4 Use of Land Provisions
Introduction
124. Of all the issues in the draft Bill, those associated
with the rights of way provisions in clauses 12 to 18 and Schedule
6 ("the rights of way clauses") attracted the most interest
and the most passion in response to our Call for Evidence. Of
the over 300 responses received, around half were either about
the rights of way clauses or about issues related to them.
Background
125. The National Parks and Access to Countryside
Act 1949 introduced the concept of "definitive maps and statements",
setting out recorded public rights of way. Local authorities in
England and Wales ("surveying authorities") are required,
under the Wildlife and Countryside Act 1981 ("the 1981 Act"),
to maintain and keep under review maps and statements showing
public rights of way in their area. Some rights of way are not
recorded on a definitive map and statement, and some are recorded
with the wrong status. Originally, it was anticipated that completing
the definitive map and statement would take about five years.
50 years later it was still not complete. As a result, a cut-off
date was introduced. Under the Countryside and Rights of Way Act
2000 ("the 2000 Act"), unrecorded public rights of way
created before 1949 are to be extinguished immediately after 1
January 2026 (the "cut-off date"), save for certain
exceptions.[191]
STAKEHOLDER WORKING GROUP
126. In 2008, Natural England and the Department
for Environment, Food and Rural Affairs (Defra) concluded that
the procedures in relation to this policy area were so complex
that the addition of pre-1949 unrecorded rights of way to the
definitive map and statement by the cut-off date could not be
achieved. As a result, Natural England formed the Stakeholder
Working Group (SWG). Membership included: representatives of the
farming, land management and business interests; representatives
of local authority interests; and representatives of rights of
way users. The purpose of the SWG was to develop an agreed package
of reforms which would improve the procedures for recording pre-1949
rights of way from the perspective of all interested parties.
127. The SWG met between October 2008 and January
2010. In March 2010, it published a report entitled Stepping
Forward: the Stakeholder Working Group on Unrecorded Public Rights
of Way: Report to Natural England ("the SWG Report").
The SWG Report included 32 recommendations aimed at "improving
the processes for identifying and recording historical public
rights of way".[192]
CONSULTATION
128. From May until August 2012, the Government conducted
a formal consultation on a document entitled Improvements to
the policy and legal framework for pubic rights of way which
included the Government's response to the SWG Report. According
to the Government's summary of responses, published in July 2013,
"most respondents supported the Stakeholder Working Group
proposals as a whole. There was also broad acceptance of the Group's
basic tenet that the proposals needed to be implemented as a package,
because of the importance of maintaining consensus reached between
access, environmental, land owner and local authority representatives".[193]
The summary, however, also stated that "there was some feeling
that the opportunity to make more radical changes had been missed".[194]
Importance of the "package"
remaining as a whole
129. The purpose of clauses 12 to 18 is, according
to the Impact Assessment (IA), to "streamline and simplify
the legal and procedural processes and reduce other barriers to
recording rights of way on the definitive map and statement ...".[195]
The SWG emphasised that its proposals were a carefully developed
package which met the needs of a range of relevant stakeholders
and it was important, therefore, that the integrity of the package
be maintained: "the Group feels strongly that the changes
it advocates are a cohesive package and that it should be accepted
as a whole and not cherry picked. Any partial implementation of
its recommendations would unbalance the position, and damage the
consensus behind the proposals".[196]
The National Farmers Union (NFU), a member of the SWG, also referred
to the importance of the "cohesive package", saying
"any partial implementation ... would unbalance the position
and damage the consensus behind the proposals".[197]
Other witnesses made a similar point.[198]
130. We are aware that the law governing rights
of way is highly contentious and commend the SWG for its achievement
in reaching a consensus on the issue of recording unrecorded historic
rights of way. We acknowledge also that maintaining that consensus
requires the package of reforms contained in the draft Bill to
be accepted as a whole.
