Section 4.8 - Magistrate's Court Orders

Only the Highway Authority (or an agent acting on their behalf) may apply to the Magistrate's Court for an Order to be made under s116 of the Highways Act 1980. The application can be for the Diversion or Stopping Up (with or without reserving specified rights) of any highway other than a trunk road or special road.

Circular 2/93 advises authorities that they should use powers other than s116 for Footpaths and Bridleways, unless there are good reasons for not doing so.

Under s117 Highways Act 1980, anyone may request the Highway Authority to make an application to the Magistrate's Court for a Stopping Up or Diversion Order.

If the request is granted, the County Council (as Highway Authority) may as a condition of making the application require the applicant to make such provision for any costs to be incurred by the County Council in connection with the matter as they deem reasonable.

An Order is not made until it is signed by the Magistrates on the day of the Court Hearing. It is advertised in Draft form, and once made, does not need to be confirmed.

Phase 1 – Proposal For Magistrate's Court Order [Highways Act S117]

1. Proposal For Magistrate's Court Order

When either a request under s117 Highways Act 1980 is received, or the Highway Authority proposes to make an application to Magistrate's Court for an Order, the following procedure should be followed

Allocate a Definitive Map file and reference.

• If the path crosses a District or Borough boundary, two files should be started, each cross-referenced to the other, with all the paperwork in one.
• The file should be cross referenced to any other active or pending DM files relating to the path.

Where a request is made under s117, check and acknowledge. The application forms designed by HCC should be used. These ensure that all the necessary information required is provided. If there are any problems with the application or further information is required, the applicant should be informed. An indication of the timescale involved should be given.

Send a copy of the Definitive Map with the application route highlighted and DM sheet number marked on it and file reference to:

• Land Charges (CSD and District Council Land Charges if requested)
• Countryside Access Officer (CAO)

The following should be checked and any information found should be added to the DM file;

• any unresolved problems on the path
• Modification Order applications and other DM files relating to the path
• Anomalies file
• Section 31 Deposits
• List of Streets

The application should be added to HCC's Statement of Priorities. The database should be kept up-to-date throughout.

2. Site inspection

A site visit will need to be carried out, and photographs taken of the area of the proposal. The landowner should normally be involved with this. A report of the visit should be made, commenting on the proposal, and whether any other alternatives are available, and the discussion of the proposal with the landowner/applicant. If there is any doubt about the extent of land-ownership, this should be checked with the Land Registry or by service of Notices under the Local Government (Miscellaneous Provisions) Act 1976.

3. Assessment of proposal

A meeting needs to be arranged with the RoW Manager or Team Leader, the Case Officer and the Case Solicitor. The following will be considered:-

• The County Council's policy on Public Path Orders
• Whether there are any problems on the current line of the path which need to be resolved before an order can be made.
• Whether all the tests given in the relevant legislation for making an Order been satisfied? [tests to be included later]

If the decision is;

• to proceed, go to Stage 4 .
• That the application needs amendment, inform the applicant and return to the appropriate part of Stage 1 .
• NOT to proceed, write to the applicant with an explanation and close the file (Stage 13).

The applicant must be informed of the outcome of the assessment.

Phase 2 - Application to the Magistrate's Court [ Highways Act S116]

4. Decision To Make An Application To Magistrate's Court

Is the case particularly sensitive? If it is, a Committee report will need to be written, and the County Councillors will need to decide whether or not to proceed to Stage 5.

Has the applicant agreed to pay costs reasonable costs (as determined by the Highway Authority)?

• If the decision is to proceed go to stage 5
• NOT to proceed, go to stage 13

5. Consultation

If an application has been made under s117, start recording hours spent on the case in order to charge the applicant.

Whilst there is no statutory requirement for consultation under the Highways Act 1980, an Order cannot be made by Magistrates without the consent of the District Council and the Parish Council. A diversion order also requires the consent of the landowner(s).

It is therefore advisable to consult the relevant Landowners, District Council, Parish Council and user groups using the standard consultation list prior to making an application to court. Notices should also be placed on site to consult local users.

• If there are no objections to the proposal, then go to Stage 6
• If, following objections, an alternative proposal is agreed, then go to Stage 6
• If there are objections which cannot be resolved, an order will not normally be made – go to Stage 13

6. Consent

Under s116(3) the District Council and the Parish Council must consent (in writing) within 2 months of service of Notice of the date of the Court Hearing.

If this consent is not given, then the application cannot be made to the Magistrate's Court.

It is therefore advisable to consult with the Parish Council and District Council to ensure approval of the proposal and that they will consent before making an application

Before a diversion order can be made, a certificate of Consent is required from all the owners of the land crossed by the diversion.

• If consent is given - go to stage 7
• If it is not given - go to stage 13

7. Arrange Date With Magistrate's Court

Contact relevant Magistrates Court and arrange a court date in at least 8 weeks time.

Application is made in the form of a "complaint" which must be sent, together with copies of the draft orders and any other relevant paperwork, such as the certificate of the Landowner's consent to the diversion.

8. Notices

For at least 28 days before the Court date, Notices advertising the date of the hearing

• must be advertised in the London Gazette and a Local Newspaper
• must be served on the Landowners, District and Parish Councils
• must be served on any statutory undertakers having apparatus under, in, upon, over, along or across the highway
• must be placed at either end(s) of the path(s) in question

It is advisable to also notify anyone who contacted you when the alteration was originally proposed to keep them informed of what is happening.

Check that the Notices have been advertised correctly in the newspapers. If not, you will need to rearrange advertising, and if necessary the Court date, as the Magistrates will not able to make the Order(s) if the procedure has not been carried out.

9. Prepare Documents

A witness statement will need to be prepared, clearly explaining the reasons why the route is unnecessary, why footpath or bridleway rights should be reserved, and/or why it should be diverted.

Include photographs of the current (and proposed) route(s) as part of the bundle of documents.

• Prepare one copy of the Order(s) on engrossing paper.
• The Order will need to be signed by all three Magistrates,
• The Plan will need to be signed by the Chairman of the Court
• If a Diversion Order is to be made, it will also need a certificate for two Magistrates to sign to say that the alternative highway is suitable for use.

10. Implementation

Since a diversion requires the Magistrates' to sign a Certificate that the alternative highway is suitable for use, any works required will need to be carried out before the court hearing.

11. Court Hearing

The hearing will have been allocated a time, date & place. The solicitor will present the case. The witnesses' evidence is given under oath. If there are any objectors, they will be heard by the Magistrates. The Order(s) are made when the Magistrates sign them; it is in their discretion not to make an order if they so wish. An Order made at Magistrate's court does not need to be confirmed, it is effective once it is made.

12. Notification That An Order Has Been Made

• Send a copy of the Order to the Ordnance Survey addressed to: Mapping Intelligence (Rights of Way), Room C 626, Ordnance Survey, Romsey Road, Maybush, Southampton, Hampshire. SO16 4GU

• Send a copy of the Order to Land Charges specifying when it comes into operation
• Send a copy to CSD
• Send a copy to the Law Library to be placed in their confirmed Orders Volume Return the Original Engrossed copy to Registry to be placed in a Deed Packet.

13. Close File

• Sort the documents and file them; Ensure that the database is updated.
• If an order has been made, include a copy of the Order in the file, ensure that a copy of the Order is in the Legal Changes File and produce a LEMO (See Section 4.1 - Legal Event Modification Orders).