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Chapter III Clauses 32 to 37: Means of Access
46. Chapter III sets out the arrangements for access to be secured or improved to access land. It allows the access authority (which is defined in clause 1 as the highway authority or, in National Parks, the National Park authority) to seek agreement with landowners for the creation or safeguarding of means of access, or in default of such agreement, to secure the means of access by carrying out any necessary works itself.
47. Clause 32 defines a means of access for the purposes of this Chapter. It includes an opening in a fence, wall, hedge or gate on the land, or a construction (such as a stile or bridge) which allows the public to cross such a feature or any watercourse.
48. Clause 33 sets out the circumstances in which an access authority may make an agreement with an owner or occupier in relation to means of access onto their land. These are where the authority considers that an existing means of access needs to be opened up, improved, repaired or maintained, or a new means of access needs to be constructed. The authority may also make an agreement with a landowner to impose restrictions on any change to an existing means of access. Subsection (2) allows the authority to agree to carry out the works itself, or to pay for the owner or occupier to do so. The authority may also make payments in consideration of the owner or occupier's agreement to restrictions.
49. Clause 34 sets out the action the authority may take if the owner or occupier fails to carry out his obligations under the agreement. Where the agreement was for the owner or occupier to carry out work to an agreed timetable (or in reasonable time, if no timetable is stipulated in the agreement), the authority may, after giving at least 21 days' notice, carry out the work itself. The authority may recover any costs incurred less any contribution which it was itself to make under the agreement.
50. Where the agreement was for the owner or occupier to observe a restriction, and he fails to abide by that agreement, the authority may serve a notice requiring him to carry out work to remedy the breach of the restriction, within not fewer than 21 days. If the landowner fails to comply with the notice, the authority may carry out any work specified in the notice. Any costs incurred by the authority in carrying out the work may be recovered from the owner or occupier who entered into the agreement.
51. Clause 35 sets out procedures which an access authority may follow if it is unable to enter into an agreement with a landowner to secure a means of access to the land. It may serve on the owner or occupier a notice stating its intention, after a period of at least 21 days, to carry out work to provide the means of access. The authority must serve a copy of the notice on any other owner or occupier of the land.
52. Clause 36 allows for an appeal to the Secretary of State (or the National Assembly for Wales) against a notice from an access authority alleging the breach of an agreement imposing restrictions (under clause 34(3)) or requiring the creation or safeguarding of a means of access (under clause 35(1)). The appeal may be made on the grounds that any of the work specified in a notice under clause 34(3) is not necessary to remedy the breach of the agreement or has been carried out or requires more time. Alternatively, an appeal against a notice under clause 35(1) may be made on the grounds that any of the work specified in the notice is not necessary to secure reasonable public access to the land, or has been carried out, or that the means of access should be provided elsewhere (for example, because it would be detrimental to the effective management of the land). The Secretary of State (or the National Assembly for Wales) may confirm the notice with any modifications, or cancel it. The access authority will not be able to carry out any works while they remain the subject of an appeal.
53. The Secretary of State (or the National Assembly for Wales) may make regulations as to the making of appeals. Clauses 7 and 8 (and Schedule 3) apply to the procedure on appeal as they apply to the procedure on appeals against provisional maps.
54. Where an owner or occupier repeatedly fails to comply with notices served by the access authority, clause 37 allows for the authority to seek an order from the courts. The clause applies where two or more notices have been served on the owner or occupier within a period of three years under clause 34(3) or 35(1). In these circumstances, a magistrates' court may grant an order requiring the owner or occupier to remove any obstruction and to keep the means of access clear. Failure to comply with the order is an offence, attracting a fine on conviction of up to level 3 on the standard scale (currently £1,000). The access authority may also remove any such obstruction at the expense of the offender.
Chapter IV Clauses 38 to 42: Supplemental
55. Clause 38 concerns powers of entry to land. It may be necessary for the bodies charged with the enforcement of the statutory right of access to enter land in order to carry out their functions. The clause sets out the circumstances in which the countryside bodies, the highway authorities and the National Park authorities may enter land. Any person authorised by these bodies for the purposes of entering land which is not access land must give the occupier 24 hours' notice, unless it is not reasonably practicable to do so, or the entry is in relation to a possible offence under clause 14 or 37. He must also produce evidence of his authority at any time. It will be an offence to obstruct access for authorised persons, attracting a fine on conviction of up to level 2 on the standard scale (currently £500). The power of entry does not extend to dwelling houses.
