Procedure for Opposed Orders
From GPG
14. Submitting the order for confirmation
If objections to a Definitive Map Modification Order are received and not withdrawn, the order making authority has to submit the order to the Secretary of State for determination. In the case of a Public Path Order the authority need only submit the order to the Secretary of State of the Authority is still seeking confirmation of the Order. In either case, the Order should be sent to The Planning Inspectorate, Rights of Way Section, Room 15/01, Tollgate House, Houlton Street, Bristol BS2 9DJ.
Before sending an Order it is worth considering whether or not the process of determination would be assisted and the eventual work load of the Authority reduced if in referring the Order the Authority actually compiles all the documents up to the Statement of Case stage of the process (see Rules for Inquiries and Hearings). In any case, the submission should include a statement, based on the decision report and the notes or minutes of the decision, of the grounds on which the council considers that the order should be confirmed (unless of course the council is no longer seeking confirmation of a Definitive Map Modification Order). The submission should also include:
- two sealed, dated and engrossed orders (the third copy should be retained);
- two photocopies of the order with associated plan(s);
- any representations and objections made with respect to the order and not withdrawn, and the council's comments on these;
- a statement of the grounds on which the council considers that the order should be confirmed (include a copy of the decision report);
- a copy of the notice publicising the order and a certificate that the notices have been published, served and posted in accordance with the requirements of the Act. This will be based on the inspection sheet kept by the rights of way unit and letters from parish council/meeting(s) and district/ borough council(s) confirming that the notice was displayed and the order was placed on deposit at district/borough council offices;
- a certificate that every local authority whose area includes the land to which the order relates has been consulted;
- a copy of that section of the definitive map and statement which will be modified if the order is confirmed;
- a map showing where an inquiry will probably be held, e.g. village hall;
- a list of all the people and organisations that were consulted;
- a copy of the original investigation report.
From time to time the above list is amended by the Planning Inspectorate so it is recommended that you check with the Inspectorate's website for up to date requirements.
If a local council has objected, then a public inquiry must be held. Whilst it is possible to request that the matter be dealt with by written representations, the Planning Inspectorate makes the decision. The Inspectorate will inform the authority whether the matter will be decided by written representations (see stage 15), a public hearing (see stage 16) or a public inquiry (see stage 17).
15. Written representations
If the matter is to be dealt with by written representations, then each party is invited by the Inspectorate to comment on the other's case. An inspector will make an unaccompanied site visit before the decision is made. It is good practice for the order making authority to inform the applicant that the matter will be dealt with by written representations. Go to stage 24.
16. Public hearing
Public hearings are similar to public inquiries, but are more restricted in that limited public notice is given. The right to be heard is normally limited to the authority and anyone who lodged an objection during the objection period. Witnesses may be called, so an objector may be able to call people who would have spoken at a public inquiry if one had been held. An accompanied site visit may be held. Go to stage 18.
17. Public inquiry
Public inquiries are held locally to give local people the chance to take part in the process and present any relevant evidence they may have. The order making authority presents the case in support of the order, and the objectors then present the case against the order. In some circumstances the authority may choose to take a neutral stance at a public inquiry. In these instances guidance is available from the Planning Inspectorate as to how to proceed. At the inquiry each side has the opportunity to cross-examine the other's witnesses. The inspector will then, if it is thought necessary, hold an accompanied site visit.
18. Preparing for a public inquiry/hearing
A letter explaining that the order has been submitted to the Secretary of State for confirmation should be sent to each of the following:
- the applicant(s)
- the objector(s)
- the district/borough council(s) and parish council(s)/meeting(s) that were originally consulted
- the local councillor(s)
You should also write to witnesses asking them if they will be available at the time the inquiry or hearing is likely to be held.
In submitting the case to the Planning inspectorate it is a good idea to give dates or periods to avoid - these may be because of exiting inquiry or work commitments, or non availability of a suitable local venue, or non availability of the objectors or landowner. The Planning Inspectorate will usually offer a choice of two dates to the parties and will impose a date on the parties if there is no agreement. It is therefore important to have in mind a suitable venue (or preferably venues) and have information about dates that are not available (e.g. a village hall may have a regular term time play group booking) For a hearing go to stage 19. For an inquiry go to stage 20.
19. Notice of hearing
The Planning Inspectorate now issues a "start notice" for the hearing process
It is the responsibility of the council to contact the local councillor(s) and inform any landowners or adjoining landowners who are not objectors that a hearing is to be held. It is good practice to inform the applicant.
Confirm with the Planning Inspectorate the address of the hearing venue and arrange for the hearing to be advertised. The procedure is essentially the same as for the order notice (see stages 11 and 12 above), but a hearing need only be advertised for the preceding 14 days.
Arrange for the notice to appear in the local newspaper(s). Keep an original of the advertisement. The notice of the hearing should be put on site and displayed at the district/borough council(s) offices and on the parish council(s)/meeting(s) notice boards. You should also complete an inspection sheet. Go to stage 21.
20. Notice of inquiry
The Planning Inspectorate will inform the council of the date, and will also inform the objector(s), giving the details of the date and location of the inquiry via the "start notice".
