Natural England Stakeholder Working Group – Written evidence
Draft Deregulation Bill – call for written evidence by the Joint Committee.
Response on the rights of way reforms (clauses 12-18 & schedule 6) by the Natural England Stakeholder Working Group on unrecorded rights of way
Background information
(1) The importance of public rights of way
England’s extensive public network of public rights of way is a unique and valuable resource, which provides everybody with the opportunity to experience the immense variety of the English landscape and the settlements within it. The network enables people to get away from roads used mainly by motor vehicles and enjoy the beauty and tranquillity of large parts of the countryside to which they would not otherwise have access. It facilitates various forms of sustainable transport and recreation, and can play a significant part in reducing traffic congestion and harmful emissions. These are becoming more important as increases in the volume and speed of traffic are turning many once-quiet country roads into unpleasant and sometimes dangerous places for cyclists, equestrians and walkers.
There is a growing body of evidence showing that access to the natural environment and green space can increase mental and physical health and wellbeing, and reduce the adverse health effects of social and economic inequalities and therefore contribute to improved quality of life. Department of Health studies into physical activity and obesity suggest that intervention is necessary to reverse worsening trends in public health, and that outdoor recreation can make a major contribution to increasing physical activity. A report in 2005 showed a 1% reduction in the sedentary population of the UK could provide for a £493 million saving in averted healthcare costs. Therefore by providing local opportunities for exercise there is a significant benefit both in health and monetary terms.
Outdoor recreation and tourism can make a significant economic contribution, which is of particular value in rural areas. It helps support sustainable local rural economies and sustainable options for farmers wishing to diversify their business. A report for the Ramblers in 2003 estimated there were 527 million walking trips made to the English countryside every year with an estimated £6,320 million spent as a result of those visits. Research shows the South-West Coast Path, Britain's longest national trail, is generating about £300m a year for the economy of its region.
Good footpaths and bridleways encourage sustainable alternative modes of transport to car travel and therefore reduce carbon emissions.
There is evidence from Natural England’s Monitor of Engagement in the Natural Environment (MENE) annual survey that positive engagement with the natural environment may also increase people's understanding of the natural environment and encourage environmentally sustainable behaviours.
(2) How the Natural England stakeholder working group on unrecorded rights of way came about
The 1949 National Parks & Access to the Countryside Act introduced the concept of the definitive map and statement of public rights of way. Local authorities were required to create a legal record of all public rights of way (except for those that were part of the ‘ordinary roads’ network) to ensure that there was an authoritative record of the public’s rights. Not only would this provide conclusive evidence of the existence of a public right of way in the event of a dispute, but it would also ensure that paths were not lost as land use patterns changed and development pressures increased.
Although it was originally envisaged that this process would be completed within five years or so, completion of the legal record of historical rights of way (those that came into existence before 1949) has remained a significant challenge, despite several attempts to improve the legislative framework.
To try to resolve the uncertainties arising from the as yet unrecorded elements of the network, the Countryside and Rights of Way Act 2000 introduced a cut-off date[1], whereby after 25 years (i.e. in 2026) all rights of way which were already in existence in 1949 and which had not been recorded on the definitive map and statement by 2026 would be extinguished, subject to the exceptions provided for in the Act. In practice this means that a right of way that could be shown to have existed before 1 January 1949 could not be added to the definitive map and statement (the local authority's legal record of public rights of way) because it would have ceased to exist. The intention was that this would:
- remove uncertainty for landowners, who might otherwise have a ‘lost’ right of way discovered on their land at any point in the future;
- provide an incentive to complete the definitive map and statement before the 2026 deadline.
In the wake of the 2000 Act, the Countryside Agency[2] established the ‘Discovering Lost Ways’ project. The project’s aim was to give impetus to the task of completing the definitive map and statement before 2026 by seeking to capture evidence about unrecorded paths from archive sources: trial schemes were run in four counties, and a number of case files relating to lost ways were compiled. However, in the course of these trial efforts to expedite completion of the historic record, it became clear that neither a volunteer-led, nor a centralised, systematic approach to gathering evidence and making applications, would be capable of completing the record within the required timeframe using the current legislative framework. Defra and Natural England thus concluded that completion of the definitive map and statement by 2026 was not a viable proposition unless a streamlined approach to recording public rights of way could be adopted.