56. Clause 39 explains that the access legislation binds the Crown as it does any other landowner.
57. Clause 40 provides that orders and regulations made under this Part of the Bill are to be made by statutory instrument and as respects England are to be subject to annulment by either House (except that an order made under clause 3 extending the right of access in England to coastal land will require to be approved in draft by a resolution of both Houses).
58. Clause 41 comprises definitions of a number of terms used in this Part of the Bill.
59. Clause 42 and Part I of Schedule 11 effect repeals consequent on the provisions of Part I. Paragraph (a) of subsection (1) provides for the repeal of section 193(2) of the Law of Property Act 1925. Section 193(2) allows the owners of common land to execute a deed of dedication so that the common will become subject to the right of access for air and exercise provide for in section 193(1). This power will be rendered obsolete in view of the new powers to dedicate access over land contained in clause 16. Any commencement order bringing this repeal into force is expected to contain a saving for existing deeds.
60. Paragraph (b) of subsection (1) provides for the repeal of all or part of Part V of the National Parks & Access to the Countryside Act 1949. Part V allows for access agreements (and in default of agreement, access orders) to be secured over mountain, moor, heath, down, riverside, woodland and foreshore. Any commencement order bringing the repeal into force is expected to contain a savings to ensure that existing agreements and orders are not affected.
61. Subsection (4) of clause 42 introduces Schedule 4, which includes an amendment of section 193(1) of the Law of Property Act 1925 so that limitations or conditions qualifying the right of access to urban and other commons under the 1925 Act may also be imposed by the Secretary of State for the purpose of nature conservation.
PART II: PUBLIC RIGHTS OF WAY AND ROAD TRAFFIC
62. Part II of the Bill contains provisions designed to reform the rights of way system in England and Wales.
63. The Bill requires local highway authorities to carry out a review of and publish plans for improving rights of way in their areas, taking into account the needs of the public, including those of people with mobility problems. A power will be provided to require authorities to report on the implementation of their plans. The duty to report will be introduced under a wider power for the Secretary of State and the National Assembly for Wales to require local highway authorities to report on their functions relating to rights of way.
64. Surveying authorities will be able to consolidate the legal record of rights of way in their area where it has become fragmented following boundary changes. Powers will also be provided so that surveying authorities can make a single order that both changes a public right of way and provide for that change to be reflected in the legal record.
65. The Bill provides for Roads Used as Public Paths (RUPPs) to be reclassified as a new category of way known as a Restricted Byway having a right of passage for non motorised users. RUPPs are a category of right of way which was introduced by the National Parks and Access to the Countryside Act 1949. They were put on definitive maps on the basis that vehicular rights subsisted or were reasonably alleged to subsist over them. Under the Wildlife and Countryside Act 1981 surveying authorities have been under a duty to reclassify them either as footpaths, bridleways or byways open to all traffic.
66. The Bill also gives a new right to land managers of agricultural and other types of land to apply to a council for certain types of orders diverting or extinguishing footpaths and bridleways, and a right of appeal against a council's refusal.
67. Local authorities will be required to have regard to nature conservation when performing their rights of way functions. The areas in which traffic authorities may make traffic regulation orders on roads for conservation and recreation purposes will be extended to include SSSIs. Traffic regulation orders will also be permitted on minor highways throughout England and Wales to control vehicular use for the conservation or enhancement of natural beauty. The provisions applying in Greater London will be brought in line with the rest of England and Wales.
68. Local authorities will be able to divert or close rights of way for the purpose of crime prevention in certain urban areas, and for protecting the safety of children and staff in school grounds.
69. Magistrates' Courts will be provided with powers to require a person who has been convicted of wilfully obstructing a highway to remove the obstruction. Any person will be able to serve notice on a local highway authority to secure the removal of certain obstructions and, where the authority does not comply with the notice, to seek a Magistrates' Court order requiring the authority to do so.
70. The unauthorised driving of off-road motor vehicles away from roads will become an offence.
71. There is a new provision requiring local highway authorities, when considering applications to erect stiles or gates across footpaths or bridleways, to take into account the needs of people with mobility problems.
