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The Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007

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Statutory Instruments

2007 No. 2008

tribunals and inquiries, england

The Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007

Made

6th July 2007

Laid before Parliament

17th July 2007

Coming into force

1st October 2007

The Lord Chancellor makes the following Rules in exercise of the powers conferred on him by section 9 of the Tribunals and Inquiries Act 1992(1).

He has consulted with the Council on Tribunals in accordance with that section.

PART 1PRELIMINARY

Citation, commencement and extent

1.  (1)  These Rules may be cited as the Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 and come into force on 1st October 2007.

(2) These Rules apply in relation to England only.

Interpretation

2.  In these Rules—

“the 1980 Act” means the Highways Act 1980(2);

“the 1981 Act” means the Wildlife and Countryside Act 1981(3);

“the 1990 Act” means the Town and Country Planning Act 1990(4);

“the applicant” has the meaning given by rule 4(4)(b);

“the authority” means the authority who made the order in question;

“a decision by the Secretary of State as respects an order” does not include a transferred decision;

“inspector” means—

(a)

a person appointed by the Secretary of State to make a transferred decision, or

(b)

a person holding a hearing or inquiry and making a report to the Secretary of State in order for him to make a decision on whether or not to confirm the order in question;

“order”, save where the context otherwise requires, means an order (other than an order made by the Secretary of State) to which the provisions of Schedule 6 to the 1980 Act (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways), Schedule 15 to the 1981 Act (procedure in connection with certain orders under Part III) or Schedule 14 to the 1990 Act (procedure for footpaths and bridleways orders) apply;

“proof of evidence” means a written statement of evidence;

“relevant documents” has the meaning given by rule 20(2);

“relevant person” has the meaning given by rule 4(4)(f);

“start date”, in relation to any given hearing or inquiry, has the meaning given by rule 4(3)(a);

“statement of case ” means a written statement containing full particulars of the case which a person proposes to put forward at a hearing or inquiry and includes—

(a)

copies of any supporting documents which that person intends to refer to or put in evidence, and

(b)

a list of those documents;

“subsequent material” means any material, consisting of any document, any oral representations or any evidence, which was not submitted to the Secretary of State or the inspector before the close of the hearing or inquiry, as the case may be, but is submitted thereafter, but does not include a report made under rule 11(2) or 23(2) in respect of the hearing or inquiry in question; and

“transferred decision” means a decision made by a person appointed by the Secretary of State pursuant to paragraph 2A of Schedule 6 to the 1980 Act(5) (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways), paragraph 10 of Schedule 15 to the 1981 Act (procedure in connection with certain orders under Part III) or paragraph 4 of Schedule 14 to the 1990 Act (procedure for footpaths and bridleways orders).

Application of Rules

3.  (1)  Parts 1, 2, 3 and 6 apply to hearings afforded by the Secretary of State under—

(a)paragraph 2(2) of Schedule 6 to the 1980 Act (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways);

(b)paragraph 7(2) of Schedule 15 to the 1981 Act(6) (procedure in connection with certain orders under Part III); or

(c)paragraph 3(3) of Schedule 14 to the 1990 Act (procedure for footpaths and bridleways orders).

(2) Parts 1, 2, 4 and 6 apply to local inquiries caused by the Secretary of State to be held under the provisions mentioned in paragraph (1)(a) to (c).

(3) Parts 1, 5 and 6 apply to hearings afforded by the Secretary of State and to inquiries caused by him to be held under paragraph 2(3) of Schedule 6 to the 1980 Act (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways), paragraph 8(2) of Schedule 15 to the 1981 Act(7) (procedure in connection with certain orders under Part III) or paragraph 3(6) of Schedule 14 to the 1990 Act (procedure for footpaths and bridleways orders).

(4) The Highways (Inquiries Procedure) Rules 1994(8) do not apply to any hearing or inquiry mentioned in paragraphs (1) to (3).

PART 2INITIAL STAGES OF HEARING OR INQUIRY

Notice to be given by the Secretary of State

4.  (1)  The Secretary of State shall give a notice which complies with paragraph (3) to the persons mentioned in paragraph (4).

(2) The notice shall be given as soon as practicable after an order has been submitted to the Secretary of State for confirmation in accordance with—

(a)regulation 4 (procedure for public path orders) of the Town and Country Planning (Public Path Orders) Regulations 1993(9);

(b)regulation 4 (procedure for orders) of the Public Path Orders Regulations 1993(10); or

(c)regulation 7 (making, submission and confirmation of modification and reclassification orders) of, and Schedule 4 (additional provisions in relation to the making, submission and confirmation of modification and reclassification orders) to, the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993(11).

(3) The notice under paragraph (1) shall—

(a)be dated, and such date shall be the “start date” for the purposes of these Rules;

(b)state whether the consideration of the order will take the form of a hearing or inquiry;

(c)state the date, time and place of the hearing or inquiry, as the case may be;

(d)give a brief description of—

(i)the land to which the order the subject of the hearing or inquiry relates; and

(ii)the effect of the order;

(e)state the address (including an e-mail address) to which communications about the hearing or inquiry are to be sent;

(f)state the time and place where the documents relating to the hearing or inquiry are to be made available by the authority under rule 29(1) (inspection and copying of documents);

(g)in the case of a hearing, explain the requirements of rule 6 (submission of statements of case for the hearing); and

(h)in the case of an inquiry, explain the requirements of rule 17 (submission of statements of case for the inquiry) and rule 20 (proofs of evidence).

