SCHEDULES
C4C5SCHEDULE 6 Provisions as to Making, Confirmation, Validity and Date of Operation of Certain Orders Relating to Footpaths F33, Bridleways and Restricted Byways
Sch. 6 extended (with modifications) (19.9.1995) by 1995 c. 25, ss. 70, 125(2), Sch. 9 para. 11(d) (with ss. 7(6), 115, 117, Sch. 8 para. 7).
Sch. 6 applied (2.5.2006 for E. and 11.5.2006 for W.) by The Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006 (S.I. 2006/1177), regs. 1(2)(4), 2, Sch. Pt. I; S.I. 2006/1172, art. 2; S.I. 2006/1279, art. 2
C3Part I Procedure for Making and Confirming Certain Orders Relating to Footpaths F34, Bridleways and Restricted Byways
Words in Sch. 6 Pt I heading substituted (2.5.2006 for E. and 11.5.2006 for W.) by The Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006 (S.I. 2006/1177), regs. 1(2)(4), 2, Sch. Pt. I; S.I. 2006/1172, art. 2(a)-(d) (with art. 3); S.I. 2006/1279, art. 2(a)-(d) (with art. 3)
Sch. 6 Pt. I (paras. 1–3) amended by Water Act 1989 (c. 15, SIF 130), ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 25 para. 1(11)(III), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58
1
1
Before a public path creation order, a public path extinguishment order F1, a rail crossing extinguishment order, F2a special extinguishment order a public path diversion order F3, a rail crossing diversion order, a special diversion order or an SSSI diversion order is submitted to the Secretary of State for confirmation or confirmed as an unopposed order, the authority by whom the order was made shall give notice in the prescribed form—
a
stating the general effect of the order and that it has been made and is about to be submitted for confirmation or to be confirmed as an unopposed order,
b
naming a place in the area in which the land to which the order relates is situated where a copy of the order and of the map referred to therein may be inspected free of charge F4and copies thereof may be obtained at a reasonable charge at all reasonable hours, and
c
specifying the time (which shall not be less than 28 days from the date of the first publication of the notice) within which, and the manner in which, representations or objections with respect to the order may be made.
2
Before the Secretary of State makes a public path creation order, a public path extinguishment order F1, a rail crossing extinguishment order, F2a special extinguishment order a public path diversion order F3, a rail crossing diversion order, a special diversion order or an SSSI diversion order, he shall prepare a draft of the order and shall give notice—
a
stating that he proposes to make the order and the general effect of it,
b
naming a place in the area in which the land to which the draft order relates is situated where a copy of the draft order and of the map referred to in it may be inspected free of charge F4and copies thereof may be obtained at a reasonable charge at all reasonable hours, and
c
specifying the time (which shall not be less than 28 days from the date of the first publication of the notice) within which, and the manner in which, representations or objections with respect to the draft order may be made.
F53
The notices to be given under sub-paragraph (1) or (2) above shall be given—
a
by publication in at least one local newspaper circulating in the area in which the land to which the order relates is situated;
b
by serving a like notice on—
i
every owner, occupier and lessee (except tenants for a month or any period less than a month and statutory tenants within the meaning of the Rent (Agriculture) Act 1976 or the Rent Act 1977 F6and licensees under an assured agricultural occupancy within the meaning of Part I of the Housing Act 1988) of any of that land;
ii
every council, the council of every parish or community and the parish meeting of every parish not having a separate parish council, being a council, parish or community whose area includes any of that land;
iii
every person on whom notice is required to be served in pursuance of sub-paragraph (3A) or (3B) below; and
iv
such other persons as may be prescribed in relation to the area in which that land is situated or as the authority or, as the case may be, the Secretary of State may consider appropriate; and
c
by causing a copy of the notice to be displayed in a prominent position—
i
at the ends of so much of any footpath F35, bridleway or restricted byway as is created, stopped up or diverted by the order;
ii
at council offices in the locality of the land to which the order relates; and
iii
at such other places as the authority or, as the case may be, the Secretary of State may consider appropriate.
F73A
Any person may, on payment of such reasonable charge as the authority may consider appropriate, require an authority to give him notice of all such public path creation orders, public path extinguishment orders F8, rail crossing extinguishment orders, F9special extinguishment orders public path diversion orders F10, rail crossing diversion orders, special diversion orders and SSSI diversion orders as are made by the authority during a specified period, are of a specified description and relate to land comprised in a specified area; and in this sub-paragraph “specified” means specified in the requirement.
3B
Any person may, on payment of such reasonable charge as the Secretary of State may consider appropriate, require the Secretary of State to give him notice of all such draft public path creation orders, draft public path extinguishment orders F11, draft rail crossing extinguishment orders, F12draft special extinguishment orders draft public path diversion orders F13, draft rail crossing diversion orders, draft special diversion orders and draft SSSI diversion orders as are prepared by the Secretary of State during a specified period, are of a specified description and relate to land comprised in a specified area; and in this sub-paragraph “specified” means specified in the requirement.
