ITEM NO: 11
Report To: LONGDENDALE AND HATTERSLEY DISTRICT ASSEMBLY
Date: 21 June 2012
District Assembly Member Councillor J Cooper – Chair Responsibility: Robin Monk – Assistant Executive Director (Economic and Technical Services)
Subject: WILDLIFE AND COUNTRYSIDE ACT 1981, APPLICATION TO RECORD DEFINITIVE FOOTPATH 17, PART OF FOOTPATH 3 AND A SECTION OF UNADOPTED HIGHWAY, LONGDENDALE AS RESTRICTED BYWAY (GREEN LANE TO HOBSON MOOR ROAD)
Report Summary: A claim was made by cyclists for an order modifying the definitive map and statement to show footpaths 17, part of footpath 3 and a section of unadopted highway, Longdendale as restricted byway on the definitive map and statement. The claimed route starts at Green Lane and runs along the length of Cow Lane to the junction of Hobson Moor Road before turning west along the track for a total length of 1715 metres to meet the adopted section of Hobson Moor Road. The application was refused by the Longdendale and Hattersley District Assembly on 6 October 2011. Following this refusal, the applicant appealed the decision to the Secretary of State for the Environment, Food and Rural Affairs. On 27 March 2012, a response was made by the Planning Inspectorate informing the Council that the Secretary of State had considered the evidence and that the appeal should be upheld; it then goes on to direct the Council to make the Order.
Recommendations: (1) That the District Assembly notes the Direction from the Secretary of State under powers contained in paragraph 4(2) of Schedule 14 to the Wildlife and Countryside Act 1981 and authorises the Borough Solicitor to make the requisite Order in accordance with the Direction.
(2) Although the Council must now make the order, it is lawful and appropriate for the District Assembly to decide whether or not they want the order to be confirmed. They are therefore asked to pass a formal resolution to decide what stance to take on the confirmation of the Order (ie supportive, neutral or opposed) when it is referred to the Secretary of State for confirmation.
Links to Community Strategy: Provide a safer and secure Environment for the people of Tameside.
Policy Implications: Provide a safer and secure Environment for the people of Tameside.
Financial Implications: There are no financial implications for the District Assembly. (Authorised by the Borough Treasurer)
Legal Implications: The Council is under a legal duty to comply with the (Authorised by the Borough Secretary of State’s Direction and make the modification Solicitor) order.
Risk Management: When the modification order is made, the objectors have a right to object to the confirmation of the order, which will then be referred to the Secretary of State who will decide the matter following a public inquiry. Once at a Public Inquiry, the Council can present a case opposing the confirmation of the Order if it so wishes.
Access to Information: Appendix A – Planning Inspectorate Decision Report. Appendix B – Planning Inspectorate – Rights of Way Advice Note No1.
Background papers and information can be obtained by contacting Michael Hughes (Sustainable Travel Officer – Land Use and Development) by:
phone: 0161 342 3704 e-mail: [email protected] 1. REPORT
1.1 An application was received from a local cyclist to modify the definitive map and statement for Tameside under section 53(2) of the Wildlife and Countryside Act 1981 by adding a length of restricted byway to the definitive map and by upgrading footpath 17 and part of footpath 3, Longdendale to restricted byway status.
1.2 On 6 October 2011, the Longdendale and Hattersley District Assembly considered this application and determined to refuse the claim on the grounds that the residents along the claimed route had taken sufficient measures to demonstrate a lack of their intention to dedicate the footpaths to a higher status.
1.3 The applicant lodged an appeal with the Secretary of State for the Environment, Food and Rural Affairs after this decision was made.
1.4 The Planning Inspectorate responded to this appeal on 27 March 2012 on behalf of the Secretary of State. This response used powers granted by paragraph 4(2) of Schedule 14 to the Wildlife and Countryside Act 1981 to instruct the Council to make the requisite order to modify the definitive map and statement for Tameside.
2. DESCRIPTION OF THE ROUTE
2.1 The claimed route starts at Green Lane and runs along the length of Cow Lane to the junction of Hobson Moor Road before turning west along the track for a total length of 1715 metres to meet the adopted section of Hobson Moor Road. The route consists of a tarmac surface on Cow Lane before changing to a stoned surface along the unnamed track and then changing back to a tarmac surface on the unadopted section of Hobson Moor Road.
3. CONCLUSION
3.1 The report produced for the Secretary of State considered all of the evidence submitted on this case. The recommendation of the report was that the appeal should be allowed.
3.2 The Planning Inspectorate’s Decision Report (Appendix A) directs the Council to make the Order to modify the Definitive Map and Statement for Tameside to reflect the addition of the restricted byway and the upgrades of footpath 17 and part of footpath 3, Longdendale.
3.3 The Council is therefore required to make the Order and it is recommended that the Borough Solicitor be authorised to draft and advertise the appropriate Orders so that the Council complies with the direction received on behalf of the Secretary of State.
3.4 Although required by law to make the order and facilitate the public inquiry, the Council does not have to support the order at the public inquiry into its confirmation. Advice on this is given by the Planning Inspectorate in its Rights of Way Advice Note No1, (Appendix B).
3.5 Members are requested to indicate whether the Council would support, be neutral or oppose the confirmation of the directed order.
4. RECOMMENDATION
4.1 That the District Assembly notes the Direction from the Secretary of State under powers contained in paragraph 4(2) of Schedule 14 to the Wildlife and Countryside Act 1981 and authorises the Borough Solicitor to make the requisite Order in accordance with the Direction. 4.2 Although the Council must now make the order, it is lawful and appropriate for the District Assembly to decide whether or not they want the order to be confirmed. They are therefore asked to pass a formal resolution to decide what stance to take on the confirmation of the Order (ie supportive, neutral or opposed) when it is referred to the Secretary of State for confirmation. The Planning APPENDIX A
l!II:ST1B09 lnspectorate
Appeal Decision
'by Helen Slade MA FIPROW , an InSRector on direction of the Secretary of State for Environment, Food and Rura] Affairs Decision date: '21MAR",lG12',;, """ .' , " "
Appeal Ref; FPSjG4240j14Aj2 • This Appeai is made undersecnon 53(5) and Paraqraph 4(1} ,elf Scheduie 14 of the Wildlife, and Countryside Act 1981 ('the 1981 Act') against the decision of Tameside ' Metropolitan Borough Council not to make an Order under section 53(2) of thatAct, • The Application dated 1 July 2010 was refused by Tarneslde Metropolitan Borough Council on 29 October2011. " • The appeal is dated 15 November 2011. , , • The Appellant claims that a DeflnltlveMap Modification Order should bemade to show as a, Restricted Byway C! route currently recorded as Footpath LON/17 (Cow Lane), part of a route currently recorded as Footpath LON/3 (Hobson Moor Road) and part of the route of Hobson' Moor Road which is currently unrecorded, near Landslow Green Farm, Mottram. ' Summary of Decision: The appeal is allowed.