In order to develop such an approach Natural England established an independently-chaired Stakeholder Working Group to develop a consensus about the best way forward. The Group comprised fifteen members, five from each of the three principal sectors of interests: landowners/land managers, rights of way users and local authorities. The membership of the Group is as follows: Alan Kind (Byways & Bridleways Trust), Alasdair Mitchell (British Association or Shooting & Conservation), Emma Noyce (Institute of Public Rights of Way and Access Management), Gwyn Williams (Royal Society for the Protection of Birds), Ian Moodie (National Farmers Union), Janet Davis (Ramblers), John Thorp (Warrington Metropolitan Borough), Kate Ashbrook (Open Spaces Society), Mark Weston (British Horse Society), Mike Walker (Association of Directors of Environment, Economy, Planning & Transport), Richard Gething (National Assoc of Local Councils), Robert Halstead (freelance), Rosalinde Emrys-Roberts (Local Government Association), Sarah Slade (Country Land & Business Association), Sue Steer (Royal Institute of Chartered Surveyors). The Chairman is Ray Anderson, a retired civil servant with a career in MAFF and Defra.
In March 2010 the Stakeholder Working Group published a report, entitled ‘Stepping Forward’ containing a package of 32 proposals aiming at improving the processes for identifying and recording historical public rights of way. This was submitted to Minsters and the proposals were the subject of a formal Defra consultation exercise in the summer of 2012.
The Stakeholder Working Group continues to meet regularly as it has a continuing role in developing the proposals through to implementation. 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.
(3) General background on public rights of way
Rights of way are public highways that exist for the use of the community at large, in the same way as the public road network. But, apart from byways open to all traffic, they generally only carry public rights on foot, horseback or bicycle or other non-motorised vehicles, depending on their status. It is a network comprising a mix of age-old routes, including those created statutorily as part of the process of enclosing the old common lands land into private occupation, and those created more recently, either through long public use, or under statutory powers, or through dedication by the landowner.
In England there are estimated to be some 188,700 kilometres of recorded public rights of way. These are made up of:
Footpaths – (146,600 km) over which the right of way is on foot only;
Bridleways – (32,400 km) for pedestrians, horse riders and bicyclists;
Restricted byways – (6,000 km) carriageways over which the right of way is on foot, on horseback and for all types of vehicular traffic except mechanically-propelled vehicles.
Byways open to all traffic – (3,700 km) carriageways over which the right of way is on foot, on horseback and for all types of vehicular traffic.
There is also an extensive network of unsealed minor roads.
Surveying authorities ( county councils or unitary authorities) are required by legislation[3] to maintain a definitive map and statement, which is a legal record of the rights of way that exist in their area[4]. The authority has a statutory duty to keep these maps up to date and to investigate any evidence it discovers or that is presented to it that suggests a way has been left off the map, has been recorded incorrectly, was included on the map in error or has come into existence since the map was prepared or last updated. The authority does this by making “definitive map modification orders” (or DMMOs).
Local authorities also have powers[5] to make changes to the rights of way networks in their area. They can create new routes, or divert or extinguish existing routes. Orders that make such changes are normally referred to as "public path orders". Anyone may ask their local authority to make a public path order, but since, in making an order to change the network, an authority is exercising a power, rather than a duty, local authorities have some discretion on how to respond. Local authorities may also enter into agreements, whereby a landowner may dedicate a right of way for public use.
Highway authorities ( synonymous with surveying authorities) have a duty to assert and protect the rights of the public to the use and enjoyment of any highway[6]. In this instance, ‘highway’ includes rights of way. This means they are obliged by law to keep rights of way open and usable.
Although ‘free’ at the point of use, like any other highway or community asset rights of way are not without cost. There are ongoing costs in maintenance and enforcement; most public rights of way being maintainable at public expense. In cases where responsibility for maintenance lies elsewhere, highway authorities still have a duty to ensure the necessary maintenance work is undertaken. Under the current legislative and policy framework, adding existing rights of way to the definitive map and statement can be a lengthy, uncertain and costly legal process for landowner and local authority alike. On average each right of way costs authorities from £4.5k (for an unopposed order) to £9.1k (for an opposed order)[7]. Orders to divert or extinguish rights of way can be costly, with a typical unopposed order costing something like £2,500[8]. Some of these costs are recoverable from applicants for rights of way of way orders. There may be additional compensation costs if a path is diverted on to land in other ownership. There are also costs to applicants for rights of way of way orders and costs to landowners affected by orders. However, there are no reliable figures for those costs, which will to some extent depend on how much the parties are prepared to invest on the process. Where local authority orders are disputed, it not uncommon for costs to run into tens of thousands of pounds.
Answers to the Joint Committee questions that are relevant to the rights of way reforms
1. Could the same result have been achieved using existing secondary legislative procedures?
The rights of way reforms are part of a cohesive package around which a stakeholder consensus has been built. The various parts of the package will need to be implemented through various means: primary legislation, secondary legislation and guidance. The clauses in the draft Bill seek to implement those recommendations for which primary legislation is required. Primary legislation is required because the procedures that the proposals seek to simplify and streamline are already set out in primary legislation.