Confirm with the Planning Inspectorate the address of the inquiry venue, and also contact the local councillor(s) and any landowners or adjoining landowners who are not objectors, giving them the details of the inquiry. It is also good practice to inform the applicant.
The procedure for advertising the notice of inquiry is essentially the same as for the order notice (see stages 11 and 12 above), but an inquiry need only be advertised for the preceding 14 days.
You should arrange for the notice to appear in the local newspaper(s) and keep an original of the advertisement.
You will need to obtain confirmation in writing from the district/borough council(s) and parish council/meeting(s) that the notices were displayed. The notice must be displayed on site and at the district/borough council(s) offices and on the parish council/meeting(s) notice board. It is good practice to keep an inspection sheet recording these actions and any checks that are made.
21. Preparing a proof of evidence
Allow a minimum of eight weeks prior to the submission date for the proof for preparation. The proof of evidence is usually prepared by the definitive map officer/rights of way officer. Documents that the council relies upon will have already been submitted to the Planning Inspectorate with the Statement of Case. It will be necessary to arrange for photographs/copies of archive originals to be made for the inquiry.
If witnesses are to be called, they will also need to have proofs of evidence.
Copies of the statement of case and any accompanying document bundle and any proofs of evidence should be made four weeks before the inquiry/hearing. There must be enough copies to distribute to the applicant and supporters, any objectors (or their representatives) proposing to attend, and for members of the public present at the inquiry – 20-25 copies are usually sufficient.
22. Preparing the opening speech
The case solicitor, usually in conjunction with the definitive map officer/rights of way officer, will prepare the opening speech. It should comprise a summary of the evidence, possibly in the form of a historical account setting out the facts to provide an explanation of the current situation, any necessary legal submissions (copies of case law having been submitted with the statement of case), and any modifications to the order which it is felt are needed.
In cases where the council has decided to take a neutral stance, all parties should be informed well in advance of the inquiry that this is the council's position. The council should seek advice from the Planning Inspectorate as to the procedure to be followed at the inquiry or hearing.
23. Public inquiry or hearing
Arrive at the venue at about 9.00 a.m. for a 10.00 a.m. start and arrange the furniture to allow sufficient seating and table space for the participants. Notices directing people to the inquiry should be placed on the door(s) of the venue. The inspector usually arrives at about 9.30 a.m. for a 10.00 a.m. start. Check with him/her that the layout of the room is suitable. Put out an attendance list (using the Planning Inspectorate's list which can should be downloaded from the website) and ensure that it is filled in.
A public inquiry: The inquiry will usually start at 10.00 a.m. The order making authority will normally present the case for the order first, calling any witnesses, with supporters of the case following. Objectors will have the opportunity to question the witnesses and any supporters who have presented evidence.
The objectors will then put forward their case as to why the order should not be confirmed or should be amended. The order making authority and the supporters will then have the opportunity to question the objectors. Only participants who have given evidence can be cross-examined.
After the inquiry has closed there will normally be a site visit. This is the opportunity for participants to point out various features referred to during the inquiry. No new evidence may be presented at this stage, and the inspector must never be left standing talking to one side only.
Remember to bring suitable clothing and footwear for the site visit.
A public hearing: A hearing is much more informal than an inquiry. The inspector will clarify what the concerns are, usually preparing an agenda to cover these and the council will explain their case first, followed by the objectors. Discussion is encouraged. There may be a site visit during or after the hearing. If the site visit takes place after the hearing has closed the issues cannot be discussed. When a site visit takes place during the hearing it is considered part of the discussion process.
Remember to bring suitable clothing and footwear for the site visit.
24. The inspector's decision
Following written representations or the inquiry or hearing, the Planning Inspectorate will issue the inspector's decision . This will set out the evidence presented and the conclusion reached by the inspector. If the decision has not been received after six months, follow it up with the Planning Inspectorate.
You will need to inform the local councillor(s) of the result unless he/she gave evidence at the inquiry. The decision will either be:
- to modify the order (return to stage 11);
- to confirm the order as made or with minor modifications (go to stage 25);
- not to confirm the order.
If the inspector decides not to confirm the order, notices with copies of the decision must be served on the landowner(s), local authorities and the user groups that were originally notified (see stage 12 above) as soon as practicable after receiving the decision. Go to stage 30.
25. Confirmation
Unopposed orders: These can be confirmed by the council. The following words should be added after the seal on the three engrossed orders:
Dated: ...................................
.............................................[signature]
The orders should be signed and dated by the officer authorised by the council to sign orders.
Opposed orders: These are confirmed by the Secretary of State following a public inquiry, a hearing or written representations. One copy of the order (with or without modification) signed as a confirmed copy by the inspector on behalf of the Secretary of State will be returned to the order making authority.
The third engrossed copy retained by the council must now be annotated to show that the order has been confirmed by the Secretary of State. The two orders should be stored separately and cross-referenced to each other. All engrossed orders should be stored securely. It is good practice to make use of a repository or internal council registry where these exist. Photocopies of the orders may be used for most purposes and should be stored on the day to day files in the rights of way section.