Preliminary Matters 1. I have been directed by the Secretary of State for Environment, Food and Rural Affairs to determine an appeal under Section 53(5) and Paragraph4(1) of Schedule 14 of the Wildlife and Countryside Act 198,1. 2. ,I have not visited the site but I am satlsfledL'can make a decision on the appeal without the need to do so. I . The Appeal Route
• ' • • • < • ~ .' • ..' 3. The route which the appeilant claims ought tobeshown on the Definitive Map and Statement as a Restricted Byway runs in a generally north westerly direction along a track known as Cow Lane, from its junction with Green Lane at Grid Reference 400671 396683 to meet Hobson Moor Road just to the north of Ash Tree Farm (Grid Reference 399935 397477). It then turns to the south west running past LandsioW Green Farm before turning east north east at Higher Landslow Green Farm for a short distance, finally resuming a south westerly direction to meet the adopted section of Hobson Moor Road.' 4. Parts of the route (Cow Lane and part of Hobson Moor Road north of tandslow Green Farm) are already recorded on the Definitive Map and Statement as public footpaths (LONj17 and LON/3 respectively). The remainder of the route is not numbered on the Definitive Map and Statement but, has public footpaths leading from or to it. 5. I have attached a plan ofthe route, takenJrom the Council's committee report, as Appendix 1 to this decision.
http://www.planruno-lnspectorete. gov,uk Appeal Decisions FPS/W2275/14A/2 & FPS/G5180/14A/l
tJiain issues, " ". I 6. In considering the evidence and the submissions, I have taken account .of the relevant parts of the 198~ Act, the Highways Act 1980 ('the 1980 Act'), of Department of Environment Circular 1/09 and of relevant court judgments. 7. For that part of the appeal route which is' already shown on the Definitive Map I must apply the criteria set outln.secnon 53(3)(c)(ii) of the 1981 Act which statesthat an order should be made on the discovery ofevidence which, when considered with all other available evidence, shows that a highway shown in the map and statement as a highway of a particular description ought to be shown there as a highway .of a differentdescrlptloh,' Thls applies to the length of the claimed route between points A-B-C as shown on the map attached to this decision at Appendix 1. The test to be applied is the balance of probabilities. _ 8. Forthat part ofthe appeal route which is not currently recorded on the Definitive Map and Statement, I must apply the criteria as set out in Section 53(3)(c) (I) of the 1981 ACt, which states that an,order should be made on the discovery by the authority of evidence which, when considered with all other relevant evidence available, shows that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist-over land to , which the map relates. This applies to the sectiorr of the claimed route' between polntscand p on map at Appendix 1. In considering this issue, there are two tests to be applied, as identified in the case of R v Secretary of State for the Environment ex parte Mrs] Norton and Mr R Bagshaw [1994], and clarified in the case of R v Secretary of State for Wales ex parte Emery [1997]:
Test A: Does a right of way subsist? This requires that there is clear evidence in favour of public rights and no credible evidence to the cohtrary. ,
, Test B: Is it reasonable to allege that a public right of way subsists? If there is a conflict of-credible evidence but no incontrovertible documentary evidence, . that a right of way cannot be reasonably alleged to subsist, then I should find,', that a public right of way has been reasonably alleged. 9. Section 31 of the 1980 Act states that where a way over any land has been enjoyed by' the public as of right, and Without interruption, for a full period of 20 years, the way is deemed to have been dedicated as a highway, unless there is sufficient evidence that there was no intention, during that period to dedicate it. The period of 20 years is calculated retrospectively from the date on which the right of the public to use, the way is brought into question. Section 31 of the 1980 Act was thoroughly reviewed by the House of Lords in R (on the application of Drain and Godmanchester TC)v SSEFRA [2007] ('GodmiJnchester') . 10. Section 31(iA)(b) of the 1980 Act applies the principles of Section 31 to the dedication of a Restricted Byway by virtue of use on non-mechanically propelled vehicles. A bicycle is a non-rnechantcally propelled vehicle. 11. It is also possible for public rights to be established at common law, Thls requires the use of the way and the actions of the landowner to have been of such a nature that dedication of the way can be inferred or alternatively that, express dedlcatloncan be shown to have occurred. '
http://www.plannlnq-lnspectorate.qov.uk 2 Appeal Decisions FPS/W2275/14A/2 & FPS/G5180/14A/l
Reasons The Application 12. The application, dated 1 July 2010, was made by Mr H P Brocklehurst on the basis of long use by cyclists. A total 0(20 user evidence forms were completed by witnesses claiming use of the appeal route for' varying periods of time, and at varying frequencies. The earliest claimed use dated from the 1950s, cohtlnulnq to the year of the application.' , 13. FolloWing consultation with local residents and other interested parties, a report was prepared by Tarneslde Metropolitan Borough Council ('the Council') and' considered by the Longdendale and' Hattersley District Assembly ('the , -Assernbly') on 6 October 2011. The evidence from people objecting to the application referred to a number of issues which were notreievant to the . determination of the application (e.g. the safety of users andthe desirability or otherwise of such a designation etc). Other submissions, which were relevant, referred to the alleqed presence of signage along the route-and the actions by, or on behalf of, various owners or tenants, indicating a lack of intention on their part to dedicate a'nything other than a public footpath.." 14. The report recommended that the Assembly refuse the application on the basis that the residents and landowners had provided sufflclent evidence to refute the proposed upgrade or registration of a Restricted Byway over the appeal route. The notice of refusal was lssued.on 29 October 2011. The Appeal 15. Mr Brocklehurst appealed against the decision by the Council on 15 November 2011 on the basis of several aspects of the evidence presented to the Council a~d the verbal evidence presented to the Assembly.· . Documentary evidence 16. Mr Brocklehurst submitted some mapping extracts to support his appeal. It is . not clear to me whether or not these documents were before the Assembly' but I have taken them into account at the appeal stage as there has been no objection from the Council to the Inclusion of these maps, which serve to illustrate some of the appellant's arguments. '