(4) Subject to paragraph (5), the notice under paragraph (1) shall be given to—

(a)the authority;

(b)every person (in these Rules referred to as “the applicant”) who applied for an order under—

(i)section 118ZA (application for a public path extinguishment order) or 119ZA (application for a public path diversion order) of the 1980 Act(12);

(ii)sections 118C (application by a proprietor of a school for a special extinguishment order) and 119C (application by a proprietor of a school for a special diversion order) of the 1980 Act(13); or

(iii)section 53(5) of the 1981 Act (which relates to applications for a definitive map modification order);

(c)in the case of an order to which the provisions of Schedule 6 to the 1980 Act (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways) apply, every person who was required to be given notice of that order by paragraph 1(3)(b)(i), (ii) and (iv) of that Schedule(14);

(d)in the case of an order to which the provisions of Schedule 15 to the 1981 Act (procedure in connection with certain orders under Part III) apply, every person who was required to be given notice of that order by paragraph 3(2)(b)(i), (ii) and (iv) of that Schedule;

(e)in the case of an order to which the provisions of Schedule 14 to the 1990 Act (procedure for footpaths and bridleways orders) apply, every person who was required to be given notice of that order by paragraph 1(2)(b)(i) to (iii) and (v) of that Schedule(15); and

(f)every person (in these Rules referred to as a “relevant person”) who has duly made, and not withdrawn, any representation or objection referred to in paragraph 2(2) of Schedule 6 to the 1980 Act(16) (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways), paragraph 7(1) of Schedule 15 to the 1981 Act (procedure in connection with certain orders under Part III), or paragraph 3(1) of Schedule 14 to the 1990 Act (procedure for footpaths and bridleways orders), as the case may be.

(5) Paragraph (4)(c), (d) and (e) (as the case may be) do not apply in the case of an order in respect of which the Secretary of State has given a direction to which this paragraph applies.

(6) Paragraph (5) applies to—

(a)a direction under paragraph 1(3C) of Schedule 6 to the 1980 Act(17) (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways) that it shall not be necessary to comply with paragraph 1(3)(b)(i) of that Schedule;

(b)a direction under paragraph 3(4) of Schedule 15 to the 1981 Act (procedure in connection with certain orders under Part III) that it shall not be necessary to comply with paragraph 3(2)(b)(i) of that Schedule; and

(c)a direction under paragraph 1(6) of Schedule 14 to the 1990 Act(18) (procedure for footpaths and bridleways orders) that it shall not be necessary to comply with paragraph 1(2)(b)(i) of that Schedule.

(7) Where the Secretary of State has given a direction referred to in paragraph (6), the authority shall give a notice complying with paragraph (3) addressed to “the owners and any occupiers” of the land in question, by affixing a copy or copies of the notice to some conspicuous object or objects on the land.

(8) The Secretary of State shall ensure that a copy of the notice given by him under paragraph (1) is available for inspection on a website maintained by him until the hearing or inquiry is completed and the decision is notified under Part 3 or Part 4 (as the case may be).

PART 3HEARINGS

Date and notification of hearing

5.  (1)  The date fixed by the Secretary of State for a hearing shall be—

(a)not later than twenty weeks after the start date; or

(b)where he considers that a date within such twenty-week period would not be practicable, the earliest date which he considers to be practicable after the expiry of that twenty-week period.

(2) The Secretary of State may at any time change the date, time or place fixed for the hearing (whether or not, in the case of a change of date, the new date is within the period mentioned in paragraph (1)(a)) and shall give such notice of the change as appears to him to be reasonable to every person mentioned in rule 4(4).

(3) Not less than four weeks before the date fixed for the hearing, the authority—

(a)shall cause a notice of the hearing to be displayed in a prominent position at each end of so much of any way or proposed way as is affected by the order and in such other places in the locality as the authority may consider appropriate;

(b)shall publish a notice of the hearing in one or more newspapers circulating in the locality in which the land to which the order relates is situated; and

(c)may publish notice of the hearing by any additional means they consider appropriate.

(4) Every notice referred to in paragraph (3) shall contain—

(a)the date, time and place of the hearing;

(b)a brief description of—

(i)the land to which the order that is the subject of the hearing relates; and

(ii)the effect of the order; and

(c)details of where and when copies of the order and documents relating to the hearing may be inspected and copied.

Submission of statements of case for the hearing

6.  (1)  The authority shall ensure that, within eight weeks of the start date, the Secretary of State has received their statement of case.

(2) As soon as practicable after the receipt of the statement of case mentioned in paragraph (1), the Secretary of State shall send a copy of that statement (excluding copies of any supporting documents) to the applicant (if any), each relevant person and any other person who has submitted or subsequently submits a statement of case under paragraph (5).

(3) The applicant shall ensure that, within 12 weeks of the start date, the Secretary of State has—

(a)received his statement of case; or

(b)received notice that he intends to rely on the authority’s statement of case as his own.

(4) The Secretary of State shall, as soon as practicable after receiving the applicant’s statement of case or notice under paragraph (3)—

(a)send a copy of that statement or notice to the authority; and

(b)send a copy of that statement (excluding copies of any supporting documents) or notice to each relevant person and to any other person who has submitted or subsequently submits a statement of case under paragraph (5).

(5) Every relevant person and every other person who wishes to give evidence at the hearing shall ensure that, within 12 weeks of the start date, the Secretary of State has received his statement of case.

(6) The Secretary of State shall, as soon as practicable—

(a)send a copy of each statement which he receives under paragraph (5) to the authority;

(b)send a copy of each such statement (excluding copies of any supporting documents) to the applicant (if any); and

(c)send a copy of each such statement (excluding copies of any supporting documents) to every other person who has submitted or subsequently submits a statement of case under paragraph (5).

Provision of further information

7.  (1)  The Secretary of State may require such further information as he may specify from any person in respect of his statement of case mentioned in rule 6.

(2) Any information required under paragraph (1) shall be provided in writing within such period as the Secretary of State may reasonably require.

(3) The Secretary of State shall, as soon as practicable after receipt of the further information required under paragraph (1), send a copy to the authority and to every other person who has submitted or subsequently submits a statement of case or notice under rule 6.

Appearances at the hearing

8.  (1)  The persons entitled to appear at the hearing are—

(a)the authority;

(b)the applicant;

(c)every relevant person; and

(d)every other person who has submitted a statement of case as mentioned in rule 6(5).

(2) The Secretary of State may permit any other person to appear at the hearing, and such permission shall not be unreasonably withheld.

(3) Any person entitled or permitted to appear may appear in person or be represented by any other person.

Procedure at the hearing

9.  (1)  Except as otherwise provided in these Rules, the inspector shall determine the procedure at the hearing.

(2) The hearing shall take the form of a discussion led by the inspector, and cross-examination shall not be permitted unless the inspector considers that cross-examination is required to ensure a thorough examination of the main issues.

