Countryside and Rights of Way Bill.

Countryside and Rights of Way Bill. - continued	House of Commons
SCHEDULE 6, AMENDMENTS RELATING TO CREATION, STOPPING UP AND DIVERSION OF PUBLIC RIGHTS OF WAY - continued
PART I, AMENDMENTS OF HIGHWAYS ACT 1980 - continued

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121B. - (1) Every council shall keep, in such manner as may be prescribed, a register containing such information as may be prescribed with respect to applications under section 118ZA, 118C, 119ZA or 119C above.

(2) The register shall contain such information as may be prescribed with respect to the manner in which such applications have been dealt with.

(3) Regulations may make provision for the register to be kept in two or more parts, each part containing such information relating to applications under section 118ZA, 118C, 119ZA or 119C above as may be prescribed.

(4) Regulations may make provision-

(a) for a specified part of the register to contain copies of applications and of the maps submitted with them, and

(b) for the entry relating to any application, and everything relating to it, to be removed from any part of the register when the application (including any appeal to the Secretary of State) has been finally disposed of (without prejudice to the inclusion of any different entry relating to it in another part of the register).

(5) Every register kept under this section shall be available for inspection by the public at all reasonable hours.

(6) In this section-

"prescribed" means prescribed by regulations;

"regulations" means regulations made by the Secretary of State.

Cases where council may decline to determine applications.

121C. - (1) A council may decline to determine an application under section 118ZA, 118C, 119ZA or 119C above if, within the period of three years ending with the date on which the application is received, the Secretary of State-

(a) has refused to make an order on an appeal under section 121D(1)(a) below in respect of a similar application, or

(b) has refused to confirm an order which is similar to the order requested.

(2) Before declining under subsection (1) above to determine an application under section 118C or 119C above, the council shall consider whether since the previous decision of the Secretary of State was made the risks referred to in subsection (1)(b)(i) to (iv) of section 118B or of section 119B have substantially increased.

(3) A council may decline to determine an application under section 118ZA, 118C, 119ZA or 119C above if-

(a) in respect of an application previously made to them under that section which is similar to the current application or relates to any of the land to which the current application relates, the council have not yet determined whether to make a public path extinguishment order, special extinguishment order, public path diversion order or special diversion order, or

(b) the council have made a similar order or an order which relates to any of the land to which the current application relates but no final decision as to the confirmation of the order has been taken.

(4) For the purposes of this section an application or order is similar to a later application or order only if they are, in the opinion of the council determining the later application, the same or substantially the same, but an application or order may be the same or substantially the same as a later application or order even though it is made to or by a different council.

Right of appeal to Secretary of State in respect of applications for orders.

121D. - (1) Subject to the provisions of this section, where, in relation to an application made under section 118ZA, 118C, 119ZA or 119C above, the council to which the application was made-

(a) refuse to make an order on the application,

(b) refuse to confirm as an unopposed order an order made on the application, or

(c) refuse to submit to the Secretary of State an order which is made on the application and against which any representation or objection has been duly made and not withdrawn,

the applicant may, by giving notice to the Secretary of State, appeal to the Secretary of State.

(2) Subsection (1)(a) above does not confer any right to appeal to the Secretary of State where-

(a) the council have no power to make the order requested without the consent of another person and that consent has not been given, or

(b) the reason, or one of the reasons, for the refusal to make the order is that the applicant has refused to enter into an agreement required by the council-

(i) in the case of a public path extinguishment order, under subsection (6) of section 118ZA above,

(ii) in the case of a special extinguishment order, under that subsection as applied by section 118C(2) above,

(iii) in the case of a public path diversion order, under subsection (5) of section 119 above,

(iv) in the case of a special diversion order, under that subsection as applied by section 119C(3) above.

(3) Paragraph (b) of subsection (1) above does not confer any right to appeal to the Secretary of State in a case where the council has no power to confirm the order without the consent of another person and that consent has not been given; and paragraph (c) of that subsection does not confer any right to appeal to the Secretary of State in a case where, if the order had been unopposed, the council would have had no power to confirm it without the consent of another person and that consent has not been given.

Determination of appeals.

121E. - (1) Where an appeal to the Secretary of State is brought under section 121D(1)(a) above, the Secretary of State shall-

(a) prepare a draft of a public path extinguishment order, special extinguishment order, public path diversion order or special diversion order under section 120(3) above giving effect to the application and containing such other provisions as, after consultation with such persons as he thinks fit, the Secretary of State may determine,

(b) give notice of the draft order in accordance with paragraph 1(2) of Schedule 6 to this Act, and

(c) subject to subsection (5) below and to paragraph 2 of that Schedule, determine whether to make the order (with or without modifications) under section 120(3) above.

(2) Where an appeal to the Secretary of State is brought under section 121D(1)(b) or (c) above, the order made on the application shall be treated as having been submitted to him for confirmation (with or without modifications).

(3) Where an appeal to the Secretary of State is brought under section 121D(1) above, the Secretary of State may not-

(a) make a public path diversion order or special diversion order so as to create a public right of way over land covered by works used for the purposes of a statutory undertaking or the curtilage of such land, or

(b) modify such an order so as to create such a public right of way,

unless the statutory undertaker has consented to the making or modification of the order.

(4) In subsection (3) above "statutory undertaker" and "statutory undertaking" have the same meaning as in Schedule 6 to this Act.

(5) Subsection (1)(c) above does not apply where any consent required by section 121(4) above has not been obtained.

(6) The Secretary of State may by regulations make further provision with respect to appeals under section 121D(1) above.

