Schedule 7: Ascertainment of rights of way Failure by an authority to determine an application
631.Paragraph 5 of Schedule 13A provides a right of application to the magistrates’ court, for anyone who has applied for an order modifying the definitive map and any landowner or occupier of land to which the application relates, where a surveying authority have not decided an application within 12 months of receiving it. This does not apply to an application for an order modifying the definitive map where the authority informed the applicant under paragraph 2(3) (preliminary assessment and notice of applications) of their decision not to consider the application further.
632.The applicant (or landowner, or occupier) must first, under sub-paragraph (1), give notice to the surveying authority of the intention to apply to the magistrates’ court. Under sub-paragraph (2), an application to the court may then be made after 1 month has passed after the giving of notice to the authority, but not after more than 12 months have passed. Under sub-paragraph (4) the magistrates’ court may direct the authority to take specified steps in relation to the application for an order modifying the definitive map within a reasonable period. The authority may make one application to the court for an order extending that period by up to 12 months. Under sub-paragraph (7) the applicant or authority, or any relevant owner or occupier, may appeal to the Crown Court. Sub-paragraph (8) provides that any order of the magistrates’ court will not take effect until 21 days after it has been made or the matter is decided in the Crown Court on appeal.
633.Paragraph 6 makes further provision about notices relating to an application to the magistrates’ court under paragraph 5 to ensure, where possible, that any other parties that might be affected by the application are alerted to it. This new right of appeal to the magistrates’ court will (following a transitional period) replace the existing right of appeal to the Secretary of State (in Schedule 14, paragraph 3(2)), which is widely regarded as ineffective. Appeals to the Secretary of State may result in a lengthy period of uncertainty for those with an interest in the outcome. The change will reduce the period of uncertainty. It is also designed to remove the burden on the Secretary of State, who may be required to become involved following an application under section 53(5) of the 1981 Act at several different junctures.