Abandonment of Orders
From GPG
Public Path Orders made either under the Town and Country Planning Act 1990 or under the Highways Act 1980 can be abandoned (withdrawn or not proceeded with) at any stage up to their confirmation. This is because under these Acts, Order making Authorities (OMAs) have discretion as to whether or not to make an Order and discretion as to whether or not to proceed to confirm an Order, once made.
Common reasons for an Order Making Authority (OMA) deciding to abandon an Order include fatal flaws in the Order (in which case a new Order might be made for the same proposal), and where the OMA considers that the Order will not meet the criteria for confirmation in the authorising Act. In the case of Orders made to enable development under the Town and County Planning Act 1990 an OMA may decide not to proceed with the confirmation of an Order if circumstances change and a development is no longer going ahead.
Paragraph 5.29 of Rights of Way Circular 1/09 LINK advises that where a decision is made not to proceed with an Order, "the authority must make a formal resolution not to proceed, and should notify the applicant and those who have made representations or objections of the passing of the resolution." It is good practice for OMAs to advertise their decision not to proceed with an Order more widely. Here is an example of a formal notice of a decision not to proceed with an Order, which can be altered to suit the particular circumstances.
Definitive Map Modification Orders (DMMOs) made under the Wildlife and Countryside Act 1981 may not be abandoned; even in cases where the OMA considers that the Order as drafted is fatally flawed or where it considers that there is no longer a case to support the confirmation of the Order. This is because under the Wildlife and Countryside Act 1981, the OMA does not have the same discretion in relation to DMMOs as applies to Public Path Orders. The Order and any representations or objections made to it must be referred for determination to the Secretary of State.
In cases where the OMA considers that the Order is fatally flawed it is suggested that advice be sought from the Planning Inspectorate as to how the OMA should proceed, attention having been drawn to the flaws that the OMA considers make the Order incapable of confirmation. (Inspectors have limited powers of modification, but these cannot be used to remedy substantial defects in an Order.)
In cases where the Order is not defective but the OMA no longer seeks its confirmation, the determination process allows for another party (usually the applicant or a supporter, if one can be identified) to support the case for confirmation and the Planning Inspectorate will process the Order through one of the three methods of determining the Order (Public Inquiry, Hearing or Written Representations). In such cases the OMA may chose to take a neutral stance, or to oppose the Order. It is good practice to make it clear, at the earliest possible stage, to all parties and to the Planning Inspectorate what the OMA's stance will be and the reasons for any change in position.