(7) Regulations under subsection (6) above may, in particular, make provision-

(a) as to the manner in which, and time within which, notice of an appeal is to be given,

(b) as to the provision of information to the Secretary of State by the council to which the application to which the appeal relates was made,

(i) in preparing a draft order,

(ii) in giving any notice required by subsection (1)(b) above or Schedule 6 to this Act,

(d) requiring the production by the council to whom the application as made of any certificates required by regulations under section 121A(1)(a) above,

(e) requiring the applicant to give notice of the appeal to such persons as may be prescribed,

(f) requiring the applicant to certify that any requirement of regulations under this section has been complied with or to provide evidence that any such requirement has been complied with,

(g) as to the publicising of any appeal,

(h) as to the form, content and service of such notices and certificates,

(i) modifying the provisions of Schedule 6 to this Act in their application to the procedure on appeals under section 121D(1) above, and

(j) as to the remission or refunding in prescribed circumstances of any prescribed charge.

(8) The Secretary of State may by regulations provide that section 28 above, as applied by section 121(2) above, is to have effect in cases where a public path extinguishment order, special extinguishment order, public path diversion order or special diversion order is made under section 120(3) above on an appeal under section 121D(1)(a) above, as if the reference to such one of the authorities referred to as may be nominated by the Secretary of State were a reference to such one of those authorities as may be specified in, or determined in accordance with, the regulations.

(9) Subsections (2) to (4) of section 121A above shall apply in relation to any certificate purporting to comply with a requirement imposed by virtue of this section as they apply to a certificate purporting to comply with a requirement imposed by virtue of subsection (1) of that section.

(10) For the purposes of this section-

(a) a draft public path extinguishment order or special extinguishment order gives effect to an application under section 118ZA or 118C above only if the land over which the public right of way is to be extinguished by the order is that shown for the purposes of section 119ZA(2) or 118C(2) above on the map accompanying the application, and

(b) a draft public path diversion order or draft special diversion order gives effect to an application made to a council under section 119ZA or 119C above only if-

(i) the land over which the public right of way is to be extinguished by the order, and

(ii) the new site to which the path or way is to be diverted,

are those shown for the purposes of section 119ZA(3) or 119C(3) above on the map accompanying the application.

(11) In this section "prescribed" means prescribed by regulations made by the Secretary of State."

11. In section 293 of the 1980 Act (powers of entry for purposes connected with certain orders relating to footpaths and bridleways), in subsection (1)-

(a) after "rail crossing extinguishment order," there is inserted "a special extinguishment order", and

(b) for "or a rail crossing diversion order" there is substituted ", a rail crossing diversion order, a special diversion order or an SSSI diversion order".

12. In section 325 of the 1980 Act (regulations, schemes and orders), in subsection (1)(d), for "118, 119," there is substituted "118, 118A, 118B(3), 119, 119A, 119B(3), 119D".

13. In section 326 of the 1980 Act (revocation and variation of schemes and orders) in subsection (5), for "a public path diversion order" there is substituted "a rail crossing extinguishment order, a special extinguishment order, a public path diversion order, a rail crossing diversion order, a special diversion order or an SSSI diversion order".

14. In section 329(1) of the 1980 Act (interpretation)-

(a) after the definition of "proposed highway" there is inserted-

""proprietor", in relation to a school, has the same meaning as in the Education Act 1996;",

(b) after the definition of "road hump" there is inserted-

""school" has the same meaning as in the Education Act 1996;",

""special diversion order" means an order under section 119B(3) above;",

(d) after the definition of "special enactment" there is inserted-

""special extinguishment order" means an order under section 118B(3) above;", and

(e) after the definition of "special road authority" there is inserted-

""SSSI diversion order" means an order under section 119D above;".

15. In section 334 of the 1980 Act (savings relating to telecommunications apparatus) in subsection (2), for "and a public path diversion order" there is substituted ", a special extinguishment order, a public path diversion order, a special diversion order and an SSSI diversion order".

16. - (1) Schedule 6 to the 1980 Act (provisions as to making, confirmation, validity and date of operation of certain orders relating to footpaths and bridleways), including that Schedule as applied by section 32(2) of the Acquisition of Land Act 1981, is amended as follows.

(2) In paragraph 1(1) and (2)-

(a) after "rail crossing extinguishment order," there is inserted "a special extinguishment order", and

(b) for "or a rail crossing diversion order" there is substituted ", a rail crossing diversion order, a special diversion order or an SSSI diversion order".

(3) In paragraph 1(3A)-

(a) after "rail crossing extinguishment orders," there is inserted "special extinguishment orders", and

(b) for "and rail crossing diversion orders" there is substituted ", rail crossing diversion orders, special diversion orders and SSSI diversion orders".

(4) In paragraph 1(3B)-

(a) after "draft rail crossing extinguishment orders," there is inserted "draft special extinguishment orders", and

(b) for "and draft rail crossing diversion orders" there is substituted ", draft rail crossing diversion orders, draft special diversion orders and draft SSSI diversion orders".

(5) In paragraph 2-

(a) in sub-paragraph (1), at the beginning of paragraph (a) there is inserted "subject to sub-paragraph (2A)",

(a) in sub-paragraphs (2) and (3), for "or a public path diversion order," there is substituted ", a public path diversion order, a special diversion order or an SSSI diversion order", and

(b) after sub-paragraph (2) there is inserted-

	"(2A) Before making or confirming an order on an appeal under section 121D(1) of this Act, the Secretary of State shall-
	(a) if requested by the authority who made an order to which the appeal relates to cause a local inquiry to be held, cause such an inquiry to be held, and
	(b) if a request to be heard with respect to the question to be determined is made by the appellant, either afford to the appellant an opportunity of being heard by a person appointed by the Secretary of State for the purpose or cause a local inquiry to be held,
	whether or not he would be required to do so apart from this sub-paragraph."

(6) After paragraph 2 there is inserted-

Prepared 24 May 2000