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Anthony Musker writes to Mr Nick Clegg,
Deputy Prime Minister, House of Commons

Regarding Decisions for : FPS/X2600/7/101 and FPS/Q1770/7/70R

A public right of way in North Norfolk

- I am the first person to have a cost decision made against them following an initial public inquiry.

- I believe the awarding of costs against someone is entirely unfair when someone is working on a voluntary basis, for something which is ultimately for the public benefit, and has agreed to take the lead for around 50 to 60 other named supporters of the Order.

- The costs awarded against me is for a very large sum of money, which I cannot afford. I find now that I can only dispute the Inspector’s decision to award costs against me through a Judicial Review, which I also cannot afford.

This is the reply he received.



CCU 7th Floor
Nobel House
Smith Square
London SW1P 3JR

T  08459 335577


Mr A Musker

Our ref: DWO293359

19 December 2012

Dear Mr Musker,

Rights of Way

Thank you for your letter of 13 November to Nick Clegg about rights of way. Your letter has been passed to Defra and I have been asked to reply.

It may help if I first explain the legislation and guidance regarding the awarding of costs at public inquiries. The legislation has been in place for some time, since the Local Government Act 1972; the Defra Circular 1/09 published in 2009 is just the latest iteration of the guidance covering costs awards. Therefore the operation of the legislation and guidance is well established and the system is deemed to work well. Inspectors make decisions based purely on the circumstances of the case and not on whether individuals at an inquiry have legal representation or not.

An Inspector, as set out in the your Costs Decision, can only make an award of costs where they are satisfied that one of the parties has behaved unreasonably and that the unreasonable behaviour has caused the other party to incur additional costs as a result of that behaviour. Therefore we do not believe that applicants for definitive map modification orders are generally being put off by the current legislation and guidance on costs. There are hundreds of applications still being made to surveying authorities every year.

You query why the issue of costs is only raised at the public inquiry stage; presumably the 1972 Act has decided on this point in time because the costs by the time the issue reaches public inquiry, particularly for planning cases, at first become significant and a potential burden.

It is interesting that you raise the issue of the need for a two stage process for the confirmation of definitive map modification orders i.e. at the Schedule 14 and Schedule 15 stage (of the Wildlife and Countryside Act 1981). This is one of the issues looked at by the Stakeholder Working Group, which was set up by Natural England to look at reforming rights of way legislation and involving groups such as the Ramblers, British Horse Society and Country Land and Business Association. Defra has just finished a public consultation on the Working Group’s proposals and we plan to take this forward into legislation, including Proposal 12 in the report, which states: “Cases should only ever be referred to the Secretary of State once.” Overall the proposals hope to make paths and trails that are used by the public easier to protect, whilst redundant routes and unsubstantiated rights of way claims will be prevented from getting in the way of farming and business interests.

There are no plans to change the 1972 Act on costs and public inquiries, but the sponsor Department for this legislation is the Department for Communities and Local Government (DCLG).

You make reference to the Rules under which rights of way inquiries are run. The Rights of Way (Inquiries and Hearings) Procedure Rules are Defra rules, although the Planning Inspectorate as a whole is sponsored by DCLG. We ensure that inspectors act in accordance with the Rules and if you are alleging that the inspector did not comply with the Rules then that is a matter for you to raise by way of complaint to the Planning Inspectorate. The inspector may have made comments about the Rules in relation to the order making authority taking a neutral position, something the Rules do not directly address. That is a well known issue with the Rules and Planning Inspectorate guidance clearly sets out how the Rules should operate in such circumstances.

As far as judicial review is concerned this is the uniform method across all government departments under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. There is no reason for rights of way decisions to be treated any differently from any other decisions across government therefore judicial review remains the only means of challenging a Secretary of State decision in your circumstances. There are no plans to introduce an Ombudsman type system. Judicial review is open to ordinary people and individuals are able and do act as litigants in person. The judicial system lends considerable support to such litigants who it recognises have limited knowledge of the judicial process. Such litigants are able to operate with the support of a ‘Mckenzie’ friend, who may or may not be legally qualified, but can assist a litigant in person throughout their case in Court.

Yours sincerely,

Jill Tytherleigh
Defra – Customer Contact Unit

Says Anthony Musker

This is to update you regarding my letters to Eric Pickles and Nick Clegg.

I had a reply from DCLG on behalf of Eric Pickles basically saying that all they could do was to ensure that their guidance was available to the public.

I have had a reply from DEFRA today on behalf of Nick Clegg, which I attach. You may be interested in paragraphs 5 and 6. It appears that DEFRA intend to change the legislation regarding the process and the referrals to the Secretary of State. [In my case it went to the Secretary of State, who considered the case and objections and instructed that an Order be made; then, because the objectors continued to object it was referred to the Secretary of State again, who through an Inspector, decided not confirm the Order].

It seems the planned new legislation will only allow ONE referral to the Secretary of State. Although there are planned changes by DEFRA to the process, it seems that there are no planned changes by DCLG to the associated costs system, and when the issue of costs begins to apply. I believe that there should be changes to the costs system, and I intend to make further enquires about this.

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