Modification orders for landowners

Submission of an application for a modification order

Any member of the public is entitled to apply to us for an order amending the city's definitive map of public rights of way. This process is most commonly used by people wishing to claim public rights over a way that is not currently shown on the definitive map. This is known as a modification order application, which, if successful, has the effect of modifying the definitive map which is conclusive evidence of the public’s rights.

As part of the process the applicant is required to serve notice of the submission of the application on all affected landowners and/or occupiers and this notice must include details of the particulars of the application. This will also include a plan showing the route subject to the application. The applicant is required to certify to the us that this has been done and no application will be accepted without that confirmation. However, if after all reasonable measures have been taken by the applicant, no landowner has been identified the applicant may be directed to serve notice by posting it on site.

Should a valid application be received we will write to all identified landowners informing them of this. We are obliged to investigate the claim and will do so as soon as is reasonably practicable, although any backlog of cases may mean that there is a delay between the serving of notices and the commencement of this investigation. It would however be of assistance to know your views at an early stage.

Following an application

Once an application has been received and we are satisfied that a copy of the notice has been served on all affected landowners and occupiers and that the application is valid we must inform any other Parish Council, Local Authority or National Park Authority affected by the application. We will then thoroughly investigate the matters in the application. This investigation will include:

• a site visit to inspect for any evidence on the ground
• an archive search of maps and documents
• an examination of the documentary evidence supplied with the claim
• consultation with interested parties such as the local council, walking and riding groups
• interviewing users who completed user evidence forms
• inviting landowners who are affected by the application to submit evidence against the claim
• examining any counter evidence received from objectors

As part of this investigation we will contact landowners requesting their views on the application. It may be that the landowner does not wish to dispute the claim and acknowledges public rights along the claimed route. If this is the case in the interests of a quick and cheap resolution to the matter the landowner may enter into an agreement with us to dedicate the way as a public right of way.

This will only happen if the landowner(s) wish to do so, there is no legal obligation for them to enter into such an agreement and we will under no circumstances push for them to do so. If the landowners dispute the claim and have no desire to dedicate the route to the public they will be required to provide any relevant information for consideration by us. Failure to provide information at this stage may result in an Order being made and could result in an expensive public inquiry.

We will also be gathering information with regard to a landowners interest in the land, the length of time they have held this interest, knowledge of use of the way by the public and means by which the public's use has been disputed. Whilst we will conduct our own search of archived documentary evidence landowners wishing to dispute a claim are welcome to conduct their own search. The majority of documentary evidence in the public domain will be held at the Plymouth Record Office but landowners may hold their own records or know of witnesses who can support their case. We may choose to interview these witnesses at a later date to amplify the information provided.

Landowners should be aware there is ample time between the serving of notice and the end of the investigation period and are advised to prepare a case to support their views. Modification order claims are based purely on evidence with a desire to seek the truth of the matter, it is not a matter of desirability and as such it is in the interests of all parties to provide as much detail and information as possible so all facts are available for consideration.

If need be, and within reasonable limits, the report to committee can be delayed to allow time for all available evidence to be put forward by all parties and landowners are of course able to view the evidence put forward by the applicant and photocopies may be taken for a reasonable charge.

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Decision making

When all the evidence has been examined, the Rights of Way Officer will make a recommendation in a report to our planning committee, which meets every three weeks. This committee is made up of elected City Councillors, who make a decision as to the probability, or not, of the existence of public rights. It should be noted that modification orders are about evidence and whether public rights exist.

If public rights are considered to exist the definitive map will be modified and no consideration can or will be given to anyone’s property interests, whether or not the route is in physical existence or, if it is, the suitability of the route for users or any nuisance they might cause.

Similarly, if the evidence available for consideration is insufficient and committee decides not to make the order the definitive map will not be changed however desirable it may seem for the public to have those additional rights. This decision will not be made on political grounds, even if the results of this are unpopular. Where the evidence is contradictory, the committee may decide to make an order so that the whole matter can be aired fully at a public inquiry or similar process.

What happens next?

We have 12 months in which to determine (decide to make an order or not) an application. By the end of this 12 month period we will have come to a decision. If no decision has been made the applicant may apply to the Secretary of State requesting we are given a deadline for determining the application. The Secretary of State will consult with us before imposing such a deadline.

If planning committee decides that the evidence presented does support the application the applicant will be formally notified that a definitive map modification order will be made. This notice will also be sent to all affected landowners/occupiers. Should the committee decide that the evidence does not support the application, the applicant will be informed together with information on how to appeal against our decision.

A definitive map modification order will be made as soon as is reasonably possible. This will be advertised in the press and on site for a period of 42 days, during which time any person may object to the order.

If there are no objections to the order, it will be confirmed by us and the map will be modified accordingly.

If an objection is made that cannot be resolved, we cannot confirm the order itself, and will refer the matter to the Planning Inspectorate, who will usually offer objectors the opportunity to be heard at a local public inquiry or hearing. This is generally held at a venue near the route in question, where an independent Inspector appointed by the Planning Inspectorate will hear the evidence for and against the order. The sole purpose of an inquiry is to determine whether or not the order should be confirmed and the map modified.

The Inspector will, following any subsequent inquiry, confirm the order, confirm the order with modifications or not confirm the Order.

What happens on the ground?

If the order is confirmed, either by us or the Planning Inspectorate, the definitive map and statement will be modified. Other than the erection of signposting and waymarking there will normally be little effect on the ground. There will be no change in landownership and we are unlikely to have any responsibility for maintenance of the path.

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