Agenda Item No
HERTFORDSHIRE COUNTY COUNCIL
HIGHWAYS AND TRANSPORT CABINET PANEL
TUESDAY 3 JULY AT 10:00 AM
3
HERTFORDSHIRE COUNTY COUNCIL’S RESPONSE TO DEFRA’S CONSULTATION
ON IMPROVEMENTS TO THE POLICY AND LEGAL FRAMEWORK FOR PUBLIC
RIGHTS OF WAY
Report of the Chief Executive & Director of Environment
Author: Rosalinde Emrys-Roberts:
Tel: 01992 555285
Executive Member: Stuart Pile (Highways & Transport)
1.
Purpose of report
1.1
To inform the Panel that the Department of Environment, Food and Rural
Affairs (Defra) has recently published a consultation paper on improving the
policy and legal framework for public rights of way and to seek the Panel’s
comments on the draft response at Appendix 1.
2.
Summary
2.1
Public rights of way are recorded on a legal document called the Definitive Map
and Statement. The process for amending this is currently lengthy and
complex, which has resulted in a backlog of applications nationally for many
authorities to deal with, and uncertainty for landowners and users of the
network.
2.2
A national Stakeholder Working Group was set up by Natural England to
consider the issues and difficulties associated with the process of recording
unrecorded rights of way and to work together with the aim of reaching a
consensus on a balanced package of strategic reforms in law and procedure.
The report author was part of the national group. A consensus was reached on
a balanced package of strategic reforms in law and procedure. Their 74 page
report “Stepping Forward” was produced in March 2010. The Executive
Summary and Summary of the Group’s proposals are at Appendix 2. (See web
links in the background papers for details of the full report).
2.3
On 14th May 2012, Defra published a consultation paper on a proposed
package of changes, based on the Stepping Forward report, to the processes
for recording, diverting and extinguishing public rights of way (see background
papers for details).
2.4
Defra is seeking responses to the 29 questions set out in their consultation
response form. The feedback received will be used to inform Government
decisions on whether and how to implement the various proposals for
improvement outlined.
2.5
Appendix 1 sets out Hertfordshire County Council’s draft response to the 29
questions.
Generally HCC’s proposed reply is in agreement with the
consultation, as what is proposed by Defra creates efficiencies in Rights of Way
processes, by deregulation, and would provide a more efficient, economic,
streamlined, logical and less adversarial system. Subject to the Panel’s
comments, this will form the basis of the Chief Executive & Director of
Environment’s response to Defra which is due by 6 August.
3.
Recommendations
3.1
That the Panel comments on the draft response at Appendix 1.
4.
Background
4.1
Under the National Parks and Access to the Countryside Act 1949 all Surveying
Authorities (usually a county council or unitary authority) were required to
produce a legal record of rights of way, known as the Definitive Map and
Statement (DMS). The process proved far more difficult and complex than
originally envisaged, and for many authorities (the county council included)
remains unfulfilled to this day.
4.2
The county council has a duty to maintain the DMS and investigate evidence
that suggests the DMS requires amendment because a route is not shown, or
is recorded with an incorrect status, or has been amended by a diversion,
creation or extinguishment order.
4.3
Members of the public can apply to change the DMS, and if the evidence
shows that the DMS needs to be amended, then an order will be made. There
is an ancient maxim “once a highway, always a highway” whereby even
unrecorded and unused ways continue to exist legally. Such routes remain
public highways, even if they are physically unusable or have not been used for
hundreds of years (overgrown, have been built over etc), until they are legally
extinguished.
4.4
The county council currently has over 180 modification order applications
awaiting investigation and 62 being processed. Some are over 10 years old.
Applications are assessed and scored as a way of prioritising work (a policy
agreed by Members and recently endorsed by the Secretary of State following
a complaint from an applicant). In addition there are numerous other legal
changes and orders awaiting investigation. Because of the complex nature of
the current legislation and process that has to be followed, the often very
contentious nature of applications and the fact virtually all receive objections an
individual application can take up to 3 years to resolve.