72. Currently surveying authorities (normally the unitary authority, or the county council where there are two tiers of local government) are required to prepare and keep under review their definitive map and statement(s) which form the legal record of public rights of way in their area. The existing classes of public rights of way covered by these maps and statements are:
73. The Bill introduces a duty on local highway authorities to assess their rights of way and make plans as to how they will manage and improve them.
74. Land managers currently wishing to secure the diversion or extinguishment of a footpath or bridleway across their land may request a council to make orders under section 118 or 119 of the Highways Act 1980. If the authority declines, the Secretary of State may be requested to use his reserve powers, but in practice these powers are rarely used. The Bill will introduce a formal right of application for the landowner and a mechanism for appeal against local authorities' refusal to make such orders. Any resulting order would proceed in accordance with existing legislation which provides for objections to be considered and for a public inquiry to be held.
75. The Bill will provide a means to speed up the removal of certain obstructions from rights of way by enabling anyone to serve notice on a local highway authority to secure its removal from rights of way. If the authority does not comply, an individual may seek an order from a Magistrates' Court to require the authority to remove it. Magistrates, who at present can only levy a fine, will also be able to order a person convicted of wilfully obstructing a highway to remove the obstruction.
76. Surveying authorities have for many years been required to research and reclassify Roads Used as Public Paths according to the rights proved to be in existence. The Bill provides for a general redesignation of RUPPs as a new category of highway Restricted Byway over which the public will have rights of way, for example, on foot or by horse drawn carriage but not by motor vehicle. This will give people clear rights of way and relieve surveying authorities from their current duties to reclassify RUPPs. Those having evidence of full vehicular rights over a particular way will still be entitled to apply for an order for reclassification as Byway Open to All Traffic (BOAT).
77. The Bill will simplify the process for recording changes to rights of way on the definitive map and statement, and makes provision for fragmented maps to be consolidated.
78. The Bill introduces a duty on authorities to have regard to nature conservation in the exercise of certain functions. It enables the regulation of vehicular traffic on minor byways throughout England and Wales for the conservation or enhancement of natural beauty. It will be possible for local authorities to divert or close footpaths in certain urban areas affected by serious and persistent crime. And where rights of way through school grounds present a risk to the safety of children and staff, local authorities will have powers to make orders to divert or close them.
79. The Bill introduces provision for highway authorities, when considering applications to erect stiles or gates across footpaths or bridleways, to consider whether conditions should be attached to take account of the needs of people with mobility problems.
80. The Government's intention to legislate on rights of way was announced on 8 March 1999 in Access to the Countryside in England and Wales: The Government's Framework for Action. The Government's consultation paper on rights of way, Improving Rights of Way in England and Wales6, was published in July 1999. The responses are summarised in a report: Improving Rights of Way in England and Wales: Analysis of Responses7.
Commentary on clauses
Chapter IV Public Rights of Way and Road Traffic
Clauses 43 to 48: Definitive Maps and Statements and Restricted Byways.
81. Clause 43 repeals section 54 of the Wildlife and Countryside Act 1981 and sets out that every road used as a public path which is shown on a definitive map and statement is to be treated as shown as a restricted byway.
82. Clause 44 specifies that the public are to have restricted byway rights over ways shown on a definitive map and statement as a road used as public path . It sets out what those rights are and stipulates that the existence of those rights is without prejudice to whether there are other public rights of way other than restricted byway rights.
83. Clause 45 provides for the roads used as public paths affected by provisions in Clause 44 to be highways maintainable at the public expense. It provides for those roads used as public paths reclassified under section 54 of the 1981 Act, and earlier legislation, to remain maintainable at the public expense. It also sets out that highway authorities are not to be obliged to provide metalled or similar surfaces on road used as public paths merely because they have been re-designated.
84. Clause 46 ensures that the conditions or limitations to which a road used as public path was dedicated, such as a right to erect a gate on it or plough its surface, shall continue to be exercisable. It also provides a vehicular right of access to owners of property adjoining or adjacent to roads used as public paths.
