Policy & procedures for public right of way investigations

Introduction

Under the Access to the Countryside (NI) Order 1983, all Councils in Northern Ireland have a duty to “assert, protect, keep open and free from obstruction any public right of way” and yet public rights of way remain one of the most difficult and controversial subjects that a Council will have to address. The purpose of this policy is to recommend the basis of a practical, step by step approach that may be taken by Council staff and others who are concerned with the investigation of the status of routes alleged to be public rights of way. It should be used in conjunction with the Environment Heritage Service booklet ‘Public Rights of Way: A Guide to the Status Investigation Procedure’. The contents of this policy are not definitive statements of law and should not be taken as such.

Policy

The intention of this policy is to show that Council approaches its statutory responsibilities under the Access to the Countryside (NI) Order 1983 in a fair, balanced and professional manner. The legislation only applies where a public right of way exists. It therefore can only reasonably be applied if and when Council is satisfied that one exists.

The procedure (Sections 1 to 11) has been developed for use by Council Officers tasked with investigating public right of way claims. Following the investigation procedure, the Council Officer involved will prepare a final report making recommendations on which a Council decision is to be based. The report will contain a full account of the evidence and the conclusions that can be drawn from it. It will also contain a clear explanation of the legal tests and address any specific legal issue that may arise in a particular case.

Council decisions should be made based upon the premise that Council is obliged to assert a public right of way only where it is satisfied that an alleged right of way is in fact a public right of way and that there exists no real dispute as to its status.

In order to assist in the decision making process, the investigation procedure is likely to identify three main enquiry outcome categories. These are:

1. Where there is clear evidence that a public right of way exists, or where the evidence substantially supports the existence of a public right of way with no counter evidence other than that of a current or recent owner claiming that he does/did not want, or believe that there was, a public right of way crossing his land.
2. Where the evidence is evenly balanced both for and against the public claim demonstrating real dispute as to the status of the route and is therefore inconclusive, to the extent that Council has no confidence in the existence of a public right of way. This can include situations, where, despite user evidence, a longtime owner submits evidence to show that whereas he/she was aware of use of the route by neighbours etc. he/she had permitted use so as not to create ill will, but had never intended to dedicate a right to them or the public at large.
3. Where there is clear evidence to show that the route is not a public right of way or the evidence substantially refutes the existence of a public right of way.

When Council has considered the evidence gathered during the investigation procedure and collated within the final report, decisions taken should be as follows:

a) In the case of 1. -Council should assert the route as a public right of way, accepting that the case may have to be pursued through the Court for vindication of the decision.

b) In the case of 2. -Council should accept that no dedication had taken place and that therefore no public right of way exists and should not assert or pursue a public right of way case. However, Council may also choose to defer the matter if it considers that further evidence may come to light or be put forward in the future.

c) In the case of 3. – the Council should not assert or pursue a public right of way case.

A procedure for the investigation of route status

Where Mid and East Antrim Borough Council is the initiator of the investigation, there may be no formal application from a member of the public. The procedure however, remains the same. It is very important to keep records up to date throughout any investigation.

A procedure for processing an application is set out as follows. Not all stages will be necessary in all situations and they may have to be adapted in response to specific circumstances. These circumstances may involve the complexity or controversy surrounding the investigation or may be in response to staffing constraints. Although an actual procedure is not prescribed within the Access to the Countryside (NI) Order 1983 the development of consistency does nevertheless represent good practice.

1. The Initial Enquiry

Upon the initial approach to Council from a member of the public enquiring as to the status of a route under the Access to the Countryside (NI) Order 1983, the officer involved should allocate a file and reference, take the details, identify why there is doubt as to the route’s status and distinguish and agree the route on a map. If the enquiry concerns a route for which there is already an existing file, details of this particular enquiry should be added to it. Check the details in the original file; they may form the basis for a decision to go no further with this enquiry in which case go to Stage 2.

Circumstances where a decision to take the enquiry no further could include recorded situations that have revealed themselves to be related to private rights of access.

If no previous file exists and no previous decisions have been taken, the enquirer should be given a copy of the EHS leaflet “Public Rights of Way: A Guide to the Status Investigation Procedure” and the Officer should go through the contents, clarifying any areas of confusion. If the enquiry appears to relate to another body or seems to be a private matter the officer should signpost the enquirer to the appropriate person/authority.

If the route apparently appears to meet at least some of the criteria as identified in the leaflet in order to meet the status of a public right of way, the officer should identify and survey as much of the route as possible at this stage* and make a preliminary report.

* Note: At this stage, the initial survey may only be the beginning and or end of the route. It is designed merely for the officer to get a feel for the location and general nature of the route. The officer should not enter private land without the permission of the landowner. See Section 6 for further details.

