From GPG

Events which give rise to modification of the definitive map and statement are specified in the Wildlife and Countryside Act 1981 (WCA81) s.53 (3) (b) and (c). These orders are known as evidential modification orders and may result from one of the following:

• an application that has fulfilled the requirements of the WCA81 Sch. 14;
• an application that has been made but is not complete under the requirements of the WCA81 Sch.14;
• discovered evidence WCA81 s.53 (3)(c).

The procedures for processing an application are set out below. Where the authority initiates an order because it has discovered evidence and there is no formal application the process for determining whether or not to make an order remains the same. Not all stages will be necessary in every situation. Some of the activities are statutory requirements and must be followed. The non-statutory procedures are those which represent good practice, but which may be altered in response to, for example, consultation or budgetary and staffing constraints. Processing evidential modification orders is often complex and controversial; you should keep records up to date throughout.

This section has been written with reference to the guidance and rules that apply to English local authorities. Whilst many of the principles remain the same in England and Wales, practitioners in Wales must check with Welsh guidance.

Contents 1 1. The Application 2 2. Site inspection 3 3. Ownership 4 4. Consultation 5 5. Research 6 6. Investigation report 7 7. The decision 8 8. Decision not to make an order 9 9. Appeal 10 10. Making the order 11 11. The notice of the order 12 12. Publication of the order 13 13. Objections and representations

1. The Application

Applications should be made in accordance with Schedule 14 of the Wildlife and Countryside Act 1981. Highway authorities should consider producing a modification order application pack, to be available from the rights of way unit, containing the necessary advice to ensure compliance with the schedule.

• Upon receipt of an application, allocate a definitive map file and reference.
• If the path crosses a district or borough boundary, make two files cross referenced to each other, with all the paperwork in one. If the application concerns a route for which there is already a file of discovered evidence, add the application to the existing file and alter the details in the records as appropriate.
• If there is already an application for a modification order for the route, create a new file and cross-reference. Where two or more applications exist for the same route, they should be dealt with together. Each applicant should be treated in the same way even if his/her application did not actually trigger the investigation.
• Check and acknowledge the application. For the applicant to preserve his rights of appeal, it needs to be correct and complete as in accordance with WCA81 Sch.14. If there are any problems or further information is required, inform the applicant and give him/her an indication of the timescale involved in processing the application. If the application crosses a highway authority boundary you will need to liaise with the other authority and decide how to proceed.
• If the application is to add or upgrade a right of way, letters of objection may be sent in by the landowner(s), occupier(s) or tenant(s) in response to the notice sent to them by the applicant. These should be acknowledged, with an indication of the timescale involved, and a copy placed in the file.
• Inform local Land Charges at the district or county council. The existence of the Schedule 14 application will not show up as part of the ordinary CON 29 enquiries but will be revealed if a new purchaser pays an additional charge for optional additional enquiries to be answered in the searches undertaken as part of the conveyancing process.
• Duly made applications must be added to the register of order applications maintained by the authority. The authority will have to decide whether or not it also adds to the register applications that have been made but which do not comply with Schedule 14 or make entires in the register for routes where evidence has been discovered, but for which there is no formal application

Also check:

• The highway authority's list of streets (HA80 s.36(6)) – if the route is included in the list of streets, this is evidence of highway status.
• Section 31 depositions and other records – check HA80s.31 depositions and all records held by the rights of way unit, highway records and county/district archives. You may discover evidence that the route is acknowledged to be a public right of way. In such cases the landowner may be prepared to agree to a dedication agreement.
• Anomalies file – your authority may keep an anomalies file to highlight where potential discrepancies have already been identified in the records, this may contain relevant evidence.
• Documentation relating to the drawing-up of the original definitive map and statement, and any reviews – check to see if the route has previously been investigated. You may conclude at this stage that it is not appropriate to investigate the claim further, in which case go to stage 8.

