Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

11 March 2009

Decision Title:

Clarification of officers' delegated powers in Wildlife and Countryside Act orders made following a Schedule 14 direction

Decision Reference:

626

Report From:

Director of Recreation and Heritage

Contact name:

Tel:

01962-846003

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of decision area:

1.1. If the County Council refuses an application made under s.53(5) Wildlife and Countryside Act 1981 for an amendment to the definitive map of public rights of way the applicant can ask the Secretary of State to direct the County Council to make such an order. This report seeks clarification of officers' delegated authority to progress orders made in these circumstances.

2) Legal framework for the decision:

Wildlife and Countryside Act 1981

Schedule 14

4. (1) Where the authority decide not to make an order, the applicant may, at any time within 28 days after service on him of notice of the decision, serve notice of appeal against that decision on the Secretary of State and the authority.

(2) If on considering the appeal the Secretary of State considers that an order should be made, he shall give to the authority such directions as appear to him necessary for that purpose (which may include a direction as to the time within which such an order is to be made).

3) Recommendation:

3.1. That the proposals in this report setting out a framework for officers' decision making be adopted.

1) Purpose of report:

1.1 One of the functions of the Regulatory Committee is to determine applications for amendments to the definitive map of public rights of way under the Wildlife and Countryside Act 1981 (`the Act'). If an application is granted, an order is made and advertised before it becomes operative, so that members of the public have an opportunity to challenge the evidence on which the order is based. Objections or representations to the order will result in the evidence for and against the order being considered by the Secretary of State.

1.2 If this Committee refuses an application, the applicant has a right of appeal to the Secretary of State under Schedule 14 to the Act (a `Schedule 14 appeal'). As a result of a Schedule 14 appeal, the Secretary of State may direct the County Council to make the order applied for by the applicant and, once made, such an order follows the same procedure as one which has been approved by this Committee. However, the orders that the County Council is directed to make raise a number of issues because, on the face of them, they have to be made by the County Council against the wishes of this Committee. It would rarely, if ever, be appropriate for officers to promote, or argue the case in support of such an order when this Committee has taken the view that it should not be made. Moreover, it may become appropriate for the County Council actively to oppose the order. This report seeks clarification of officers' delegated authority to make decisions in respect of orders which the Secretary of State has directed the County Council to make.

2) Background

2.1 Under Schedule 15 to the Act members of the public are given an opportunity to make representations or objections to every order affecting a right of way before it can take effect (`the Schedule 15 process')This is so, whether or not the order has been directed to be made following a Schedule 14 appeal or whether it has been made following an application granted by the Regulatory Committee. Only orders which do not attract any objections or representations during the Schedule 15 process can be put into effect by the County Council: opposed orders can only be confirmed by the Secretary of State. His review of the objections and representations is carried out through the Planning Inspectorate and normally takes the form of a public inquiry, but it can be done by way of a hearing or, in simple cases, by written representations.

2.2 In cases where this Committee has approved the making of an order to amend the definitive map, the job of the case officer during the Schedule 15 process is relatively straightforward. He, or she, will present the case for the order by explaining the evidence and demonstrating why the map requires amendment.

2.3 However, in cases where this Committee originally refused the application to make the order, the position of the case officer is different, because the County Council, through this Committee, has taken the view that the evidence does not support the making of an order. During the Schedule 15 process, the County Council, through its officers, can do one of three things:

a) oppose the order;

b) adopt a neutral stance; or

c) support the order.

2.4 Whilst opposing the order - or adopting a neutral stance - may seem to be the natural consequence of this Committee's earlier decision, there are occasions when it may be appropriate to support the order during the Schedule 15 process. This is because applicants may (and frequently do) present to the Secretary of State at the Schedule 14 appeal stage, additional evidence which they did not produce to the County Council when this Committee made its initial decision. In some cases, this evidence does not add to what has already been put forward and does not strengthen the applicant's case. In other cases, the new evidence may enhance the applicant's case to such an extent that, had it been available to the County Council initially and presented to this Committee, the Committee would have approved the application. The difficulty this situation poses for officers during the Schedule 15 process is that they do not know what view this Committee would have taken of the additional evidence and, thus, whether a change of position (i.e. supporting an order, rather than opposing it) would be in accordance with the wishes of by this Committee. The matter is not normally returned to this Committee because, by that stage, the Secretary of State has issued his direction to make an order in response to the application and, thus there is no longer any decision for this committee to make on the application

2.5 The situation does not arise frequently, and the decision about the stance to be adopted during the Schedule 15 process has hitherto been regarded as being within officers' delegated powers, as under the County Council's Constitution the Director of Recreation and Heritage has authority to take all necessary action to implement decisions of the Regulatory Committee. Thus where this Committee's view of the evidence in support of an application was that the application should be refused, on being directed to make an order and during the Schedule 15 process, the County Council's position has usually been to adopt a neutral stance.