(3) Where the inspector considers that cross-examination is required under paragraph (2), he shall consider, after consulting every person who—

(a)is entitled or permitted to appear at the hearing, and

(b)is present at that hearing,

whether the hearing should be closed and an inquiry should be held instead.

(4) At the start of the hearing the inspector shall identify—

(a)what are in his opinion the main issues to be considered at the hearing; and

(b)any matters on which he requires further explanation from any person appearing at the hearing.

(5) Paragraph (4) shall not preclude the addition in the course of the hearing of other issues for consideration or preclude any person entitled or permitted to appear at the hearing from referring to other issues which he considers to be relevant to the hearing.

(6) Subject to paragraph (7), any person appearing at the hearing may give, or call another person to give, oral evidence, and may present, or call another person to present, any matter.

(7) The inspector may at any stage in the proceedings refuse to permit—

(a)the giving or production of evidence, or

(b)the presentation of any matter,

which he considers to be irrelevant or repetitious.

(8) Where under paragraph (7) the inspector refuses to permit the giving or production of evidence or the presentation of any matter, the person wishing to give or produce evidence or to present any matter, or to call any other person to give or produce evidence or to present any matter, may submit to the inspector any evidence or other matter in writing before the close of the hearing.

(9) The inspector may—

(a)require any person present at a hearing who, in his opinion, is behaving in a disruptive manner to leave; and

(b)refuse to permit that person to return or permit him to return only on such conditions as he may specify.

(10) Any person mentioned in paragraph (9) may submit to the inspector any evidence or other matter in writing before the close of the hearing.

(11) The inspector may, at the hearing, allow any person to alter or add to his statement of case received by the Secretary of State under rule 6 so far as may be necessary for the purposes of the hearing.

(12) Where the inspector has allowed an alteration or addition under paragraph (11), he shall (if necessary by adjourning the hearing) give—

(a)every other person appearing at the hearing,

(b)every other person present at the hearing who was entitled to receive a copy of the statement of case in question under rule 6, and

(c)such other persons as he considers appropriate,

an adequate opportunity of considering the alteration or addition.

(13) The inspector may—

(a)proceed with the hearing in the absence of any person entitled or permitted to appear at it;

(b)take into account any written representations, evidence or any other document received by him from any person before the hearing opens or during the hearing, provided he discloses it at the hearing; and

(c)from time to time adjourn the hearing.

Site inspections and adjourning the hearing to the land

10.  (1)  The inspector may make an unaccompanied inspection of the land to which the order relates before or during the hearing without giving notice of his intention to the persons entitled or permitted to appear at the hearing.

(2) During the hearing or after its close, the inspector—

(a)may inspect the land to which the order relates in the company of the authority and any person entitled or permitted to appear at the hearing; and

(b)shall make such an inspection if so requested before or during the hearing by the authority or any person entitled or permitted to appear at the hearing.

(3) The inspector shall not be required to make more than one inspection under paragraph (2)(b).

(4) In all cases where the inspector intends to make an accompanied inspection under paragraph (2), he shall announce during the hearing the date and time at which he proposes to make it.

(5) The inspector shall not be bound to defer an inspection in the event that any person entitled or permitted to appear at the hearing is not present at the appointed time.

(6) Where it appears to the inspector that one or more matters would be more satisfactorily resolved by adjourning the hearing to the land to which the order relates, he may adjourn the hearing to that land and may conclude the hearing there, provided he is satisfied that—

(a)the hearing would proceed satisfactorily and that no person entitled or permitted to appear at the hearing would be placed at a disadvantage; and

(b)no person entitled or permitted to appear at the hearing has raised any reasonable objection to the hearing being continued on that land.

(7) Nothing in this rule—

(a)entitles or requires the inspector (or those accompanying him, where applicable) to access land in order to make an inspection or to continue a hearing where such access would be unlawful; or

(b)requires the inspector to access land to make an inspection where making such an inspection would not, in the inspector’s opinion, be expedient for reasons of safety.

(8) For the purposes of paragraph (7)(a), access is lawful on any occasion if the inspector (and those accompanying him, where applicable) may access the land on that occasion without committing an offence or trespassing on the land.

Procedure after hearing - decisions by the Secretary of State

11.  (1)  This rule applies where a hearing has been held for the purposes of a decision by the Secretary of State as respects an order.

(2) After the close of the hearing, the inspector shall make a report in writing to the Secretary of State which shall include his conclusions and either his recommendations or his reasons for not making any recommendations.

(3) When making his decision the Secretary of State may disregard any subsequent material.

(4) Paragraph (5) applies where, after the close of the hearing, the Secretary of State—

(a)differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector, and is, for that reason, minded to disagree with a recommendation made by the inspector, or

(b)takes into consideration any subsequent material which he considers to be relevant to his decision.

(5) Where this paragraph applies, the Secretary of State shall not come to a decision without first—

(a)giving notice to the persons mentioned in paragraph (6)—

(i)that he is minded to disagree with a recommendation made by the inspector, and of the reasons for being so minded, or

(ii)of the subsequent material which he considers to be relevant to his decision; and

(b)affording the persons mentioned in paragraph (6) an opportunity to make written representations to him and to ask for the hearing to be re-opened.

(6) The persons referred to in paragraph (5) are every person who—

(a)was entitled to appear at the hearing, or

(b)appeared at the hearing with the Secretary of State’s permission.

(7) Those persons making written representations or requesting that the hearing be re-opened under paragraph (5) shall ensure that such representations or requests are received by the Secretary of State within three weeks of the date of the Secretary of State’s notice under that paragraph.

(8) The Secretary of State may, if he thinks fit, cause a hearing to be re-opened.

(9) Where a hearing is re-opened under paragraph (8)—

(a)the Secretary of State shall, not less than eight weeks before the date of the re-opened hearing, send to every person who was entitled to appear at the hearing, and every person who appeared at the hearing with the Secretary of State’s permission, a written statement of the matters with respect to which further evidence or argument is invited; and

(b)paragraphs (2) to (4) of rule 5 shall apply as if the references to a hearing were references to a re-opened hearing.

