The draft clauses aim to implement some of the key recommendations within the Stepping Forwards report by the Stakeholder Working Group on Unrecorded Rights of Way, which included the NFU.
The draft bill will now be scrutinised by a joint committee of MPs and peers, with plans for it to become an Act of Parliament in 2014.
The terms may be subject to change, both following the scrutiny by the joint committee, and also as the Bill makes its way through Parliament.
However, it is hoped that the main provisions will be retained through the process, as they implement advice from the Stepping Forward Report, which has the backing of all stakeholders.
The Forward to the draft Bill by Oliver Letwin and Ken Clarke says that “devolving decisions on public rights of way to a local level will cut the time for recording a right of way by several years and save almost £20 million a year through needless bureaucracy”.
The provisions of the Draft Bill will be supplemented by statutory instruments. It is anticipated that statutory instruments will also be used to make some other important changes, including implementing the cut-off date for adding historic routes to the Definitive map. So, these provisions are not the end of the road for this issue.
Important unrecorded rights of way changes for members in the draft Deregulation Bill include:
- Provision for the implementation of a Basic Evidence Test, allowing local authorities to reject without substantive consideration applications for unrecorded rights of way that do not meet the terms of such a test. The terms of the test are to be set out in regulations at a later stage. This should mean that applications with no merit are dismissed at an early stage, without landowners even being aware that an application has been made.
- Modification of the definitive map by consent, where both the landowners accept that the route should be added to the definitive map, and are happy to consent to the proposal subject to agreed modifications to the route. This could, for example, result in the route being diverted around a barn which has been built in ignorance of the existence of the route, or to avoid an area where there are a lot of machinery movements. Other issues which could be addressed in this way include the need for gates etc on the route.
- An extension of powers to erect gates or other works on rights of way crossing agricultural land for the purposes of preventing animals coming onto the land or escaping from it. Currently, whilst there is such a provision for footpaths and bridleways there is no such provision for restricted byways or byways open to all traffic (BOATs).
A clause enabling applicants for an order modifying the definitive map or a land owner or occupier affected by such an application to apply to the magistrate’s court if the authority has not decided an application within 12 months. This is an improvement on the current position, as at present a landowner whose land is affected by an application has no power to apply for an order requiring the local authority to determine the application.
Members wishing to raise comments on the draft Bill or more generally on unrecorded rights of way issues are encouraged to contact the NFU’s Access Policy Adviser, Ian Moodie via aWFuLm1vb2RpZUBuZnUub3JnLnVr. A Briefing Note for members explaining the impact of the draft Deregulation Bill on rights of way is available.
Background
The incompleteness of the definitive maps of public rights of way resulted in the Countryside and Rights of Way Act 2000 providing for a cut-off date in 2026 so that unrecorded pre-1949 public rights of way would cease to exist if not added to such maps by this date.
However, the complexity and long-windedness of the recording procedures have drawn criticism from both users of rights of way and from landowners and occupiers affected and the 2026 deadline remains unimplemented at present.
Defra and Natural England brought together a Stakeholder Working Group on Unrecorded Rights of Way in Autumn 2008 and this group published a series of 32 recommendations in March 2010 improving the process and enabling the implementation of the 2026 cut-off date. The report’s proposals are a compromise package of measures between the various stakeholder views involved. Therefore the members of the Stakeholder working group, including the NFU, have committed to the implementation of the proposals in full in order to preserve the balanced nature of the package.
As the draft Deregulation Bill can only covers those proposals requiring primary legislation, many of the recommendations, including the implementation of the 2026 cut-off date for recording such historic routes on definitive maps are not included. Most of these proposals will therefore be achieved by regulations from Ministers following the establishment of the Primary Legislation. The NFU has been clear that our support for these proposals is on the basis that the full package, including the cut-off date, will be implemented.