RIGHTS OF WAY SECTION
ADVICE NOTE No 16
First issued May 2003
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WIDTHS ON ORDERS
Introduction
1.
The purpose of this advice note is to clarify the Planning Inspectorate’s
position on the need for widths to be shown on all public path,
definitive map and rail crossing orders.
2.
This note is publicly available, but has no legal force. It is not an
authoritative interpretation of the law.
Consideration
3.
DEFRA Circular 1/09, paragraphs 4.16 and 5.13, Welsh Office Circular
5/93, Annex B, paragraph 18, relating to definitive map modification
orders and Annex C, paragraph 9, relating to public path and rail
crossing orders, state that the width of a path should be included in
the order schedule. The legal authority for this advice can be found in
the regulations for the relevant types of order1. Effective future
management of the rights of way network and of the land over which
the rights of way pass requires that widths of routes are recorded as
accurately as possible. The extent to which this is feasible may vary
depending upon the type of order. Consequently, in applying this
advice Inspectors will need to take into account the nature of the order
under consideration and the specific circumstances of the case.
Accordingly, this advice note deals separately with public path and rail
crossing orders and with definitive map modification orders. More
detailed guidance on expressing widths in orders is set out in Defra’s
non-statutory guidance to order making authorities on widths in
orders, dated February 2007.
Public Path and Rail Crossing Orders
4.
Both public path orders and rail crossing orders involve the express
creation of new rights of way. As such, the width of the new way
should be determined as part of the order making process. Where an
order is received without a specified width, the Inspector may, where
appropriate, use his power of modification
2 to add one. If this is not
appropriate, the Inspector may refuse to confirm the order.
5.
The relevant regulations do not prescribe the manner in which the
width of the way to be created is described. Apart from specific
instances such as the reinstatement of a right of way after ploughing
under Schedule 12A to the Highways Act 19803, there are no statutory
widths for rights of way. Inspectors may exercise their discretion in
determining whether the description is reasonable in all the
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circumstances of the case. Nonetheless, a minimum or approximate
width should not be used in an order. Including a minimum or
approximate width in an order can lead to uncertainty regarding the
position, area, maintenance and obstruction of a right of way. If
Inspectors come across orders where a minimum or approximate
width is shown then the Inspector should modify the order and put in
an actual width.
6.
In some cases, the width of the new way may vary frequently along its
length making a simple written description difficult. In such cases a
suitable form of wording might say ‘varying between X metres and Y
metres as shown on the order plan’. Whether this is feasible or not
depends upon the scale, detail and quality of the order plan. Reference
to fixed physical boundaries can sometimes be acceptable but walls,
fences, hedges and buildings may be removed or re-positioned in
future and are therefore not always reliable as a permanent marker.
7.
A proposal to modify a public path or rail crossing order to include a
width may need to be advertised by virtue of paragraph 2(3)(a) of
Schedule 6 to the Highways Act 1980 (the 1980 Act) or paragraph
3(6)(a) of Schedule 14 to the Town and Country Planning Act 1990
(the 1990 Act).
Definitive Map Modification Orders
8.
Definitive map modification orders do not extinguish or create ways;
they merely record them. As such, they are based on evidence and
any width recorded in such an order should also be based on evidence.
It is recognised that there are significant differences between
modification orders based on documentary evidence and those based
on evidence of use. These differences may impact on the ability of the
order making authority and the Inspector to determine the width of
the route. Nonetheless, the principle that widths should be recorded as
accurately as possible in all the circumstances still applies to both
types of modification order.
9.
Accordingly, where an order is received without a specified width, the
Inspector should use his power of modification2 to add one.
Determination of the width will, if not defined by any inclosure award,
physical boundary or statute, be based on evidence provided during
the confirmation process, or, where there is no such clear evidence,
the type of user and what is reasonable. Circumstances, such as the
nature of the surface and other physical features, may dictate what
may be considered reasonable. In the absence of evidence to the
contrary, Inspectors should ensure that the width recorded is sufficient
to enable two users to pass comfortably, occasional pinch points
excepted. This width may well be greater than the width of the
“trodden path”. Apart from specific instances such as the
reinstatement of a right of way after ploughing under Schedule 12A to
the Highways Act 19803, there are no statutory widths for rights of
way.