Procedure after hearing - transferred decisions

12.  (1)  This rule applies where a hearing has been held for the purposes of a transferred decision.

(2) When making his decision the inspector may disregard any subsequent material.

(3) If, after the close of the hearing, the inspector takes into consideration any subsequent material which he considers to be relevant to his decision, he shall not come to a decision without first—

(a)giving notice of the subsequent material which he considers to be relevant to his decision to every person who was entitled to appear at the hearing and every person who appeared at the hearing with the Secretary of State’s permission; and

(b)affording such persons an opportunity to make written representations to him and to ask for the hearing to be re-opened.

(4) Any person wishing to avail himself of the opportunity mentioned in paragraph (3)(b) shall ensure that such written representations or requests to re-open the hearing are received by the Secretary of State within three weeks of the date of the notification mentioned in paragraph (3)(a).

(5) The inspector may, if he thinks fit, cause a hearing to be re-opened.

(6) Where a hearing is re-opened under paragraph (5)—

(a)the inspector shall send to every person who was entitled to appear at the hearing, and every person who appeared at the hearing with the Secretary of State’s permission, a written statement of the matters with respect to which further evidence or argument is invited; and

(b)paragraphs (2) to (4) of rule 5 shall apply as if the references to a hearing were references to a re-opened hearing.

Notification of decision - decisions by the Secretary of State

13.  (1)  This rule applies where a hearing has been held under these Rules for the purposes of a decision by the Secretary of State.

(2) The Secretary of State shall, as soon as practicable, give notice of his decision and his reasons for it, to—

(a)every person who was entitled to appear at the hearing under rule 8(1);

(b)every person who appeared at the hearing with the Secretary of State’s permission; and

(c)every other person who was notified by the Secretary of State in accordance with rule 4(4)(c) to (f).

(3) Where a copy of the inspector’s report is not sent with the notice of the decision given under paragraph (2), that notice shall include a statement of the inspector’s conclusions and of any recommendations made by him.

(4) If a person entitled to be notified of the Secretary of State’s decision has not received a copy of the report mentioned in paragraph (3), he shall be supplied with a copy of it on written application to the Secretary of State.

(5) As soon as practicable after giving notice of his decision under paragraph (2), the Secretary of State shall make a copy of that notice available for inspection for a period of three months on a website maintained by him.

(6) In this rule, “report” does not include any documents appended to the inspector’s report, but any person who has received a copy of the report may apply in writing to the Secretary of State for an opportunity to inspect any such documents and the Secretary of State shall afford him that opportunity.

Notification of decision - transferred decisions

14.  (1)  This rule applies where a hearing has been held under these Rules for the purposes of a transferred decision.

(2) The inspector shall, as soon as practicable, give notice of his decision and his reasons for it, to—

(a)every person who was entitled to appear at the hearing under rule 8(1);

(b)every person who appeared at the hearing with the Secretary of State’s permission; and

(c)every other person who was notified by the Secretary of State in accordance with rule 4(4)(c) to (f).

(3) Any person entitled to be notified of the inspector’s decision under paragraph (2) may apply in writing to the Secretary of State for an opportunity of inspecting any documents referred to in that notification, and the Secretary of State shall afford him that opportunity.

(4) The Secretary of State shall ensure that, as soon as practicable after the notice has been given under paragraph (2), a copy of that notice is made available for inspection for a period of three months on a website maintained by him.

PART 4INQUIRIES

Procedure where the Secretary of State causes a pre–inquiry meeting to be held

15.  (1)  The Secretary of State shall cause a pre-inquiry meeting to be held if such a meeting appears to him to be necessary.

(2) The Secretary of State shall give not less than 14 days’ notice of a pre–inquiry meeting to every person to whom notice of the inquiry was given under rule 4(4).

(3) The inspector—

(a)shall preside at the pre-inquiry meeting;

(b)shall determine the matters to be discussed and the procedure to be followed;

(c)may require any person present at the pre-inquiry meeting who, in his opinion, is behaving in a disruptive manner to leave; and

(d)may refuse to permit that person to return or to attend any further pre-inquiry meeting or may permit him to return or attend only on such conditions as he may specify.

(4) Where a pre-inquiry meeting is held pursuant to paragraph (1), the Secretary of State may cause a further pre-inquiry meeting to be held and he shall arrange for such notice to be given of that further meeting as appears to him necessary.

(5) Paragraphs (3) and (6) shall apply to any pre-inquiry meeting held pursuant to paragraph (4).

(6) Where a pre-inquiry meeting is held, the inspector—

(a)shall arrange a timetable for proceedings at the inquiry where it appears likely that the inquiry will last for eight days or more;

(b)may, in respect of inquiries which appear likely to last for a shorter period, arrange a timetable for the proceedings.

(7) In this rule, “pre–inquiry meeting” means a meeting held before an inquiry to consider what may be done to ensure that the inquiry is conducted efficiently and expeditiously.

Date and notification of inquiry

16.  (1)  The date fixed by the Secretary of State for an inquiry shall be—

(a)not later than twenty-six weeks after the start date; or

(b)where he considers that a date within such twenty-six-week period would not be practicable, the earliest date which he considers to be practicable after the expiry of that twenty-six-week period.

(2) The Secretary of State may at any time change the date, time or place fixed for the inquiry (whether or not, in the case of a change of date, the new date is within the period mentioned in paragraph (1)(a)) and shall give such notice of the change as appears to him to be reasonable to every person mentioned in rule 4(4).

(3) Not less than four weeks before the date fixed for the inquiry, the authority—

(a)shall cause a notice of the inquiry to be displayed in a prominent position at each end of so much of any way or proposed way as is affected by the order and in such other places in the locality as the authority may consider appropriate;

(b)shall publish a notice of the inquiry in one or more newspapers circulating in the locality in which the land to which the order relates is situated; and

(c)may publish notice of the inquiry by any additional means they consider appropriate.

(4) Every notice referred to in paragraph (3) shall contain—

(a)the date, time and place of the inquiry;

(b)a brief description of—

(i)the land to which the order that is the subject of the inquiry relates; and

(ii)the effect of the order; and

(c)details of where and when copies of the order and documents relating to the inquiry may be inspected and copied.

