Excluded Areas
From GPG
What are ‘excluded areas’?
The first edition of the Good Practice Guide described the background to excluded areas and suggested an approach to be taken by Surveying Authorities when compiling a definitive map.
The National Parks and Access to the Countryside Act 1949 required surveying authorities to produce maps and statements of their areas showing public footpaths, public bridleways and roads used as public paths (RUPPs). These were prepared in three stages, draft, provisional and definitive, with the last stage being conclusive evidence of the existence the public rights of way recorded on the map and statement. The legislation envisaged the whole process of producing definitive maps and statements to be completed within five years, and then reviewed and updated every subsequent five years. Section 35(4) of the 1949 Act allowed the surveying authority to exclude from the survey any part of its area which appeared to the authority to be already so fully developed that it would be inexpedient to include it. Areas covered by county borough councils were also excluded, though a county borough council could opt to adopt the provisions and survey its area if it wished to do so.
The Wildlife and Countryside Act 1981 overhauled the procedure for reviewing the definitive map and statement. It removed the requirement for periodic reviews and replaced it with an obligation to keep the map and statement under continuous review. It also reversed (other than for inner London boroughs) the 1949 provision for urban areas to opt out of the survey. Section 55(3) of the 1981 Act requires that:
Where, in relation to any area, no such survey has been so begun or such a survey so begun is abandoned, the surveying authority shall prepare for that area a map and statement such that when they have been modified in accordance with the provisions of this Part, they will serve as the definitive map and statement for that area. This is why surveying authorities are now required to produce definitive maps and statements for all their excluded areas.
The revised procedures also enable a definitive map for a previously excluded area to be ‘built up’ on a path by path basis through individual definitive map modification orders and legal orders, rather than having to prepare a map for the whole area from the outset. Procedure for preparing definitive maps and statements for previously excluded areas:
- Identify historic rights of way through documentary research. Potentially relevant documents include inclosure awards and papers, tithe records, parish records (e.g. highway surveyor’s records), old maps, estate papers, sale plans and catalogues, Quarter Sessions highway orders, deposited plans for turnpikes, railways and water works, and public path orders.
- Identify and collate legal events. These are enactments or other instruments whereby highways have been stopped up, diverted, widened, extended, created or up- or downgraded: e.g. path orders, court orders, government department orders, deeds of dedication, statutory instruments, etc.
- Determine the validity of these instruments: for example, have they been certified if they need to be? If not, can they be retrospectively certified? Does the order and plan refer to the correct route? In short, is the order capable of implementation?
- Identify paths that may have come into existence by means of public usage (under the Highways Act 1980 s.31 or at common law) by:
- gathering user evidence (witness statements);
- interviewing witnesses;
- carrying out a usage census.
- Identify owners/occupiers of land crossed or otherwise affected by the alleged right of way. When consulting, seek evidence, comments and representations.
- Identify and document anomalies. These may be the result of later development over historic paths, or invalid, poorly executed or uncertified orders. Seek to resolve anomalies by:
- extinguishing paths no longer needed for public use;
- diverting paths where a historic route has been built over.
- Survey paths to provide information for the definitive statement. Record position, length and width, surface, fences/walls/boundaries and encroachments, structures, furniture, and any limitations and/or conditions.
- Once the above evidence/information has been gathered and evaluated, prioritise those paths that form the most valuable links in the network.
- Compile report(s) to the council’s responsible committee or officer(s) for approval to make the orders.
- Make the orders. These can be in the form of either an omnibus order or an individual order for each path.
When is the map definitive?
As soon as the first modification order (legal event or evidence-based) is confirmed, the path may be added to the map. The map is not definitive, however, until it is consolidated under the terms of s.57(3) of the Wildlife and Countryside Act 1981. This involves the implementation of all the legal events, all the confirmed modification orders and the formal publication and advertising of the resultant map. The new definitive map is then kept under continuous review, and is modified upon discovery of evidence, in accordance with s.53 of the 1981 Act.
Preparation of Definitive Maps and Statements for previously excluded areas
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)
Mapping the Excluded Area – 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))
Mapping Excluded Areas – Southampton City Council
The City consists of 16 wards with each ward being dealt with individually. Any routes on Council-owned land were excluded from the process. We felt routes on private land were of a higher priority, and that it would be more effective for the Council, as landowner, to dedicate routes across land in its ownership.
A desktop analysis was carried out to identify potential public rights of way. This was followed by a 12-week informal consultation. The purpose of this was to obtain evidence of use and establish contact with landowners and other relevant parties. This included direct mailings and displaying public notices.
Documentary research was also carried out during this time. In Southampton, the planning files revealed useful information. This is because many of our unrecorded public rights of way were created as part of housing developments as the City expanded. We were often able to identify the origins of a route. In some cases, the route was labelled as 'public footpath' on the development plans. The files could also provide other details such as landownership.
A public drop-in session was held during the consultation period. This proved a really useful opportunity to explain what we were doing and to respond to questions in person which may have later become objections. Many of the queries we received were not relevant to determining status, such as concerns about anti-social behaviour.
Rather than carrying out costly Land Registry searches to try to identify landownership for each path, a request for landowners to contact us was included in the consultation documents and site notices. We were successfully able to identify a number of landowners this way. PINS were satisfied by our attempts to trace ownership and therefore directed us to display notices on site where the landowner was unknown (as per Schedule 15, paragraph 3(4)).
We added the routes to the Definitive Map using omnibus orders. The routes were grouped either by location, evidence or those likely to receive objections. We found no problems with this, and the advertising costs were reduced.
We included adopted paths in the DMMOs, but in future, where the adoption records contain enough detail, we will add these routes by LEMO.
Other benefits of this method include the Council being able to set its own timescale and plan the work into its work programme. We also found it contributed to delivering our RoWIP, such as our aim to strengthen links with local community and path user groups.
(from Lucy Stanley, Southampton, October 2010)
