PannageMan

PannageMan

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An occasional blog about commons — and just possibly even more occasionally about village greens and rights of way. New posts will be tweeted at @PannageMan.

Directions for all

Rights of WayPosted by Hugh Craddock Sat, July 22, 2017 17:25:11
Jouldings Lane: PannageMan's sister crossing Jouldings Ford

Sch.14 to the Wildlife and Countryside Act 1981 sets out the procedure for applying for, and the determination of, applications to a surveying authority for a definitive map modification order to amend the definitive map and statement — for example, to add a path not currently recorded, or to delete a path which is said to be wrongly included. An applicant must apply under s.53(5) of the 1981 Act in a form compliant with para.1 of Sch.14, serve notice on the landowners and occupiers affected (para.2(1)), and then certify to the authority that the applicant has served the notices (para.2(3)).

Having done this, para.3(1) of Sch.14 provides that: "As soon as reasonably practicable after receiving a certificate under paragraph 2(3), the authority shall—(a) investigate the matters stated in the application; and (b) after consulting with every local authority whose area includes the land to which the application relates, decide whether to make or not to make the order to which the application relates."

There is no particular time limit imposed on the authority to carry out the investigation and determination, but para.3(2) provides that, if the authority has not determined the application within 12 months of the para.2(3) certificate, the applicant may make representations to the Secretary of State, and the Secretary of State may direct the authority to determine the application within a specified time.

Any applicant making such representations (see the guidance) is informed that, "The Secretary of State in considering whether, in response to such a request, to direct an authority to determine an application for an order within a specified period, will take into account any statement made by the authority setting out its priorities for bringing and keeping the definitive map up to date, the reasonableness of such priorities, any actions already taken by the authority or expressed intentions of further action on the application in question, the circumstances of the case and any views expressed by the applicant." This is the formula set out in Circular (remember those?) 1/09, para.4.9. For many years, indeed as long as anyone can remember, the Secretary of State would compare the applicant's case against the circumstances of the particular surveying authority, conclude that the authority was performing satisfactorily against its commitments, and decline to make a direction. This was so, even where, according to the authority's own assessment, the application was already some years old, and was not due to be considered for many more years.

All this changed several years ago, when, for reasons never explained or announced (but nonetheless welcome from applicants' point of view), the Secretary of State began to tire of surveying authorities' excuses, and started to give directions after all. The volte face was all the more startling, because before long, directions were being given even where the delay was quite modest.

PannageMan sought directions in relation to two applications which he made for paths near the Hampshire/Berkshire border, at Jouldings Lane and Riseley Common Lane, in May and December 2013 (Jouldings Lane straddled the boundary with Wokingham Borough Council, but Hampshire had the more substantial interest). Concerned that Hampshire County Council was quoting an eight-year lead time to determination, he wrote to the Secretary of State in June 2016 asking for directions.

The Secretary of State's decisions finally arrived today, with directions to Hampshire County Council to determine the Riseley Common Lane application within six months, and to both Hampshire County Council and Wokingham Borough Council the Jouldings Lane application within eight months. By present day standards, this is no surprise. But what does surprise PannageMan is the sheer lack of quarter now given surveying authorities.

In his decision letters on behalf of the Secretary of State, the inspector, Michael Lowe, duly recites the relevant words from Circular 1/09, and notes that both applications are ranked well down Hampshire's list of applications (53rd and 49th respectively out of 68). He then reiterates the expectation that applications will be determined within 12 months (helpfully quoting from the words of the Minister in moving amendments to the then Wildlife and Countryside Bill that suggest that para.3(2) was intended to enable the Secretary of State to administer a swift administrative boot to any authorities that failed to adhere to the target 12 months), notes that PannageMan has been waiting for more than two years already, and finds that the council's statement of priorities cannot be reasonable under normal circumstances if it does not deliver determinations within 12 months.

So there you have it. The Secretary of State now appears to have moved all the way to a policy under which, if an application has not been determined within 12 months, a direction may be expected to follow, and never mind what the authority has to say. What would happen if the other 66 applicants (or at least, those who have been waiting more than 12 months) in Hampshire also sought directions is anyone's guess — we can be quite sure that there would be insufficient resources to deliver the casework in the time that the council would be given. But North Somerset Council was directed to determine 20 applications over a period of 21 months, which for a small unitary council suggests an heroic rate of activity.

More's the pity that, under reforms enacted through the Deregulation Act 2015, the responsibility for delivering that 'swift boot' will be transferred to the magistrates' courts. Instead of making representations to the Secretary of State (online if desired), an aggrieved applicant will need to apply to the magistrates' court for a hearing, and convince the magistrates that the authority should be directed to determine the outstanding application. Who will want to do that — even before considering the £720 court fee, and the possibility of an award of the authority's costs against the applicant (think £5,000 upwards)? Meanwhile, landowners, under those same reforms, will get a new right to appeal against the failure of a highway authority to determine an application to divert a public path — an appeal which will lie to the Secretary of State, not the courts.

But for now, applicants who are on a long waiting list for determination are advised to consider the para.3(2) route. And for those who risk being 'queue-jumped' because of 'directions for all'? They should go down that route too.

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