2. The Application for Investigation

If the preliminary report indicates that with further investigation the route may prove to be a public right of way, the officer will invite the enquirer to complete Form A: Public Right of Way Investigation Initiation Application Form. Check the application and if there are any problems or further information is required, inform the enquirer. If the route crosses a local authority boundary, it will be necessary to liaise with the other authority and decide how to proceed. Once the application is correct and complete, acknowledge and date its receipt in writing to the enquirer.

If the preliminary report indicates otherwise, the enquirer should be informed in writing that the investigation will not be taken any further and the reasons for this decision; for instance if the preliminary investigation has revealed that the route in question is a private right of way or is the responsibility of another body. If further investigation is to take place, it is important to stress Council’s neutrality. Whilst the applicant may regard the route as highly desirable, Council will be concerned with the hard facts.

In the absence of enquirer initiation, if for example the route has come to Council’s attention during the course of other research, the Council Officer will start and continue to follow the procedure for as many steps as are appropriate.

3. Research

a) Documentary Evidence:

Documentary evidence may be found in a variety of locations, some being generic, others specific to the individual route. It may be used to either support or repudiate a public right of way claim. A suggested list is incorporated into Form D Documentary Evidence Checklist. It should be made clear to the applicant that they can assist in the collection of documentary evidence, where appropriate, and pass the research to the Council Officer for recording and filing.

Copies of documents collected by either party must be certified photocopies. The exception to this is where photocopying is prohibited by the document custodian, but this must be confirmed in writing.

Each time documents are submitted in evidence they should be listed, together with their sources on Form D, which should be signed by the applicant. Where the applicant requires that Council take their own copies, the officer returning the originals should also sign Form D. A copy should be placed on file.

b) User Evidence:

In most cases user evidence will be required. Form B: Public Right of Way Investigation Evidence Form should be used for the purposes of gathering user evidence. The applicant is very often the person best placed to gather this information by the distribution of Form B to, and collection from, people they know use, or have used the route. It should therefore be made clear to the applicant that they are free to assist in this task although it is not obligatory to do so. This does not preclude the Council Officer from undertaking the work, however care must be taken to remain neutral and not ‘lead’ the person giving evidence. There is no definitive number of user evidence forms that are required to accompany an application. It is the quality of the information supplied by users that is important, rather than the number of forms.

Users will usually be in support of the application; however, in some cases their evidence may cast doubt. The user evidence must therefore be assessed and summarised by the officer. This should include details about the exact route, any limitations and other relevant information. If there is any doubt about the exact line of the route, insufficient evidence to be of use, or if the information is vague, inconsistent or unclear clarification must be sought.

If there is apparently enough clear user evidence to be of use to progress the application, the officer should contact the relevant user to determine whether or not they would be prepared to give a more detailed interview in person. If so, the officer will arrange an interview using Form E: Public Right of Way Investigation Interview Form. The officer should clarify that the user is still at the address given. At interview, the user should also be asked whether or not they would be prepared to attend a public inquiry or Court if necessary. If attendance is not feasible due to age or incapacity, the user may be prepared to make a statutory declaration. This is particularly important if the case for a public right of way depends entirely upon user evidence.

Following the interview Form E should be filed.

4. Land Ownership

The Council Officer should confirm land ownership by visiting Land Registry and consulting the relevant maps and folios. In the case of unregistered land establishing ownership can be difficult. Consultation with relevant public bodies such as Roads Service, Water Service, Lands Service, NI Housing Executive may reveal the owner. Alternatively, local enquiries, including posting a notice on the route may yield information. If the land was once part of a large estate holding, it may be necessary to consult with the estate company if it still exists. It may also be necessary to establish if neighbouring owners would be willing to have their deeds examined by a solicitor as this method can also reveal clues as to present ownership.

5. Landowner Consultation

Once the identities have been established, the owners of the land over which the route runs must be consulted.

The Council Officer should send out Form C: Public Right of Way Investigation Landowner Evidence Form to the relevant people. Include a covering letter explaining the background to the enquiry (but not revealing the enquiry applicants name at this stage), offering to meet with the person and indicating a return date for the form. A completed copy should be filed.

In many cases this action will elicit a negative response and the officer should be prepared for this eventuality. It is particularly important in this case to endeavour to arrange a meeting with the landowner/s to explain the Public Right of Way Status Investigation procedure. It is vital that the officer shows tact and diplomacy, demonstrating at all times Council’s neutrality, whilst at the same time making Councils responsibility under the Access to the Countryside (NI) Order 1983 clear. It is also important to stress that Council is concerned with hard facts, not the apparent suitability or unsuitability of the route.

6. Site Survey

Following clarification of land ownership, the Council Officer should arrange a site visit with the landowner to record the line and condition of the route. It is preferable that he/she should be present and this visit can be incorporated into Stage 5 if necessary. Photographs should be taken of the entire route and all boundary features noted. The officer should measure the width of the route, record any signs of use, the nature of the surface, any stiles, gates or obstructions, their age and condition and any other relevant points or problems. Check all the information carefully, particularly if the route does not have a defined line.