Submission of statements of case for the inquiry

17.  (1)  The authority shall ensure that, within eight weeks of the start date, the Secretary of State has received their statement of case.

(2) As soon as practicable after the receipt of the statement of case mentioned in paragraph (1), the Secretary of State shall send a copy of that statement (excluding copies of any supporting documents) to the applicant (if any), each relevant person and any other person who has submitted or subsequently submits a statement of case under paragraph (5).

(3) The applicant shall ensure that, within 14 weeks of the start date, the Secretary of State has—

(a)received his statement of case, or

(b)received notice that he intends to rely on the authority’s statement of case as his own.

(4) The Secretary of State shall, as soon as practicable after receiving the applicant’s statement of case or notice under paragraph (3)—

(a)send a copy of that statement or notice to the authority; and

(b)send a copy of that statement (excluding copies of any supporting documents) to each relevant person and to any other person who has submitted or subsequently submits a statement of case under paragraph (5).

(5) Every relevant person and every other person who wishes to give evidence at the inquiry shall ensure that, within 14 weeks of the start date, the Secretary of State has received his statement of case.

(6) The Secretary of State shall, as soon as practicable—

(a)send a copy of each statement which he receives under paragraph (5) to the authority;

(b)send a copy of each such statement (excluding copies of any supporting documents) to the applicant (if any); and

(c)send a copy of each such statement (excluding copies of any supporting documents) to every other person who has submitted or subsequently submits a statement of case under paragraph (5).

Provision of further information

18.  (1)  The Secretary of State may require such further information as he may specify from any person in respect of his statement of case mentioned in rule 17.

(2) Any information required under paragraph (1) shall be provided in writing within such period as the Secretary of State may reasonably require.

(3) The Secretary of State shall, as soon as practicable after receipt of the further information required under paragraph (1), send a copy to the authority and to every other person who has submitted or subsequently submits a statement of case or notice under rule 17.

Appearances at the inquiry

19.  (1)  The persons entitled to appear at the inquiry are—

(a)the authority;

(b)the applicant;

(c)every relevant person; and

(d)every other person who has submitted a statement of case in respect of the inquiry as mentioned in rule 17(5).

(2) The Secretary of State may permit any other person to appear at the inquiry, and such permission shall not be unreasonably withheld.

(3) Any person entitled or permitted to appear may appear in person or be represented by any other person.

Proofs of evidence

20.  (1)  Any person entitled or permitted to appear at the inquiry under rule 19 who proposes to give, or to call another person to give, evidence at the inquiry by reading a proof of evidence shall send the proof of evidence in question (together with any summary required under paragraph (4)) to the Secretary of State.

(2) Where a proof of evidence (together with any summary required under paragraph (4))(the “relevant documents”) is sent to the Secretary of State under paragraph (1), the Secretary of State shall as soon as practicable send the relevant documents to the persons specified in paragraph (3).

(3) The persons referred to in paragraph (2) are—

(a)in the case of relevant documents received from the authority, the applicant, each relevant person and any other person who has submitted or subsequently submits a statement of case;

(b)in the case of relevant documents received from the applicant, the authority, each relevant person and any other person who has submitted or subsequently submits a statement of case;

(c)in the case of relevant documents received from a relevant person, the authority, the applicant, each other relevant person and any other person who has submitted or subsequently submits a statement of case;

(d)in the case of relevant documents received from any person other than the authority, the applicant or a relevant person, the authority, the applicant, each relevant person and any other person who has submitted or subsequently submits a statement of case.

(4) A written summary shall be required where the proof of evidence in question exceeds one thousand five hundred words.

(5) The person sending the relevant documents shall ensure that they are received by the Secretary of State no later than four weeks before the date fixed for the holding of the inquiry.

(6) Where a written summary is provided in accordance with paragraphs (1) and (4), only that summary shall be read at the inquiry, unless the inspector permits or requires otherwise.

Procedure at the inquiry

21.  (1)  Except as otherwise provided in these Rules, the inspector shall determine the procedure at the inquiry.

(2) At the start of the inquiry the inspector shall identify—

(a)what are in his opinion the main issues to be considered at the inquiry; and

(b)any matters on which he requires further explanation from any person appearing at the inquiry.

(3) Paragraph (2) shall not preclude the addition in the course of the inquiry of other issues for consideration or preclude any person entitled or permitted to appear at the inquiry from referring to other issues which he considers to be relevant to the inquiry.

(4) Unless in a particular case the inspector otherwise determines, the authority shall begin and any other persons appearing at the inquiry shall be heard in such order as the inspector shall determine.

(5) Subject to paragraph (7), a person appearing at an inquiry may give, or call another person to give, oral evidence, and may present, or call another person to present, any matter.

(6) Subject to paragraph (7), any person appearing at the inquiry may cross-examine any person giving evidence orally or in writing or presenting any matter at the inquiry.

(7) The inspector may at any stage in the proceedings refuse to permit—

(a)the giving or production of evidence,

(b)any cross-examination, or

(c)the presentation of any matter,

which he considers to be irrelevant or repetitious.

(8) Where under paragraph (7) the inspector refuses to permit the giving or production of evidence or the presentation of any matter, the person wishing to give or produce evidence or to present any matter, or to call any other person to give or produce evidence or to present any matter, may submit to the inspector any evidence or other matter in writing before the close of the inquiry.

(9) Where a person gives evidence at an inquiry by reading a summary of his proof of evidence, the proof of evidence shall be treated as tendered in evidence, unless the person required to provide the summary notifies the inspector that he wishes to rely on the contents of that summary alone.

(10) The inspector may—

(a)require any person present at an inquiry who, in his opinion, is behaving in a disruptive manner to leave; and

(b)refuse to permit that person to return or permit him to return only on such conditions as he may specify.

(11) Any person mentioned in paragraph (10) may submit to the inspector any evidence or other matter in writing before the close of the inquiry.

(12) The inspector may, at the inquiry, allow any person to alter or add to his statement of case received by the Secretary of State under rule 17 or his proof of evidence or summary received by the Secretary of State under rule 20 so far as may be necessary for the purposes of the inquiry.