3C
The Secretary of State may, in any particular case, direct that it shall not be necessary to comply with sub-paragraph (3)(b)(i) above; but if he so directs in the case of any land, then in addition to publication the notice shall be addressed to “The owners and any occupiers” of the land (describing it) and a copy or copies of the notice shall be affixed to some conspicuous object or objects on the land.
4
Where under this paragraph a notice is required to be served on an owner of land and the land belongs to an ecclesiastical benefice, a like notice shall be served on the Church Commissioners.
F144A
Sub-paragraph (3)(b) and (c) and, where applicable, sub-paragraphs (3C) and (4) above shall be complied with not less than 28 days before the expiration of the time specified in the notice.
4B
A notice required to be served by sub-paragraph (3)(b)(i), (ii) or (iv) above shall be accompanied by a copy of the order.
4C
A notice required to be displayed by sub-paragraph (3)(c)(i) above at the ends of so much of any way as is affected by the order shall be accompanied by a plan showing the general effect of the order so far as it relates to that way.
4D
In sub-paragraph (3)(c)(ii) above “council offices” means offices or buildings acquired or provided by a council or by the council of a parish or community or the parish meeting of a parish not having a separate parish council.
2
1
If no representations or objections are duly made, or if any so made are withdrawn, then—
a
the Secretary of State may, if he thinks fit, confirm or make the order, as the case may be, with or without modifications;
b
the authority by whom the order was made (where not the Secretary of State) may, instead of submitting the order to the Secretary of State, themselves confirm the order (but without any modification).
2
If any representation or objection duly made is not withdrawn, the Secretary of State shall, before confirming or making the order, as the case may be, if the objection is made by a local authority cause a local inquiry to be held, and in any other case either—
a
cause a local inquiry to be held, or
b
afford to any person by whom any representation or objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by him for the purpose,
and, after considering the report of the person appointed to hold the inquiry or to hear representations or objections, may, subject as provided below, confirm or make the order, as the case may be, with or without modifications.
In the case of a public path creation order F15, a public path diversion order, a special diversion order or an SSSI diversion orderif objection is made by statutory undertakers on the ground that the order provides for the creation of a public right of way over land covered by works used for the purposes of their undertaking or the curtilage of such land, and the objection is not withdrawn, the order is subject to special parliamentary procedure.
3
Notwithstanding anything in the foregoing provisions of this paragraph, the Secretary of State shall not confirm or make an order so as to affect land not affected by the order as submitted to him or the draft order prepared by him, as the case may be, except after—
a
giving such notice as appears to him requisite of his proposal so to modify the order, specifying the time (which shall not be less than 28 days from the date of the first publication of the notice) within which, and the manner in which, representations or objections with respect to the proposal may be made,
b
holding a local inquiry or affording to any person by whom any representation or objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by him for the purpose, and
c
considering the report of the person appointed to hold the inquiry or to hear representations or objections, as the case may be,
and, in the case of a public path creation order F15, a public path diversion order, a special diversion order or an SSSI diversion order if objection is made by statutory undertakers on the ground that the order as modified would provide for the creation of a public right of way over land covered by works used for the purposes of their undertaking or the curtilage of such land, and the objection is not withdrawn, the order is subject to special parliamentary procedure.
F162ZA
1
Where a public path extinguishment order, a special extinguishment order, a public path diversion order or a special diversion order is made by an authority other than the Secretary of State on an application under section 118ZA, 118C, 119ZA or 119C of this Act, that authority shall, as soon as reasonably practicable after the expiry of the time for representations, determine—
a
whether, in the case of an unopposed order, to confirm it under paragraph 2(1)(b) above, or
b
whether to submit the order to the Secretary of State.
2
The authority making a determination required by sub-paragraph (1) above shall, as soon as practicable after making it, give to the applicant notice in writing of their determination and the reasons for it and give a copy of the notice to such other persons as may be prescribed.
3
Where—
a
an authority other than the Secretary of State have made a public path extinguishment order, a special extinguishment order, a public path diversion order or a special diversion order on an application under section 118ZA, 118C, 119ZA or 119C of this Act, and
b
at the end of the period of two months beginning with the expiry of the time for representations, that authority have not determined—
i
whether, in the case of an unopposed order, to confirm it under paragraph 2(1)(b) above, or
ii
whether to submit the order to the Secretary of State,
the Secretary of State may, at the request of the person on whose application the order was made, by direction require the authority to determine that question before the end of such period as may be specified in the direction.
4
In this paragraph “the time for representations” means the time specified by the authority in accordance with paragraph 1(1)(c) above.
F172ZB
Where, in relation to any public path extinguishment order, special extinguishment order, public path diversion order or special diversion order which was made by an authority other than the Secretary of State on an application under section 118ZA, 118C, 119ZA or 119C of this Act, no representations or objections are duly made or any representations or objections so made are withdrawn, that authority may not submit the order to the Secretary of State for confirmation with any modification of the map contained in the order.
