Deregulation Bill

Written evidence submitted by David Rice (DB 12)

MY AUTHORITY:

I do not represent a recognised user group – other than the general public whom this matter most affects. I do, however, have a comprehensive understanding of rights of way law and wide experience of applying for definitive map modification Orders. I therefore provide the following input based on experience and extensive research across many authority areas.

 

INPUT:

 

While some aspect of the Draft Deregulation Bill can be applauded, it is an inescapable fact that the primary reason for rights of way records being incomplete is because responsible authorities have failed to comply with existing and historic legislation. Since the intended 2026 "cut-off" was announced, by the CROW Act 2000, most authorities have responded to the impending deadline by significantly reducing staff levels and funding for functions related to modifying their definitive maps of rights of way.

Backlogs of work now span decades in many cases – and while some changes to procedures would undoubtedly be helpful this is only a small part of the issue. It is my strongly held belief that Parliament has not been advised of the following key information, upon which to assess the impact of the Draft Deregulation Bill:

· Exactly how many undetermined applications already exist nationally, to modify definitive maps of rights of way?

· What proportion of these fall into various age categories since submission?

· How many determined applications exist, but for which legal Orders have either not been published or remain unconfirmed?

· What is the projected timeframe to clear the current backlog (before factoring in any new applications submitted) if the Draft Deregulation Bill was not approved?

· What is the revised forecast if the Draft Deregulation Bill is approved?   

Note: Current backlogs should be accessible by interrogating statutory Registers, which authorities have been required to maintain since the end of 2005.

 

The Draft Deregulation Bill is intended to address obstacles in current rights of way recording processes, to ensure that definitive maps can be "closed" by 2026  and regarded as "complete" by then. This would provide "certainty" about rights of way for both landowners and users which is to be commended. However, the size of task to be addressed in that timescale is an impossible one – hindered by a widespread lack of local authority compliance with the law.

The below is an extract from a letter which I recently sent to a local authority, who is failing to comply with the law in many aspects related to rights of way matters. This is not an isolated case, is nationally widespread and an illustration of the core problem in bringing definitive maps and highway records up to date by the prescribed deadline.

 

As there are no laid down sanctions against authorities who act in breach of the law in such matters, which Defra and the Planning Inspectorate (who act on behalf of Secretary of State in these matters) are very well aware of, there needs to be a solution. I strongly believe that to apply the proposed 2026 "cut-off", in authority areas who fail to comply with the law, would be a fatal error. I would therefore strongly commend one further inclusion in the Draft Deregulation Bill to address this. User rights, over unrecorded rights of way, should not be extinguished in authority areas who:

· Have failed to put into place a legally compliant Street Works Register/Gazetteer (which the law required to be in place by April 2009). Note; very few authorities have complied with this, if any.

· Fail to now address this non-compliance by December 31st 2015 (leaving ten years for investigation and determining the user status of entered routes which do not currently appear on either the statutory road records or statutory rights of way records).

The above is a totally reasonable and rational approach – thereby ensuring that all interest groups are given sufficient time to investigate, compare records and make applications for unrecorded routes to be entered in the statutory records.

 

 

EXTRACT OF LETTER TEXT, EVIDENCING THE CORE PROBLEM:

1. It is the Governments intention to extinguish public user rights, over unrecorded pre 1949 rights of way, which are not correctly recorded by  31st December 2025. This intention was announced thirteen years ago. It is probable that Regulations will be made exempting routes from the loss of rights, if they are shown on a statutory Street Works Register or Street Gazetteer, irrespective of whether they are recorded elsewhere or not. The law required all authorities to have legally compliant registers in place by April 2009 – but my enquiries have shown that ----- Council has failed to meet that legal obligation.

2. I thought it would be useful to verify whether all  rights of way admitted by landowners (on section 31(6) Highways Act deposits) are shown on the ------ statutory register of rights of way. This would enable unrecorded rights to be identified and applications for definitive map modification Orders to be submitted where necessary. Again, my enquiries have revealed that the ----- Council does not have a legally compliant Register to enable this verification to be conducted.

3. In 2006, the Natural Environment and Rural Communities Act extinguished rights with mechanically propelled vehicles (with some exceptions) over routes not recorded as Byways Open to All Traffic  on a statutory definitive map of rights of way. Exemptions to extinguishment include minor highways shown on a statutory list of streets, which are not "dual recorded" as footpaths, bridleways or restricted byways on the definitive map of rights of way. In order to identify "protected" routes I asked for a list of unsurfaced unclassified roads, to ensure that a public record of these could be held. Again, my enquiries have shown that the ----- Council is not even able to accurately provide a list of these. In fact, it has "defended" a list provided and asserted it to be an accurate record of these when patently it is neither accurate nor complete. 

4. ----- Council is required to keep a Register of applications to modify its definitive map of rights of way. This is most revealing because it requires the Register to be elaborated and contain information laid down by statutory Regulations. While the ----- Register is not being fully updated in accord with the law it is good enough to extract key statistics. Since the intention to extinguish unrecorded rights of way was announced, by the CROW Act (2000), ----- Council has received 77 applications to modify its definitive map. Additionally to this, ----- Council has a number of undetermined and unresolved applications which pre-date 2000, some of which go back more than 23 years. So far as the last thirteen years of applications are concerned, only 2 of these have been resolved and 3 investigated. Now, the law requires applications to be determined and resolved "as soon as reasonably practicable" with an expectation that all applications are at least determined within 12 months of receipt. For at least the last thirteen years, the ----- Council has patently failed in those respects.

So, the conclusion I am reaching is that ----- Council is breaching the law in many ways related to minor highways. In the process it is obstructing and frustrating the accurate identification of unrecorded public ways that need to be recorded for their protection. While I sympathise with the legal complexity that the Council faces in dealing with rights of way matters, that does not change its legal obligations.

 

I understand the constraints imposed by economic "austerity measures" but that is no mitigation for acting in breach of the law. It could be argued that the ----- Council has "priorities" and that it cannot comply with all of its statutory duties. Fair enough Anthony but, that argument is only valid if the ----- Council can demonstrate that it is meeting all of its its statutory duties before exercising powers. It is not – in the case of rights of way matters it is processing path diversion Orders (for which it has powers) before processing definitive map modification Orders (for which it has a legal duty). If you look at the Planning Portal, for cases ----- has submitted to the Secretary of State for confirmation in the last five years, you will see my point. There are many other examples of where it is exercising powers before fulfilling  statutory duties.

 

The Government is currently debating a Draft Bill, which has implications for the 2026 "cut off" of public rights of way. Its intention is "deregulation" prior to the 2026 deadline – but in fact it appears to potentially  introduce further complications in many ways and indicates fiscal savings that are not evidence based to support its intentions. I will be submitting input to the debate – because it is now clear to me that the core issue related to lack of progress in getting the records up to date is the lack of authority compliance with existing (and historic) laws.

 

I feel that it is also now time to elevate this matter to  relevant senior management and Councillors. I await your response to my information request, concerning the ----- Council protocol and procedure, for Officers to escalate matters and secure sanction for non-compliance with the law - and specifically how this has been followed in respect of the issues identified in this case.

 

March 2014  

Prepared 13th March 2014