85. Clause 47 gives effect to Schedule 5. Schedule 5 makes amendments of a procedural nature to provisions in the Wildlife and Countryside Act 1981 concerning the circumstances in which the definitive map and statement can be modified when a legal event has occurred. The new section 53A makes it possible for surveying authorities to include in those orders which are prescribed by regulation provision to modify the definitive map and statement. Regulation making powers are provided, for example, to set out how the relevant date is to be determined in the case of such orders and to regulate the procedure governing the new power.
86. Paragraph 6 of Schedule 5 inserts a new section 57A of the Wildlife and Countryside Act 1981. The new section enables surveying authorities to produce consolidated definitive maps and statements comprising maps and statements which have been made for different parts of their area, including partial maps and statements inherited from other surveying authorities following local government reorganisation. The amendments give surveying authorities a discretionary power to create a single definitive map and statement where there is more than one pre-existing map and statement covering different parts of their area. However, the power will not be available to a surveying authority if any parts of its area have no definitive map at all.
87. Schedule 4, in Part II, also contains amendments relating to the provisions in Clauses 43 46 creating the new category of public right of way, "restricted byway", in place of ways presently recorded on definitive maps as roads used as public paths. The amendments mainly provide for legislation which applies to RUPPs to apply instead to restricted byways.
88. Clause 48 enables the Secretary of State by regulations to make provision in consequence of clauses 43 to 46.
Clause 49-52: Creation, stopping up and diversion of public paths
89. Clause 49 amends sections 29 and 121 of the Highways Act 1980. Councils are currently required to have due regard to the needs of agriculture and forestry in the exercise of certain functions in respect of the creation, stopping up and the diversion of footpaths and bridleways. New Section 29 preserves that requirement and introduces the additional duty to have regard to the desirability of conserving flora, fauna and geological and physiographical features. The new duty will not apply in those circumstances where there is already a pre-existing duty to have regard to nature conservation. For example, under section 11 of the Countryside Act 1968 public bodies are required to have regard to the desirability of conserving the natural beauty of the countryside in the exercise of their functions relating to land.
90. Clause 50 and Schedule 6 amend the Highways Act 1980 to allow an owner, lessee, or occupier of agricultural and other types of land to apply to a council to make an order under section 118 or 119 of the 1980 Act closing or diverting a footpath or bridleway which crosses their land.
91. Sections 118ZA(2) and (3) and 119ZA(3) and (4) allow for regulations to be made prescribing the form in which an application should be made and what fees may be payable. Sections 118ZA(8) and 119ZA(8) requires a council to give the applicant notice of its decision in writing and set out its reasons. There is provision (in subsection (7) of each section) to enable an applicant to request the Secretary of State to direct a council to decide an application if the council has not done so within four months of receiving it. Subsection (6) of new section 118ZA enables a council to require an applicant to enter into an agreement to make a contribution towards any compensation that may become payable as a result of a closure of a footpath or bridleway. This parallels current provisions in section 119 of the 1980 Act.
92. Paragraph 2 of the Schedule makes consequential amendments to the existing section 119 of the 1980 Act, by inserting reference to the new application procedure. Paragraph 4 of the Schedule amends section 121 of the 1980 Act to allow the "appropriate Minister" to appoint any person to determine whether a statutory undertaker has unreasonably withheld consent to the extinguishment of a footpath or bridleway over land where their apparatus is located or which is used by statutory undertakers for their undertaking.
93. Paragraph 5 inserts new subsection 121A in the Highways Act 1980. It enables regulations to be made, for example requiring the applicant to certify certain matters and to give notice of their application. It creates offences relating to false or misleading certificates.
94. Paragraph 5 inserts new sections 121B, 121C and 121D. Section 121B relates to councils keeping a register of the applications made under the new sections 118ZA and 119ZA and allows for regulations to be made about the form and content of registers and when information may be removed from them. Section 121C allows councils to refuse to determine applications when appeals into similar applications have been refused or where the Secretary of State has otherwise refused to confirm a similar order. Section 121D sets out the types of decisions which applicants may appeal to the Secretary of State against and the circumstances where rights of appeal do not apply. It also allows for regulations to be made setting out the time within which and the manner within which appeals are to be brought.
95. Paragraph 6 makes related amendments to Schedule 6 to the 1980 Act. New paragraph 2ZA of that Schedule requires a council which has made an order following an application under new section 118ZA or 119ZA to give the applicant written notice of their decision to confirm the order (if unopposed) or submit it to the Secretary of State for confirmation (if opposed). If the council has not made a decision within 2 months of the end of the period for representations on the order, the Secretary of State may, on request from the applicant, direct them to do so.