Provisions in the draft Bill
131. The clauses and Schedule in the draft Bill are
based on the SWG proposals.[199]
The provisions form two related but separate rafts of measures
aimed at mitigating the possible consequences of section 53 of
the 2000 Act which provides (subject to certain exceptions) for
the extinguishment, immediately after 1 January 2026 (the "cut-off
date"), of unrecorded rights of way created before 1949.
Where a right of way created before 1949 has not been included
on a definitive map or statement by the cut-off date, the right
will be extinguished. Clauses 12 to 14 provide a range of measures
which disapply the principle of extinguishment in certain instances.
132. Clause 12 seeks to provide additional protection
for rights of way after the cut-off date. After that date the
surveying authority may not make a modification to a definitive
map or statement (using its powers under the 1981 Act) if this
might affect the exercise of a protected right of way and the
only basis for the authority to consider modification is the discovery
of evidence that the right of way did not exist before 1949.
Clause 13 inserts a new section 56A into the 2000 Act enabling
the Secretary of State to make regulations to enable surveying
authorities, during a period of one year from the cut-off date,
to designate public rights of way in their area that were extinguished
immediately after the cut-off date. The regulations may further
make provision for a designated right of way to cease to be regarded
as extinguished. Further provisions provide for the possibility
to amend the definitive map and statement and other provisions
to preserve the existence of the right of way.
133. Clause 14 provides for a new section 56B of
the 2000 Act which will apply where a public right of way would
be extinguished at the cut-off date but is reasonably necessary
to enable a person with interest in land to gain access to it
or to part of it. In such instances the public right of way becomes
a private one; and Clauses 15 to 17 deal with certain processes
under the Highways Act 1980 and with matters outside the context
of section 53 of the 2000 Act.
134. The provisions of Schedule 6 are aimed at streamlining
the procedures and processes designed for the maintenance and
keeping under review of definitive maps and statements and dealing
with applications for their modification. Provisions of particular
note include:
- Paragraph 2 amends section
53 of the 1981 Act, removing the requirement that a surveying
authority makes a modification to a definitive map and statement
when it is reasonably alleged that a right of way exists over
land to which the map and statement relate. The requirement to
make the modification will instead be limited to cases where on
the ordinary civil standard of proof the right of way still exists.
(It should be noted, however, that not all parties within the
SWG have approved this provision and discussions are on-going);[200]
- Paragraph 3 enables the Secretary of State to
introduce simplified and shortened procedures dealing with modifications
which are needed to correct an administrative error;
- Paragraph 5 provides for sections 54B and C of
the 1981 Act which make provision for the modification of a definitive
map and statement by agreement.
135. The remainder of Schedule 6 deals with amendments
to Schedules to the 1981 Act and the Highways Act 1980 and addresses
the detail of processes. However, one issue has raised some criticism:
paragraph 6(3) of the Schedule amends Schedule 14 to the 1981
Act and inserts a new paragraph 1B enabling application to a magistrates'
court should the authority fail to assess an application for an
order to modify the definitive map and statement within 3 months
of receipt of the application. It has been suggested that this
is a shift in burdens and does not amount to a deregulatory provision.
136. The clauses form part of the law of England
and Wales but the amendments made by them affect public rights
of way in England only.[201]
ONGOING DISCUSSIONS
137. According to the SWG Report, the clauses in
the draft Bill are not final: "Because of the complexity
of the legislation that we are seeking to amend and the importance
of getting it right, the clauses, as they appear in the draft
Bill, are still subject to refinement through discussion".[202]
The same point was made during oral evidence. We asked a question
about a change in detail to Part 3 of the 1981 Act[203]
which had attracted some criticism in the evidence we received.
