Referral to the Planning Inspectorate
The Planning Inspectorate, based in Bristol, deals with all unresolved objections to modification orders, as well as more general rights of way orders and appeals on planning applications. They have a number of Inspectors, appointed by the Secretary of State for Environment, Food and Rural Affairs, who have specific expertise in rights of way matters.
When a modification order is referred on to the Inspectorate by the authority, officers there will firstly assess it for validity and irrelevant objections. Again, they may write to anyone who has lodged an irrelevant objection and remind them of this, along with a warning that costs may be awarded against them if they vexatiously insist on having their say at a public inquiry.
The case file is then referred to an appointed inspector who will decide whether to hold a public inquiry or deal with the matter by written representations. In cases where they may be only one or two objectors, the order may well be dealt with by written representations, but in complicated matters or where there are many parties who wish to have their say, an inquiry is automatically arranged.
Written representations
In the case of written representations, interested parties will be invited to comment on the authority’s statement of case through their own representations and a notice will be issued to user groups and other prescribed organisations to inform them that this is how the matter will be treated. There will be an exchange of correspondence until no-one has any further comment to make. Each exchange is usually given 14 days for comment. The inspector may make a site visit, and interested parties may be invited, or the inspector may go alone. Late representations are allowed if there is a piece of vital new evidence, and in such cases it may be that the inspector decides an inquiry is necessary. More often than not, though, the written representations procedure deals with all matters and the inspector will issue his or her decision in due course.
Public Inquiries
In the case of public inquiries, the Planning Inspectorate should make every effort to hold the inquiry on a convenient date for all parties and at a location near the path (this may often be the local village hall). The authority must advertise the inquiry in a local newspaper and on site at either end of the way, at least 14 days before the inquiry is due to start.
All those who have made representations to the order will be invited to submit a proof of evidence at least three weeks before the start of the inquiry. It is very likely, if you have made the application for the order, that you can submit a proof of evidence to supplement that of the authority. It may also be likely that they would like to call you as a witness, or supporter for the order, at inquiry.
If your claim has been dealt with through the Schedule 14 appeal process, and the Secretary of State has ordered the authority to publish the modification order, it may be that the authority decide to take a neutral stance on the order. In effect this means that they publish the order but leave it to the applicant to make the case at an inquiry.
Inquiry Proceedings
At the inquiry itself the inspector should make every effort to put members of the public at ease. There are no set rules but the inspector will usually ask the authority to present its case first. It may be that the authority use a solicitor to present its case, and call witnesses which can include their own officers and the claimant, and other witnesses who have used the way. Similarly, the opposing side may also employ professional representation. If you are called as a witness then the objectors can cross-examine you, although the inspector should stop anyone making a statement, rather than asking a question, and should not allow cross-examination to become aggressive. In cases where the authority have taken a neutral stance, it is likely that you will have to act as the advocate for the order, call your witnesses, and cross examine objectors.
At the end of evidence-taking the inspector will wrap up the inquiry with a site visit. He or she will usually have visited the site alone before the inquiry, but anyone can go with the inspector on this visit, although no new evidence can be raised, it is merely to look at the physical nature of the site. Late evidence or unexpected developments can occur after the inquiry, it is for the inspector to make a decision about whether new questions have been raised which necessitate the re-opening of the inquiry. This is rare and it is usually the case that the inspector will be able to come to a decision on the application and issue a decision letter in due course.
It can sometimes happen, particularly in the case of modification orders, that the evidence taken at the inquiry points to the way being of a different status from the one advertised in the order. So, for instance, although the application is for a footpath, horse-riders may come forward to say that they, too, have used the way for 20 years or more. Or, evidence on old documents may point to the route carrying vehicular rights, and so being a byway open to all traffic. The inspector has a power to modify the order in these cases, but will need to re-advertise the proposed modification for objections. It can happen that these proposed modifications necessitate another inquiry because of the number of objections.
Once a final decision is issued, there is no right to further inquiries or representations. A challenge can only be made through the courts.