Once done, send a copy of the definitive map, marked with the definitive map sheet number and the file reference and with the application route highlighted, to relevant parties. These should include:

• land charges;
• development control;
• other colleagues who deal with public access issues, for example, parish paths officers or rangers;
• district/borough council(s);
• parish council/meeting(s);
• the local councillor(s).

2. Site inspection

A site inspection should be made when the application is received to record the state of the route. (see Procedure for Site Visits)

• Take photographs of the entire route and note any features bounding the route: for example, hedges, ditches or fences.
• Measure the enclosed width so that comparison can be made with the width shown on the Ordnance Survey (OS) plans.
• Record any signs of use; the nature of the surface; any stiles, gates, bridges or any other structures or obstructions, and their age and condition; and any obvious problems.
• Check all evidence carefully, particularly if the route does not have clearly defined boundaries or has never been shown running between linear features.

It will be worth noting what works may need to be carried out in the event of the route being added to the definitive map. If necessary, arrange to meet (separately if appropriate) the applicant and the landowner(s). The objectives of the meeting should be:

• to confirm the line of the application route;
• to demonstrate the council's neutrality (bearing in mind it is the council's duty to assert and protect the rights of the public to the use and enjoyment of any highway for which it is the highway authority (Highways Act 1980 s.130));
• to explain the investigation process.

A note of the meeting should be added to the file.

3. Ownership

Confirm land ownership. This should be done by:

• consulting the council's own records, for example, records of previous dealings with landowners, the council's terrier;
• and/or serving notices to confirm (s.16 Local Government (Miscellaneous Provisions) Act 1976);
• and/or contacting the Land Registry.

4. Consultation

District/borough councils and parish councils/meetings must, by law, be consulted. Agents investigating an application will need to consult the highway authority. A minimum of 28 days should be allowed for replies. The Rights of Way Review Committee Practice Guidance Note on consultations recommends a period of 13 weeks for consultations.

The following should also be consulted where appropriate:

• the local councillor(s);
• the owners of the land over which the claimed route runs, and the adjacent landowners, particularly if nobody claims to own the route.
• Other landowners, who might be affected by the application, even if not owning land immediately adjacent to the route, should also be consulted. If landowners have not already been contacted at the time of a site visit, or when serving s.16 notices, it may be best to make telephone contact first;
• user groups and individuals as specified in the rights of way unit's list of consultees. The consultation list consists of those organisations that are prescribed by the regulations and other individuals and organisations who have requested notification;
• any person who has specifically asked to be kept informed of the progress of the individual case;
• colleagues in other sections within the authority who deal with access issues.

5. Research

Documentary evidence: Documentary evidence may be found in current and old files. You should also keep notes of any archive records, making tracings or taking photographs or photocopies if possible. Ensure that you record the archive reference number for each item. This information will form part of the investigation report. If it is necessary to visit the National Archives or the British Library Map Library, care should be taken to note references and obtain photocopies where appropriate.

User evidence: In most cases evidence of use is required in support of an application. The user evidence supplied with the application should be assessed and summarised. It should include:

• details about the exact route
• any limitations
• width (this can be particularly difficult to establish in user evidence based cases where there are no physical boundaries to the route)
• any other information relevant to the circumstances.

If there is any doubt about the exact line of the route, it must be checked against a map. If there is still doubt, then an accompanied site visit should be arranged. This will be useful if there is any question about the position of potential limitations such as stiles or gates.

If there is insufficient evidence of use to enable a decision to be made or if the evidence is too vague, unclear or contradictory, it will be necessary to seek further evidence from the applicant, local user groups and/or the parish council/meeting.

If there is apparently enough clear evidence of use to progress the application further, you should contact users at this point to determine who would be prepared to give evidence in person and whether he/she would make a good witness at a public inquiry. Alternatively, if he/she cannot appear, the witness may be prepared to make a statutory declaration.

If the case depends solely or principally on user evidence, then, even if there is enough evidence on paper to raise a reasonable allegation about the existence of a right of way, it is critical to establish that users would be prepared to give their evidence at a public inquiry. Contact witnesses by phone or letter.