Kate Ashbrook, General Secretary of the Open Spaces Society, representing
the users interests on behalf of the SWG, said that the group
had discussed the issue but "we have not quite reached any
conclusion yet ...".[204]
Mr Anderson, Chairman of the SWG, explained that the draft Bill
went beyond the SWG recommendation and that the SWG was still
discussing issues.[205]
138. A number of other witnesses who supported the
SWG proposals also acknowledged that aspects were still under
discussion. The Association of Directors of Environment, Economy,
Planning and Transport (ADEPT), for example, referred to the fact
that there would be "further discussions ... with the aim
of making minor improvements", although they urged care:
"... we would not wish to see such hard-won progress towards
legislative reform undone by changes that alter the balance of
the proposals so that they no longer command across the board
support."[206]
The Ramblers said: "The legislation is complex and work continues
on the drafting of individual clauses and the Schedule to ensure
that it properly represents the views of the SWG".[207]
The Broads Authority and the Broads Local Access Forum expressed
support for the rights of way clauses "in general" but
proposed an amendment to a provision in respect of section 147
of the Highways Act 1980.[208]
139. Whilst the SWG has managed to forge a consensus
in support of the package, aspects of the new provisions are still
under discussion both within the SWG and more widely. We expect
the Government to show leadership and balance to take this vital
part of our Report to a successful conclusion.
Costs and backlog
140. One issue drawn to our attention by a number
of witnesses concerned the practical consequences of the reforms,
particularly for local authorities.. The purpose of the rights
of way clauses is to facilitate the completion of the definitive
map and statement in the face of insufficient progress so far.
There is, we were told, currently a backlog of over 4,000 applications.[209]
The Open Spaces Society said: "Backlogs, in some cases of
decades, are building up"; and, as a result, they supported
the proposals in the draft Bill because "it would make a
significant difference to progress".[210]
The South Somerset Bridleways Association told us that there was
a backlog of applications in Somerset, noting, in particular,
that 185 applications for DMMO [Definitive Map Modification Orders]
were submitted between May 2008 and August 2010, none of which
had been processed."[211]
141. The evidence we heard suggested that the introduction
of the 2026 cut-off will compound the problem of the backlog.
Mrs Emrys-Roberts, of the SWG, said that she would expect further
applications once the cut-off had been announced.[212]
John Trevelyan, a rights of way consultant, referred to Defra's
estimate in the IA that the cut-off provisions would lead to an
additional 20,000 applications,[213]
and warned of the consequent increased costs for local authorities
caused by the "very substantial increase in the numbers of
applications to local authorities".[214]
Jane Hanney, a solicitor who has specialised in public rights
of way matters and who made a submission on behalf of the Alternative
Stakeholders' Working Group, referring to the problem of backlogs,
queried how local authority rights of way departments, which were,
she said, "currently understaffed, underfunded and inadequately
qualified/trained", would be able to cope with an increase
in workload without additional funding and training.[215]
142. Given the size of the backlog and the anticipated
increase in the number of applications after the announcement
of the cut-off, we asked the Government about local authority
resourcing to enable them to meet these twin pressures. We were
told by one official: "There is no doubt that the resources
of local authorities are a problem. ... What we would argue is
that simplifying and streamlining the system is bound to make
things better at least".[216]
Ms Ashbrook said: "We are concerned about the backlog, of
course. We are concerned that local authorities are cutting rights
of way staff and that we are losing expertise"; but, she
argued, the Bill provided "a real opportunity to do something.
... If we did nothing, it would just get worse".[217]
143. That the capacity of local authorities is an
issue is confirmed by the IA. According to the IA, the key monetised
benefits will be from savings to central government and local
authorities as a result of the streamlined processes. There will
also be some savings to central and local government which are
not quantifiable.[218]
The IA acknowledges however that "resource constraints in
local authorities could reduce the number of cases considered
and so undermine/negate the non-monetised benefits of the [SWG]
proposals"; and further, the IA states that "the data
and assumptions were tested through the consultation and suggest
that the capacity of authorities to process applications is declining
and may be overstated in [the IA]".[219]
This point is repeated later in the IA: "cuts in spending
on rights of way in local authorities' finance as a result of
the spending review could undermine or negate the non-monetised
benefits of the [SWG]."[220]
144. The South Pennine Packhorse Trails Trust and
the National Federation of Bridleway Associations pick up on this
point.[221] They describe
how, when the concept of the cut-off date was suggested by the
Countryside Commission in 1999, the Commission was "careful
to include" a number of caveats such as "adequate long-term
funding". They also mention how the issue was similarly raised
in Natural England's 2008 report, Discovering Lost Ways,
and in a 2012 Ramblers' report on the reduction of funding for
rights of way in England.[222]
The Ramblers' report found that nearly 70% of councils had cut
their rights of way budgets over the previous three years and
that "rights of way, and the teams which look after them,
are being disproportionately affected by council funding cuts".[223]
The South Pennine Packhorse Trails Trust and the National Federation
of Bridleway Associations concluded that, as a result, there had
been a "loss of staff and expertise, to the extent that some
local authorities are unable to process modification orders".
