Deregulation Bill

Written evidence submitted by John Trevelyan (DB 02)

The rights of way provisions in the Deregulation Bill (Clauses 13 to 19 and Schedule 6)

Summary

· The provisions are not deregulatory in that most of them increase burdens rather than reduce them.

· The claimed financial savings are not supported by the evidence. Only one provision - scrapping notices in local papers - is certain to save money, but is inconsistent with recent government decisions not to scrap such notices for other purposes

· The government claims that the provisions will speed up recording of rights of way, but has provided no evidence to support this claim. As the provisions make rights of way legislation more complex, rather than simpler, there is unlikely to be any noticeable change in the speed of recording.

· The government's claim that the provisions will make sure no historic public rights of way are lost is not accepted: the way that it plans to implement the 'cut-off' provisions will put thousands of well-used rights of way at risk of being closed in 2026.

Introduction

1. I have been a rights of way consultant and trainer since 1999. Prior to that I worked for the Ramblers' Association for more than 20 years, leading on its rights of way work. I am submitting this evidence because I consider that the rights of way provisions in the Bill, taken with the yet-to-be-commenced provisions in the 2000 Act that the Bill amends, complicate, rather than simplify, the legislation and procedures, and that there is no overall financial or other benefit to justify their implementation.

2. My experience includes the co-authorship of all four editions of a leading textbook, Rights of way : a guide to law and practice, and involvement in the passage through Parliament of both the Wildlife and Countryside Act 1981 ('the 1981 Act'), which made substantial changes to rights of way procedures and publicity for orders, and the Rights of Way Act 1990.

3. As a consultant, my clients have included landowners, local authorities and user groups. I was also employed by the contractors working on the Discovering Lost Ways project. I was commissioned by the Rights of Way Law Review to write an article on the proposals of the Stakeholder Working Group set up by Natural England after it scrapped the Discovering Lost Ways project, proposals that form the basis of many of the provisions in the Bill.

4. I submitted written comments to the Joint Committee on the Draft Bill and was invited to give oral evidence. This submission is shorter: the comments I made on the detailed drafting of the Draft Bill apply equally to the Bill and remain of concern even though they have not been included here.

Are the provisions deregulatory?

5. I have the following three examples to illustrate the points made above in the summary about the addition of burdens and the increase in complexity that surveying authorities and others will have to contend with.

6. The first is that the cut-off provisions (as proposed to be amended by the Bill) will introduce five new, additional, categories of public rights of way:

· relevant highway - s 54(2) & (3) of the 2000 Act

· retained highway - s 54(4)

· excepted highway - s 53(5)

· protected right of way - s 55A(2) (clause 13 of the Bill)

· designated right of way - s 56A (clause 14 of the Bill)

and new private rights of way (s 56B) (clause 15 of the Bill) which landowners will have to prove (at their own expense) that they are entitled to

7. The second is that there is currently a single procedure for definitive map modification orders and applications for such orders in England - to be found in Schedules 14 and 15 to the 1981 Act. Under the Bill's provisions there will be three additional variations, contained in the provisions for modification consent orders, orders to correct administrative errors and procedure on appeals against refusal to make orders (in paragraphs 3 and 5 of Schedule 6 and in the new Schedules 13A and 14A to the 1981 Act contained in Parts 2 and 3 of Schedule 3). Comparison of the proposed new Schedules 13A and 14A with Schedules 14 and 15, which will still apply in Wales, shows how much more complexity has been added.

8. The third is that if the proposals in the Bill are adopted there will be four different types of Schedule 14 application:

· those already made, or made before the amendments in the Bill are commenced. They have been, or will be, recorded in the register and notified to landowners and occupiers. They will (even if the retrospective provisions in Clause 19(7) of the Bill are applied to them) still be different simply because they were made under different provisions.

· those made after commencement, but which have not been the subject of preliminary assessment. They will not be recorded in the register, nor will they be notified to landowners and occupiers.

· those made after commencement and which have passed the preliminary assessment, but do not qualify to be considered for modification consent orders.

· those made after commencement and which have passed the preliminary assessment, and which do qualify to be considered for modification consent orders.

9. My conclusion is therefore that the provisions are not deregulatory to the extent that they increase the complexity of the provisions. Figures 1 and 2 in the Explanatory Notes to the Bill (pages 66 and 69) demonstrate some of the complexity of what is proposed.

10. The Government considers that the Bill's provisions are justified because they will save money and time in recording rights of way. According to the Ministerial Foreword to the Draft Bill, they "will cut the time for recording a right of way by several years and save almost £20m a year".

11. For the reasons set out below, I consider that those claims were neither supported by any evidence provided in the Draft Bill document or elsewhere nor justified by such evidence as exists.