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The Planning Inspectorate
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10. A minimum or approximate width may be used in an order where the
evidence indicates a minimum or approximate width. Historic
documents tendered in evidence may use terms such as “at the least”
or “thereabouts” to qualify the stated width and thus it may be
appropriate for the order to be drafted in similar terms. Care should be
taken in such cases to distinguish between the legal width of the
highway and specific “making up” requirements.
11. In some cases, the width of the way to be recorded may vary
frequently along its length making a simple written description
difficult. In such cases a suitable form of wording might say ‘varying
between X metres and Y metres as shown on the order plan’. Whether
this is feasible or not depends upon the scale, detail and quality of the
order plan. Reference to fixed physical boundaries can sometimes be
acceptable but walls, fences, hedges and buildings may be removed or
re-positioned in future and are therefore not always reliable as a
permanent marker. Alternatively, reference may be made to other
reliable sources of mapping that may be available, for instance the
Ordnance Survey 25” County Series maps. Although it may not be
possible to scale off precise measurements from such maps, they may
indicate where significant variations of width occur between the
minimum and maximum figures.
12. It is likely that, in modifying a definitive map modification or
reclassification order to specify a width, notice of the proposed
modification will be required by virtue of the provisions of paragraph
8(1)(a) of Schedule 15 to the Wildlife and Countryside Act 1981 (the
1981 Act). This is because public rights of passage will extend across
the full breadth of the stated width, which means a modification
stating a width could be said to ‘affect land not affected by the order’
(paragraph 8(1)(a)).
Extinguishments and Deletions
13. The requirement in the regulations to specify a width for ways being
created or added to the definitive map is replicated in the
requirements relating to extinguishments and deletions from the
definitive map. It is considered acceptable to use a phrase such as
“the whole width” where the intention is to extinguish or delete all of
the affected section of the way. Clearly where the intention is to retain
some part of the width of the way as a public right of way then the
width to be extinguished or deleted needs to be more precisely
described.
Reclassification Orders – Wales only
14.
Where a council in Wales submits a reclassification order which does
not contain a width, it is usually supported by an “historic document”
which sets out the width of the path when it was first added to the
definitive map and statement or later at review. If there is a copy of
this “historic document” on file, this can be taken as evidence of the
width of the path. In such cases the width stated on the document can
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be added to the reclassification order by the Inspector as a
modification, but there will be no need to advertise it. However, if
there is no such document on file, Inspectors should follow the advice
set out in paragraphs 4 & 5 above.
Conclusion
15. All public path orders, definitive map modification orders, definitive
map reclassification orders and rail crossing orders should include a
width.
16.
Where Inspectors use their power of modification to include or vary a
width, notice of modification may be required (except where the
circumstances of paragraph 14 above apply) specifying the time and
manner in which objections or representations can be made. If any
objections or representations are duly made and not withdrawn, then a
public inquiry must be held or an opportunity of being heard given to
the person making the objection or representation pursuant to
paragraph 8(2) of Schedule 15 to the 1981 Act, Paragraph 2(3) of
Schedule 6 to the 1980 Act and paragraph 3(6) of Schedule 14 to the
1990 Act.
17. Although rarely necessary, an Inspector may add an additional plan to
an order where they consider it necessary to ensure the width(s) of
the path(s) can be properly reflected (and it is not possible to add this
clarity to the order map as drafted).
1
Town and Country Planning (Public Path Orders) Regulations 1993 (SI 1993 No.10); Public Path
Orders Regulations 1993 (SI 1993 No.11); Wildlife and Countryside (Definitive Maps and
Statements) Regulations 1993 (SI 1993 No. 12); The Rail Crossing Extinguishment and
Diversion Orders Regulations 1993 (SI 1993 No. 9).
2
Paragraph 2(2) of Schedule 6 to the Highways Act 1980, paragraph 7(3) of Schedule 15 to the
Wildlife and Countryside Act 1981 and paragraph 3(4) of Schedule 14 to the Town and Country
Planning Act 1990.
3
As inserted by the Rights of Way Act 1990.
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The Planning Inspectorate
6th Revision April 2016