They did not believe that the issue had been given "sufficient
weight".[224]
145. We have some concerns about the current backlog
of rights of way applications and the likely additional pressures
caused by the reforms and the imposition of the cut-off date.
We question whether the implications for local authorities, in
particular, have been fully assessed by the Government. Against
this background, if these clauses are to go forward in this Bill,
the Government will need to address the impact on local authorities.
Calls for wider reform
PROPOSALS FOR ADDITIONAL REFORM
146. Some witnesses supported the SWG proposals but
called for wider reforms as well. The Country Land and Business
Association (CLA), for example, is a member of SWG but commented
that, because the SWG "only considered one small aspect of
rights of way" (the recording of unrecorded historic rights
of way), "even if implemented in full, the SWG reforms will
not redress the present imbalance in rights of way legislation".[225]
The CLA therefore asked for additional reforms to be included
in the draft Bill and they set them out in detail in their submission.
The NFU, also called for wider reforms, overlapping in part with
the CLA.[226] National
Parks England (NPE) indicated their support for the package of
proposals (albeit with some suggestions for amendments). Their
principal concern was however to "provide evidence in relation
to the question whether there are other changes to the deregulatory
powers, procedures and parliamentary oversight which should be
included in the draft Bill".[227]
The NPE propose a number of amendments to the Road Traffic Regulation
Act 1984 (RTRA 1984) and related secondary legislation.
BOATS AND UCRS
147. The additional provision which elicited by far
the greatest number of responses was that Byways Open to All Traffic
(BOATs) and unsealed Unclassified County Roads (UCRs) should be
re-classified as Restricted Byways and closed to vehicular traffic.
Over one third of responses to our Call for Evidence urged support
for this reform..
148. The Peak District Green Lanes Alliance (PDGLA)
explained the argument:
The minor rights of way network consists predominantly
of unsealed highways. ... Such lanes do not form part of the normal
transport network but (apart from agricultural and land management
use) mainly serve recreational purposes for both vehicle and non-vehicle
users. In the early days of motoring this dual use could be accommodated.
However the growing number of heavily powered off-road vehicles,
many equipped with deep treads, is now causing unacceptable problems.
... The problems caused are of two types. Firstly, there is physical
damage both to the lanes themselves and the wider environment.
... Secondly, there is increasing conflict with non-vehicle users
and local communities.[228]
149. Patricia Stubbs, of the PDGLA, elaborated on
the deregulatory nature of the proposal in oral evidence and also
said that it would save "a large amount of public money"
because it would reduce the need for repair work.[229]
150. The Green Lanes Environmental Action Movement
(GLEAM), which supports the PDGLA proposals, also proposed that
a right of appeal against inaction or unreasonable refusal by
highways authorities in respect of requests for Traffic Regulation
Orders under the RTRA 1984 should be created, as a further mechanism
for protecting unsealed BOATs and unclassified UCRs against damage
by recreational off-road motor vehicles .[230]
151. We asked the SWG panel about the issue. Mrs
Emrys-Roberts said that it was an issue which had been brought
to the attention of Defra by the SWG and that it was "something
that needs to be dealt with".[231]
OBJECTIONS TO ADDITIONAL REFORM
152. The Open Spaces Society argued that not only
was the "package" a cohesive whole which should be not
implemented piecemeal, but that bolting on policies to the package
would undermine the consensus underpinning it[232]
The Motoring Organisations' Land Access and Recreation Association
(LARA) expressed support for the rights of way clauses (although
stated that its members were not directly affected by them) and
also called for us to resist calls for additional provisions,
in particular provisions to change the status of BOATS and UCRs
to Restricted Byway status:
These issues have not been before the [SWG],
have not been through any process of public consultation, and
are not objectively evidence-based. Far from being deregulatory,
these proposals will operate to increase local authority and police
burdens.[233]
Root and branch reform?