User Evidence: Section 31. of the 1.980 Act The date on which the right of the public to use the way was brought into question , , 17. The application was made in zoro following the discovery earlier that year that a gate along the route was locked. The appellant claims that it Was the consequence of a Triathlon everit, held the previous year and organised by the Council and which had caused trouble for the owners and occupiers along, the appeal route.. Mr Brocklehurst indicates that the Council had failed to advise the landowners that the use of the appeal route was planned in this way, and the resulting 'debacle'had prompted the owners of Landslow Green Farm (the . Fletcher family) to lock the gate outside their farm. 18. The Council claims that the objectors can demonstrate that prohibitive notices, indicating that the route was a private road and public footpath only, had been in position since 1955 and that ever since that time the main gate had been closed at times, and sometimes locked, to reinforce the fact that the route was http://www,plannlng-inspectorate,gov,uk 3 "Appeal Decisions FPS/W2275/14A/2 & FPS/G5180/14A/l
only open to the public as a footpath. In addition to the notices, it is claimed.' that the family members' of the owner of Landslow Green Farm had regularly patrolled the gate, challenging and turning back cyclists ,regularly., ' 19: In support of these contentions, some photographs were supplied on behalf of Mrs Fletcher showing a variety of signs, the latest ones of which were said to have been in place for. about 5 years, having replaced earlier ones which carried the same wording. The Council considers that the" date on which the right of the public to use the route was brought into question is therefore 1955 and thus the appellant cannot demonstrate 20 years of user as of right prior to that time. ' 20'. The appellant considers thatthe date on which the right ofthe public to Use the wayon bicycles was brought Ihto question was ,2010, when the gate was locked and the application was subsequently made. None of the user witnesses refer to being' challenged by the landowners prior to' that, and several actually comment on the friendly reception that they had received when cycling through the farm. Although several of the user witnesses recalled seeing signs along 'the route, some of which referred to the route as apublic footpath, none of , them were deterred by such signs, or considered that they should not be riding through there. , 21. The appellant points out that, in 2008, a cycling map was produced which showed the' Order route .as ali 'on-road route - advisory or' quiet route'. Although the revision in 2010-11 amended the depiction of the, route to show that cyclists should walk along part of the appeal route (between points Band C on the map at.Appendlx I), prior to that time it was reasonable for cyclists to believe that they were legitimately able to use the appeal route by virtue of public rights. Mr Brocklehurst has submitted extracts from the two' maps, including their legends, to illustrate this point. 22. Whilst I accept that the current wording on the signs (l.e, 'Footpath Only' and 'Access for Walkers Only') might be sufficient to demonstrate the bringing into question of the right for cyclists to use the route, the evidence of the wording of earlier signs is less strong. A sign that says 'Private Road' does not rule out the existence of public rights of way of some description. A sign which , lndlcates that a route is a public footpath does not necessarily prevent the dedication of higher rights. Dedication is in the gift of the landowner. 23. The user evidence does not support the objector's contentions that use on , bicycles has always been discouraged or prevented. It is the view of the user witnesses that the signs with the more restrictive meaninq (i.e. the inclusion of the word 'only') have appeared only in the last couple of years (i.e. since the application was submitted). 24. I agree with Mr Brocklehurst that it would seem that, prior to 2010, none of the , user evidence submitted refers to riders being stopped, turned back or indeed being anything other than tolerated. Even if the signage described by the objectors has been in place since 1955, it does not seem to have served the purpose of calling into question the rights of cyclists to use the appeal route. A number of the witnesses objecting to the application acknowledge that at least a few cyclists have used the route each year, but not in the numbers more recently experienced. 25. I therefore conclude that the event which did callthose rights into question was the locking of the gate and the hardening of the landowner's attitude in early http://www.plannlnq-Inspectorate.qov.uk 4 Appeal Decisions FPSjW2275j14A/2 & FPSjG5180j14A/l
part of 2010. The' relevant 20-year period of use for the purposes of Section 31 of the 1980 Act is therefore 199.0 to 2010. Whether there has been use of the way bytne public as of right and without interruption for a full period of20 years Use for 20 years 26. The Council submitted a 'user summary' chart with their paperswhich the appellant pointed out appeared to be incomplete. Mr Brocklehurst submitted what. he described as the full summary but which, in fact, seems to relate to a different claim (Claimed Footpath betweenDve Vale and Footpath 76 Lonqendale). I have therefore produced a summary Of my owri, from an analysis of the user evidence forms ('UEFs') and attach 'it to this decision as Appendix 2. ' , 27. The user evidence indicates that between 15 and 17people claim to have used the Claimed route during each year of the relevant period. Two people! did not clearly identify the years during which they had used the path, even though in .both cases it Was a long period of time. One of those people, Yvonne Daly, indicated use of Cow Lane only and not of the whole appeal route. I have, discounted their evidence for the purpose of this analysts due to thelack of detail, but I have no reason to doubt that they have used the route, or at least part of it, for some of the time. 28. In the earlier part of the period, between 1990 and 2000, about seven people claim to have been using the path .about once a month on averaqe.vand about four people claim to have used the path about once a week or fortnlqhtyor thereabouts, Other use is described variously as 'occasionally' or 'frequently' , or 'regularly' but cannot beso easllyquantlfled. During the latter part of the relevant period, the number of people claiming to use the route on a monthly basis rises to about ten.' Weekly use remains fairly consistent. ' ,29. These figures must be tempered by the fact th~t four people claim use of the route on foot in addition to use on bicycles and make no clear distinction between their patterns of use. It is therefore impossible to know how often they may have cycled along the route." 30. These figures demonstrate an average daily use of about one person per day, taking q generous view of the estimated USe; A number of the witnesses point out that they are members of clubs and therefore, on occasions, a party of riders may have passed along the route. Consequently, there may have been many days when no cyclists would have used, or been seen along, the route. 31. Given that several of those in objection acknowledge at least some use of the route has taken place on bicycles over the years, the evidence of the users does not. appear tome to be completely incompatible with the evidence of the objectors. I accept the objectors' view that use of the route is likely to have increased after the;hricithlon event in 2009, as the knowledge of its existence will then have been made more widespread. I also accept that the sudden , imposition of large numbers of cyclists involved in a competition islikely to have caused alarm to both other users and to the landowners and residents, , and tohaveincreased the potential for cycling use.
