Modification orders process

Plymouth has a priceless heritage of public rights of way. We all have a right to use them whether on foot, by horse, cycle or even by motor vehicle dependant upon the specific paths status. So that all interested parties (walkers, horse riders, landowner and local authorities etc) are clear on where public rights lie the law requires the recording of this information on a special map known as the definitive map.

The definitive map is a legally conclusive record of the public rights shown upon it at the date the map was produced, known as the relevant date. The legal maxim 'once a highway, always a highway' ensures that the public highways shown on the map remain in existence until they are legally altered or extinguished by a legal event arising from the action of a local authority, a Court, a Government department or an Act of Parliament.

Each path shown on the definitive map is accompanied by a statement. This statement generally describes the route of the path and may record such information as regards the position of gates and stiles and minimum widths. Where such information is recorded within the statement it is considered conclusive evidence.

However, the information recorded on the definitive map and statement is only a minimum and rights might exist over a way not shown or indeed additional rights might exist on a way already shown. We have a duty to keep the definitive map and statement under continuous review so that the map and statement are an accurate record of the public's rights.

As such, where evidence comes to light to suggest the definitive map and statement should be amended we are obliged to do so. This is done by means of a legal process known as a definitive map modification order and such an order, if confirmed, has the effect of modifying the definitive map and statement. A surveying authority is granted these powers under the Wildlife and Countryside Act 1981 and any member of the public can make an application to us for one to be made.

Stages of the modification order process

Making the application

There is a formal procedure for applying for a modification order and the necessary application form is available from our Rights of Way Officer. The onus is on the applicant to collect and submit evidence in support of the application in the first instance. There are two main types of evidence which applicants should seek when making an application. These are:

Documentary evidence

This is evidence such as historic maps, tithe maps, finance act maps, railway maps, estate documents, local authority records, Parish council minutes, Quartermaster Sessions and any other historic or current document which the applicant feels may support their claim. The local records office is normally the best starting point for locating such documents and can often advise on the records it holds and those which may be of use for claiming a particular way.

Some documentary evidence may be sufficient on its own to prove the existence of public rights and, however old the document, the rights will still exist unless there has been a legally authorised change. It should also be noted however that evidence contained in such documents may be open to interpretation and the strength of that evidence may be contested. The documents listed above are indicative of the types of such evidence and by no means form an exhaustive list; it is for the applicant to submit evidence they feel supports their claim.

User evidence

User evidence is evidence from users of a claimed way and relates to their individual use and the nature of that use along the route being claimed. We conveniently provide a standard form, included in the application pack, which those wishing to submit evidence in support of a specific claim can complete. The applicant is responsible for submitting any user evidence collected with the application. Any completed user evidence forms must be accompanied by a signed map or plan in which the user has identified the route to which they refer in giving the evidence. We may choose to interview those who provide user evidence personally following submission of an application.

Once the applicant has collected the evidence they wish to submit in support of their application they must complete the remainder of the forms in the application pack and, having served notice on the relevant landowner(s)/occupier(s), or having been directed to serve notice by posting on site, submit the application to us.

Investigating the 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 it 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

We have no option but to take user and landowner evidence at face value. It is also possible that an officer may find that the route in question carries higher rights than those claimed, for example a claim for a footpath may result in a bridleway being added to the definitive map.

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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 the 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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