2. 6 However, the Planning Inspectorate has made it clear that it is quite in order for surveying authorities to oppose their own orders, and officers have on at least two recent occasions felt that the integrity of the definitive map would have been compromised if, at the Schedule 15 appeal stage the Secretary of State's Inspector was not presented with both sides of the argument (the applicant putting to him the case for the order and the County Council presenting the evidence to the contrary). The County Council's active opposition to these two orders has provoked comment and criticism. As this stance (of opposition) in these cases was consistent with the earlier decisions of the Regulatory Committee (in rejecting the applications and refusing to make the orders) it was considered appropriate, but, if it is a matter of concern to rights of way applicants and others, officers consider their practice in these matters should be confirmed by this Committee.

3) Proposals:

3.1 The table at paragraph 3.2 sets out proposed parameters of officers' powers in the Schedule 15 process following a Schedule 14 appeal which has resulted in the County Council being directed to make an order. It is hoped that they draw a fair balance between the need to ensure that the views and decisions of this Committee are properly implemented and the desire not to burden this Committee with issues of implementation, which can properly be made through the professional judgment of officers and which are consistent with the delegated powers under the Constitution. They are, of course, proposals for discussion and amendment if this Committee sees fit.

3.2 In the following table it is assumed that this Committee has considered, but refused, an application to amend the definitive map, and that the applicant has appealed to the Secretary of State against that refusal under Schedule 14.

Schedule 14 appeal stage

Officers' stance during Schedule 15 process

No new evidence presented to Secretary of State by Applicant

Actively oppose order in accordance with decision of Regulatory Committee

New evidence presented by Applicant to Secretary of State

In officers' opinion evidence does not add to weight of evidence in support of order

Actively oppose order in accordance with decision of Regulatory Committee

In officer's opinion adds weight to evidence in support of order but would not have changed ultimate recommendation in report to Committee

Actively oppose order or adopt a `neutral stance, at officers' discretion (depending on degree)

In officers' opinion adds sufficient weight to evidence in support of order that it would have changed officers' recommendation in report to committee had it been submitted earlier

Inform Regulatory Committee (or Chairman where time does not permit consideration by full Committee) and seek approval for proposed stance at public inquiry

3.3 The table is, to some extent a simplification, because the County Council will be asked by the Secretary of State to comment on any additional evidence submitted by the applicant before he determines the Schedule 14 appeal. However, the County Council's response at this stage will be based on the case officer's impartial and professional assessment of the additional evidence: any apparent conflict between this assessment and the earlier decision of the Committee can be resolved as proposed in the table above, after the Secretary of State has issued his decision on the Schedule 14 appeal.

3.4 There may also be cases where this Committee has approved the making of an order, but evidence subsequently discovered shows it to be unsafe. In such (rare, but possible) cases, it is proposed that this Committee be invited to reconsider the evidence in its totality. The same principle will apply as in the table above, namely that officers' be entrusted to bring back to this Committee any cases where the Committee's decision appears (to them) to be unsustainable in the light of additional evidence. In all other cases the officer has a discretion whether to support or oppose an order, or to adopt a neutral stance.

4) Issue to be decided:

Links to the Corporate Strategy

Yes

No

Hampshire safer and more secure for all

Maximising well-being

Enhancing our quality of place

OR

This proposal does not link to the Corporate Strategy but, nevertheless, requires a decision in order to clarify for officers and the public the extent of officers' powers to progress decisions of this Committee.

Section 100 D - Local Government Act 1972 - background documents

The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

(NB: the list excludes published works and any documents which disclose exempt or confidential information as defined in the Act.)

(Quote list of documents here: e.g. list the relevant letters, memos, etc. and their location)

Document

Location

Files: None

User evidence

Documentary evidence

Correspondence