4.5
In 2000 Parliament enacted a provision (in the Countryside and Rights of Way
Act) whereby historic rights of way which existed before 1949 would be
extinguished if they had not been recorded on the DMS by 2026. This
provision, if implemented, would provide a “cut-off date” of 1st January 2026,
after which it would not be possible to record historic rights of way if they were
not specifically preserved by regulations.
4.6
A national “Discovering Lost Ways” project was set up to expedite completion
of the historical record. However, when trying to implement the project, it
quickly became clear that it was not possible to complete the applications made
within the required timeframe under the current legislative framework.
4.7
Natural England established an independently-chaired Stakeholder Working
Group (SWG) to consider the issues and difficulties associated with the process
of recording unrecorded rights of way and to work together with the aim of
reaching a consensus on a balanced package of strategic reforms in law and
procedure. Membership was formed of representatives from landowners, rights
of way users and local authorities. A consensus was reached on a balanced
package of strategic reforms in law and procedure.
4.8
The SWG’s report “Stepping Forward” was published in March 2010. It contains
a package of 32 proposals aimed at improving the processes for identifying and
recording historical public rights of way, by making the processes more
efficient, economic, streamlined, logical and less adversarial. The SWG were
clear that to maintain the consensus that has been established, implementation
of the proposals in full is crucial to preserving the balanced nature of the
package, and that is a prerequisite for reform in this difficult area.
5.
Defra’s consultation
public rights of way
5.1
The consultation consists of the consultation document, the consultation
response form, consultation letter, consultees list and three impact
assessments covering reforms to public rights of way in response to: the
Penfold Review, simplifying and streamlining rights of way procedures and an
alternative solution to the ‘Right to Apply’ for extinguishments and diversions of
rights of way.
5.2
The consultation document sets out how the Government proposes to respond
to the Group’s report and therefore should be read in conjunction with the
Stepping Forward report. In outline, the questions asked are aimed at ensuring
the protection of useful or potentially useful rights of way as identified by the
SWG’s proposals, processes are streamlined wherever possible including the
greater use of electronic communications and the improved ability to negotiate
the location of routes previously unrecorded. The aim of the proposals is to
create a more efficient, less expensive and less adversarial system.
5.3
The consultation also sets out proposals for a wider package of improvements
in three key areas not within the scope of the Working Group’s terms of
reference. These include: whether similar improvements as suggested for
modification orders should be applied to the procedure for extinguishing or
diverting rights of way and for creating new ones, looking at how it could be
made easier for landowners to progress proposals for the diversion or
extinguishment of rights of way crossing their land (subject to the current public
interest tests) and addressing barriers to growth which result from non-planning
consents, as highlighted in the 2010 Penfold Review.
5.4
Twenty nine questions are posed about all the proposals. Answers to these
questions are to be given to Defra by using the consultation response form that
is provided. A copy of the responses drafted is attached at Appendix 1.
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Next steps
- Improvements to the policy and legal framework for
6.1
Following discussion at this Panel Meeting, the HCC response will be
submitted to Defra for consideration.
6.2
Defra will make copies of the consultation responses available for the public at
their library in Ergon House, Horseferry Road, London. A summary of all the
responses received will be put on their website at
www.defra.gov.uk/consult/closed/
6.3
Defra proposes to make the necessary changes to legislation in spring 2013
subject to the comments received as a result of this consultation.
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Financial implications
7.1
There are no immediate financial implications for HCC’s Rights of Way Service
arising from this paper. The proposals are aimed at being deregulatory and
without financial burden on local authorities (otherwise new burdens would
need to be funded by central government.
7.2
There may potentially be some one-off costs, mostly in terms of staff time, in
applying the new legislation if it is implemented, but a more streamlined and
efficient process should save costs in the long term.
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Background papers
 Stepping Forward
http://publications.naturalengland.org.uk/publication/40012
 Consultation Document
http://www.defra.gov.uk/consult/files/crow-consult-doc-120116.pdf
 Consultation letter
http://www.defra.gov.uk/consult/files/crow-consult-letter-120514.pdf
 Risk assessments
http://www.defra.gov.uk/consult/files/crow-consult-ia-reforms-120514.pdf
http://www.defra.gov.uk/consult/files/crow-consult-ia-simplify-120514.pdf
http://www.defra.gov.uk/consult/files/crow-consult-ia-alternative-120514.pdf