2. What are the advantages and disadvantages of including specific deregulatory provisions amending existing legislation and providing additional or amended order making powers within primary legislation rather than considering them through existing deregulatory mechanisms?
Certain changes to existing primary legislation are fundamental to implementation of the whole rights of way reforms package. A Legislative Reform Order was considered, but deemed inappropriate because some of the amendments introduce new procedures as an alternative to existing procedures in order to reduce the overall burden on key stakeholders, for example the ‘modification consent order’ in paragraph 5 of schedule 6. Once the changes to primary legislation have been made, the remaining elements of the reforms package can be implemented through secondary legislation and guidance.
3. Are the changes proposed in the draft Bill evidence-based and have any risks associated with the changes been taken adequately into account?
The proposals were agreed by a Stakeholder Working Group that included experienced practioners and representatives with many years of expertise in rights of way matters. The recommendations took into account all existing evidence. Defra has prepared Impact Assessments on the proposals, which include cost benefit analysis and some new research was commissioned, following the public consultation, to improve the evidence base (these documents are available through the Gov.uk website). The Stakeholder Working Group discussion, which took place over 18 months, considered the risks associated with the proposals and the key risks are reflected in the Impact Assessments.
4. Does the draft Bill achieve its purpose of reducing the regulatory burden on business, organisations and individuals effectively and fairly?
The Stakeholder Working Group, which represents all sectors with an interests in rights of way, believes that the rights of way reforms package as a whole will bring benefits to all involved in public rights of way, by: streamlining existing procedures; removing some of the more adversarial elements of those procedures; allowing for agreements to overcome local disagreements and giving local authorities more discretion in how they use their existing powers.
5. Will the draft Bill generally benefit businesses by offsetting other regulatory burdens? Are there indirect impacts on other businesses from reducing regulation in specific sectors?
The Bill seeks to provide benefits for landowners. Some of those will be by providing direct, practical benefits, such as extending the powers for local authorities to authorise gates on byways, some will be by easing the burden of legislative procedures on landowners. Although in some cases these landowners will be home owners, in many others they will be from varied land-based business sectors, such as farming, estate management, mineral extraction, and so on.
6. To what extent does the draft Bill benefit consumers as well as businesses?
The Stakeholder Working Group believes that the rights of way reforms package as a whole will bring benefits to all involved in public rights of way. Users of public rights of way will benefit from the recording and preservation of public rights of way that would otherwise be lost at the 2026 cut-off date and through the easing of the procedural burdens associated with getting rights of way added to the definitive map and statement.
7. How does the provision in the draft Bill affect: i. protections afforded to individuals under human rights and equalities legislation? ii. employment law, skills and the labour market? iii. the environment, particularly in the management of waste? iv. the provision of education? v. the effective administration of justice? vi. social, wellbeing or health inequalities?
All public rights of way matters involve both public and private rights, and rights of way procedures are designed to resolve disputes where those rights come into conflict. The Group believes that the proposals strike a fair balance across the rights of all of those involved and therefore also adequately address human rights.
Public rights of way provide a remarkable network of almost 190,000 km of traffic-free routes providing connections from town, city and village centres right out into, and across the countryside. As such, they help people to engage positively with the natural and the farmed environment, and promote healthier lifestyles. There is considerable evidence that walking and other active means of travel improve health and well-being. They also provide a sustainable transport network, enabling people to travel safely on foot, pedal cycle and horseback without reliance on motorised transport, thus helping to reduce the nation’s carbon footprint.
The rights of way provisions have no identifiable impacts on: employment law, skills and the labour market; the environment, particularly in the management of waste; the provision of education; or the effective administration of justice.
8. Have the measures set out in the draft Bill been subject to adequate cost-benefit analysis on the basis of consultation with those affected?
The rights of way reform proposals and associated impact assessments have been subject to public consultation. A summary of the consultation responses, impact assessments (which include cost benefit analysis) and associated research are available through the Gov.uk website.
9. Will any or all of the proposals have any significant economic or financial impact? Do you have any evidence of the impact that will aid the Committee in their scrutiny?
A key aim of the reforms is to bring about a conclusion to the addition of pre-1949 unrecorded rights of way to the definitive map and statement by the 2026 cut-off date. However, in doing so the reforms aim to streamline and simplify existing procedures and reduce financial burdens on all involved in public rights of way, which will include landowners, local authorities, individual path users and the voluntary sector.
23. What are the consequences of the draft Bill for the devolved administrations?
The proposed reforms would apply to England only. There are fundamental differences between the legal framework governing public access in Scotland and that in England & Wales. In particular, the definitive map legislation does not apply in Scotland. The basis of the legal framework in Wales in the same as in England, but in Wales those powers are now devolved and although representatives from Wales have been involved in discussion over development of the proposals it will be for the Welsh Government to decide whether to adopt similar reforms.
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