Whilst it is infinitely preferable to conduct a site survey with the full consent of the landowner, public right of way status investigations can evoke strong responses from those who find themselves involved. Tact and diplomacy should be used by the Council Officer at all times, recognising that first impressions and relationships established at the beginning of an investigation are likely to last throughout its duration. However if all else fails, Section 98 of the Local Government Act (NI) 1972 provides that “anyone who has been authorised in writing by Council has the right at any reasonable time to enter any land for the purpose of inter alia examination where it appears to Council that examination is necessary in order to determine whether any functions of Council should be exercised on or with respect to the land”.

The power of entry can only be exercised in the following circumstances;

a) with the consent of the landowner

b) where at least 24 hours notice of the inspection has been served on the owner or occupier of the land.

It is a criminal offence to obstruct an authorised person, however, the Council may be responsible for compensating the owner for any damage caused to the property by the authorised person if following they do not leave the land as secure as they found it.

7. Counter Evidence

At this stage the landowners (or others) may wish to offer counter evidence. Whilst it is preferable for objectors to the public right of way to complete evidence forms in the same way as supporters, and should be encouraged to do so, empirical evidence suggests that they often prefer to put their evidence in a different format.

Letters of objection and those who offer written evidence to suggest that the route is not a public right of way should be acknowledged, recorded and filed by the Council Officer. As with the user evidence, the content should be assessed and summarised. Where the information offered is unclear or where inconsistencies arise, clarification should be sought. It should also be established whether or not the person concerned would be prepared to attend a public inquiry or Court if necessary and the same contingency arrangements (see Stage 3) offered to those unable to attend.

8. Investigation Report

When it is felt that all relevant information and evidence has been collected, the Council Officer should prepare an investigation report. This should be a factual account of the application and the subsequent investigation up to this point. It should cover an evaluation of evidence provided or discovered that is relevant to the status of the route. It should also contain:

a) a map showing the route
b) a copy of the public right of way enquiry initiation
c) a map showing land ownership
d) copies of relevant documentary evidence
e) a summary of user evidence
f) a summary of any counter evidence
g) relevant correspondence concerning evidence

Copies of documents should only be appended in the report if they contain evidence that is relevant to the status of the route.

Conclusions should not be drawn at this stage – the purpose is to assess the balance of all the evidence. If considered necessary, Council’s solicitors may be consulted for comments/advice at this point.

9. The Decision

The decision as to the status of the route is made by Council, following consideration by the Operations Committee.

The Council Officer involved should prepare a final report making recommendations on which a decision is to be based. The report must contain a full account of the evidence and the conclusions that can be drawn from it. It must also contain a clear explanation of the legal tests and address any specific legal issue that may arise in a particular case.

Council is obliged to assert a public right of way “where it is satisfied that an alleged right of way is in fact a public right of way and there is no real dispute as to its status”. If Council feels satisfied that a public right of way exists, the status of usage and width of the route as well as any restrictions must also be determined and recorded.

When Council has considered the evidence gathered during the investigation procedure and collated within the final report, decisions should taken be as follows:

a) where the evidence shows that a public right of way exists, and if all the relevant landowners agree, an assertion can be made through a resolution of Council. If all landowners do not agree, Council should pass a resolution to assert the route as a public right of way and ask the Court to vindicate the decision.
b) where the evidence is inconclusive, Council may defer the matter until more evidence becomes available through investigation to enable a decision to be made.
c) where the evidence shows that the route is not a public right of way, Council will not assert.

10. Informing Interested Parties

Following Council’s decision, the Council Officer must inform all the interested parties.

These must include:
a) The applicant
b) all relevant landowners
c) any other person who has been asked to be notified of the outcome

This should be in the form of a letter explaining how the decision was reached and what action (if any) will follow. In straightforward cases a standard letter may be sent to all. However, in sensitive cases, where matters have become particularly acrimonious, each letter should be appropriate to the circumstances of the recipient.

Comments on the decision should be acknowledged straight away. There should be no need to respond in detail unless a lack of understanding of the process needs to be addressed or new evidence comes to light, in which case it may be necessary to return to Stage 8.

If the decision is to assert a public right of way, the following should also be informed:

a) Land Registry
b) Planning Service
c) Environment & Heritage Service

and landowners should be asked to complete and return Form F: The Assertion Agreement. If their response is to confirm that they are opposed to the assertion, the matter will have to be referred for vindication (or otherwise) by the Court.

11. Dealing with Complaints about the Enquiry Process

Following Council’s decision, any involved party who is unhappy with the way in which the public right of way investigation has been dealt with should be referred to the Council’s Complaints Procedure.

A separate file should be opened for recording and storage of any correspondence and/or documentation relating to the complaint.

If the party remains unhappy with the way in which the investigation has been dealt with they may then decide to take their complaint to the Ombudsman.

Passed at Mid & East Antrim Borough Council Operational Committee on Monday 14 March 2016.