The Modification Order procedure exists to ensure that the Definitive Map and Statement can be corrected to record Public Rights of Way which already exist. If you believe the Definitive Map and Statement to be incorrect you may apply for a Modification Order, submitting evidence with your application. The reason you need to apply for an Order is because the Definitive Map and Statement is a legal document and can therefore only be changed by a legal order. Bath and North East Somerset Council (“the Authority”) has a statutory duty to process these applications. The procedure to make orders is defined by legislation and is lengthy (i.e. may take several years) because it is a public process. If an order is made and confirmed, this will change the Definitive Map and Statement. Once an application has been made, please note that it cannot be withdrawn.
This process cannot be used to alter a right of way just because you would like it altered or think a different route would be better. You will need to submit evidence in support of your application and be prepared to support your case if it goes to public inquiry.
Reasons for Making an Application
There are several reasons why you might think that the Definitive Map and Statement is wrong:
• a route should be shown and isn’t – i.e. it should be added
• a route is shown as having the wrong status – i.e. it should be upgraded or downgraded to its true status
• a route is shown on the wrong line – i.e. it should be amended
• a route should not be shown at all – i.e. it should be deleted
• a route ought to be more precisely defined - i.e. it should be varied
Types of Evidence
The Modification Order procedure is governed by the Wildlife and Countryside Act 1981, and guidance given in Circular 1/09 states that the application must be accompanied by copies of any supporting evidence. The Authority is required to weigh each piece of evidence which is submitted to it, or is discovered during its investigation, and your application will therefore need to be supported by evidence. Evidence falls into two main categories, either:
• use of the right of way by the public
• historical documents including old maps.
Use by the Public
If you are making an application based on user evidence, you will need to submit user evidence from other people who have used the route. It is not sufficient to say that you have seen others using the route. To assist you in collecting evidence from the public, we have compiled a User Evidence Form which collects the basic information we need when deciding on an application. For example, you will need to provide evidence to show:
• that the route has been used openly (that is without force, secrecy or permission) for at least 20 years by the public
• that more than a few people used the route i.e. the public in general
• that the landowner never tried to prevent people using the route during the 20 year period
• that a specific route from A to B is used, rather than people wandering freely over open land
A copy of the User Evidence Form is included in the Authority's DMMO Application Pack. You can copy it as many times as you like: the more evidence you can collect, the stronger your case will be. Applicants must not complete any section of other people’s forms themselves or mark the route on the map; this must be done by the individual users.
Documents and Old Maps
A public right of way may have existed for over a hundred years but is not recorded on the Definitive Map and Statement. Old maps and documents can provide evidence for this. If the route is shown on sufficient documents this is strong evidence for its existence. Such documents can also provide evidence of the route’s status.
The Somerset Heritage Centre (SHC) in Taunton, the Bath Records Office (BRO) in Bath and The National Archives (TNA) in Kew hold many historical maps and documents which may help you to provide evidence of the existence of an old public right of way. You can find evidence for the existence and status of a route by looking at various old maps and documents such as:
• tithe maps – 19th century
• inclosure maps – 18th and 19th century
• maps for the construction of canals and railways – 18th and 19th century
• Inland Revenue plans from 1910-14
• title deeds or estate maps – any period
• Ordnance Survey maps – from 19th to 20th century. Please note that depiction of a route on most Ordnance Survey maps can only be taken as evidence of existence, and is not evidence of a right of way due to the disclaimer which you will find printed on their maps.
You will need to include copies or photographs of any documents which you intend to rely upon.
If you are making an application that a right of way does not exist and needs to be deleted, it is recommended that the above documents are looked at in the SHC, BRO and TNA as these documents may provide evidence about whether a route is shown (and perhaps subsequently extinguished) or not shown at all. In addition you will need to provide cogent evidence of the mistake that was made at the time the route was recorded on the Definitive Map and Statement. Please note that the onus is on the applicant to prove that a right of way does not exist.
Making a DMMO application
Whilst there is no cost to making an application, they can be complex and take a long time to resolve. The Natural England booklet “A guide to definitive maps and changes to public rights of way” (NE112) gives useful information and may be downloaded from the Natural England website. The application and appended evidence will be used to assess whether a legal order should be made and confirmed and it is possible that both will be scrutinised as part of a quasi-judicial process such as a public inquiry. It is therefore important that the application form and user evidence forms are completed to the highest level of accuracy possible.
The Council will normally process applications for DMMOs in chronological order of receipt; however, applications may be dealt with sooner where other factors are relevant such as the age/health of witnesses able to provide relevant evidence and the likelihood of the land over which the route runs being developed. The Authority's Definitive Map Modification Order Application Pack contains further information about how to make an application and the application form and notices which will need to be completed. If you would like to discuss how to make a DMMO application please contact the Council's Public Rights of Way Team on 01225 477532 or by emailing firstname.lastname@example.org
The evidence submitted in respect of a DMMO application will be processed in accordance with the Data Protection Act 2018 and the General Data Protection Regulation. It is held by the Public Rights of Way Team of Bath and North East Somerset Council for the purpose of processing this evidence. The Authority has a statutory duty to process DMMO applications and this is a public process. Consequently, evidence submitted will be available for public inspection. Objections to the disclosure of personal data contained in evidence should be sent in writing to Public Rights of Way Team, Bath and North East Somerset Council, Lewis House, Manvers Street, Bath, BA1 1JG.