The alleged financial saving

12. My assessment of the alleged financial saving is based on the Impact Assessment (IA) "Simplifying & streamlining rights of way procedures" published by Defra alongside the Draft Bill, as at the time of writing no further IA has been published in connection with the Bill.

13. In the government's response to the report of the Joint Committee on the Draft Bill (para 75), it reduced drastically the expected saving: "Local authorities are expected to make savings of almost £2 million a year through these measures." This revised figure is in line with the estimates in the IA.

14. The IA contained (Table 3) a central estimate annual saving to local authorities of £1,807,500, made up almost entirely of four elements (references are to proposals of the Stakeholder Working Group):

Proposal 3 (preliminary assessment) £348,000

Proposal 10 (notices in local papers) £1,080,000

Proposal 12 (single reference to Sec of State) £285,000

Proposal 29 (obvious administrative errors) £85,500

15. For the reasons given in the Appendix to this paper, I consider that more accurate estimates of the savings would be:

Proposal 3 (preliminary assessment) £15,000

Proposal 10 (notices in local papers) £200,000

Proposal 12 (single reference to Sec of State) £NIL

Proposal 29 (obvious administrative errors) £5.700

16. In other words, the only proposal that produces any certain saving is the proposal to scrap placing notices in local papers. Even then, a saving of £200,000 annually does not go very far among 138 local authorities. The proposal is inconsistent with government decisions not to scrap the notices in local papers for planning applications and traffic regulation orders. In the latter case the saving to local authorities, net of any costs recouped from developers, etc, was estimated by the government in 2011 to have been £7.6 million (Impact Assessment: Traffic Orders - Deregulating Publicity Requirements), yet the government decided in 2013 not to proceed with this change.

17. The consequence, if the proposals in the Bill go ahead, is that a temporary order to close a footpath for a few days will still be advertised in the local paper, but a permanent order to close it for ever will be advertised in the local paper only if it arises out of proposed development affecting the path (or one of the many powers used only infrequently) - otherwise it will be advertised only on the website of the council making the order. How that helps the public is beyond me.

The alleged saving of time

18. Nowhere in the IA or the Draft Bill documents, or the Explanatory Notes to the Bill, is there any quantification of the alleged saving of time. Instead there are various references to proposals being expected to reduce the burden on local authorities.

19. In the absence of any quantification, it is difficult to assess the evidence, but it is important to note that nowhere do the Explanatory Notes recognise that some aspects of the provisions increase the burden on local authorities, by introducing new procedures. Moreover I consider that there will be a more general additional burden on authorities arising from the greater complexity of the procedures as proposed to be amended by the Bill.

20. That additional burden will arise directly through staff having to understand the more complex provisions, but also indirectly as those who are involved with the recording process, whether bodies such as parish councils, path users or landowners struggle to understand them, and in the process create extra work for the local authority staff.

21. I therefore question whether there is any evidence to support the suggestion that the provisions in the Bill will speed up the process. Moreover it will be difficult to assess the impact of the provisions. Defra has refused to introduce regulations requiring authorities to report on their definitive map work, which perhaps explains the discrepancy shown in Appendix A between the Defra estimate of 1,200 cases being determined each year and the actual figure obtained by the Ramblers following FOI requests of only 300 cases. With no accurate figures prior to the introduction of the provisions, and no plans to monitor what happens, there will be no accurate assessment of the impact of the changes.

Will historic rights of way be lost?

22. The government's website contains the following: "To make sure no historic public rights of way are lost, we’re simplifying the processes for recording and making changes to public rights of way."

(https://www.gov.uk/government/policies/protecting-and-improving-people-s-enjoyment-of-the-countryside)

23. During the passage of the Countryside and Rights of Way Bill through Parliament in 2000, the then Minister gave commitments both to provide local authorities with the necessary additional resources and to use the regulation-making power [in section 71 of the Act] to require regular progress reports from local authorities.

24. Neither of those promises has been kept. Defra has specifically refused to implement a recommendation of the Stakeholder Working Group to make regulations. The Group also said in its report (paragraph 4.14): "Unlocking the proper resourcing of this function is also a vital issue".

 

25. If the provisions are commenced in 2015 (assuming passage of an Act in 2014), then there will be little more than 10 years in which applications and the underlying research can be made before the cut-off date, a substantially shorter timescale than was envisaged in 2000 would be required if adequate resources were provided. If applications are not made to the extent envisaged by Defra, and there must be serious doubt about the capacity of user organisations to make an average of 2,000 applications a year, then there is a real risk that public rights of way will be lost.

26. It is my submission to the Committee that it should examine the amendments proposed in clauses 13-15 of the Bill to the cut-off provisions alongside the provisions themselves, and with an alternative approach in mind of repeal of the provisions.