You will need to check:

• their address;
• their willingness to attend a public inquiry if necessary;
• any anomalies or contradictions in their statements. Keep a note of additional information obtained. It may be necessary to interview witnesses. (see user witness interview record form)

6. Investigation report

The investigation report is a factual account of the application and the subsequent investigation up to this point. It should cover any evidence provided and/or discovered that is relevant to the existence and status of the route.

It should also contain:

• an extract from the current definitive map and statement;
• a map showing land ownership;
• copies of relevant documents;
• a summary of the user evidence;
• any relevant correspondence concerning the evidence.

Copies of documents should only be appended to the report if they contain evidence that is relevant to the existence, status or other particulars of the route. Consultation letters and letters from consultees that do not contain evidence, for example, need not be included.

Conclusions should not be drawn at this stage – this will be done later. If necessary, consult the case solicitor about the contents of the report. A copy of the report, accompanied by a letter inviting comments, should be sent to each of the following:

• the applicant;
• the parish council/meeting(s);
• every landowner and occupier and any adjacent landowners. The covering letter should be headed 'WARNING - This may affect your property';
• the local councillor (if a copy has been requested);
• the case solicitor.

Allow four weeks for any comments.

A decision meeting should be arranged for the week following the deadline for comments. Relevant officers such as the definitive map officer, the rights of way manager and the case solicitor should attend.

If comments have been received that contain evidence that may affect the decision, this evidence should be circulated to those who received the investigation report and a further two weeks allowed for them to respond.

7. The decision

Authorities differ in practice as to who makes the final decision concerning an application for an evidential modification order. Most commonly it is made by a committee or a panel of members, or by an authorised officer. Where decisions are taken by a committee of members a formal report will be required. This is a public document. In other cases it may not be a legal requirement to produce a publicly available report. However, in all cases it is best practice to produce a formal report with clear recommendations which is publicly available.

The final report on which a decision is to be made must contain a full account of the evidence and the conclusions that can be drawn from it. It must also contain a clear explanation of the legal tests and address any specific legal issue that arises in a particular case.

The report should make a recommendation as to whether an order should be made, as well as record details regarding existence, status, width and limitations. A draft of the report should be sent to the solicitor for comments before a final version is produced.

In authorities where decisions are made by an authorised officer, it is common practice for the report not be published at this stage. The report is kept on file and used if there is either an appeal against a decision not to make an order or, if objections are received to an order, a public inquiry. It is good practice to make reports publicly available if there is an appeal, or if an order is forwarded to the Secretary of State for confirmation.

In authorities where decisions are made by councillors in committee, the report is made available to the public in the same way as all other public reports. Practice is still developing in authorities where councillors sit in panels, but some - for example, Warrington Borough Council, have decided to make all such reports public in advance of panel meetings.

Adding or upgrading: The test for making a decision to add a path to the definitive map or to upgrade a path that is already recorded is contained in WCA81 s.53. The decision is made on the balance of probability, as clarified in R. v. Secretary of State for the Environment, ex parte Bagshaw and Norton (1994) and R. v. Secretary of State for Wales, ex parte Gordon Emery (1997); that is, whether or not, on balance, public rights subsist or are reasonably alleged to subsist. If they do, the status, the width of the path and any limitations must also be determined.

Deleting or downgrading: The test for making an order to delete or downgrade is different. There must be clear evidence that the status of the right of way was wrongly recorded when it was first shown on the definitive map. Evidence of a defect in process is not clear evidence of incorrect status.

Decisions made by a committee of members will be recorded as formal minutes of the meeting. In other instances it may not be a legal requirement to take formal minutes. However, in such cases detailed notes should be made and these should include the rationale for the decision.

Where the decision is delegated to an officer, the decision notice must be produced and signed by the officer who is authorised by the authority to sign decision notices. Copies of this notice, accompanied by a letter explaining how the decision was reached and what will happen next are to be sent to the following:

• the applicant;
• landowners and occupiers who were sent the investigation report;
• district/borough council(s);
• parish council/meeting(s);
• colleagues in other sections within the authority who deal with access issues;
• land charges;
• development control;
• any other person who has asked to be notified of the outcome.