1 Andrew Rhodes and Yvonne Daly , 2 This also applies to Mr Rhodes, whose evidence I have not taken Into account for these purposes http://www,plannlng-inspectorate.gov.uk 5 Appeal Decisions FPS/W2275/14A/2 & FPS/G5180/14A/l
32. Nevertheless, the very fact that the route was chosen for part of the competition is indicative of the fact that it was understood to be an acceptable use by the organisers (whom the appellant states was the Council itself) particularly as they apparently did not appear to consider it necessary to inform the residents of the proposed Triathlon. 33. Several ofthe user witnesses refer to the presence of a cafe frequented by cyclists, and of the more recent opening of a visitor centre in the vicinity of the claimed route .. I do not have sufficient evidence from which to infer the likely effect of the existence of these two facilities on use of the route, but I . .nevertheless acknowledge that C;ow Lane appears to have beep surfaced at some time, possibly in connection with the development at Hollingworth Hall, . and that this mayhave encouraged vehicle use, Including cycling use. 34. Taking a cautious approach to the evidence of use, I consider that the pattern ofuse acknowledged by the objectors is more. likely to be a more accurate reflection of the use of the route. I therefore conclude that some use of the appeal route has taken place during the relevant period of 20 years, but that it was formerly relatively infrequent. In the last few years, due to the greater exposure of its existence and the general increase in popularity of mountain biking, use of the route has increased to .a point beyond the limits oftoleration of the owner of Landslow Green Farm, . Use without interruption , . .' 35. There is conflicting evidence about whether or not.the use of the way has been without interruption. Some of the user witnesses do not recall any gates across the route whilst others acknowledge theirexistence but state that they were always open. Oneor two witnesses state that if the gates were shut (or even locked) there was always access to the side, eitherby a gap or by a stile. However the general vlew of the user witnesses seems to support that it is only very recently that any gates have been locked and that the stated reason was to prevent unauthorised motorised vehicular access, and not cyclists . • 36. The objectors' evidence seems to point to the fact that the gate which was locked Was the gate at point C on the attached plan, outside Landslow Green Farm. It is acknowledged on behalf of Mrs Fletcher, the owner, that there has latterly been a gap beside the gate to permit access for pedestrians, and I accept that cyclists could ,therefore have passed through too. This would have. been more difficult when a kissing gate was present, but I have no clear date as to when that gate was removed and it appears most likely to have been prior to the relevant 20 year period. 37. Other evidence indicates at least one cattle grid on Cow Lane, but since it is a public footpath there is a bypass for pedestrians. It is not clear to me whether or not cyclists would have ridden over the cattle grid or carried their cycles across it. None of the user evidence refers to this feature in any detail, but the implication from a number of UEFs is that at times or in some places cyclists would carry their bike over a stile, However there is also evidence of more than one gate, and it may be that the stile in question is next to one of those gates. 38. Nevertheless, there is no evidence that the use of the way has ever been interrupted in the sense that Use of the route has not been possible during the relevant period.
http://www.planning-inspectorate.gov.uk 6 Appeal Declslons FPS/W2275/14A/2 & FPS/G5180/14A/l
Use by the public 39. There is no case law whi'ch definitively add~esses the question of what is meant by the term 'the public' in relation to Section 31 of the 1980 Act. There is no . information in the statute to indicate that there is a requirement for a certain volume of users to' be demonstrated. I therefore consider that the evidence demonstrates use by a' group of people who are capable of representing the public, however limited in number. As of right 40, For use to be considered to have been 'as of right' it must be demonstrated to . have been without secrecy, without force and without permission 41. There is, no evidence that, during the relevant 20 year period, use of the way' WpS secretive. Some of the user witnesses recall their use being acknowledged by the occupiers of Landslow Farm,and of talking to people. Several ofthe objectors acknowledqe that cyclists have used the route to some extent. " , , . 42. Equally there is no evidence that specific permission to use the route on a bicycle has been sought from or given by the Iandowners. This is reinforced by the fact that the Council did not think it necessary to seek permission from the landowners to direct the Triathletes along the appeal route in 2009.
43. There is some evidence of user by force. The landowners and some users of the way on foot report that, on occasions, cyclists have rudely ignored requests . ~ , . . . not to use the route, or have ridden in a manner likely to have caused a' nuisance to pedestrians or other users. Unsurprisingly, none of the cyclists who have provided evidence of use has reported such behaviour. 44. I accept that there may have been some cyclists who have behaved in a manner which represents possible user by force. However, the evidence of the 'use of the way' by cyclists iii general does not demonstrate that there has been a continuous and continuing issue in this regard. It appears that complaints to the Council of such behaviour relate to the more recent period, possibly after the date of application or perhapscontrlbutlnq to the decision by Mr '. Brocklehurst to make the application. 45. With respect to the allegations of trespass, the riding of bicycles along a public footpath is not unlawful, but may constitute an act of trespass against the .landowner. Whether or not it can be considered a trespass relies on the circumstances of the use and whether or not the landowner takes any action. The evidence of the landowners' actions is covered, below. 46. I am therefore satisfied on the balance of probabiiities that there has been use of the way on bicycles by the public without interruption and as of right, throughout the relevant 20 year period. Whetherthere is sufficient evidence of a lack of intention to dedicate a highway during the relevant period ' Hobson Moor Road 47. The dedication of a highway must be made, or be deemed to have been made, by the .landowner. Consequently, any intention of a lack of dedication must be demonstrated by, or clearly on behalf of, the iandowner. I have not been provided With a map of the landownership of the appeal routsbut Mrs Rebecca Abbey states that her mother, Mrs Joan Fletcher, owns that part of Hobson
. http:;;www,planning-inspectorate,gov,uk 7 . Appeal Decisions FPSjW2275j14Aj2 & FPSjG5180j14Ajl
Moor Road between points C1. andD on the map at Appendix 1. to this decision. Despite this, Mrs Abbey states that the Council maintains the route between point C(the location of the farm gate) and point D. . . 48. The Council describes the sectionof the appeal route between those points as 'unadopted' in its submission. However, as this section is (lot recorded on the Definitive Map and Statement as a 'highway of pny sort, I must presume that there is some other reason for the acceptance of the maintenance liability by the Council which has not been made clear to me. ' The Definitive Map and Statement shows that Public Footpath LON/1.6 joins this section of the appeal route at. Higher LandslowGreen Farm and that Public Footpath LON/3 joins it at Landslow Green Farm. Footpath LON/1.2 joins the appeal route at point D.. , Thus it must be assumed that the appeal route between points C and D already carries at 'least some highway rights (i.e. it must be at least a'publidootpath). ' 49. Mrs Abbey states that the gate at point C has existed for at least 1.00 years; and this is supported by the mapping evidence submitted by Mr Brocklehurst. The 1.907 Ordnance Survey map shows a line across the appeal route at that point, most likely representing :a gate. However,the existence of the gate in itself does not indicate the lack of intention to dedicate a highway and indeed the route to the north of the gate IS acknowledged to be a public footpath. ' 50. Mrs Abbey states that since her family has lived at Landslow· Green Farm (1.955) signs have always been 'ln place where the road is gated indicating that the road was private, a no-through road, and that it was a public footpath only. , She also refers to the existence of a similar sign in the verge at point D since 1987 until 'recent years'. , 51. Section 31.(3) of the 1.980 Act provides that where an owner has erected and maintained a notice which is inconsistent with the dedication of a highway in such a manner as to be visible by persons using the way concerned, that notice is sufficient evidence of a lack of intention to dedicate a highway in the absence .of any 'evidence to the contrary.