27. I make that submission for the following reasons:

a) Implementation of the cut-off provisions will be a major project. Defra's estimates (in the Impact Assessment) are that there will be 20,000 additional applications, costing local authorities on average £2,900 to determine. That adds up to £58 million, with extra costs to be added for both central and local government in order-making and dealing with appeals against refused applications and with objections to orders. The total cost to the public purse could easily be £100 million.

b) Such a major project justifies proper management. But not only are there no plans in place: the provisions in the Bill for the Secretary of State's jurisdiction over applications for directions to be transferred to the courts and the government's refusal to make regulations requiring local authorities to report progress means that keeping track of what is happening and taking action will be much more difficult than would otherwise be the case. In setting up the Major Projects Authority in 2011, the Minister commented : "projects often began with no agreed budget, no business case and unrealistic delivery timetables" (all of which seem to me to apply to this project) but that "This Government will not allow that costly failure to continue." So far as I am aware, this project is not under the supervision of the Major Projects Authority, nor has it been examined by the National Audit Office against the five criteria in the Office's 2011 guide "Initiating successful projects" : purpose; affordability; pre-commitment; project set-up; and delivery and variation management. I consider it is at serious risk of failure.

c) In the Explanatory Notes (paragraph 74) it is acknowledged that "The investigations of applications based on evidence about the position before 1949 can be very difficult for authorities". That difficulty, which will apply also to applicants, may well lead to applicants erring on the side of caution and submitting applications for routes that would not, in practice, be extinguished at the cut-off date, thereby increasing the number of applications.

d) The increased complexity of dealing with applications made after the cut-off date - judging whether a right of way existed in 1949 and, if so, whether it was extinguished at the cut-off date or whether an exemption from extinguishment applied - will give rise to increased, continuing, costs for both local and central government.

e) The Natural Environment and Rural Communities Act 2006 extinguished rights for mechanically-propelled vehicles in certain circumstances, essentially a trial run of similar provisions. It has led to extra work considering whether exemptions apply and several court cases on its interpretation. The greater extent and complexity of the cut-off provisions in the 2000 Act suggests that the extra work involved will be significant.

f) The main purpose of the provisions was supposed to be greater certainty. But this must be questionable, as the lack of resources means progress will be slow. Defra is estimating that there will be 20,000 additional applications, which means an average of 2,000 per year. The evidence collected by the Ramblers in 2013 was that authorities are currently determining 300 cases a year, with a backlog of 4,000 cases, or 13 years' worth. With many local authorities making significant cuts in their spending, there is no prospect that they will be able to cope with a vast increase in the number of applications. If that proves to be the case, many thousands of applications will remain undetermined at the cut-off date, and it will be many years before they are all resolved, with all the associated uncertainty for users and landowners. In the recent Supreme Court case of Adamson v Paddico, Lady Hale, with whom the other judges agreed, said that registering land as a village green, a procedure analogous to that of modfying the definitive map, amounted to the determination of an individual's civil rights and obligations under Article 6 of the European Convention on Human Rights. As such the individual is entitled to a hearing "within a reasonable time". I ask the Committee to consider whether the government's approach to the implementation of the cut-off provisions is compliant with its obligations to landowners under the Human Rights Act 1998.

g) The extinguishment of footpaths and bridleways is likely to have a particular effect in urban areas, where many such ways (mostly footpaths) are often not currently recorded on definitive maps. I live in one such area: the former county borough of Norwich where very few of the hundreds of public rights of way have been so recorded. The Act provides no exemption for ways that are in regular daily use, nor for those that are maintained by the local authority at public expense, so the only certain safeguard will be recording of the way on the definitive map. I consider that there are many thousands of such ways in regular daily use by people going to school, shops, work, etc that will be put at risk by implementation of the cut-off provisions. They range from centuries-old routes in towns and cities to ways on housing estates built in the 1930s. Councils where this is likely to be a real problem are those in metropolitan areas, such as Birmingham and Newcastle; more densely-populated shire unitaries such as Derby and Southampton; and outer London boroughs such as Croydon and Sutton, all of which have small rights of way teams

28. I therefore ask the Committee to consider the provisions as a whole, not just the amendments proposed in the Draft Bill, and to judge whether their implementation would be more in the public interest than their repeal. Repeal would, in my view, be the genuinely deregulatory option, as it saves money, simplifies the legislation and removes burdens from local authorities and others.

29. As an example of the burdens facing other parties, the provision in Clause 15 is intended to provide a safeguard for landowners who might otherwise suffer "real difficulties" (Explanatory Notes paragraph 83) and be prevented from gaining access to their land. But nowhere has the government explained how a landowner in this position would go about proving their rights if there was a dispute; how much that might cost the parties concerned (I would suggest thousands, if not tens of thousands of pounds); and how often this situation is expected to arise.