In straightforward cases, a standard letter can be sent to applicant, landowners and local councils except for the property warning on the landowners' copies. In sensitive cases, for example, where matters have become particularly acrimonious, each letter should be appropriate to the circumstances of the recipient.

Comments on the decision should be acknowledged briefly by postcard if time is needed to respond in full. There may be no need to respond in detail to comments unless a lack of understanding of the process needs to be addressed or new evidence comes to light, in which case it may be necessary to return to stage 6.

If the decision is to make an order, go to stage 10. If the decision is not to make an order, go to stage 8.

8. Decision not to make an order

The decision notice should be sent to the applicant: where the application was duly made this should be accompanied by a letter advising him/her that he/she has the right of appeal to the Secretary of State within 28 days of the date of the notice. A copy of Natural England's booklet A Guide to Definitive Map Procedures (NE112) should be included. It is available as a download.

If an appeal is made, go to stage 9. If no appeal is made, go to stage 32.

9. Appeal

If an applicant appeals, then the Secretary of State (appeals are presently being handled by the Government Office for the North East - GONE) will inform the council. The letter will set out what needs to be done and the timescale involved (usually eight weeks). The council will need to acknowledge the letter.

Where the appeal is against the council's decision not to make an order to add or upgrade a right of way, consult with the landowner(s). The landowner(s) has no right to be involved in the appeal process, but can ask to be kept informed of the appeal decision.

Similarly, where the appeal is against the council's decision not to make an order to delete or downgrade a right of way, relevant user groups should be consulted. User groups and interested individuals have no right to be involved in the appeal process, but they can request the council to inform them of the outcome.

In either case, any comments should be sent to the council within three weeks. The order making authority will then have to submit its reasons for refusing to make an order, together with supporting documents and a map. The appellant will be given the opportunity to comment on the council's case. The council can, if it wishes, respond. The Secretary of State will then inform the council that a decision will be given by a certain date, which could be two or three months ahead.

When the appeal decision is made, inform any individual or group who asked to be informed of the outcome.

If there is a direction to make an order, go to stage 10. If not, go to stage 30.

10. Making the order

The order should be drafted in the prescribed form and according to the regulations (see Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993, SI 1993/12, Sch.2) and council guidelines for producing orders. It should contain a plan on a scale of not less than 1:25,000. The relevant date will normally be the date of the decision meeting, unless it was held more than six months before the publication date of the order. In the latter case seek the advice of the case solicitor before proceeding. Ask the case solicitor and if possible another definitive map officer to check the order before it is sealed and dated.

Produce three engrossed copies of the order. In the event of having to submit the order to the Secretary of State, two copies will have to be sent to the Planning Inspectorate while the third copy will be retained by the council for its records. It is important to store the engrossed orders safely, for example, in a deed packet in the council's registry.

11. The notice of the order

The notice of the order must be drafted in accordance with Wildlife and Countryside (Definitive Map) Regulations 1993 Statutory Instruments 1993 no.12 (as amended by SI 1995 no. 451) (WC(DM)R93). A site plan will also be needed. This can either be the order plan or a plan showing the general effect of the order. The following notices will be needed:

• a plain (i.e. unaddressed) notice to be placed in the local newspaper,
• and displayed on site and by the district/borough council(s) and parish council/meeting(s);
• individually addressed notices should be sent to district/borough council(s), parish council/meeting(s), and every landowner and occupier affected by the order.

If the landowner is not known for any part of the order route, the Secretary of State's permission must be sought to address notices 'To the Owner, Occupier or Tenant' for display on site. This request should be sent to The Planning Inspectorate, Rights of Way Section, Room 15/01, Tollgate House, Houlton Street, Bristol BS2 9DJ. The notices must be displayed conspicuously on the land where the owner is not known, when the order is advertised, along with the standard notice.