(13) Where the inspector has allowed an alteration or addition under paragraph (12), he shall (if necessary by adjourning the inquiry) give the persons mentioned in paragraph (14) an adequate opportunity of considering the alteration or addition.

(14) The persons referred to in paragraph (13) are—

(a)in the case of an alteration or addition to a statement of case—

(i)every other person appearing at the inquiry;

(ii)every other person present at the inquiry who was entitled to receive a copy of the statement of case in question under rule 17; and

(iii)such other persons as the inspector considers appropriate; and

(b)in the case of an alteration or addition to a proof of evidence or summary—

(i)every other person appearing at the inquiry;

(ii)every other person present at the inquiry who was entitled to receive a copy of the relevant documents in question under rule 20; and

(iii)such other persons as he considers appropriate.

(15) The inspector may—

(a)proceed with the inquiry in the absence of any person entitled or permitted to appear at it;

(b)take into account any written representations, evidence or any other document received by him from any person before the inquiry opens or during the inquiry, provided he discloses it at the inquiry; and

(c)from time to time adjourn the inquiry.

Site inspections and adjourning the inquiry to the land

22.  (1)  The inspector may make an unaccompanied inspection of the land to which the order relates before or during the inquiry without giving notice of his intention to the persons entitled or permitted to appear at the inquiry.

(2) During the inquiry or after its close, the inspector—

(a)may inspect the land to which the order relates in the company of the authority and any person entitled or permitted to appear at the inquiry; and

(b)shall make such an inspection if so requested before or during the inquiry by the authority or any person entitled or permitted to appear at the inquiry.

(3) The inspector shall not be required to make more than one inspection under paragraph (2)(b).

(4) In all cases where the inspector intends to make an accompanied inspection under paragraph (2), he shall announce during the inquiry the date and time at which he proposes to make it.

(5) The inspector shall not be bound to defer an inspection in the event that any person entitled or permitted to appear at the inquiry is not present at the appointed time.

(6) Where it appears to the inspector that one or more matters would be more satisfactorily resolved by adjourning the inquiry to the land to which the order relates, he may adjourn the inquiry to that land and may conclude the inquiry there, provided he is satisfied that—

(a)the inquiry would proceed satisfactorily and that no person entitled or permitted to appear at the inquiry would be placed at a disadvantage; and

(b)no person entitled or permitted to appear at the inquiry has raised any reasonable objection to the inquiry being continued on that land.

(7) Nothing in this rule—

(a)entitles or requires the inspector (or those accompanying him, where applicable) to access land in order to make an inspection or to continue an inquiry where such access would be unlawful; or

(b)requires the inspector to access land to make an inspection where making such an inspection would not, in the inspector’s opinion, be expedient for reasons of safety.

(8) For the purposes of paragraph (7)(a), access is lawful on any occasion if the inspector (and those accompanying him, where applicable) may access the land on that occasion without committing an offence or trespassing on the land.

Procedure after inquiry - decisions by the Secretary of State

23.  (1)  This rule applies where an inquiry has been held for the purposes of a decision by the Secretary of State as respects an order.

(2) After the close of the inquiry the inspector shall make a report in writing to the Secretary of State which shall include his conclusions and either his recommendations or his reasons for not making any recommendations.

(3) When making his decision the Secretary of State may disregard any subsequent material.

(4) Paragraph (5) applies where, after the close of the inquiry, the Secretary of State—

(a)differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector, and is, for that reason, minded to disagree with a recommendation made by the inspector, or

(b)takes into consideration any subsequent material which he considers to be relevant to his decision.

(5) Where this paragraph applies, the Secretary of State shall not come to a decision without first—

(a)giving notice to the persons mentioned in paragraph (6)—

(i)that he is minded to disagree with a recommendation made by the inspector, and of the reasons for being so minded, or

(ii)of the subsequent material which he considers to be relevant to his decision; and

(b)affording the persons mentioned in paragraph (6) an opportunity to make written representations to him and to ask for the inquiry to be re-opened.

(6) The persons referred to in paragraph (5) are every person who—

(a)was entitled to appear at the inquiry, or

(b)appeared at the inquiry with the Secretary of State’s permission.

(7) Those persons making written representations or requesting that the inquiry be re-opened under paragraph (5) shall ensure that such representations or requests are received by the Secretary of State within three weeks of the date of the Secretary of State’s notice under that paragraph.

(8) The Secretary of State may, if he thinks fit, cause an inquiry to be re-opened.

(9) Where an inquiry is re-opened under paragraph (8)—

(a)the Secretary of State shall, not less than eight weeks before the date of the re-opened inquiry, send to every person who was entitled to appear at the inquiry, and every person who appeared at the inquiry with the Secretary of State’s permission, a written statement of the matters with respect to which further evidence or argument is invited; and

(b)paragraphs (2) to (4) of rule 16 shall apply as if the references to an inquiry were references to a re-opened inquiry.

Procedure after inquiry - transferred decisions

24.  (1)  This rule applies where an inquiry has been held for the purposes of a transferred decision.

(2) When making his decision the inspector may disregard any subsequent material.

(3) If, after the close of the inquiry, the inspector takes into consideration any subsequent material which he considers to be relevant to his decision, he shall not come to a decision without first—

(a)giving notice of the subsequent material which he considers to be relevant to his decision to every person who was entitled to appear at the inquiry and every person who appeared at the inquiry with the Secretary of State’s permission; and

(b)affording such persons an opportunity to make written representations to him and to ask for the inquiry to be re-opened.

(4) Any person wishing to avail himself of the opportunity mentioned in paragraph (3)(b) shall ensure that such written representations or requests to re-open the inquiry are received by the Secretary of State within three weeks of the date of the notification mentioned in paragraph (3)(a).

(5) The inspector may, if he thinks fit, cause an inquiry to be re-opened.

(6) Where an inquiry is re-opened under paragraph (5)—

(a)the inspector shall send to every person who was entitled to appear at the inquiry, and every person who appeared at the inquiry with the Secretary of State’s permission, a written statement of the matters with respect to which further evidence or argument is invited; and

(b)paragraphs (2) to (4) of rule 16 shall apply as if the references to an inquiry were references to a re-opened inquiry.

