Deregulation Bill

Written evidence submitted from Peter McKay (DB 05)

1. I am a member of the public who has studied matters relating to our highway records for many years, and wish to submit my view on matters contained in the Bill relating to public rights of way, which I the main I support as they are needed, however :

2. Natural England's Stakeholder Working Group has raised its report without an Evidence Base, and consequently has failed to identify that our local Surveying Authorities have not yet completed our highway records and published them online as 'strongly recommended' by Department for transport in its 2012 Code of Practice. A task that many Surveying Authorities have not yet undertaken due to lack of authoritative guidance has to how best to go about this is to register our estimated 40,000 unadopted roads, as per 2010 House of Commons Standard Library Report in-conformance with Regulations raised in 2007, plus the need for adequate time for the Surveying Authorities themselves to make use of the improved procedures to remedy identified local issues not hitherto addressed due to the present procedural problems, and even a problem with BS7666 that attempts to change the legislation. Our Local Access Forums will need to monitor progress of work undertaken by our local Surveying Authorities to complete the highway records, and will almost certainly need to raise formal advice informing the Minister of delays with this, requesting that the cut-off date be postponed, being aware that they will need to take care that they do not ultimately get blamed for unrecorded lost ways through failing to provide appropriate formal advice on these matters, and it being illogical to commence cut-off procedures before our highway records have been completed to a satisfactory standard, in full conformance with the legislation, and published online.

3. Consequently I consider that flexibility in the cut-off date needs to be incorporated into the bill enabling the Minister to respond to such Local Access Forum advice.

4. These matters are set out in further detail in following Appendix.


5. Encouraging parishes, the public and other user groups to make representations regarding errors and omissions in the highway records, prior to these being completed and published to a satisfactory standard in full compliance with existing legislation, would place an unacceptable burden on all. There would be much duplication of effort, submission of DMMO claims to satisfy personal interests rather than correct highway status, etc., etc. This would result in a chaotic situation, with a significant risk of legal action against non- compliant highway authorities at a later date. Local Access Forums, being the Governments advisory body, have an important role to play in monitoring the efficient, effective and most economical way of completing our highway records.

6. The first logical requirement will be to make the highway records viewable online enabling parishes, the public and other user groups to inspect them - as "strongly recommended" by the Department for Transport in its 2012 Code of Practice. The only highway record that shows all publicly maintained roads, unadopted roads, byways, cycleways, bridleways and footpaths, is the Street Register - and this is the highway record referred to by the Department for Transport. This is also known as the Local Street Gazetteer, with the 2007 Regulations requiring a date of 1 st April 2009 for its completion, and with the proposed new procedures applying to paths on the Definitive Map and not roads on the Street Register the proposed new procedures have nothing to do with this, i.e., the Deregulation Bill makes no changes to this process.

7. Local Access Forums have an important role to play, by ensuring they are satisfied that the local Register has been completed in full compliance with the legislation and has been made available for online viewing. Should this not be the case their duty would be to inform the Secretary of State, advising him of this, with the logical conclusion being that the 2026 cut-off date be postponed whilst that Surveying Authority completes and publishes this statutory highway record to a satisfactory standard.

8. The second logical requirement is for Surveying Authorities to be allowed adequate time to make use of the proposed improved procedures, to make any corrections to the highway records that they are aware of as identified in a highway record Evidence Base and/or addressed in the RoWIP, to bring the highway records up to an acceptable and legally compliant standard. This had been so costly and time consuming under the old procedures that hitherto, this has not been undertaken, and ought be completed before encouraging parishes, the public and user groups to inspect them and make representations regarding errors and omissions.

9. Local Access Forums have an important role to play, by checking that an Evidence Base / RoWIP setting out how the highway records have been raised has identified issues requiring attention and validating that the time required by their Surveying Authority to meet their statutory duty would not reduce the time left, to an unacceptable period for making representations regarding errors and omissions before the intended 2026 "cut-off". Should it be established that insufficient time would be left, or the records are not legally compliant, their duty would be to inform the Secretary of State - advising him of this fact - with the logical request that the 2026 cut-off date be postponed until the Surveying Authority meets its statutory duty to publish fully compliant records.

10. The third logical step is to encourage parishes, the public and other user groups to inspect the highway records and to make representations regarding errors and omissions.

11. As it is the intention of Government to extinguish unrecorded highway rights on 1st January 2026, Local Access Forums are the advisory body that should keep these matters under review. So, they should consider formally approaching the Secretary of State requesting that he provides an assurance and commitment, that no public user rights will be extinguished in authority areas who are failing in these matters - with the logical expectation being that the 2026 cut-off date should be postponed for an appropriate period of time. The Secretary of State will be aware that the CROW Act 2000 specifically prohibits the "cut-off" being postponed beyond 2031, so he is likely to encourage failing Surveying Authorities to make progress - to mitigate the primary legislation being returned to Parliament to to extend cut-off beyond 2031.

12. The legal situation would appear to be that any user or group of users, who could demonstrate disadvantage due to an inability to check or having inadequate time to check that all rights are entered on a Local Street Gazetteer (which is fully compliant with the legislation and regulations) could argue that that any loss of rights in such circumstances is "maladministration causing injustice". This would expose non-compliant authorities to substantial compensation claims and Local Access Forums should ensure that they have played their part to ensure this situation does not arise.

13. Local Access Forums should take care that they do not ultimately get blamed for lost ways through failing to provide appropriate formal advice on these matters.


14. Unadopted Roads :- The Street Register is the first document requiring that these be registered, routes that were regarded as being "county roads" not legally eligible for registration on the Definitive Map under the 1949 survey of public paths, with the 2010 House of Commons Library Standard Note titled Roads- Unadopted, reference number SN/BT/402, advising that there are an estimated 40,000 of these. The 2007 Regulations require every unadopted road the Surveying Authority is aware of to be registered, but some Surveying Authorities appear reluctant to fulfil that duty and register them. No authoritative guidance has been found setting out just what 'aware of' means, even though Surveying Authorities are undoubtedly aware of unregistered 'white roads'.

15. Corrections to the highway records that Surveying Authorities are aware of :- This will vary from authority to authority and raising an Evidence Base for the authorities highway records with the RoWIP addressing identified issues would spell out and explain the situation in a manner that parishes, the public and user groups would understand - and the corrective action that could be expected. This would also identify and recognise that some counties have unresolved CRF/CRB issues, having shown them as footpaths & bridleways on the definitive map of Rights of Ways without prejudice to higher rights - rather than 'roads used as public paths'. Reclassification of these incorrectly recorded routes is long overdue. Recognition of this fact, along with guidance, has been requested both by raising this with MP’s and through the Byways and Bridleways Trust, by requesting guidance be raised by RoWRC. A further issue in some areas are cross-boundary routes at different status being one of the main causes of anomalies on the Definitive Map, which may come about where neighbouring highway authorities have incompatible records due to one (or both) being non-compliant, and Local Access Forums could usefully check that a highway record Evidence Base / RoWIP recognises this issue and considers how best to address this situation.

16. BS7666 :- The Local Street Gazetteers are required to conform with BS7666, but whilst the legislation limits the scope to streets that are highways BS7666 is in conflict with the legislation in it that it requires streets to more than one property be registered, (providing information for emergency services for example) but without distinguishing whether or not they are highways, bringing into question whether or not any registered street is a highway. Geoplace LLP are thought to have steps in hand to correct this.

February 2014

Prepared 27th February 2014