Archived decisions

    Hampshire County Council

    Regulatory Committee Item 12

    23 July 2008

    Request for delegated powers for officers to waive non-compliance in applications made under section 53(5) of the Wildlife and Countryside Act 1981

    Report of the Director of Recreation and Heritage

    Contact: Andrew Smith, extn. 5319; [email protected]

    WILDLIFE AND COUNTRYSIDE ACT 1981

    53. Duty to keep definitive map and statement under continuous review

    (2) As regards every definitive map and statement, the surveying authority shall keep the map and statement under continuous review and as soon as reasonable practicable after the occurrence .... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event.

    (5) Any person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection.

    SCHEDULE 14 Applications for Certain Orders Under Part III

    Form of applications

    1 An application shall be made in the prescribed form and shall be accompanied by-

      (a) a map drawn to the prescribed scale and showing the way or ways to which the application relates; and

      (b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application.

    Notice of applications

    2 (1) Subject to sub-paragraph (2), the applicant shall serve a notice stating that the application has been made on every owner and occupier of any land to which the application relates.

      (2) If, after reasonable inquiry has been made, the authority are satisfied that it is not practicable to ascertain the name or address of an owner or occupier of any land to which the application relates, the authority may direct that the notice required to be served on him by sub-paragraph (1) may be served by addressing it to him by the description "owner" or "occupier" of the land (describing it) and by affixing it to some conspicuous object or objects on the land.

      (3) When the requirements of this paragraph have been complied with, the applicant shall certify that fact to the authority.

      (4) Every notice or certificate under this paragraph shall be in the prescribed form.

1. Summary

1.1 This item requests delegated powers for officers in the Rights of Way section, when processing applications made under section 53(5) of the Wildlife and Countryside Act 1981 that do not comply with the requirements of Schedule 14 to that Act, to decide whether or not non-compliance in any particular application should be waived. It is considered that such powers can properly be delegated to those officers responsible for the investigation of such applications/claims.

2. Recommendation

2.1 That officers responsible for investigating applications made under section 53(5) of the Wildlife and Countryside Act 1981 be given delegated powers to decide whether or not non-compliance with Schedule 14 of the Act should be waived with regard to those applications.

3. Background

3.1 Section 53(2) of the Wildlife and Countryside Act 1981 (`the 1981 Act') places an ongoing duty on Hampshire County Council to keep its Definitive Map and Statement of Public Rights of Way under review and to make, by order, such modifications to the Map and Statement as appear requisite.

3.2 Section 53(5) of the 1981 Act enables members of the public to apply for a modification to be made under section 53(2). Schedule 14 to the Act puts in place a mechanism for the making and determination of such applications. Paragraph 1 of Schedule 14 specifies how an application should be made, paragraph 2 requires the notification of such an application to landowners and occupiers and paragraph 3 provides the mechanism for the determination of such applications.

3.3 A recent Court of Appeal case (The Warden and Fellows of Winchester College and Humphrey Feeds Ltd v Hampshire County Council and the Secretary of State for the Environment, Food and Rural Affairs) considers what constitutes a `compliant' application for the purposes of Schedule 14 to the 1981 Act. Two paragraphs in the judgement are particularly relevant for the purposes of this report:

      42. I cannot accept that an application which is not accompanied by a map (subparagraph (a)) or by copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application (subparagraph (b)) is made in accordance with paragraph 1 of Schedule 14. An application is not so made unless it is made in accordance with all three requirements of the paragraph. There is no warrant for saying that an application which is in accordance with the first requirement of the paragraph, but not the second or third, is made in accordance with the paragraph.

      55. I wish to emphasise that I am not saying that, in a case which does not turn on the application of section 67(6), it is not open to authorities in any particular case to decide to waive a failure to comply with paragraph 1(b) of Schedule 14 and proceed to make a determination under paragraph 3; or to treat a non-compliant application as the "trigger" for a decision under section 53(2) to make such modifications to the DMS as appear requisite in consequence of any of the events specified in subsection (3).

3.4 Thus, though the Court of Appeal judgment found that for an application to be compliant it must meet the requirements of paragraph 1 of Schedule 14 to the 1981 Act in full (paragraph 44 of judgment), it appears that the judgment is saying that (outside of the scope of section 67(3) of the Natural Environment and Rural Communities Act 2006) surveying authorities have the power to waive non-compliance in applications and treat non-compliant applications as properly made for the purposes of determination (paragraph 55 of judgment).

4. Reasons for requesting delegated powers

4.1 At present, under Part 2 of the Hampshire County Council Constitution, the duty to maintain an accurate Definitive Map of Public Rights of Way is a function of Regulatory Committee A. This includes the duty to determine applications made under section 53(5) to the 1981 Act.

4.2 Since the issue of compliance was considered by the Court of Appeal, the Regulatory Committee has been asked to consider certain `non-compliant' applications and, in specific cases, has been asked to formally waive non-compliance and treat applications as compliant. Officers do not have any delegated authority to waive non-compliance. This presents certain operational difficulties.

4.3 Hampshire County Council's current policy for determining claims made under section 53(5) of the 1981 Act states that only claims which comply with Schedule 14 to the Act will be placed in our priority waiting list. The decision as to whether or not an application complies [or is to be treated as complying] with the requirements of Schedule 14 clearly needs to be made at the time the application is received by Hampshire County Council (which may be some time in advance of the investigation and determination of the application). Under the present scheme of delegation, this decision would appear to fall within the remit of the Regulatory Committee, but officers consider that it would be unnecessarily bureaucratic to bring such decisions to Committee.

4.4 It is therefore requested that those officers responsible for the investigation of applications made under section 53(5) of the 1981 Act (currently the Senior Rights of Way Officer and Definitive Map Review Officers) are given the delegated power to decide whether or not an application complies with the requirements of Schedule 14 and, if it does not, whether or not the non-compliance in the application should be waived and the application should be treated as properly made.

4.5 Should this Committee accept the recommendation of this report it is considered that the majority of decisions as to waiver will be made by officers in the Rights of Way section. The granting of delegated powers to officers will not remove the Regulatory Committee's powers to make such decisions and it is possible that, from time to time, officers may choose not to exercise their delegated powers, and instead ask this Committee to decide whether or not non-compliance in an application should be waived.

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