30. If the Committee concludes that the cut-off provisions should be implemented I ask the Committee to include, as mitigating measures, three further amendments to the 2000 Act. The second and third would implement recommendations of the Stakeholder Working Group, and would be based on similar safeguards contained in section 67 of the Natural Environment and Rural Communities Act 2006.

31. The first amendment would amend the definition of the cut-off date from 1st January 2026 to 1st January 2040, thereby restoring the 25-year timetable foe the project envisaged by Parliament when it passed the 2000 Act. Such a timetable would remove the need for Clause 14 of the Bill.

32. The second measure would protect from extinguishment any ways that were the subject of applications received before the cut-off date, regardless of whether they had been subject to the preliminary assessment test (if that is introduced).

33. The third would protect from extinguishment any way that can be shown to have been maintainable at public expense at the cut-off date. Many of the well-used urban paths referred to above will come into this category.

February 2014


APPENDIX : Examination of alleged financial savings.

IA : Impact Assessment (IA) "Simplifying & streamlining rights of way procedures" published by Defra July 2013

General assumptions

IA estimate

My estimate

Comments

Number of cases annually

1200

300

My estimate uses results from Ramblers 2013 FOI survey

Number of opposed cases dealt with by Planning Inspectorate (PINS) annually

500

150

My estimate uses figures from PINS statistical report

Proposal 3 : preliminary assessment

IA estimate

My estimate

Comments

Proportion of cases passing preliminary assessment

90%

90%

IA estimate not based on any evidence, so far as I am aware, but I am prepared to accept it. Estimate needs to allow for resubmission of failed applications

Number of cases passing preliminary assessment annually

1080

270

Calculation based on figures above

Number of cases failing preliminary assessment annually

120

30

Calculation based on figures above

Average cost per application to authorities of undertaking preliminary assessment test

NIL

£150

IA makes no provision for this extra work

Average cost per application to authorities of notifying owners and occupiers of cases that have passed the preliminary assessment test and related correspondence

NIL

£100

IA makes no provision for this extra work, Some owners and occupiers who are informed of the application and that the authority has approved it in a preliminary assessment are likely to enter into correspondence

Total cost of undertaking preliminary assessment and related work (A)

NIL

£72,000

Calculation based on figures above

Estimated cost of determining an application

£2,900

£2,900

Estimated saving from not determining cases that fail the preliminary assessment (B)

£348,000

£87,000

Calculation based on figures above

Estimated net saving annually (B)-(A)

£348,000

£15,000

Proposal 10 : advertising in local newspapers

IA estimate

My estimate

Comments

Number of advertisements required each year

2160

450

Defra estimate seems to assume that all applications that pass the preliminary assessment will require two advertisements - for making and confirmation.

I assume that of 300 applications, 250 will lead to orders (one advert) of which 200 will be confirmed (another advert).

Average cost per advertisement

£500

£500

SWG report Stepping Forward para 3.15 quotes average cost per advert of £508.

Average cost per notice of additional work placing notice on council website

NIL

£50

IA makes no allowance for this additional work

Saving from no longer placing advertisements in newspapers (C)

£1,080,000

£225,000

Additional cost of alternative arrangements (D)

NIL

£25,000

Net saving (C)-(D)

£1,080,000

£200,000

Proposal 12 : referral to the Secretary of State once

IA estimate

My estimate

Comments

Reduction in number of cases referred to the Secretary of State annually (A)

50

20

The reduction in numbers is of those cases which now succeed on appeal and are then opposed when an order is made. My analysis is that around 25 appeals succeed each year, but not all of those result in opposed orders.

Saving per case : local government (B)

£5,700

£3,000

IA estimate based on cost of dealing with opposed order in writing : appeals involve fewer people so should cost less

Annual saving for cases that will be referred only once : local government (A)*(B)

£287,500

£60,000

Number of cases annually which are currently referred only once to the Secretary of State (C)

-

20

Not included in IA

Extra cost per case of advertising, more complex procedure for such cases : local government (D)

-

£3,000

Not included in IA. My estimate based on the estimate of saving above

Annual extra cost of additional work : local government (C)*(D)

-

£60,000

Net annual saving : local government

£287,500

NIL

Proposal 29 : obvious administrative errors

IA estimate

My estimate

Comments

Reduction in number of cases referred to the Secretary of State annually (A)

15

1

I am not aware of any evidence to support the IA estimate. It should be easy to produce and check - all Planning Inspectorate decisions are made available online. Where is the list of the 60 or so cases there should have been in 2010-2013 if the IAs estimate is accurate? I believe the number of cases is very few: if the error was so obvious, why would anyone have objected?

Saving per case : local government (B)

£5,700

£5,700

Annual saving : local government (A)*(B)

£85,500

£5,700

Prepared 27th February 2014