Meeting documents

Public Rights of Way Committee
Wednesday, 20th November, 2013

Devon County Council - Committee Report

Code No: HCW/13/65

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HCW/13/65

Public Rights of Way Committee

20 November 2013

Draft Deregulation Bill Recent Proposals for Changes to Rights of Way Legislation and Procedures

Report of the Head of Highways, Capital Development and Waste

Recommendation: It is recommended that the Committee consider the report.

1. Purpose of Report

This report aims to keep members informed of recent proposals for changes to the legislative framework and procedures relating to public rights of way.

2. Background

The Council, as surveying authority holds the Definitive Map and Statement for Devon and is under a statutory duty, imposed by section 53(2) of the Wildlife and Countryside Act 1981 to keep the Definitive Map and Statement under continuous review and to make such modifications as appear requisite. It is our policy to undertake this duty by carrying out a review of the Definitive Map and Statement on a parish-by-parish basis.

As highway authority the Council may also make orders, under the Highways Act 1980, to create, divert of extinguish public rights of way where the requisite legal tests are satisfied.

On 1 July 2013, the Government published a Draft Deregulation Bill, which is aimed at reducing unnecessary bureaucracy by amending or repealing 182 different pieces of legislation. It also includes a number of proposed changes to the legislation procedures relating to public rights of way, in particular the processes involved in modifying the Definitive Map and Statement. A Draft Bill is published to enable consultation and pre-legislative scrutiny. After consultation and pre-legislative scrutiny has taken place, the Draft Bill may be introduced formally in House of Commons or the House of Lords. The Draft Deregulation Bill is currently being considered by a Joint Committee of both houses, which is required to make its report by 16 December 2013.

In accordance with its terms of reference, claims for modifications to the Definitive Map and Statement, arising from the parish-by-parish review or formal applications made under Schedule 14 of the Wildlife and Countryside Act, are referred to the Public Rights of Way Committee for determination. The Committee's role is to act in a quasi-judicial capacity to assess the evidence and decide whether the claim meets the legal tests, namely whether the evidence shows that a right of way subsists on the balance of probabilities, or is reasonably alleged to subsist. The Committee may also be asked to consider whether applications for changes such as diversions under the Highways Act 1980 meet the relevant legislative tests in cases where such proposals are opposed. It is therefore essential that members of the Committee are trained in areas of the law relating to public rights of way, and are kept informed of developments.

The procedures for making orders to amend public rights of way recorded on the Definitive Map and Statement public path creation, diversion and extinguishment orders have been set out in primary legislation and regulations dating from 1980, with some minor amendments as a result of the Countryside and Rights of Way Act 2000 (CROW), Natural Environment and Rural Communities Act 2006 and the Growth and Infrastructure Act 2013. A number of provisions introduced by the CROW Act have not yet been enacted due to concerns that they would place burdens on local authorities and the Secretary of State.

The CROW Act (section 53) set out that pre 1949 rights of way should be extinguished after 1 January 2026 if not recorded by that date. This is not yet in force as there is concern that it could extinguish potentially useful routes, but equally landowners seek certainty. The Draft Bill is intended to address some of these issues, many of the clauses stemming from key recommendations made by the Stakeholder Working Group set up by DEFRA for that purpose.

Schedule 6 of the CROW Act proposed to enable landowners (of land used for agriculture, forestry or the keeping or breeding of horses) to have a right to apply and appeal for diversion and extinguishment of public rights of way. These sections are also yet to be brought into force and the Bill is intended to amend some of these provisions as part of a wider package of proposals for rights of way reform put forward by DEFRA in 2012.

3. Main Clauses of the Draft Bill relating to Public Rights of Way

The relevant sections of the Draft Bill relating to public rights of way are clauses 12 18 and in Schedule 6 of the Bill. These are attached to this report at Appendix I. The proposed changes are summarised below.