Notification of decision - decisions by the Secretary of State

25.  (1)  This rule applies where an inquiry has been held under these Rules for the purposes of a decision by the Secretary of State.

(2) The Secretary of State shall, as soon as practicable, give notice of his decision, and his reasons for it, to—

(a)every person who was entitled to appear at the inquiry under rule 19(1);

(b)every person who appeared at the inquiry with the Secretary of State’s permission; and

(c)every other person who was notified by the Secretary of State in accordance with rule 4(4)(c) to (f).

(3) Where a copy of the inspector’s report is not sent with the notice of the decision given under paragraph (2), that notice shall include a statement of the inspector’s conclusions and of any recommendations made by him.

(4) If a person entitled to be notified of the Secretary of State’s decision has not received a copy of the report mentioned in paragraph (3), he shall be supplied with a copy of it on written application to the Secretary of State.

(5) As soon as practicable after giving notice of his decision under paragraph (2), the Secretary of State shall make a copy of that notice available for inspection for a period of three months on a website maintained by him.

(6) In this rule, “report” does not include any documents appended to the inspector’s report, but any person who has received a copy of the report may apply in writing to the Secretary of State for an opportunity to inspect any such documents and the Secretary of State shall afford him that opportunity.

Notification of decision - transferred decisions

26.  (1)  This rule applies where an inquiry has been held under these Rules for the purposes of a transferred decision.

(2) The inspector shall, as soon as practicable, give notice of his decision, and his reasons for it, to—

(a)every person who was entitled to appear at the inquiry under rule 19(1);

(b)every person who appeared at the inquiry with the Secretary of State’s permission; and

(c)every other person who was notified by the Secretary of State in accordance with rule 4(4)(c) to (f).

(3) Any person entitled to be notified of the inspector’s decision under paragraph (2) may apply in writing to the Secretary of State for an opportunity of inspecting any documents referred to in that notification and the Secretary of State shall afford him that opportunity.

(4) The Secretary of State shall ensure that, as soon as practicable after the notice has been given under paragraph (2), a copy of that notice is made available for inspection for a period of three months on a website maintained by him.

PART 5MODIFICATION OF ORDERS

Modification of orders

27.  (1)  This rule applies where the Secretary of State has given notice of his proposal to modify an order under—

(a)paragraph 2(3)(a) of Schedule 6 to the 1980 Act (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways);

(b)paragraph 8(2)(a) of Schedule 15 to the 1981 Act (procedure in connection with certain orders under Part III); or

(c)paragraph 3(6)(a) of Schedule 14 to the 1990 Act (procedure for footpaths and bridleways orders).

(2) Where in accordance with the notice referred to in paragraph (1) any person has duly made and not withdrawn any representation or objection with respect to the proposal to modify the order, the Secretary of State shall give notice to—

(a)the persons referred to in rule 4(4); and

(b)any person who has duly made and not withdrawn any representation or objection with respect to the proposal to modify the order.

(3) Rule 4(3) shall apply to a notice given under paragraph (2) of this rule as it applies to a notice given under rule 4(1), but the notice given under paragraph (2) of this rule shall also describe the effect of the Secretary of State’s proposal to modify the order.

(4) Rules 4(7) and 5 to 14 shall apply to hearings afforded by the Secretary of State in accordance with paragraph 2(3) of Schedule 6 to the 1980 Act(19) (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths, bridleways and restricted byways), paragraph 8(2) of Schedule 15 to the 1981 Act(20) (procedure in connection with certain orders under Part III) or paragraph 3(6) of Schedule 14 to the 1990 Act (procedure for footpaths and bridleways orders), except that—

(a)in the application of rule 4(7), the notice given shall also describe the effect of the Secretary of State’s proposal to modify the order; and

(b)in the application of rule 6, for the references in rule 6(3) and (5) to “12 weeks of the start date” there shall be substituted “eight weeks of the start date”.

(5) Rules 4(7) and 15 to 26 shall apply to inquiries caused to be held by the Secretary of State in accordance with the provisions of the 1980 Act, the 1981 Act or the 1990 Act mentioned in paragraph (4), except that—

(a)in the application of rule 4(7), the notice given shall also describe the effect of the Secretary of State’s proposal to modify the order; and

(b)in the application of rule 17, for the references in rule 17(3) and (5) to “14 weeks of the start date” there shall be substituted “eight weeks of the start date”.

PART 6GENERAL

Further time

28.  The Secretary of State may, at any time in any particular case, allow further time for the taking of any step or the doing of any thing which is required or enabled to be taken or done by virtue of these Rules, and references in these Rules to a period within which any step or thing is required or enabled to be taken or done shall be construed accordingly.

Inspection and copying of documents

29.  (1)  The authority shall afford any person who so requests an opportunity to inspect and take copies of—

(a)the order as submitted to the Secretary of State for confirmation in accordance with the provisions listed in rule 4(2)(a) to (c);

(b)any representations or objections duly made and not withdrawn in respect of the order, as mentioned in rule 4(4)(f);

(c)the notice given by the Secretary of State pursuant to rule 4(1);

(d)any statement of case mentioned in rule 6 (as regards hearings) or rule 17 (as regards inquiries);

(e)any further information received as mentioned in rule 7(3) (as regards hearings) or rule 18(3) (as regards inquiries);

(f)any representations which have been made in consequence of rules 11(5) or 12(3) (as regards hearings), and rules 23(5) or 24(3) (as regards inquiries);

(g)any relevant documents; and

(h)any other document which is in the possession of the authority and which relates to the decision of the Secretary of State or the inspector’s report in respect of the order.

(2) The inspector may—

(a)at any time, request from any person entitled or permitted to appear at the hearing or inquiry (as the case may be) copies of any document or information available to that person; and

(b)specify a reasonable time within which such copies should be received by him.

(3) Any person so requested shall ensure that the copies referred to in paragraph (2) are received by the inspector within the period specified pursuant to paragraph (2)(b).

Notices

30.  Subject to rule 31, any notice required under these Rules shall be in writing.

Use of electronic communications

31.  (1)  Any requirement imposed under these Rules as to the giving or sending by one person to another of a notice or other document may be met by means of an electronic communication if—

(a)the use of such a communication results in the information contained in that notice or document being available to the other person in all material respects as it would appear in a notice or document given or sent in printed form; and

(b)the other person has consented to the information being made available to him by such means.