52. A notice which simply indicates that a ro~d is private is not necessarily indicative of a lack of intention to dedlcatesorne form of public rights. 'In this case that is clearly so since public footpath rights exist over what is otherwise described as a private road. This is not an uncommon situation and a notice saying 'Private Road' is more usually understood to relate to the lack of public vehicular rights. It is therefore not inconsistent with the existence of some type of public rights.. 53. A notice erected and maintained by the landowner, or on their behalf, which states 'Footpath Only' is clearly inconsistent with the dedication of additional public rights. .The only clear photographic evidence of such a sign is of one erected relatively recently and noted in the user evidence forms as having been a contributory factor in the making of the application. Mrs Al:Jbey states that this has been in position since about 2906 (I.e. five years prior to the date of her statement of 12 January 2011) and replaced an earlter' sign which carried the. same wording. Additional signs currently in position were supplied by the Council and erected in 2009. The photographs supplied by Mrs Abbey and showing snowy scenes said to date from 20 years ago are not of sufficient quality to reveal the wording on the notices attached to the trees. Notwithstanding, the signs do not give the impression of being ones which .: have been issued by the local Councilor Highway Authority, but of ones erected by private individuals. http://www.pianning-inspectorate.gov.uk 8 Appeal Decisions FPSjW2275j14Aj2 & FPSjG5180j14Ajl
54. The relationship between the various aspects of the Section 31 criteria was . explored ln.a decision in the House of Lords in 2007.~ In paragraph 37 of the Godmanchester judgement Lord Hoffman, who gave the leading opinion, considered that in general an act which indicated. a lack of Intention to dedicate would also bring the public's rights into question. He took the view that the Act contemplated a symmetry between the two concepts and that an overt act was required. He left open the question of whether or not there would always be a · relationship between the two but in the' case of a notice he considered that the legislation was clearer. Section 31(2) provides that the right of the public might be called into question by a notice such as one referred to in Section 31(3), and thus may perform both functions. 55. Two questions therefore arise: a) whether or not the earherstqns, both those pictured in the snowy photographs and any that were in place back to 1955, actually indicated that the route was a footpath and nothing more: and b) whether or not there is any evidence ora contrary intention. ' 56. If the signs Were in position in 1955(and maintained so) with wording that indicated that the public 'rlqht of way was only a footpath and nothing more · then, qulded by the judqernerrt In Godmanchester; at that date the public's right to use the. route by any other means was brought into question because the notice implies· a lack of intention to dedicate anything other than a footpath. Thus my conclusion at paragraph 25 above would need to be revised. '
57. The same applies if the sign was' in position and so maintained from any later date. If the date of the snowy photograph is estimated correctly as being 20 years ago then 199i might be also be considered to bea date on which the right of the public was brought into question by an act which demonstrated a lack of intention to dedicate. 'My conclusion at paragraph 25 would equally need to be reconsidered. 58. Before reaching a conclusion on this aspect it is necessary to look at other ·actions of the landowners to see whether or not they could be interpreted to demonstrate that there was a contrary intention. ' . 59. Some of the. user witnesses refer to friendly interaction with the occupiers of Landslow Green . Farm when they were, cycling through. This is not corroborated by evidence submitted on behalf of Mrs Fletcher which suggests that there has been a member of the family on 'gate duty' on occasions throughout the last 25 years at least. 60. Although I accept that members of Mrs Fletcher's family may, on occasions, have turned cyclists back at the gate, I find it hard to reconcile their eVidence with that of the user witnesses who said that they passed the time of day with occupiers in the. past. Furthermore, Mr Brocklehurst refers to one cyclist being told by someone at the farm that the gate was closed to prevent cars and. suchlike and.not cyclists. I think it more likely than not that the attitude of the Fletcher family changed over time in the light of their experiences. I note that Ms Suzanne Fletcher states that she herself has carried out 'gate' duty, but she has not lived at the property since 1980. Therefore during the relevant period I am considering sh·e has only been present for short periods of time, albeit on a regular basis. There must be many times when no member of the family was available to 'police' the gate during which cyclists may have passed unheeded.