F182A
1
F19The following decisions-
a
a decision of the Secretary of State under paragraph 2 above as respects an order made by an authority other than the Secretary of State including any related decision under section 120(5) of this Act, and
b
a decision of the Secretary of State under section 121E(1)(c) of this Act, including any related decision under section 120(5) of this Act,
shall, except in F20the case of a rail crossing extinguishment order, the case of a rail crossing diversion order and such classes of case as may be for the time being be prescribed or as may be specified in directions given by the Secretary of State, be made by a person appointed by the Secretary of State for the purpose instead of by the Secretary of State; and a decision made by a person so appointed shall be treated as a decision of the Secretary of State.
2
The Secretary of State may, if he thinks fit, direct that a decision which, by virtue of sub-paragraph (1) above and apart from this sub-paragraph, falls to be made by a person appointed by the Secretary of State shall instead be made by the Secretary of State; and a direction under this sub-paragraph shall state the reasons for which it is given and shall be served on the person, if any, so appointed, the authority and any person by whom a representation or objection has been duly made and not withdrawn.
3
Where the Secretary of State has appointed a person to make a decision under paragraph 2 above the Secretary of State may, at any time before the making of the decision, appoint another person to make it instead of the person first appointed to make it.
4
Where by virtue of sub-paragraph (2) or (3) above a particular decision falls to be made by the Secretary of State or any other person instead of the person first appointed to make it, anything done by or in relation to the latter shall be treated as having been done by or in relation to the former.
5
Provision may be made by regulations of the Secretary of State for the giving of publicity to any directions given by the Secretary of State under this paragraph.
F212B
1
Subject to sub-paragraph (2), subsections (2) to (5) of section 250 of the M1Local Government Act 1972 (giving of evidence at, and defraying of costs of, inquiries) apply to a hearing which the Secretary of State causes to be held under paragraph 2 above as they apply (by virtue of section 302(1) of this Act) to a local inquiry which he causes to be held under this Act.
2
In its application to a hearing or local inquiry held under paragraph 2 above by a person appointed under paragraph 2A(1) above, subsection (5) of section 250 of that Act shall have effect as if the reference to the Minister causing the inquiry to be held were a reference to the person so appointed or the Secretary of State.
3
Section 322A of the M2Town and Country Planning Act 1990 (orders as to costs where no hearing or inquiry takes place) applies in relation to a hearing or inquiry under paragraph 2 above as it applies in relation to a hearing or local inquiry for the purposes referred to in that section.
3
1
The Secretary of State may, subject to the provisions of this Part of this Schedule, by regulations make such provision as to the procedure on the making, submission and confirmation of orders to which this Schedule applies as appears to him to be expedient.
2
Provision may be made by regulations of the Secretary of State for enabling proceedings preliminary to the confirmation of a public path extinguishment order F22, a rail crossing extinguishment order or a special extinguishment order to be taken concurrently with proceedings preliminary to the confirmation of a public path creation order F23, a public path diversion order F24, a rail crossing diversion order, a special diversion order or an SSSI diversion order.
C1C23
In this Part of this Schedule—
a
“local authority” means—
F25F26i
a billing authority or a precepting authority, as defined in section 69 of the Local Government Finance Act 1992;
F27ia
a fire and rescue authority in Wales constituted by a scheme under section 2 of the Fire and Rescue Services Act 2004 or a scheme to which section 4 of that Act applies;
ii
a levying body within the meaning of section 74 of F28the Local Government Finance Act 1988; and
iii
a body as regards which section 75 of that Act applies
and includes any drainage authority and any joint board or joint committee if all the constituent authorities are such local authorities as aforesaid;
b
“prescribed” means prescribed by regulations made by the Secretary of State;
and for the purposes of this Schedule the Civil Aviation Authority F29, a person who holds a licence under Chapter I of Part I of the Transport Act 2000 (to the extent that the person is carrying out activities authorised by the licence) and F30a universal service provider in connection with the provision of a universal postal service are to be deemed to be statutory undertakers and their undertakings statutory undertakings.
F313ZA
For the purposes of sub-paragraph (3) above the undertaking of a person who holds a licence under Chapter I of Part I of the Transport Act 2000 shall not be considered to be a statutory undertaking except to the extent that it is the person’s undertaking as licence holder.
F323A
For the purposes of sub-paragraph (3) above the undertaking of a universal service provider shall be taken to be his undertaking so far as it relates to the provision of a universal postal service.
Words in Sch. 6 heading substituted (2.5.2006 for E. and 11.5.2006 for W.) by The Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006 (S.I. 2006/1177), regs. 1(2)(4), 2, Sch. Pt. I; S.I. 2006/1172, art. 2(a)-(d) (with art. 3); S.I. 2006/1279, art. 2(a)-(d) (with art. 3)