The proposals in the Draft Bill relating to public rights of way are:

Clauses 12 17

i Any public rights of way already shown on the Definitive Map and Statement will be protected from downgrading or deletion if the only basis for making such a modification is evidence that the right of way did not exist before 1 January 1949. (Clause 12)

ii Certain unrecorded public rights of way may be designated by surveying authorities as exceptions to the extinguishment during a period of one year from the cut-off date. Regulations made by the Secretary of State will set the timescale for determining whether these designated rights of way should be shown on the map or extinguished, including a right to appeal to Magistrates Court if the authority fails to determine in time. (Clause 13)

iii Protection of private rights of way along a route that would be extinguished as a public right of way after the cut-off date. (Clause 14)

iv Extension of the right to apply and appeal for public path orders (under the Highways Act 1980) to other types of land, to be specified in regulations. (Clause 15)

v Extension of the powers to authorise stiles and gates (Highways Act 1980 section 147) to include gates on restricted byways and byways open to all traffic. (Clause 16)

vi Change to the recovery of costs provisions applicable to applications for public path orders made under the right to apply. The Secretary of State would have the power to enable local authorities to recover all their costs instead of, as currently, a prescribed limit set centrally. It would also enable the Secretary of State to recover their costs at Hearings. (Clause 17)

Schedule 6 Part 1 Amendments to Wildlife and Countryside Act 1981

vii Raising the threshold at which a surveying authority must make an order, by omitting the reasonably alleged test from section 53(3)(c)(i) of the Act. The authority would be required to modify the Definitive Map and Statement only where it is satisfied on the balance of probabilities that a right of way subsists, the ordinary civil standard of proof. (Sch 6, 2)

viii Simpler modification order procedure for correction of obvious administrative errors. (Sch 6, 3)

ix With applications for modification orders based solely on historical evidence there would be an opportunity to make a 'modification consent order', if the landowner consents to the modification. A modification consent order could also include modifications to the route, such as a diversion, amendment to width or limitations if it secures the agreement of the landowner, and the authority is satisfied that the path will not be substantially less convenient to the public as a consequence of those changes. (Sch 6, 5)

x Requirement of the surveying authority to carry out a preliminary assessment of schedule 14 applications within 3 months of receipt. If satisfied that there is a 'reasonable basis for the applicants belief' the authority will be required to serve notice of the application on the landowner (currently the applicant has to do this when making the application). The applicant will have a chance to appeal to Magistrates Court if the application is not assessed in time, who may order the authority to take steps. The authority still has twelve months from receipt of application to determine it. If not determined within that time applicant or landowner may appeal to Magistrates Court who may order the authority to take requisite steps. The authority may request extension of twelve months. Currently, appeals against non-determination are referred to the Secretary of State. (Sch 6, 6)

xi Change of Appeal procedure where the authority decides not to make an order in respect of a schedule 14 application, to avoid cases being submitted to the Secretary of State more than once (once on appeal and again if the authority is directed to make an order which is subsequently opposed). The responsibility to submit the matter to the Secretary of State would be placed on the authority after the applicant has given notice of appeal. The authority would have additional responsibilities relating to the appeal regarding notices, making documents available and giving notice to other parties who may wish to make representations or objections. The Secretary of State would then consider the grounds for appeal in a single procedure, through an Inquiry or Hearing if required. The Secretary of State may agree that an order should not be made; direct the authority to make an order; or make an order. The validity of the order can be questioned through application to the High Court. (Sch 6, 6)

xii Applicant would be able to transfer ownership of a schedule 14 application to another person, prior to determination of the application. (Sch 6, 6)

xiii End of the requirement to publicise orders in a newspaper and replace it with a requirement to publicise on the authority's website. (Sch 6, 7 (2))

xiv Power to enable the Secretary of State to sever an order where objections are made to only part. (Sch 6, 7 (3)).

xv Power to discount irrelevant objections. Surveying authorities would have a new power to decide not to submit an order if representation or objections were deemed irrelevant and confirm the order, subject to guidance. (Sch 6, 7 (4))

xvi Where the validity of an order is questioned by application to the high court the court may quash the decision of the Secretary of State rather than the order so that the order-making process does not need to start again from scratch. (Sch 6, 7 (5))

