Procedure for Creation Orders

From GPG

Note: Where the local authority initiates the order, there may be no formal application. The procedure remains the same, however.

1. Send the applicant details of the legal criteria, procedures and costs, together with any guidance issued by the highway authority.
2. Receive, check and acknowledge the application.
3. Open a file.
4. Check the application against the definitive map. If necessary consult the definitive map officer about any outstanding applications or anomalies which might affect the proposal.
5. Arrange a site inspection and meeting with the applicant.
6. If the applicant is not the landowner, arrange a separate meeting with the landowner.
7. Confirm and clarify the details of the application.
8. Consult the utilities.
9. Consult the relevant parish/town council/meeting and members of the consultee list in accordance with the authority's policy. This will usually include the Ramblers' Association, the Open Spaces Society, the British Horse Society, the Byways and Bridleways Trust, the Auto-Cycle Union and the Cyclists' Touring Club and any other groups the authority considers to be appropriate.
10. If there are matters arising from the consultation, try to accommodate them, and if necessary re-consult on a new proposal. If the proposal changes substantially it will be necessary to re-consult the utilities.
11. Formally determine the application. Authorities vary as to who is authorised to decide whether an order should be made. The decision may be delegated to an officer or to a panel or subcommittee of members. In all cases a formal decision should be made having regard to the legal criteria and any representations made during the consultation.
12. If a decision is made not to make the order, advise the applicant, the landowner (if not the applicant) and the consultees. It is not necessary to advise the utilities. Go to stage 32.
13. If it is decided to proceed with the order, go to stage 14.
14. If the order making authority is not the highway authority formally consult the highway authority and request a works certificate (a formal document issued by the highway authority that specifies what work the highway authority considers is necessary to make the new path fit for use by the public).
15. If appropriate, ask the applicant to sign an agreement to carry out the provisions of the works certificate and to reaffirm his intention to pay the advertising costs and other expenses of the order and to reimburse the order making authority for any compensation that may be payable (you will need to refer back to the application form).
16. Draft the order, order plan and notices in accordance with the Public Path Order Regulations 1993 SI 1993/11. Also draft an accompanying explanatory statement. Check the draft order, plan, notice and the statement (get a colleague to double-check these documents). Make three engrossed copies of the order. In the event of having to submit the order to the Secretary of State, two copies are sent to PINS and the third copy is retained by the council for its records. It is important to store orders safely.
17. Arrange for the notices to be posted on site and placed in a suitable local paper. Site notices should be accompanied by a plan and a copy of the explanatory statement.
18. A site plan may be the order plan or one that shows the general effect of the order. If the latter, ensure that it is drawn in accordance with the regulations and correctly shows the effect of the order.
19. Notices on site will need to be checked every seven to 10 days and replaced as necessary. An inspection sheet should be filled in detailing when the notices were checked and by whom, and when replaced.
20. Arrange for the service of notices, in accordance with the regulations, on the applicant, the landowner, the highway authority (if appropriate), the parish/town council/meeting, user groups, utilities, and any other affected or interested parties. The notice should be accompanied by a copy of the order and a copy of the explanatory statement.
21. Arrange for a deposit copy of the order and notice to be placed for public inspection at the places designated by the authority. Deposit copies should be accompanied by the explanatory statement and a memo explaining the dates the documents need to be available for inspection and requesting that they should be returned to a nominated officer after that time. Deposit copies should also be provided to any other local authority in the area and to the parish/town council.
22. Note the date of close of objections in your diary.
23. If no objections or representations are received by the closing date, the order may be confirmed. Go to stage 27.
24. If objections or representations are received, these should be acknowledged. It may be appropriate to enter into negotiation with objectors to see if they will withdraw their objections. A decision then needs to be made as to whether to proceed with the order. Councils vary as to who is authorised to decide whether to proceed with an order. The decision may be delegated to an officer or to a panel or subcommittee of members. In all cases a formal decision must be made having regard to the representations and objections received.
25. If it is decided not to proceed with the order, advise the applicant, the landowner (if not the applicant), the consultees and any person who made a representation or objection. It is not necessary to advise the utilities unless they objected. Here is a sample notice (this is for a diversion order to be amended for a creation order) advising parties that an Order is not to be proceeded with. It is good practice to post such a notice on site and to place it in the relevant local paper and in such other places as the Council considers appropriate. Go to stage 32.
26. If it is decided to proceed with the order and objections are not withdrawn it must now be submitted to the Secretary of State for confirmation. The procedure for this it outlined in Procedure for Opposed Orders.
27. An agreed period of (usually) three weeks is allowed for the applicant to undertake the works contained in the highway authority's works certificate. Ensure that the works have been carried out to the satisfaction of the highway authority before the order is confirmed.
28. Once the new route is laid out for public use and the authority and the highway authority (as appropriate) are satisfied that the necessary works have been completed, unopposed orders can be confirmed by the council. After the seal on the three engrossed orders, the following words should be added: 'The foregoing order is hereby confirmed'. The order should be dated and signed by an authorised officer, whose title should be added under the signature.
29. Arrange for the publication of the confirmation notice. Prepare a notice of confirmation and a plan. Check that the same local paper that was used before is still the best paper to be used for the publication of confirmation. Serve notices on all the individuals and organisations that received a notice of the making of the order. Arrange for copies of the confirmed order to be placed on deposit, in the same way as copies of the original order were deposited.
30. Note the date of the end of the High Court application period in your diary. If an application is made to the High Court you will need to take legal advice. Applications are very rare and may be made only on legal or procedural grounds.

Once the order has been confirmed, send a copy to land charges, informing them when it comes into effect. Send copies of the confirmed orders to other council departments and to the highway authority, as required. Send a copy of the order, plan and notice of confirmation to the Ordnance Survey:
Rights of Way Team
Mapping Intelligence
Ordnance Survey
Adanac Drive
Southampton


SO16 0AS
31. Close the file. Sort the documents and file them. Ensure that the definitive map officer has a copy of any confirmed order, the plan and the notice. Store the engrossed copies of the orders securely (many authorities place the copies in the archive or record office or use deed packets for this purpose). File all other documentation, including a photocopy o any confirmed order, making sure it is in date order and labelled correctly.