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Defra consults as to Rights of Way claim procedures

August 2012

For many years there have been complaints that the process of determining rights of way is clumsy and over-complicated.  Claims take far too long to resolve.  Defra took up the challenge and passed the baton to Natural England who in turn set up a Stakeholders Working Group (SWG) to prepare a report and proposals.  The Group consisted of 20 members representing a spectrum of user groups, land management and business interests, local authorities and officials.  Their report with proposals, called “Stepping Forward”, was published in March 2010.

Defra considered the report and issued a consultation paper (32 pages) covering only England to 95 organisations, of which GLEAM is one. The paper was issued on 14 May 2012 and invited comments and responses by 6 August 2012.  It attaches the SWG report, three impact assessments (73 pages), a list of consultees and a pro-forma for responses (21 pages).  These can all be found at http://www.defra.gov.uk/consult/2012/05/14/improve-rights-of-way/ .

SWG had tackled the task on the assumption that the cut-off for recording rights of way, introduced in the Countryside and Rights of Way Act 2000, will be implemented in 2026 as proposed.  The report made 32 proposals and stressed that these must essentially be treated as a balanced package and implemented together.  Defra has translated this as saying that implementation of the cut-off was regarded by SWG as a “core principle” but has not accepted the requirement for implementation as a package.  Defra paraphrases the SWG proposals (16 questions) and then widens the scope of the consultation by extending the principles to public path orders for diversion or extinguishment (9 questions), and to rights of way consents attached to planning applications (4 questions).

GLEAM’s response to the SWG section may be summarised thus:

  • The cut-off date should be firmly applied. If a filter test by the authority has to happen, then a brief extra period should be allowed for that purpose.
  • Protection given by s55 of CROWA 2000 against downgrading or deleting bridleways prior to the cut-off date should be extended to footpaths and restricted byways.
  • It should be acceptable to lodge applications without copy documents if they are freely available to the authority and to the public. The Winchester case is misrepresented.
  • Remitting quashed Definitive Map Modification Orders (DMMOs) direct to another inspector is wholly unacceptable.  Authorities must be given the chance to reconsider the determination.
  • Splitting DMMOs into contentious and accepted parts would be unworkable.
  • DMMOs should be circulated in draft to help early detection of errors.
  • Sanctions against withholding evidence would be unworkable.
  • Giving authorities more discretion to filter out empty applications or irrelevant objections, and to make factual corrections of the DM after cut-off, is a laudable objective but would require very careful drafting.
  • Reducing references to the Secretary of State by combining the Schedule 14 appeal process and the Schedule 15 determination process is unacceptable.  It would defeat the whole purpose of Schedule 14 appeals.
  • Wider scope for untrained Committees is unwarranted.
  • Court sanctions against authorities for not dealing with applications in a set time would be unworkable.
  • More and better use of IT would be welcome, notably to improve s53B registers.

Further comments were made regarding public path orders and the allocation of costs.

GLEAM concludes with the view that the document is an opportunity missed for more radical changes of law. Given Defra’s extension to public path orders and the constraints on application rights in that context, the proposals should also have addressed the lack of application rights in the context of Traffic Regulation Orders (TROs) and of BOAT cul-de-sacs.  Remembering that GLEAM’s main objective is to protect rural Green Lanes from damage, largely by recreational off-road motor vehicles, the consultation does not address this issue at all.  It is this issue which is at the heart of GLEAM’s campaign.

An electronic copy of GLEAM’s response is available to members on request.