831; [1993] COD 45.

1.1.6 A “duly made” objection (or representation) is one made in relation to the order (a) within the time period specified in the statutory notice, (b) in the manner specified, for example, “in writing (or by email) to the Chief Legal Officer of the Council”, and (c) includes details of the grounds on which it is made.

1.1.7. Following amendments introduced by Schedule 5 to the Countryside and Rights of Way Act 2000, the legislation is now clear that representations or objections to an order must include “particulars of the grounds relied on”. However it does not specify how detailed these grounds should be. As long as an objection gives a genuine reason, saying more than just ‘I object’, it will be considered to be ‘duly made’ (assuming it is submitted in time and in the correct form).

1.1.8. Where no such grounds are stated, the status of the author will be recorded as an ‘interested party’ rather than a ‘duly made’ objector. Interested parties are not offered the opportunity of being heard by an Inspector.

1.1.9. It is only “any person by whom a representation or objection has been duly made and not withdrawn” who may be offered an opportunity of being heard by a person appointed. Alternatively the Secretary of State (or the appointed Inspector) may decide to cause a local inquiry or hearing to be held.

1.1.10. Thus it is essential that when opposed orders are submitted to the Secretary of State (through the Inspectorate) the authority makes clear which of the objections or representations (if there is more than one) it regards as being duly made and those it does not (if any). It should be noted that a representation or objection that is not duly made (or indeed a letter of support), may still be considered by the Inspector if it contains relevant information, but such objections or representations will not determine the procedures to be followed.

1.1.11. Where there is only one objection, unless otherwise stated on submission to the Inspectorate, it will be assumed that the authority has accepted this as duly made (otherwise it would have confirmed the order as unopposed).

1.1.12. The Secretary of State (through the Inspectorate) will need to ascertain whether a duly made objection or representation is likely to be relevant to the decision on whether or not to confirm the order.

1.1.13. If none of the objection(s) contain matters which are relevant to the determination of the order, paragraph 7(2A) allows the Secretary of State the discretion not to call an inquiry or to offer the objector(s) an opportunity to be heard.

1.1.14. If the relevance (or irrelevance) of a duly made objection forwarded to the Inspectorate cannot be readily established (because the grounds are briefly stated), the objector will be asked for clarification of the nature of the objection within a reasonable timescale.

1.1.15. In the Lasham case (referred to above) Potts J explained that the Secretary of State is entitled to consider the nature of the objection in deciding whether to hold a public inquiry or a hearing. The fact that an objection is irrelevant can inform the decision on the procedure to adopted.

1.1.16. On receipt of clarification which reveals that the objection is likely to be relevant, the objector will be offered the opportunity to be heard by an Inspector, (unless for other reasons it has already been decided to hold a local inquiry as provided under paragraph 7(2)(a)).

1.1.17. Alternatively, if, in the Inspectorate’s view, the objection appears to relate solely to matters that would not be relevant to the determination of the order, the objector will be informed accordingly.

1.1.18. As noted in the Lasham case, the Secretary of State is entitled to ask the person making the objection whether they wish to maintain it or withdraw it and give them the opportunity to modify the grounds of their objection. The Inspectorate would do this before deciding upon the procedure to be followed.

1.1.19. The Secretary of State is also entitled to remind the objector of the power to award costs under paragraph 9 of Schedule 15 to the 1981 Act.

1.1.20. Except where all objections/representations are considered irrelevant, and paragraph 7(2A) applies, irrelevant objections will not be disregarded unless they are formally withdrawn. Only objections on relevant grounds are likely to justify a public inquiry or hearing.

1.2 Under Schedule 6 of the Highways Act 1980 and Schedule 14 of the Town and Country Planning Act 1990

1.2.1. There is similarity between the statutory language used in Schedule 15 to the 1981 Act and that governing the procedures for the confirmation of public path orders (under paragraphs 1 and 2 of Schedule 6 to the Highways Act 1980) and orders made under section 257 of the Town and Country Planning Act 1990 (in Schedule 14 to that Act). However, there are significant differences.

