Excluded Areas
From GPG
Contents |
Preparation of Definitive Maps and Statements for previously excluded areas
The first edition of the Good Practice Guide described the background to excluded areas (see Excluded Areas) and suggested an approach to be taken by Surveying Authorities when compiling a definitive map.
Around 2000 and following years, a paper (Mapping Excluded Areas) was produced by Robin Carr Associates following discussion of mapping excluded areas at an IPROW workshop facilitated by Rhoda Barnett. The paper describes the procedure used in the City of York for mapping an excluded area and was generally held by the participants at the workshop as being an example of good practice. The process has since been followed by other authorities with success. The paper is attached by permission of Robin Carr Associates.
The 'York Method'
In precis, the method is:
- Establish an audit trail
- Obtain Members' agreement to proceed to map the excluded area
- Check all legal events
- Conduct desk analysis and marking of all physical features on OS map that look like ways
- Compare with List of Streets and mark recorded ways (subsequent priority given to unrecorded ways)
- Check against earlier editions of OS for length of existence of way
- Survey all ways marked - discard those obstructed with assumption that rights were challenged at time of obstruction and no complaint received (although not stated in the paper, a check for any complaint of obstruction is recommended);
- Consult statutory consultees (as Parliamentary Review Committee recommendation) and adjacent occupiers
- Post notices at each end of each way
- Mount public exhibition of proposed ways
- Collect user evidence from results of consultation
- Gain user count if no other evidence
- Remove way from process if evidence of non-right of way
- Determine whether to make order under 53 (3) (c) (i) (discovery of evidence) based on common law dedication and acceptance by committee based on simple evidence for each way
- Make bulk orders
The Secretary of State directed that where landowners could not be identified, notification of landowners was not necessary in light of efforts made by council to identify owners and failing to find any.
A number of points and other processes are discussed in the paper.
Mapping the Excluded Area - City of Bath
Bath and North East Somerset Council is using the York Method described above for Mapping an Excluded Area. Research is currently being undertaken on a ward-by-ward basis. Since consultations began in July 2004, approximately 270 possible public rights of way have been researched using the York Method. 7 omnibus DMMOs have been made so far for 138 public rights of way, with objections received for 3 of these. A further 77 possible public rights of way are currently being researched, although only a maximum of 54 of these will be included in a DMMO.
The York Method has proved to be straightforward to follow and more than one ward can be worked on at any one time. We try to organise the work so that whilst consultations are being undertaken in one ward, the order making process is continuing in the previous ward or the initial research is being started in the next ward.
It was originally decided that public rights of way on land owned by the Council or Somer Community Housing would be recorded by dedication agreement. It has since been decided to include any public rights of way on land belonging to these landowners in the DMMO for the ward in question as it has proved to be less time consuming.
This 'timeline' document has been invaluable in managing the project at Bath, telling officers what needs to be done at each stage. A working plan of the project gives detail of the background, decisions, sequence of events and data gathering.
(from City of Bath, March 2008)
Mapping the Excluded Areas - Kent
There are ten excluded areas in Kent all with varying sizes and unique features. The first excluded area which was published recently was Sandwich (Whitstable was completed many years ago). Here are the informal consultation notice, the delegated authority report (which provides further info about process) and the definitive map modification order itself.
In terms of information gathering, we started off by looking at the highways gazetteer to identify adopted paths and then consulted the local highways engineer and district/parish/town council to see whether there were any other paths we should consider. We then undertook an informal consultation by posting a notice at either end of each potential path. This also acted as a way of trying to get the landowners to get in touch as we felt that doing Land Registry searches for each path would be far too costly (there are several hundred paths over the 10 excluded areas) and meant that we were able to satisfy PINS that we had attempted to contact the landowner thereby obtaining dispensation from them concerning the service of notices on owners/occupiers. Where it was not possible to trace s38 adoption agreements for those paths shown on the highways gazetteer, we included these within a DMMO - we took the view that the Highways Gazetteer is only a maintenance record and does not confer rights. Otherwise we simply made a Legal Event Order on the basis of an adoption agreement. If objections have been received to paths as a result of the initial consultation, we have undertaken additional research (old maps etc.) or simply left them off.
With Sandwich we decided, due to the relatively small number of paths and the close proximity of all of them, we should make one omnibus DMMO to include all of them. Obviously, there are risks entailed with doing this and I would not recommend it for large numbers of paths, but Sandwich was quite unique in that the town is very historic and nearly all of the paths were so obviously public rights of way. This meant that we were able to do one notice, one order send-out etc so saved on costs. One of the lessons learnt from Sandwich is that it is always good practice to go out and remove your notices once the relevant deadline has passed. We were contacted by a very unhappy Town Council accusing us of 'fly-tipping' their town with our notices and just abandoning them long after the deadline had passed! We are now making sure that we take the time to go out and remove notices once they are finished with and have built this into the process.
Some of our other excluded areas are rather larger than Sandwich and this has meant that we have had to make several orders. Where practicable we have grouped paths together (where we have had no adverse response to the initial consultation exercise), otherwise we have made a stand alone DMMO in case it needs to be referred to PINS. To save on paper, notices, laminating etc we have done a separate notice for each path (or group of paths) and incorporated a map into the notice itself, rather than having a separate plan. We checked this with PINS and they agreed this would be acceptable. Once the Orders have been confirmed, we have simply printed off a statement (by combining part 2 of all the DMMOs) and transferred the GIS layer showing the paths to our current map template for the hard copy Definitive Map. So far we have not received any objections to the DMMOs published, so don't have any experience of referring them to PINS.
(from Kent County Council April 2008)
Experience from Middlesbrough and Solihull
At Middlesbrough, it was revealing to check all available planning records for the highway layouts as submitted to the highway authority. These often identified proposed ginnels as Public Footpath or Public Right of Way. If routes were annotated on the plans produced by the developer (owning the land at the time) then this was treated as an explicit "offer" of dedication at Common Law with an inference of dedication then to be made from any subsequent period of public "acceptance" - assuming the layouts were substantially the same.
It seems reasonable that proper adoption of a newly created link would constitute a Legal Event creating a right of way - after all, there is nothing further to rely upon as proof of the highway status of the estate roads themselves. The difficulty is that highway engineers often don't understand the need to stipulate a status - leaving inferences to be drawn from the physical layout, and a less than compelling Event. In Solihull, it was a widespread practice to adopt as Emergency Accesses at the insistence of the Fire Authority, leaving these with no recognisable public status...
Given the built up nature of the Excluded Areas, it is possible that in some case the Surveying Authority own a lot of the affected land as the council can enter a deed of dedication.
from Chris Marsh, Lincolnshire County Council (ex Middlesbrough Borough Council and Solihull Metropolitan Borough Council)