(2) Where, under paragraph (1), an electronic communication is used for the purposes of giving or sending a document, any requirement for the notice or document to be given or sent by a particular time shall be met in respect of an electronic communication only if the conditions mentioned in paragraph (1) are met by that time.

(3) For the purposes of paragraph (1)(a), “in all material respects” means in all respects material to an exact reproduction of the information that the notice or document would contain were it to be given or sent in printed form.

(4) In this rule, “electronic communication” has the meaning given in section 15(1) of the Electronic Communications Act 2000(21).

Transitional provision

32.  These Rules shall not apply to any hearing or inquiry held in relation to an order submitted to the Secretary of State for confirmation before the date on which these Rules come into force.

Signed by authority of the Lord Chancellor

Bridget Prentice

Parliamentary Under-Secretary of State

Ministry of Justice

6th July 2007

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules set out the procedures for hearings and inquiries afforded or caused to be held by the Secretary of State in connection with the confirmation, or modification and confirmation, of certain disputed orders (“rights of way orders”) made by certain local authorities, relating to the creation of footpaths, bridleways and restricted byways, the modification of the definitive map and statement (relating to certain public rights of way), and the stopping up, diversion or extinguishment of footpaths, bridleways and restricted byways.

Rule 4 relates to the initial stages of a hearing or inquiry and provides for notification in relation to the hearing or inquiry to be given by the Secretary of State to the authority which made the order, to any applicant for the order, to every person who has made (and not withdrawn) representations or objections to the order and to certain other persons required to be notified in consequence of the 1980 Act, the 1981 Act or the 1990 Act.

Part 3 of these Rules (rules 5 to 14) sets out the procedure for hearings afforded by the Secretary of State and includes provision for submission of statements of case for the hearing (rule 6), appearances at the hearing (rule 8) and site inspections and adjourning the hearing to the land (rule 10).

Part 4 of these Rules (rules 15 to 26) sets out the procedure for inquiries caused to be held by the Secretary of State and includes provision for pre-inquiry meetings (rule 15), submission of statements of case for the inquiry (rule 17), appearances at the inquiry (rule 19), proofs of evidence (rule 20) and site inspections and adjourning the inquiry to the land (rule 22).

Part 5 of these Rules (rule 27) sets out the procedures for hearings and inquiries resulting from a proposal by the Secretary of State to modify a rights of way order.

Part 6 of these Rules (rules 28 to 32) relates to general matters and includes provision for allowing further time for taking steps under the Rules (rule 28), inspection and copying of documents (rule 29) and the use of electronic communications (rule 31).

Rule 32 (transitional provision) provides that these Rules do not apply to any hearing or inquiry held in relation to an order submitted to the Secretary of State for confirmation before the coming into force of these Rules.

A full regulatory impact assessment of the effect that these Rules will have on the costs of business and voluntary sectors has been prepared and placed in the libraries of both Houses of Parliament, and copies may be obtained from the Sponsorship, Landscape & Recreation Division, Rights of Way Branch (SLR5), Department for Environment, Food and Rural Affairs, Zone 1/02, Temple Quay House, 2 The Square, Bristol BS1 6EB.

(1)

1992 c.53, to which there are amendments not relevant to these Rules.

(5)

Paragraph 2A was inserted by the Wildlife and Countryside Act 1981 (c.69), Schedule 16, paragraph 7.

(6)

Paragraph 7(2) of Schedule 15 to the 1981 Act was amended by the Countryside and Rights of Way Act 2000 (c.37), Schedule 5, paragraph 11(4).

(7)

Paragraph 8(2) of Schedule 15 to the 1981 Act was amended by the Countryside and Rights of Way Act 2000, Schedule 5, paragraph 11(7).

(8)

S.I. 1994/3263, to which there are amendments not relevant to these Rules.

(9)

S.I. 1993/10, to which there are amendments not relevant to these Rules.

(10)

S.I. 1993/11, to which there are amendments not relevant to these Rules.

(11)

S.I. 1993/12, to which there are amendments not relevant to these Rules.

(12)

Sections 118ZA and 119ZA were inserted into the 1980 Act by the Countryside and Rights of Way Act 2000, Schedule 6, paragraphs 7 and 10 respectively.

(13)

Sections 118C and 119C were inserted into the 1980 Act by the Countryside and Rights of Way Act 2000, Schedule 6, paragraphs 8 and 12 respectively.

(14)

Paragraph 1(3) of Schedule 6 to the 1980 Act was substituted by the Wildlife and Countryside Act 1981, Schedule 16, paragraph 6(2), and has been amended by the Housing Act 1988, Schedule 17, Part I. There has been another amendment to paragraph 1(3), which is not relevant to these Rules.

(15)

Paragraph 1(2)(b) has been amended by the Statute Law (Repeals) Act 1995 (c.44) and the Environment Act 1995 (c.25), Schedule 10, paragraph 32(17)(a). There has been another amendment to paragraph 1(2)(b), which is not relevant to these Rules.

(16)

Paragraph 2(2) of Schedule 6 to the 1980 Act was amended by the Countryside and Rights of Way Act 2000, Schedule 6, Pt I, paragraph 23(1) and (5)(b).

(17)

Paragraph 1(3C) of Schedule 6 to the 1980 Act was inserted by the Wildlife and Countryside Act 1981, Schedule 16, paragraph 6(3).

(18)

Paragraph 1(6) of Schedule 14 to the 1990 Act was amended by the Environment Act 1995, section 78, Schedule 10, paragraph 32(17)(b).

(19)

Paragraph 2(3) of Schedule 6 to the 1980 Act has been amended by the Countryside and Rights of Way Act 2000, Schedule 6, paragraph 23(1) and (5)(b).

(20)

Paragraph 8(2) of Schedule 15 to the 1981 Act has been amended by the Countryside and Rights of Way Act 2000, Schedule 5, Part I, paragraph 11(1), and (7).

(21)

2000 c.7. The definition of “electronic communication” in section 15(1) was amended by the Communications Act 2003 (c.21), Schedule 17, paragraph 158.

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