1.2.2. Neither the prescribed forms of notices under Schedule 6 sub-paragraph (1)(1) or Schedule 14 sub-paragraph (1)(1) make it mandatory for a representation or objection to a public path order to include the ‘particulars of the grounds relied upon’ in order to qualify as ‘duly made’.

1.2.3. It is for the order-making authority to decide whether a representation or objection is duly made so as to establish whether the order must be submitted to the Secretary of State for confirmation or whether the authority itself can confirm it.

1.2.4. In relation to public path orders, authorities have the discretion not to proceed with opposed orders and may choose not to forward a case to the Secretary of State but instead to bring the procedure to a close by formal resolution.

1.2.5. This process was recognised in the case of R (Hargrave & Hargrave) v Stroud DC [2002] EWCA Civ 1281).

1.2.6. For Highways Act orders, sub-paragraph (2)(1) of Schedule 6 enables either the Secretary of State, or the order-making authority, to confirm an order to which there remain no un-withdrawn duly made representations or objections. But if modifications to the order are required, only the Secretary of State may make, (or propose) such alterations and determine whether or not the order should be confirmed.

1.2.7. Similarly for Town and Country Planning Act orders, paragraph 2 of Schedule 14 empowers the order making authority to confirm (without modification) an order to which no un-withdrawn duly made, objections remain.

1.2.8. For orders made under both Acts, where duly made representations or objections are not withdrawn, the procedure to be followed mirrors that for objections made under Schedule 15 of the 1981 Act save where an objection is made by a local authority (and, in the case of 1990 Act orders, a national park authority) in which case an inquiry will be held in all instances.

1.2.9. In generally terms the procedure for processing objections to public path orders are not determined by the relevance of the objection. However, this may be a consideration if an application for costs is made.

2. Where Objections and/or representations are submitted following advertisement of proposed modifications to an order

2.1 Under Schedule 15 to the Wildlife and Countryside Act 1981

2.1.1. When determining an order on the basis of the information made available, an Inspector may reach the conclusion that the order should be confirmed but with certain modifications. This will be set out in an interim decision.

2.1.2. Where these modifications are of a particular nature, the changes proposed must be advertised and a period allowed for further objection before a final conclusion is reached. Minor modifications do not generally need to be advertised and such alterations may be made without further advertisement. However, those which fall into the categories listed in paragraph 8(1) of Schedule 15 must be published.

2.1.3. In effect this means that if the order route it to be (a) re-aligned or widened or (b) all, or part of a route is deleted or a new route is added or (c) the status of all or part of the Order route is altered, notice must be given of the modification proposed by the Inspector.

2.1.4. Where duly made and relevant objections or representations are submitted to an interim decision, and which include particulars of the grounds relied upon, paragraph 8(2)(b) of Schedule 15 requires the Secretary of State either to arrange a public inquiry or otherwise to afford the objector(s) an opportunity to be heard by an appointed Inspector by public inquiry or hearing if they wish.

2.2 The scope of objections to proposed modifications

2.2.1. Depending on the nature of the proposed modification, it is possible that an objection may relate only to the proposed change without affecting the underlying decision on the order as a whole.

2.2.2. For example, an objection may contest a proposed alteration to the width of a way whilst accepting that the status and alignment of the right of way should be recorded on the definitive map and statement as shown in the order.

2.2.3. A second example may arise where an order proposes to record several routes and the Inspector proposes a modification to remove one (or more) of these because there is insufficient evidence. An objection may relate only to the route to be deleted from the order but not challenge others which remain unchanged.

2.2.4. In both these examples, the objections would relate only to the proposed modifications.

2.2.5. However, in most other cases, it is often difficult to separate objections solely to the proposed modification from those relating to the order as a whole. For example, having considered all the available evidence, an Inspector may decide to confirm an order to add a path to the definitive map but concludes the route is of a higher status than that identified in the order. In this instance it would be difficult to object to this change without also challenging the order as a whole.