153. We received a number of accounts from members
of a group called the Alternative Stakeholder Working Group who
have personal and traumatic experience of the current rights of
way legislation and are, as a result, very critical of it. We
also heard oral evidence from Richard Connaughton and Marlene
Masters of the Alternative Stakeholder Working Group. Mrs Masters
argued that "there is nothing in this deregulatory Bill that
could simplify what is already complicated legislation. There
needs to be a complete reform".[234]
We asked the SWG panel about the Group and their complaints. Ms
Slade of the CLA said: "They feel they have been let down
by the system, but I think to a certain extent I would agree with
that. Some of them are CLA members and I am aware of their stories.
It is pretty heart-rending stuff ...".[235]
154. We took the view at the outset that we would
focus our attention on the clauses in the draft Bill and that
we would not consider proposals for additional provisions. Given
the level of public interest in rights of way, however, we drawn
to the attention of the Government the wider rights of way concerns
raised in the course of this inquiry and urge them to take action
to meet them.
191 The statutory provision has yet to be commenced. Back
192
The SWG Report, p 3. Back
193
Summary of consultation responses, July 2013, p 9. Back
194
Ibid. Back
195
Impact Assessment, 23 April 2013, summary. Back
196
Written evidence from SWG, summary, p 1. Back
197
Written evidence from the NFU. Back
198
Written evidence from, for example, Essex Bridleways Association,
the Institute of Public Rights of Way (IPROW), para 6, Ramblers,
para 5, the Association of Directors of Environment, Economy,
Planning and Transport (ADEPT), Back
199
Written evidence from SWG, summary, p 1. Back
200
Q 294 [Kate Ashbrook] Back
201
Explanatory Notes, para 62. Back
202
The SWG Report, p 4. Back
203
Part 1 of Schedule 6 to the draft Bill. Back
204
Q 294 [Kate Ashbrook] Back
205
Q 294 [Ray Anderson] Back
206
Written evidence from ADEPT. Back
207
Written evidence from the Ramblers, para 6. Back
208
Written evidence from the Broads Authority and the Broads Local
Access Forum, Back
209
Q 299 [Kate Ashbrook] Back
210
Written evidence from the Open Spaces Society, para 5. Back
211
Written evidence from South Somerset Bridleways Association. Back
212
Q 297 Back
213
Q 370 and IA, p 8. Back
214
Q 369. Back
215
Written evidence from Jane Hanney, paras 2 and 3. Back
216
Q 377. See also written evidence from the Byways and Bridleways
Trust. Back
217
Q 299 Back
218
IA, p 2. Back
219
IA, p 2. Back
220
IA, p 15, para 8. Back
221
Written evidence from the South Pennine Packhorse Trails Trust
and the National Federation of Bridleway Associations. Back
222
Written evidence from the South Pennine Packhorse Trails Trust
and the National Federation of Bridleway Associations, p 4. Back
223
Ramblers report on the reduction of funding for rights of way
in England, October 2012, summary. Back
224
Written evidence from the South Pennine Packhorse Trails Trust
and the National Federation of Bridleway Associations, p 4. Back
225
Written evidence from the CLA. Back
226
Written evidence from the NFU. Back
227
Written evidence from NPE, para 5. Back
228
Written evidence from the PDGLA, paras 9 to 12. Back
229
Q 408 [Patricia Stubbs] Back
230
Written evidence from GLEAM, paras 3, 5 and 15. Back
231
Q 278 Back
232
Written evidence from the Open Spaces Society, summary. Back
233
Written evidence from LARA, summary of key issues. Back
234
Q 408 [Marlene Masters] Back
235
Q 285 [Sarah Slade] Back
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