96. Clause 51 introduces Schedule 7 which introduces new sections 118A and 119B to the Highways Act 1980.
97. New section 118B empowers local highway authorities to make orders closing footpaths and bridleways to prevent or reduce serious crime in urban areas to be designated by order. It also empowers authorities to make closure orders in respect of footpaths and bridleways which cross school grounds in order to protect the health and safety of the pupils and staff.
98. Subsection (4) requires a local highway authority to consult the police authority for the area before making an order. Subsection (5) requires the confirming authority (the local highway authority for unopposed orders or the Secretary of State for opposed orders) to be satisfied as to certain matters, including the availability of an alternative route or the practicability of diverting the existing path instead. In addition, the confirming authority is to consider whether an order in respect of a designated urban area is consistent with any statutory crime and disorder strategy for that area. In the case of an order relating to a school, the authority is to consider what other security measures have been taken and whether the order is consistent with any strategy for improving that security. Account is also to be taken of the effect which closure would have on any land served by the footpath or bridleway in question.
99. New section 119B contains powers to divert a footpath or bridleway on the same grounds. Subsection (5) provides that a cul-de-sac should not be created by a diversion. Subsection (6) provides for the completion of any necessary works before a diversion order takes effect, and subsection (7) allows conditions to be attached to a right of way created by a diversion. Subsection (8) empowers the order-making authority to enter into an agreement with the owner of land crossed by a footpath or bridleway which is to be diverted under which he agrees to contribute to certain costs. Subsection (12) applies the provisions of section 27 of the Highways Act relating to the making up of new footpaths and bridleways to a diversion made under 119B.
100. Subsection (6) of 118B and (10) of 119B provide for the form of orders to be prescribed by regulations. Subsection (7) of 118B and (11) of 119B apply the provisions of Schedule 6 to the Highways Act 1980 which sets out the procedure to be followed for making and confirming closure and diversion orders.
101. Paragraphs 4-9 of schedule 7 contain consequential amendments to related provisions in the 1980 Act.
102. Clause 52 gives the countryside bodies powers to apply to the Secretary of State (or National Assembly for Wales) to create public paths to provide access to access land (such as "inaccessible islands" to which there is no other practicable means of access). The countryside bodies must have regard to any rights of way improvement plan prepared by the local highway authority before applying for an order. The Secretary of State (or National Assembly for Wales) will consider such applications in deciding whether to exercise his powers under section 26 of the Highways Act 1980 (and, by virtue of subsection (2) of that section, must consult with local authorities before making an order).
Clauses 53 to 55: Rights of way improvement plans.
103. Clause 53 requires every local highway authority (except inner London boroughs and the City of London Council) to prepare and publish a rights of way improvement plan within 5 years of the commencement of section 53. It sets out what the plan should cover and what matters the authority should consider. It also provides for reviews of the plan at 10 yearly intervals. Subsection (6) provides for the transitional period until the reclassification of roads used as public paths comes into effect. It provides that the definition of local rights of way includes roads used as public paths until they are re-designated as restricted byways under clause 43.
104. Clause 54 sets out who the local highway authority should consult in preparing the plans, the process of publishing and consulting on a plan, how the plan should be made available to the public, and the guidance to which they should have regard. Finally it enables local highway authorities to make plans in conjunction with district councils or National Park authorities in their area.
105. Clause 55 relates to the application of sections 53 and 54 to Inner London. The clause allows inner London boroughs and the City of London to adopt the provisions. If they chose to adopt this provision, subsection (2)(b) provides for the date by which the first review is required to be changed accordingly.
6 Published by the Department of the Environment, Transport and the Regions, September 1998. Available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237
7 Published by DETR March 2000 (Full Report): Price o12 product code 99WACD1034. Available from DETR Publication Sale Centre, Goldthorpe Industrial Estate, Goldthorpe, Rotherham, S63 9DL. Tel. 01709 891318, Fax. 01709 881673. A summary document is available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237. Published on the internet at: http://www.wildlife-countryside.detr.gov.uk/cl/index.htm
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|Prepared: 3 March 2000