2.2.6. Similarly, it is unlikely that modifications to increase or decrease the length of the route, add or delete sections of the route, or to re-align all or part of the route could be separated from consideration of the whole order.

2.2.7. The distinction was clarified in the case of Marriott v Secretary of State [2000] EWHC 654 (Admin), [2001] JPEL 559 (Marriott): where matters relate solely to the proposed modifications, the procedures set out under paragraph 8 of Schedule 15 would apply, but if only the unmodified parts of the Order were affected, then the Inspector would need to consider re-opening the inquiry previously held under paragraph 7. If the objection related to both modified and unmodified parts of the order, then any further inquiry should be held under both paragraphs 7 and 8.

2.2.8. In the more recent case of Whitworth v Secretary of State for Environment, Food and Rural Affairs [2010] EWHC Civ 1468, Carnwath LJ set out the position, stating:

“The scope of the further inquiry under paragraph 8 … was considered by Sullivan J in (Marriott). He held that, while such an inquiry was in itself limited to consideration of the modifications, that did not preclude the inspector considering new evidence relating to other matters relevant to his previous decision, and if necessary, reopening the first (paragraph 7) inquiry for that purpose.”

2.2.9. Since then, in R (oao Elevenden Farm Limited) v Secretary of State for Environment, Food and Rural Affairs [2012] EWHC 644 (Admin), Mr Justice Charles said:

“It seems to me … that the process under paragraph 8 did not limit objections that could be made and does not limit them to the modifications proposed by the inspector”.

2.3 Procedure on receipt of objections to orders where modifications are proposed

2.3.1. To streamline the processing of objections to orders where modifications are proposed, the Inspectorate will adopt a presumption in favour of dealing with all such objections and representations as potentially raising issues requiring consideration under both the provisions of paragraph 7 and paragraph 8 of Schedule 15 unless the circumstances show it to be advantageous to do otherwise in the interests of overall efficiency but without prejudice to any party.

2.3.2. The categories of objection where it is most likely that matters will be dealt with exclusively under paragraph 8 are as follows: (i) those which address a proposed change in width of the Order route, and (ii) those which are concerned with just one (or some but not all) of the routes where the order as made proposes the recording of several public rights of way but the Inspector has proposed to delete one or more (but not all).

2.3.3. On receipt of objections which are duly made, include particulars of the grounds relied upon, and raise matters which are relevant, the objector will be asked whether they wish to be heard by an Inspector at either a public inquiry or hearing. Even if not requested, an Inspector may decide that the matters raised would be best considered at an inquiry or hearing. Alternatively, if no such event is required by the Inspector or requested by an objector, the matter will generally be dealt with through the exchange of written representations unless there is no necessity to invite further submissions.

2.3.4. Relevant matters may include new evidence or new legal submissions; however simply repeating arguments previously put before the Inspector will not be treated as ‘new’ and therefore will not be sufficient to ensure the objection is regarded as relevant.

2.4 Under Schedule 6 of the Highways Act 1980 and Schedule 14 of the Town and Country Planning Act 1990

2.4.1. By analogy, the above approach will also be taken in relation to inquiries and hearings held under paragraph 2(3) of Schedule 6 to the Highways Act 1980 and paragraph 3(6) of Schedule 14 to the Town and Country Planning Act 1990.

3. Further guidance

3.1. Further details can be found in the Planning Inspectorate’s booklet: ‘Guidance on procedures for considering objections to Definitive Map and Public Path Orders in England’.

3.2. The Rights of Way Privacy Statement.

3.3. Relevant government advice is set out in Department of the Environment, Food and Rural Affairs Circular 1.09 version 2.

4. How we use your information

4.1 The Planning Inspectorate takes its data protection responsibilities for the information you provide us with very seriously. To find out more about how we use and manage your personal data, please go to our privacy notice.