Section 10
Administrative law
10.2: Local authorities
Procedures for Modification Orders
Michael Fisher, Deputy County Secretary and Solicitor,
Isle of Wight County Council
The Wildlife and Countryside Act 1981 has placed a high burden on authorities making
definitive map modification orders. The lesson to be drawn from the O 'Keefe case, which
quashed a decision to make such an order and the resulting definitive map order, is that
the officers of the authority must thoroughly investigate the case and provide the
committee with all the relevant facts and a clear explanation of the relevant law so that
the committee members are able to make a decision for themselves as to whether or not to
make an order. The committee members must determine the issue and it is unacceptable to
them to support an order unless they are confident that the application and the evidence
presented has satisfied the statutory requirements.
Paul Coughlan B.C.L., LL.M., Barrister,
Deptartment of Law, University of Keele
County councils may arrange for the discharge of their highway functions by district
councils. They remain liable if duties are not fulfilled, but they may have a right to be
indemnified and they can enforce the district councils' obligations under the arrangements
by judicial review or under s.56 of the Highways Act 1980
Mark Heath, LL.B (Hons), Principal Solicitor, Southampton City Council
The accessibility of rights of way - the ability of the public to find and use them -
depends on local authorities fulfilling their statutory duties. These duties cannot be
shirked. Whilst members of local authorities have the ability to prioritize their budget,
they must distinguish between those matters which they are obliged by law to do, and those
which they would like and have the power to do. Increasing financial pressures cannot be
an excuse for failure to perform statutory duties.
George Laurence Q.C.
The plaintiff successfully claimed damages flowing from the breach by Wiltshire County
Council of its duty to maintain the publicly repairable highway which led past his farm.
Held: If a council fails to carry out its duty to maintain the highway, a public nuisance
is committed. The particular pecuniary damage suffered by the plaintiff, albeit not
physical damage, went beyond that suffered by the general public, and was recoverable
accordingly.
P. Coughlan, B.C.L., LL.M., Barrister,
School of Law, Trinity College, Dublin
It is unclear what a "list of streets" made under s.36(6) should include and
what format it should adopt. While there is an obligation for a county council to produce
such a list, the consequences of including a street are far from obvious.
George Laurence Q.C.
CCT was first introduced by the Local Government Planning and Land Act 1980. Since
then the concept of CCT has been extended to other activities by the Local Government Act
1988, and will soon be extended further. In this article, the first of two on the subject,
the general relevance of this legislation to the law of rights of way is considered. The
second article will, among other things, consider in detail the sanctions available for
noncompliance with the procedures set out below.
George Laurence Q.C. and
Edwin Simpson, Barrister, Tutor in Law, Christ Church, Oxford
The sanctions which may be imposed for non-compliance with the requirements of CCT
legislation, and the statutory framework within which the notion of anti-competitive
behaviour arises is analysed, and some object lessons for draftsmen emerge.
Tim Slade, Rights of Way Manager, Isle of Wight County Council
The local authority officer's task of gathering and assembling evidence relating to a
definitive map modification order and preparing a report for the committee is considered.
Janet Relfe, LL.B., Group Solicitor, Buckinghamshire County Council
The groundwork carried out by a surveying authority to assemble the evidence to
support a definitive map modification order will be of importance throughout the order
making process. It will form the basis of the report to the committee empowered to make
the order. If the order is made, that report will form the basis of the referral of the
order to the Department of the Environment, and that, in turn, will form the basis of the
authority's proof of evidence given at the Public Inquiry.
Ian Wotherspoon, County Solicitor of Gloucestershire County Council
In R. v. Gloucestershire County Council and the Secretary of State for Health, ex
parte Barry the House of Lords (by a majority, Lords Lloyd and Steyn being the minority)
decided that when a local authority were carrying out their duty under s.2(1) of the
Chronically Sick and Disabled Persons Act 1970, both to determine the needs of a disabled
person and the necessity to make arrangements to meet those needs, they were entitled to
take into consideration the availability of resources.
Consideration is given to the relevance of this decision relating to social services, to
public rights of way. The indications from the Court decision immediately following the
Barry case are that the courts will probably take account of the reasonableness of an
authority's allocation of resources to carry out its powers and duties before deciding
whether they are in breach of a duty in a particular case.
James Stephens, Solicitor, Dyson Bell Martin
The case of R. v. Secretary of State for the Environment ex parte Slot concerns the
rights to representation, in the decision-making process, of a landowner who had requested
that an order be made under s.119 of the Highways Act 1980. The decision of the Court of
Appeal provides some interpretation of the relevant provisions of Schedule 6 of the 1980
Act, and also demonstrates the willingness of the courts to invoke the rules of natural
justice in such cases.
Natural justice is the right to a fair hearing. What the requirements of fairness demand
depends on the character of the decision-making body, the kind of decision it has to make,
and the statutory or other framework in which it operates. Nevertheless, as Slot
demonstrates, the courts are prepared to formulate tests to identify breaches of natural
justice, although they will usually be expressed in wide terms.
Mark Heath LL.B., Solicitor, Dip.LG.,
Head of Legal Services, Southampton City Council
An analysis is made of the elements of good practice to be followed in reaching
decisions regarding public rights of way. It is based upon the Local Government
Ombudsman's Good Administrative Practice, which is designed to apply generally to all
local government functions. The checklist of forty-two principles remains largely as
published by the Ombudsman, with some minor adaptations (indicated by the use of square
brackets). The accompanying notes have been written by the author to apply specifically to
the responsibilities of local authorities for public rights of way.
Mark Heath LL.B., Solicitor, Dip.LG.,
Head of Legal Services, Southampton City Council
The Local Government Act 1999 has imposed the duty of Best Value upon local
authorities. Henceforth they will have to conduct full reviews of their functions on a
regular basis with a view to the continuous improvement of performance with emphasis on
efficiency, cost and quality. This process provides an opportunity for enhancing public
awareness of rights of way services and of their resource problems.
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