Sometimes you might think that there are few surprises left in rights of way casework. You might be wrong. At the end of August 2017, Cheshire East Council made and published two ‘unremarkable’ s.257 diversion orders, and circulated the notice and copy orders to the usual list of statutory bodies. For no obvious reason, these orders contained only the five articles, sealed at the bottom with the council’s official seal, plus the order map. There were no schedules.
The absence of schedules providing details of the proposals drew an objection to each of the orders. Cheshire East Council promptly came back to the objector, explaining that the order did have schedules, but these had been missed by the scanner, and so not sent out. This explanation was sufficient to get the objections withdrawn, but the presence of the seal below the articles (‘page 1’ of the order, if you like), with the schedules coming after, set a bell ringing with the objector, who looked it up in the statute and the associated regulations. The Wildlife and Countryside Regulations,, and Public Path Order Regulations, were also examined. This is what each provides (our emphasis):
Paragraph 2(1) of the Town and Country Planning (Public Path Orders) Regulations 1993 SI 1993 No 10 requires that:
“A public path order shall be in the relevant form set out in Schedule 1 to these Regulations or in a form substantially to the like effect, with such modifications as may be required, and shall at the end be sealed and dated.”
Paragraph 2(2) of the Public Path Orders Regulations 1993 SI 1993 No 11 requires that:
“An order shall at the end be sealed and dated.”
Regulation 7(1): Schedule 4 to the Wildlife and Countryside Regulations 1993 requires at paragraph 1 that:
“A modification or reclassification order shall be made in duplicate with the seal of the surveying authority (“the authority”) and the date of making inserted after the order and before its schedule”
There is difference in the wording between the DMM order requirements, and the two diversion order requirements. For DMM orders it is absolutely clear that the seal shall go after the order (the articles) but before the schedule.
For the diversion orders (as here, there are other provisions) the seal must go at the ‘end’, but this is not clear as to the end of what. Is it the whole order-as-made: the articles, schedules and map, or is it at the end of the order (articles) and before the schedule? If the latter, then why did the draughtsman not use similar unequivocal language to the Wildlife and Countryside Act?
Discussion in the rights of way practitioner community came up with what seems to be a likely reason. Unlike public path and TCPA orders, DMM orders can be ‘severed’: part of the schedule can be struck out on confirmation by the Secretary of State. If these schedules were upstream of the seal, then the Secretary would be excising potentially large portions of the order as sealed, and that is probably outwith the Secretary’s powers.
IPRoW has today written to Dave Waterman at DEFRA (cc PINS and the Welsh Government) seeking clarification. A crude count of orders currently stored by practitioners indicates that a very high proportion of DMM orders are sealed after the schedules, prima facie rendering them invalid. After all, the wording of the statute is commendably clear. A good number of these sealed-at-the-very-end DMMOs are currently with the Secretary of State, or the Welsh Government, for determination.
Readers may also be aware that PINS regularly and rigorously rejects orders that use the wrong notation on order maps ‑ and that notation is, of course, a ‘shall’ in the same part of the legislation.
One observer has also written to Dave Waterman at DEFRA reminding him about the Winchester case and NERCA 2006, and how the smallest deviation from the mandate about DMMO applications in another WCA 1981 schedule has been held to invalidate applications which fail to do what the schedule demands ‘shall’ be done. The Trust expects that DEFRA will regard ‘shall’ in Schedule 4 (seals) with as much respect as it clearly does ‘shall’ in Schedule 14 (Winchester).