Schedule 6 Part 2 Amendments to the Highways Act 1980

xvii End of the requirement to publicise orders in a newspaper and replace it with a requirement to publicise on the authority's website. (Sch 6, 9 (2))

xviii Power to discount irrelevant objections. Local authorities would have a new power to decide not to submit an order if representation or objections were deemed irrelevant and confirm the order, subject to guidance. (Sch 6, 9 (3))

xix Power to enable local authorities and Secretary of State to sever an order where objections are made to only part. (Sch 6, 9 (5)).

xx Where the validity of an order is questioned by application to the high court the court may quash the decision of the Secretary of State rather than the order so that the order-making process does not need to start again from scratch. (Sch 6, 9 (7))

4. Discussion

These reforms will significantly affect the procedures in relation to the determination and making of Definitive Map Modification Orders. Devon County Council, through its comprehensive review process of the Definitive Map, is likely to be less affected by the cut off-date in 2026 than many authorities as many historical routes and anomalies will have been identified prior to that date. It is anticipated however that there will be more schedule 14 applications made, which will require staff resources to address.

The new preliminary assessment should reduce the burden on authorities and landowners of investigating and determining applications that are spurious or poorly founded. It will however introduce a further step into the procedure, with a new statutory timescale and extra responsibilities for the authority. These will place a burden on staff resources and will require a review of our policies and procedures.

The proposal to introduce a Magistrates Court process where the authority fails to carry out a preliminary assessment or determine an application within the specified time period is a significant change, shifting administrative burden from the Secretary of State to the courts system and placing extra burden on the authority.

Raising the threshold at which an authority is required to make an evidential order is likely to result in a more lengthy determination process as a more robust test must be applied. Streamlining the Schedule 14 appeals procedure should save time, although it will introduce new responsibilities for the authority. Clear guidance will also be required to ensure all parties are aware of the new procedure and have the opportunity to be heard.

The cost of advertising orders in local newspapers is approximately 600 per order so the removal of the requirement to place in newspapers will reduce the cost of the order. The opportunity to discount irrelevant objections will also save the time taken to submit orders to the Secretary of State where applicable.

It would appear that the Government intends to implement the provisions of the Highways Act (as amended by the CROW Act) whereby landowners have the right to apply and appeal for diversion or extinguishment orders will place a greater burden on authorities. It will introduce a further timescale and administrative procedure and is likely to have an impact on local priorities and policies.

The clauses appear to reduce some areas of bureaucracy whilst introducing new duties for the authority in other areas. The detail of specific regulations and guidelines relating to different parts of the Bill are important and will determine the clarity of processes and the impact on staff and resources.

5. Conclusion

The Draft Bill is still in its early stages, currently going through pre-legislative scrutiny. The proposals if enacted are likely to have a mixed impact on the Council. The Committee's role is to act in an independent and quasi judicial capacity in relation to any application it receives. In this role it is necessary for the law to be applied (either by legislation or case law). It follows therefore that if the Bill is enacted in its current or a modified form that members will apply its provisions and any case law arising from it to any applications which it is asked to determine. There may however be a greater burden on staff resources which is likely to have an impact on local priorities and policies.

6. Consultation

None relating to this report.

7. Financial Considerations

None arising directly from the recommendation to this report. However, it is possible that additional numbers of schedule 14 applications or public path orders may be received as a result of the legislation if introduced, with new statutory duties for the authority and additional costs associated with those. Our policies and procedures for dealing with such applications will be kept under review.

If the Bill is enacted there will be an opportunity for the Secretary of State to enable local authorities to recover all their costs associated with applications for diversion and extinguishment made under the right to apply provisions, instead of a prescribed limit set centrally, which may be lower than the Council's actual costs.

There will be a saving for the authority in not having to pay local newspapers to advertise orders.

This potential income from cost-recovery and savings in advertising would be available to contribute towards any additional costs. Once the final details are announced, it will be necessary to consider whether the anticipated net costs can be contained within the available budget.

8. Sustainability Considerations