3 RCon the application of Godmanchester and Drain) v SSEFRA and others [2007] UKHL28 ('Godmanchester') http://www,piannlng-inspectorate.gov,uk 9 Appeal Decisions FPS/W2275/14A/2 & FPS/G$180/14A/1 61. More recently I note that members of an organisation. called the Tameside Patrollers 'are alleged to have patrolled the route. I have no details of the authority or the management of such an organisation who, in any case,' have apparently denied ever turning back cyclists as they have not encountered any whilst patrolling the route.'. I place. no weight on the evidence of their involvement under the circumstances.' '- ' 62. Correspondence has been submitted on behalf of the Fletcher fami)y objecting to an alternative route for the proposed Pennine Bridleway along Hobson Moor' Road. Whilst the correspondence was with' the Council, it was not a public document and its contents would not have been known to users ofthe claimed route. The judgement in 'Godmencheeter clearly envisages overt acts which come to the attention of the public using the way concerned.. Such a letter .would not fulfil that requirement. 63. Evidence of an email to United Utilities falls into the same category and Is . likewise insufficient evidence of a lack of intention to dedicate. The email also , demonstrates a lack of appreciation on both sides that a public footpath is a highway. " . . '
64. I accept that the wording of the current signs is demonstrative of a lack of intention to dedicate. There is no clear evidence of the date that they were erected and the evidence of the user witnesses suggests that it was In 2009/10 but I acknowledge that this is disputed by the objectors.. . 65.,1 do not consider that the evidence of the earlier signs is sufflclently clear to demonstrate that they carried wording indicating that the path was only' a footpath. Signs which are indicative of a way being a public footpath do not categorically indicate a lack of intention to dedicate higher rights. Therefore I find that the earlier signs do not in themselves provide suffident evidence of a lack of intention on the part of the owners or occupiers of Landslow Green Farm to dedicate additional public rights over the appeal route and, consequently, do not affect my conclusion with regard to the date on which the rights of the public were brought into question. ,. 66. The evidence that people were stopped arid turned back is contradicted by the , evidence of those riders who submitted UEFs. That is not to say that there are . cyclists who Were turned back and who did not complete evidence forms for one reason or another. However, if such steps were taken before 200(3, they were clearly not common knowledge. In 2008 the Greater Manchester Cycle Network map for Tameside showed the' route as open to cyclists without hindrance. I am therefore not persuaded that the evidence ofsuch challenges is sufficient evidence of a rack of intention to dedicate. The detailed notes submitted on behalf of Mrs Fletcher refer to incidents in April and May 2010 and fall only two months before the date of the application. I consider that they fall outside the period I am', considering. However they do serve to demonstrate that use of the route was being made, or attempted, by a significant number of riders by that time. . 67. I have no clear information about the ownership 'of the remaining section of Hobson Moor Road to Ash Tree Farm. 'However, Mrs Booth, who gives that farm as her address, states that although she does not want the route to be upgraded, she has no objection 'to the use of the route by mountain bikes, as there are not many of them. Since she acknowledges the use of the route I must assume thatshe has not demonstrated any lack of intention to dedicate it for cyclists, if she has the legal capability. http://www.plarmlnq-lnspectorate.qov.uk 10 Appeal Decisions FPS/W2275/14A/2 & FPS/G518b/14Aj1
CoW Lane 68.Mr P Rafter and Ms C Delaney live at Hollingworth Hall Farmhouse and claim ,ownership of Cow Lane and part of Hobson Moor Road: Without clear details of the extent of Hobson Moor Road in their ownership I have assumed that they own that part to the northeast of Cow Lane, and thus outside tHe scope of this appeal. ' '
69. In their letter of 12 November 2010 Mr Rafter and Ms Delaney mention a the existence of gates along Cow Lane, kept regularly closed, and signs indicating that it is a private road for Hollingworth Hall residents only. AsI have already indicated a private road can, and often does, carry lesser public rights and therefore such a sign cannot demonstrate a clear lack of intention to dedicate such rights. The route is already a footpath and therefore the private road sign ls more likely to be designed to prevent unauthorised use by motor vehicles.
70. It is a/legedthat the signs whic~ were erected on Cow Lane were torn down or defaced. However there is no evidence that, faced with that problem, the landowners took advantage of other methods of demonstrating a' lack of intention to dedicate, such as the deposit of statements or declarations with the Council under Section 31(6) of the 1980 Act. 71. As with Hobson Moor Lane, the claims that cyclists have been stopped and turned back conflict with claims by the" cyclists that they have never experienced any challenge to their use until 2010. 'Mr Goulbourne, of Widdowcroft Farm, claims to have stopped people after 2004, but on whose authority he does not say. He refers to the question of access to his property being covered in his deeds and thus ifwould appear that he does not own the lane. He is not in a position therefore to demonstrate a lack of intention to dedicate. ' 72. I cannot be sure that no cyclist 'was ever turned back, but only that the evidence suggests that it was not common knowledge to other cyclists. The, route was included on the Greater Manchester Cycle, Network map in 2008 as an on-road route for cyclists, and remained unaltered in its 'depiction iii the 2010/11 revision. Conclusion on Section 31 of the 1980 Act 73. There is clearly a conflict of evidence. However the picture that emerges over the period of 20 years I am considering is one of relatively light use by cyclists for the majority of the period; sometimes individuals and sometimes clubs, most likely using touring bikes or similar and apparently largely tolerated by the landowners. During the latter 3-4 years or so of the period, it .appears to , be acknowledged by a number of the objectors that use on bicycles increased' .fatrly dramatically, fuelled perhaps by the introduction of the Cycle Network maps and almost certainly by the holding of a Triathlon event by the Council.' Usage may also have been influenced by the development of the visitor centre CIt Hollingworth Hall, but I have scant details regarding that project. In 2010, having run out of patience, the Fletchers took action to lock the gate outside their farm and thus overtly brought into question the right of cyclists to use the route. 74. Until that time, and during at least the relevant 20 year period, use of the route by the cyclists was, generally speaking, tolerated. It was exercised as of right and Without interruption, although I would not rule out the fact that some
http://www.plannlng-inspectorate.gov.uk 11 Appeal Decisions FPSjW2275j14A/2 & FPSjG5180j14Aj1
. riders may have been turned back on occasions particularly towards the end of the 20 year period. I accept that since 2010 many more cyclists are likely to have been challenged, but that is not relevant to my examination of the period 1990 to 2010. ,. .
75. There is some evidence to suggest that the landowners of Landslow Green Farm did not have it in mind to dedicate higher rights than those of a footpath, but the actions that they took and the signs they erected did not demonstrate their lack of intention in a SUfficiently overt manner to bring it to the attention of the users of the route. Nor Was it sufficient to iridicate to the people who produced the Cycle Network mapIn 2008 or those who planned the Triathlon. 76. There is insufficient evidence of any action on the part of other landowners to demonstrate their lack of intentions in this regard. Conclusion on Section A·B·C . ., . 77. Having regard to these and all other matters raised Inthe written . representations I conclude that the available evidence shows that the part of the appeal route which is currently shown on the Definitive Map as Footpath LON/17 and part of Footpath LON/3 ought to be shown as a restricted byway. The appeal should be allowed. Conclusion on Section C·D 78. Having regard to these and all other matters raised in the wrltten representations I conclude that the available evidence shows that a restricted . byway subsists over the part of the appeal route which is not currently shown on the Definitive Map and Statement and It should be recorded as such. The . appeal should be allowed. ' Formal Decision . , 79. Inaccordance with paragraph 4(2) of Schedule 14 to the 1981 Act Tameslde Metropolitan Borough Council is directed to make an order under section 53(2) and Schedule 15 of the Act to modify the Definitive Map and Statement for the area to show as a Restricted Byway that part of theappeal route currently . shown as Footpath LON/17 and part Of Footpath LON/3 (Section A-B-C); and to record as a Restricted Byway the currently unrecorded section of the appeal route (C-D). .