If the case is controversial it is good practice to display an explanatory notice on site. The explanatory notice will not form part of the prescribed notices of the order but will seek to explain briefly why the council has made the order and what factors the council is allowed to consider in reaching a decision. Any such notice should give contact details to enable the public to find out more information about the order.

12. Publication of the order

The requirements for publication of the order are contained in WCA81 Sch.15. Notice of the order must be advertised for 42 days, excluding bank holidays (WC (DM) R93 Sch.15, 3c).

A timetable for publication of the order is required to ensure that all the necessary procedures are followed in order and in good time. Notices and letters should be sent out as follows:

• Individually addressed notices, accompanied by a copy of the order and a covering letter, must be served on every owner, occupier and lessee of the land affected by the claimed route. If the land is part of an ecclesiastical benefice, the notice should be served on the Church Commissioners. Notices should arrive no later than the date of publication in the newspaper.
• Where the landowner is not known, then notices can be placed on site following direction from the Secretary of State. The notice must be marked 'WARNING - This communication affects your property'.
• Individually addressed notices should also be sent to every parish/community and district/borough council, with additional unaddressed notices enclosed for display on council notice boards.
• An additional copy of the order should be sent to the district/borough council to be placed on deposit.

Where a separate explanatory notice has been produced, this should accompany the formal notice.

Notices (with copy orders) should also be sent to certain other bodies and persons and should arrive no later than the date of publication in the newspaper.

The accompanying letter must specify that the recipients must inform the council if they would like to be notified if the order is confirmed. This applies to any statutory undertakers for apparatus under, in, on, over, along or across the land affected by the route.

If the order will result in a right of way being added to the definitive map and statement on land adjacent to an operational railway line, then notify Railtrack plc at the appropriate zone.

Notices and orders should also be sent to every individual who has asked to be informed and to any persons whom the council thinks should be informed. This will normally include the applicant.

Where a separate explanatory notice has been produced, this should accompany the formal notice.

Notices should be published in at least one newspaper that circulates in the local area of the case, prefeably one that is sold rather than a "freesheet".

A notice, accompanied by a plan showing the general effect of the order in so far as it relates to that way, must be displayed as follows:

• in a prominent position at the ends of the route,
• and at any junctions with other public rights of way;
• at the offices of the district/borough council(s) or parish council/ meeting(s)in the locality of the land to which the order relates;
• any other such places as the authority may consider appropriate.

A separate explanatory notice may be displayed in addition to the statutory notices above.

A copy of the order and notice must be deposited in the designated room(s) in the council offices for public inspection. Send them with a memo explaining when they need to be available for inspection and asking for them to be returned to the rights of way unit after that time.

The notices on site will need to be checked every seven to 10 days and replaced if necessary.

It is essential that an inspection sheet is filled in detailing when notices were checked and when replaced, and by whom.

If no objections or representations are received at the end of the objection period the order making authority can confirm the order. Go to Procedure for Opposed Orders stage 25. If objections are received, go to stage 13.

13. Objections and representations

If objections or representations are received, they will need to be acknowledged. To be duly made, they must be correctly addressed and received within the period specified on the notice. Discretion may be used in accepting objections or representations that arrive a day or two late or that have been incorrectly addressed.

Unless an immediate response is required, wait until the objection period is over, then discuss and evaluate objections with the case solicitor. Write a detailed reply to objectors. If a number of objectors raise the same issue(s), then a standard response may suffice. The authority is not at liberty to disregard any objections that it knows or believes to be irrelevant, such as those made on the grounds of need or the suitability of path in question. But it can point out to the objector that the objection is irrelevant and invite him/ her to withdraw.

If the objections reveal new evidence which might have affected the decision, then possible courses of action such as making a new order will need to be discussed with the case solicitor.

If all the objections are withdrawn, go to Procedure for Opposed Orders stage 25. If they are not withdrawn, the order must be submitted to the Secretary of State, go to Procedure for Opposed Orders stage 14 .