Rights of Way Decisions Published January 2023
The first batch of Rights of Way decisions was published this week on a new webpage by the Planning Inspectorate.
10 decisions in total 8 relating to modification order applications and 2 for diversions. Average time from the Council making the order to the decision was 3.15 years with the longest being 5.43 years and the shortest being 2.29 years. And don't forget the Inspector's decisions rarely report the length of delay between application and the order being made. There is clearly some national work that needs to be done to make sure that once authorities have considered ways to resolve objections locally orders are referred to the Secretary of State with weeks. We also need to expose those dilatory and inefficient authorities who simply can't be bothered to refer objected orders to the Secretary of State.
We also need to hold the Planning Inspectorate to account for delays in their process and I would recommend that a minimum data set should be published in the introductory section of each order decision by PINS, my suggested list would be:-
- Application Received Date
- Date Landowner Certification was submitted to LA ("Schedule 14(2) compliant")
- Direction Issued Date (if relevant)
- Length of Direction (if relevant)
- Determination Date
- Appeal Decision Date (if relevant)
- Date Order was made
- Date Order submitted to Secretary of State
- Start Date of Inquiry Process
- Site Visit Date
- Inquiry or Hearing Date
- Interim Decision dates
- Decision date
I make this suggestion so that we can begin to explore where the systematic "blockers and stoppers" are in the process. In the Lincolnshire Case reported ROW/3248324 we know the application was submitted for a DMMO on 18/9/2014 and the order was made on 3/5/2019 so it took 4 years 8 months to get to order stage but we don't know how long it took for it to be submitted to the Inspectorate but we do know it took nearly 13 months from the Inquiry process starting on 23 December 2021 to the decision on 20 January 2023 and that there was an 8 month gap between inquiry and decision. Meanwhile in Leicestershire there were only 37 days between the Inquiry date and the decision ROW/3262504 and the start date for that inquiry process was 21 June 2022 meaning it took around 6 months. What we don't know is how long in every case did the Authority take to refer the case for confirmation (or not) by the Secretary of State or what delays existing within the Planning Inspectorate. I'll explore with PINS what information they hold in their data systems and see how we get on.
In terms of the DMMO orders 3 were Confirmed, 3 confirmed with modifications and 1 Interim Decision with a change in route status requiring further consultation and 1 order not confirmed. Both of the diversions were confirmed with modifications.
Perhaps with 50% of the orders decided "confirmed with modifications" these decisions need some explanation as they raise some procedural issues for Order Making Authorities. I am not saying that they would have prevented the objections but they did mean that the order was poorly drafted in the first place and in the past some orders have been to the Inspector simply because the width was specified as being wider than the distance between two stone walls alongside the path. In this batch some were made under the wrong part of the legislation with the Inspector changing it from a Section 53(c)(i) Order to a Section 53(c)(ii) Order. In others it was due to the order being imprecise within in one case the Inspector amending all the map references to 8 figure grid references or adding an additional letter to route description. Orders have also previously been rejected for the "relevant date" in the order being more than six months before the order date,
We can all make mistakes, but the obvious point to make is that having an accurate order which does not require the Inspector to correct an authority's homework probably helps matters. I hesitate to suggest the obvious but would it help if authorities circulated the draft order for comments before it is sealed by legal? Perhaps at the very least there could be a handy checklist for hard pressed teams to use to minimise problems.
The Interim Decisions are frustrating in terms of delays to the order process as they all require publishing for a further round of consultation. The order this time was made as a Restricted Byway and required to be re-advertised as a Footpath. Now I get the point that if you are advocating for a RB you'd love another round of consultation to argue the point but how many people would have been put at real injustice if the Inspector had been able to confirm the order as a footpath without further consultation? And I think I can only point to one decision in last three years where the Inspector was eventually convince of the argument to make the order as originally made. Lets not forget if the inspector has misdirected themselves that problem can be overcome by a Judicial Review. No doubt there are exceptional cases where the Inspector has had two rounds of Interim Decisions and as an old friend of my would suggest they are cases where the Planning Inspectorate needs to "get the drain covers up" and do a thorough review of the Inspector's decision making. Clearly, just like a Judge, each inspector is an independent decision maker and the Inspectorate cannot simply redecide cases where they don't like earlier decisions but doesn't the organisation have a responsibility for ensuring that the inspectors are efficient and effective decision makers? If not why not?
The other aspect of Inspectors decisions is perhaps highlight cases to show what evidence inspectors have used to make decisions. For those gripped by Dunlop there is an interesting case submitted by the BHS for a bridleway, in the Lincolnshire case highlighted above, which was based on a 1774 enclosure award (which admittedly predates the legislation that Dunlop was decided on). The Dorset Case ROW/3278109 was about correcting a route shown in the wrong place on the Definitive Map and inspector applied case law in his approach to this decision.
Clearly individual Inspector's decision are not binding on other inspectors but it might be useful to create a list of cases which have considered specific points. I'm not sure that I have the legal training to do so and perhaps someone somewhere is already doing that .
Chas Townley
28 January 2023
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