80. This decision is made without prejudice to any decisions that may be given by the Secretary of State in accordance with her powers under Schedule 15 of the 1981 Act.
Helen, Sfaae Inspector
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.~; plfn'ls: ll¢=~ ~q.j qil~e_4711~i¥~4r'~~'Th~ p\:olll 1$ ~~d~~ f~G.·'.Ht'f;¢.(ouncll'.s '?llmnl!':er;b~eil tieti~pbr.o;i'ffdofO?ifl)r, .~:n.4~,Th;;' plan: . t.hP~~!v.: ilpp!'9Xlm;ne ~eo{ ptJbli~ ri~~ lit ~ ~(lcird'"d t.It.i".~rU1l(r'"e ~p. bv!. r..d't)(;5 tit{' :q,;t.;n- RIGHTS OF WAY SECTION ADVICE NOTE Nol CONDUCT OF INQUIRIES AND HEARINGS INTO RIGHTS OF WAY ORDERS WHERE ORDER MAKING AUTHORITIES DO NOT ACTIVELY SUPPORT AN ORDER Introduction 1. This Advice Note sets out the procedures to be followed where an order making authority (OMA) does not actively support a definitive map or public path order. 2. The booklet 'Guidance on procedures for considering objections to Definitive Map and Public Path Orders in England' has been prepared by the Planning Inspectorate and is available to the public on our website at www.pianningportal.gov.uk/planning/countryside/. Parts 3 and 4 describe what typically happens when a public hearing or inquiry into a rights of way order takes place. However, where an OMA chooses not to support an order, the Inspector will need to consider adopting different procedures from those set out in the booklets. When this happens, the Inspector will explain to the inquiry or hearing why and how the procedure is being changed. The quldance in this Advice Note is intended to assist all concerned in preparing for such circumstances where these can reasonably be foreseen. 3. This Advice Note is publicly available but has no legal force. Background 4. In most cases, an OMA will not make an order unless it is satisfied that the circumstances justify it. Exceptions to this occur when an OMA declines to make the requested order but the applicant successfully appeals to the Secretary of State. 5. In the case of a definitive map order, this may result in the OMA being directed to make the order under Schedule 14 of the Wildlife and Countryside Act 1981. In the case of a public path order, the Secretary of State may decide to make an order using powers under Sections 26 or 120 of the Highways Act 1980, or Section 247 of the Town and Country Planning Act 1990, although these powers are very rarely used. 6. In such circumstances, where an OMA has previously assessed the facts of the case and decided the making of an order is not justified, it may opt to actively oppose confirmation of the order or it may choose to adopt a neutral stance whereby it neither supports nor objects to confirmation. 7. There may also be occasions where the OMA supported the initial making of the order but advertisement brought to light new information, further evidence or valid objections which caused the OMA to conclude that confirmation was not justified. Again, the OMA may opt to actively oppose confirmation of the order or it may choose to remain neutral as regards confirmation. 1 The Planning Inspectorate Revision February 2011 8. Sometimes an OMA is content to make the requested order but is not prepared to actively support it at an inquiry if it is opposed. Such examples are usually where an order is made under the Town and Country Planning Act 1990 to enable development to proceed or the Highways Act 1980 in the interests of a landowner. OMAs may choose to remain neutral as regards confirmation of the order, to passively support it or even to oppose it if new information or objections following advertisement cause a change of mind. 9. Similar circumstances may arise where, after having considered the details of a case, the Inspector proposes modifications to an order but advertisement results in objections to these modifications leading to a second or subsequent hearing or inquiry (see paragraphs 29 to 33 below). In this scenario, the parties concerned (including the OMA) may support, oppose or take a neutral position as regards the proposed modifications. The role of the OMA 10. In normal circumstances, where an OMA actively supports confirmation of the order at an inquiry, its advocate will present the case in support and call witnesses as required, cross-examine witnesses who oppose the order, and finally will draw together the proceedings at the end of the lnqulry, summing up the case in support and making any legal submissions as appropriate. At a hearing the OMA's rights of way officer would normally present its case, without introducing witnesses or cross-examining other witnesses. 11. Where an OMA has decided not to support confirmation of the order at a forthcoming hearing or inquiry (or otherwise) the Planning Inspectorate should be informed at the earliest opportunity. A clear statement indicating whether the OMA intends to actively oppose the order or to adopt a neutral stance is required, together with an indication of its reasons for doing so. 12. When this occurs, the OMA will still remain responsible for the order and therefore will be required to secure the agreement of the applicant or another supporter of the order to take the lead in presenting the case. If no-one is prepared to take the lead (and assuming the case cannot instead be determined by exchange of written representations) at the hearing or Inquiry the Inspector will summarise the case for the order from the information before him or her, with the applicant or any other supporters being invited to take part in the discussion (at a hearing) or give their own evidence (at an inquiry) in due course. 13. Aside from the case for (or against) the order, it is usual for the OMA, if represented by a law professional, to offer assistance to the Inspector on points of law or procedure, should any arise during the course of the hearing or lnqulry. Where the OMA has made clear that it will not be appearing in support of the order, it would be helpful to the Inspector to know at an early stage whether or not the OMA's representative can, and is willing to, offer such assistance at the hearing or inquiry if required. At the start of the inquiry or hearing 14. At the start of an inquiry, it is normal practice to hear the case for the order from those who support it before hearing the case against from the objectors. Where the OMA is appearing as a supporter or objector to the order, it will be 2 The Planning Inspectorate Revision February 2011 invited to present its case in accordance with that convention. 15. Where the OMA has given notice that it will take a neutral stance at an inquiry, the Inspector will invite its representative to make an opening statement before both the supporters and objectors. However, this statement should be limited to a summary of the background to the making of the order and the reasons for the OMA choosing to remain neutral as regards its confirmation. It should not contain submissions for or against the order (which should more properly be given by the OMA in the role of supporter or objector) but be a factual account of the history of the order and the key issues which influenced the OMA's conclusions leading to its neutral position. 16. Where the OMA has given notice that it will take a neutral stance at a hearing, the Inspector will invite its representative to contribute to the discussion. However, comments should be limited to a summary of the background to the making of the order and the reasons for the OMA choosing to remain neutral as regards its confirmation. 17. If circumstances arise immediately prior to the hearing or inquiry that cause the OMA to revise its position so that it no longer intends to remain neutral, the· Inspector should be informed at the start of the proceedings so that the OMA can be heard as either a supporter or objector in the usual sequence of events. 18. Should the reverse situation occur, where information comes to light at the iast minute causing an OMA to withdraw its support for the order, thereby becoming an objector or taking a neutral stance, the Inspector must be advised at the earliest possible opportunity. 