Guidance for Landowners
Guidance notes for landowners in response to claims for definitive map modification orders
Any member of the public is entitled to apply to Hampshire County Council for an order amending the County's definitive map of public rights of way. The applicant is required to give written notice of the claim to the owner(s) of the land affected by the claim and the County Council, giving details of the amendment that is required. The notice served on the County Council should include information about the evidence on which the applicant relies in support of the proposed amendment. You are welcome to see the evidence that is provided to the County Council and photocopies can be provided at a reasonable charge.
The Rights of Way Section is obliged to investigate the claim, although the backlog of cases means that there is some delay between the serving of notices and the commencement of this investigation. However, it would assist the Rights of Way Section to know your views at an early stage.
Questions you may be asked
When the application is investigated, a Map Review Officer will consult everyone who has been identified as an owner of the land affected. You may be asked for the following information:
- Are you the freeholder of the land?
- Do you own all the land the path runs over?
- When did you purchase the land?
- Do you regard the claimed path as a public right of way?
- Have you seen members of the public using the claimed path?
- Have you given permission to anyone to use the route?
- Have you ever stopped, or turned back, anyone attempting to use the path?
- Have you instructed agents or employees to challenge public use of the path?
- Are you aware of any private rights over the route?
- Have you locked gates across the path?
- Have you put any notices along the way?
- Has the path ever been blocked by hedges or fences?
- Has any part of the path ever been cultivated or ploughed?
- Have you, or anyone else, made any improvements to the path?
Useful Material Some applications are based on evidence contained in documents which show the history and past use of the path. These may include:
- Ordnance Survey maps
- Parish Council Minutes
- Enclosure awards and plans
- Tithe awards and maps
- Reference books
- Statutory orders and plans
- Title deeds
- Published material, such as local Histories or newspaper articles
The Map Review Officer will look at any of this material that is relevant to the claim, but you may want to carry out your own investigation. Much documentary evidence in the public domain can be found at Hampshire Record Office and in Winchester Local Studies Library (details are on page 10 of the booklet). You may also have material in your own family papers that is relevant to the case, or know of witnesses who can provide information about the land that is the subject of the application. Officers may want to interview witnesses whose names you put forward.
The Next Steps If you do not dispute the claim, you can dedicate the path as a public right of way, and the Rights of Way Section can advise on the procedure. This is the cheapest and quickest way to get a path recorded as a public right of way on the definitive map.
If you dispute the claim, you will be asked to show the County Council any evidence that will assist in determining the claim. You should put forward any relevant evidence as soon as possible, so that the County Council can make an informed decision whether or not to amend the definitive map. Failing to share relevant information may result in a costly inquiry that could otherwise have been avoided*. There is ample time between the serving of notices and the end of an investigation to prepare a case and, within reasonable limits, the preparation of the report can be delayed to allow all possible evidence to be put forward by all parties. If the landowner prepares a case as soon as notice of the claim is received, it can save substantial sums of money, in that it may not be necessary for you to pay for representation at a public inquiry, as would be the case if the objection is left until the order is made.
*You should note that, if you do not dispute the claim, you can dedicate the path as a public right of way, and the Rights of Way Section can advise on the procedure. This is the cheapest and quickest way to get a path recorded as a public right of way on the definitive map.
The Map Review Officer has to present a report on the matter to the Regulatory Committee at the end of the investigation, and this will include a recommendation, either to accept or reject the claim on the balance of probabilities, though the Members make the final decision. The recommendation is derived from an examination of all the evidence discovered by, or produced to, the Map Review Officer.
The Legal Formalities
An order will be made if there is evidence which shows that the definitive map needs to be amended because it does not accurately reflect the past history and use of the path in question, not because a particular outcome is perceived to be a good or desirable thing. In this respect, Members must make an objective assessment of the evidence; they do not have a discretion whether or not to accept a claim. It may be that the evidence is not clear cut, one way or the other, and it is not unusual for different parties to hold different, equally reasonable, opinions about the same evidence.
An order must be advertised and confirmed before any change is made to the definitive map. Objections may be made to the order and if these cannot be resolved, the order is submitted to the Secretary of State, who will arrange for an Inspector to hear evidence for and against the order. This is often seen as an adversarial, or hostile, procedure, but it need not be so. The object of any hearing or inquiry is to enable the appointed Inspector to have as much information about the path as he or she needs in order to decide whether or not to confirm the order. It is an opportunity for the evidence to be tested and for the different interpretations of the evidence to be explored. Like Members, the Inspector must make a decision in accordance with evidence, not in deference to popular opinion.