Modification Orders

From GPG

Basic Legal Framework and Considerations for Evidential Modifications

The Wildlife and Countryside Act 1981, s.53(3) places a duty upon the council as surveying authority to keep the definitive map and statement under continuous review and make modification orders in consequence of:

The expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path.
The discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows:

that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies;

that a highway shown in the map and statement as a highway of a particular description ought to be shown as a highway of a different description; or

that there is no public right of way over land as shown in the map and statement as a highway of any description, or other particulars contained in the map and statement require modification.

Section 53(5) of the Act provides:

Any person may apply to the authority for an order "which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within s.53(3) (b) or (c)."

Modification orders under the above provisions (commonly referred to as 'evidential modification orders') are published and notices served upon owners and occupiers of land affected. Any objections or representations to the order are considered by an inspector appointed by the Secretary of State for the Environment to determine the matter, usually after a public inquiry. Applicants under s.53 (5) may appeal to the Secretary of State if an order is not published.

Before deciding to make an evidential modification order the council has a duty to investigate the matter. This may involve interviewing witnesses, archive research, etc. and will seek to clarify any serious discrepancies in the evidence. The landowner should be given the opportunity to comment upon the evidence and to produce contra evidence.

When considering a modification order, a rights of way subcommittee is acting in a quasi-judicial role and must ensure the principles of natural justice are complied with. The committee must only look at relevant evidence and apply the relevant legal test. The committee's officers have a duty to inform the committee of the legal criteria and the weight to be given to the evidence. However, the committee does not need to follow the formal practices of a public inquiry or a court.

In considering a modification order the committee is not altering public rights. The definitive map simply records public rights; it does not create or alter them. The question is what public rights exist, not what rights the council, the landowner(s) or the public would like to have. Lawful public rights may have languished unused or been obstructed for years; none the less they exist and should be recorded.

Conversely if a right of way is shown on the map and statement but is proved not to exist, then the error must be remedied and the way deleted or downgraded.

Modification orders are not concerned with the suitability for use of the alleged rights. If there is a question of whether a path or way is suitable for its legal status or that a particular way is desirable for any reason, then other procedures exist to create, extinguish, divert or regulate use, but such procedures are under different powers and should be considered separately.

Committee members and the public are frequently confused about what is or is not relevant evidence for or against a modification. It can be helpful to clarify this with claimants and consultees and to remind Members frequently. Here is an example of simple guidance which is sent to consultees by Dorset County Council. Similar content could also usefully be included with advice to claimants and objectors at an early stage.

Presumed dedication under the Highways Act 1980 s.31

Many claims to add rights of way to the definitive map and statement are based on user evidence. Some claims are based on a combination of user evidence and documentary evidence; others are founded solely on the premise that use by the public gives rise to a presumption of dedication of a highway.

It must be remembered that mere public use does not create a highway. The law has always recognised that the public right to use a highway lies in dedication by the owner. Dedication and acceptance by the public may be expressed or implied. In the absence of definite proof of dedication (such as when highways are created by statute, by gift or by agreement - see creation of public paths) the law has developed a legal fiction of assuming dedication from the proved facts. Under s.31 of the Highways Act 1980, if the public can provide evidence of 20 years' use dating back from the point at which the right of the public to use a way is brought into question, then, subject to four provisos discussed below, the way is deemed to have been dedicated.

'Actually enjoyed': There must be sufficient use of the claimed way. This will vary depending on the circumstances of each case. What might constitute sufficient use in a remote area would perhaps not be considered sufficient in a more urban area.

'As of right': The meaning of 'as of right' has been clarified by a House of Lords decision in R. v. Oxfordshire County Council, ex parte Sunningwell Parish Council, The Times, 25 June 1999. Before this case it had been thought that the phrase 'as of right' included an element of belief by the public using a way that they were entitled to use it. This belief had been reinforced by the case of R. v. Isle of Wight County Council, ex parte O'Keefe [1989] JPEL; (1989) 59 P&CR 283, where the judge said that the user must be not only without force, not secretly and without permission but also 'in the honest belief in a legal right to use'. The Sunningwell case involved a disputed claim to a village green. However, s.22 of the Commons Registration Act 1965 provides that a village green includes land which inhabitants of any locality have used for sports and pastimes 'as of right for not less than twenty years'. The provision mirrors s.31 of the Highways Act 1980. In considering the meaning of 'as of right' the House of Lords looked back to the Prescription Act 1832 from which the concept originally arose. The courts had considered the meaning of the phrase as it occurred in the Act and had eventually determined that the words meant: not by force, not secretly and not by permission. In the Sunningwell case the House of Lords determined that it would be wrong to import a subjective element of belief to that definition.

'And without interruption': An interruption may consist of nothing more than the closing of a right of way against all users for a single day - the reason for the traditional locking of gates on Christmas Day or Good Friday. Interruption may also be isolated acts of turning back. It is often difficult for landowners to provide evidence that they have carried out either type of interruption. The interruption must be carried out by the owner of the land or on the authority of the owner. It is sometimes very difficult to determine what constitutes interruption, but in general terms this is usually taken to mean an actual and physical act which stops the public or some members of the public from using the way. Hence the practice of locking gates that are otherwise left open.

'Sufficient evidence that there was no intention during that period to dedicate' Once the claimant's case has been substantively proved, then it is necessary to consider whether there is sufficient evidence that there was a lack of intention on behalf of the landowner to dedicate the way to the public. There has been some debate about what constitutes sufficient evidence of a lack of intention to dedicate. Certainly a properly made deposition under HA80 s.31 (6) would constitute such evidence (see Depositions under sec 31 Highways Act). Other actions such as the erection of signs inconsistent with an intention to dedicate have also been considered to be evidence of a lack of intention to dedicate. What constitutes sufficient evidence is a matter to be determined in each case. A mere assertion of a previous lack of intention to dedicate is not usually considered to amount to sufficient evidence of a lack of intention, though recent case law would indicate that it is not necessary to communicate to the public a landowner's lack of intention to dedicate.

'Legal event' modification orders

Whatever variety of order is used to change the line of a public right of way on the ground, a separate process is needed to alter the line of the route recorded on the Definitive Map and Statement. This process is generally known as a 'Legal Event Modification Order' and is made by the Surveying Authority under S53(3)(a) of the Wildlife and Countryside Act, 1981. There is, in theory at least, no limit to the age of a properly made legal event that can be included on the definitive map in this way - a situation which can cause confusion, especially as the Legal Event Modification Order process does not require public consultation. The Countryside and Rights of Way Act 2000 seeks to streamline the Legal Event Modification Order process to some extent and gives Surveying Authorities the ability to incorporate legal event orders within the body of certain other types of order.

Hertfordshire County Council website describes how the authority handles LEMOs - Herts good practice guide - LEMOs

From 31st December 2005 all English surveying authorities are required to publish a register of definitive map modification order applications. This register can be published on an authority's website eg. Lincolnshire County Council and Durham County Council.