19. Unless arrangements can be made before the event (see paragraph 12) the Inspector will enquire whether any of the supporters present at the inquiry or hearing are prepared to take the lead in presenting the case in support of the order. A request for an adjournment is unlikely to be refused although the length of any adjournment will depend on the circumstances of the individual case. It may vary from a few minutes to allow the applicant or supporter to gather his or her thoughts, to several days or longer to enable a full case to be prepared. 20. If there is no-one prepared to lead the case in support of the order, the Inspector may decide to adjourn until a suitable volunteer can be found or, alternatively to summarise the main points in support of the order him or herself, after which the individual supporters will give their evidence to .the inquiry or contribute to the discussion at the hearing. In some cases it may be appropriate to close the hearing or inquiry altogether and make alternative arrangements for determining the order. 21. Any last minute changes which significantly delay matters or affect the smooth running of the hearing or inquiry can put the party responsible at risk of a claim for costs against them unless the issues could not reasonably have been foreseen. However this should not cause any party to withhold late evidence which has a significant bearing on the determination of the order. During the hearing or inquiry 22. Particularly in the case of definitive map orders, there may be archival or other 3 The Planning Inspectorate Revision February 2011 documentary evidence which is held by (or has been otherwise discovered by) the OMA that needs to be taken into account by the Inspector when determining the order. Where the OMA takes a neutral stance at an inquiry or hearing following a successful Schedule 14 appeal, it is important that the applicant or supporter ensures that this evidence is put before the Inspector (as the Inspector will not have received copies of the Schedule 14 application evidence unless it is submitted as part of the Order itself). Where the OMA takes a neutral stance for any other reason, for example because they have discovered further evidence following the making of the order, it is incumbent upon the OMA to provide it. 23. The Inspector will decide on the appropriate time for any such evidence to be presented to the hearing or inquiry depending on the nature of the case. Whilst neutral OMAs are still obliged to make such documents available for inspection by the Inspector (if necessary by arrangement with local record offices), there is no requirement for these to be presented by professional witnesses. Depending on the complexity of the documents concerned, it may be helpful to the Inspector if the OMA is able to provide an officer to answer any factual questions in relation to the documents. However, if interpretation of the evidence is at issue, the OMA may decide whether or not to proffer a professional witness to present the OMA's interpretation (bearing in mind its neutral status in relation to the Order) and consequently accept any cross examination from supporters and objectors. In such circumstances the hearing procedure is unlikely to be appropriate. 24. The most frequent reason for an OMA taking a neutral stance is where an applicant has been successful in obtaining a direction from the Secretary of State/Welsh Ministers under Schedule 14 of the Wildlife and Countryside Act 1981. In such cases, it is not appropriate for any of the parties to simply produce the appeal decision, or an Inspector's report on which this may have relied, as evidence. The evidence that was submitted to the Secretary of State/Welsh Ministers to support the appeal, together with any other relevant information that has been discovered since, must also be presented to the hearing or inquiry so that the Inspector appointed to determine the order has all the available evidence before him or her so as to reach an independent and impartial decision. It should not be assumed that appeal documents will automatically be transferred. 25. The Inspector is not bound by the Secretary of State/Welsh Ministers' decision on the appeal. He or she will have the advantage of hearing evidence given in person by witnesses and (at an inquiry) tested under cross examination, seeing the order route on site and inspecting at first hand any other relevant evidence. There may therefore be many reasons why an Inspector's conclusions following an inquiry or hearing may be different to those identified in an appeal decision. Closing submissions at inquiries 26. As the promoter (and a supporter) of the order, the OMA is given the opportunity to make the final closing statement after any made on behalf of the objectors. This may include submissions on points of law relevant to the case as well as summarising the evidence leading to the request for confirmation. 4 The Planning Inspectorate Revision February 2011 27. Where an OMA has actively opposed an order, the final closing statement should be made by the applicant or any supporters who took the lead in presenting the case for the order. In these circumstances, the OMA has effectively given up the normal "right of final reply" and will present its closing submissions before the supporters. 28. In the case of an OMA that has taken a neutral stance throughout, the Inspector will first hear closing statements from the objectors and then the supporters before finally inviting the OMA to make any closing observations. In line with its neutral position, these will not seek to make the case for or against confirmation but are likely to be limited to clarifying factual matters, drawing the Inspector's attention to the main issues of the case and highlighting relevant case law that may have been missed by the other parties. Second or subsequent hearings or inquiries into advertised modifications to orders 29. As noted above, an Inspector's proposed modifications to an order may result in there being no supporters for the proposed changes at the subsequent inqulrv or hearing. In most cases, after explaining the purpose of the inquiry or hearing and dealing with the opening formalities, the Inspector will summarise the reasons for these modifications, based on the matters contained in the interim order decision. 30. If, at a second lnquiry, the OMA supports the proposed modifications, it will be given the opportunity to open the case for the supporters and will be invited to make the final closing statement. At a hearing it would contribute to the discussion in the usual way. 31. If, however, the OMA intends to make representations against the proposed modifications, its objections will be heard at the same stage as other objectors, that is, after any representations in support of the modifications have been made. If at an lnqulry the OMA wishes to make a closing statement, it may do so along with any other objectors but before the closing submissions of the supporters. 32. Where the OMA takes a neutral stance on proposed modifications to an order, it would not be expected to present any evidence either for or against the proposed changes. The Inspector may, nonetheless, ask whether they would be prepared to assist in clarifying matters not concerned with the merits of the order. At the end of an lnqulry, the Inspector will ask the OMA if they have any final comments to make after inviting closing statements from the objectors and then the supporters. 33. Where a second hearing or inquiry is held to consider both the original order and modifications proposed by the Inspector, the sequence in which the parties are heard is a matter to be determined by the Inspector at the start of the proceedings, in consultation With those concerned. In conclusion 34, Circumstances will differ from one hearing or inquiry to another. This advice note is not therefore intended to be exhaustive; it is only a guide. Inspectors 5 The Planning Inspectorate Revision February 2011 will continue to exercise their judgement and discretion in these matters, based on each individual case. 6 The Planning Inspectorate Revision February 2011