The controversial Court of Appeal decision in R (Andrews) v Secretary of State for Environment Food & Rural Affairs and others during the Summer which held that a local authority was wrong to refuse to amend its definitive map where an inclosure commissioner had purported to create a public bridleway has refocussed public attention on the issue of historic rights of way and the impact which the Deregulation Act 2015 (the Act) will have on those rights.
The Act received royal assent on 26 March 2015. One important part of the Act affects public rights of way and is expected to come into force on 1 April 2016 assuming regulations and guidance have been finalised in the meantime.
The Act makes changes to existing legislation affecting rights of way aimed at streamlining the applications procedures for new rights of way under which landowners will have a greater say. The key area of improvement relates to the process for determining applications. Local Authorities are given the power to divert a route at the application stage should it not be suitable (for example where it runs through property such as working yards where there is a significant risk). Other changes include restrictions on how long an application can remain at each stage of the process, gating of rights of way and the introduction of a basic evidence test. Many of the changes are aimed at ‘historic rights of way’ - routes based on documentary evidence from before 1949.
In order to provide certainty for landowners about what rights of way exist on their land, the government intends to close the definitive maps to claims of historic paths which existed before 1949 on 1 January 2026 (section 53 of the Countryside and Rights of Way Act 2000 (the CROW Act)). So users of rights of way will want to ensure that all such routes are claimed before that date. Since most local authorities have a large and growing backlog of claims, the aim of the Act (which is the result of many years’ work involving consultation with groups representing landowners, local authorities and users) is to speed up the processing and determination of such claims.
The detailed provisions relating to rights of way are set out in sections 20–26 and schedule 7 of the Act.
Section 20 provides that a local authority may not, after the cut-off date (1 January 2026), make a deletion order if it would affect the use of a definitive right of way or if the only basis for the authority considering that the route should be deleted is that it has discovered evidence that the right of way did not exist before 1 January 1949. This is likely to reduce the number of deletion orders.
Section 21 gives the Secretary of State the power to make regulations further reducing or mitigating the effect of the cut off in 2026.
Section 22 protects landowners’ rights to retain a private right to reach their properties over a public right of way which has been extinguished on the cut-off date.
Section 23 grants owners, tenants or occupiers the right to apply for public path diversion or extinguishment orders under the Highways Act 1980 (a right which had been introduced in the CROW Act but not previously implemented.) This change will not increase landowners’ prospects of achieving a change in route as the application and order will still have to pass all the same tests, but this provision ensures that the application is at least considered by the authority. The authority must consider the application within four months and give the applicant notice in writing of the decision and the reasons for it. If the authority fails to consider the application within that time, the applicant can appeal to the Secretary of State for a direction requiring it to determine the application. If it refuses to make an order, the applicant can appeal to the Secretary of State to make the order. The same criteria for making an order under the Highways Act continue to apply.
Section 24 grants highway authorities the power to authorise the erection of gates on restricted byways or byways open to all traffic. This should reduce the number of opposed claims for byways as landowners may be more inclined to agree to a modification if a gate is erected.
Section 25 allows local authorities and the Secretary of State to recover their costs from the applicant for applications and orders made under section 23 in full.
Section 26 introduces schedule 7 which in turn makes changes to the procedure for ascertaining public rights of way in England. It contains a number of detailed provisions, the most significant of which are:
- a simplified procedure for correcting administrative errors on the definitive map and statement;
- a requirement for the local authority to make a preliminary assessment to determine whether there is a reasonable basis for a claim within three months of receiving an application for a definitive map modification order (DMMO).
- If the application fails this test the authority must inform the applicant and give reasons, enabling the applicant to improve the application and reapply.
- If the application passes the test, the authority must inform the applicant and serve notice on every owner and occupier affected. The first formal contact with the owner will therefore be via the local authority not via the applicant, reducing the burden on the applicant and perhaps reducing any animosity.
- If the authority fails to assess an application within three months, the applicant may serve notice on the authority and, within six months, apply to the magistrates’ court for an order to require the authority to assess the application.
- If an authority fails to determine an application within 12 months, the applicant may appeal to the magistrates’ court for an order to require the authority to determine the application.
The magistrates’ court provisions replace the appeals to the Secretary of State for a direction both to determine and to make an order.
If the authority decides not to make an order, the applicant may give notice to the authority that he wishes to appeal, and the authority must then submit the matter to the Secretary of State to determine.
- Once an authority has decided that an application passes the preliminary test and serves notice on the landowner, it must also ascertain whether every owner of land affected consents to the making of the order to modify the definitive map. The landowner(s) may only be willing to consent to the order if certain changes occur to the claimed route at the time it is added to the map. In such circumstances, the authority may then make a ‘special order’ (one or more of the following):
- a diversion order (if the authority is satisfied, among other things, that the diversion would not be substantially less convenient to the public and that any new termination point would be substantially as convenient to the public). The authority may then make what is known as a modification consent order (MCO) incorporating the special order. The MCO may be confirmed by the authority whether or not representations or objections are made. It must decide whether to make an MCO within 12 months of serving the notice on the landowner. MCOs are intended to reduce the burden on landowners if a newly-discovered right of way conflicts with current land use, and enable the route to be recorded swiftly, without opposition. The downside is that the recorded route is not the historic one. The Secretary of State may divide an order modifying the definitive map in two where some of the modifications in it have attracted objections, so that he determines the contested section and the authority confirms the uncontested section. Order-making authorities will have the power to dismiss irrelevant objections. They will no longer be required to give notice of the making of a public path order in a newspaper, but will have to publish the order on their websites and ‘on such other websites or through the use of such other digital communications media as the authority may consider appropriate’ instead;
- an order altering the width of the path; or
- an order imposing a new limitation or condition on the path.
The new measures are designed to deregulate and cut burdens relating to the designation of rights of way. Notwithstanding the changes, concerns have been expressed as to whether local authorities will have the capacity to deal with applications before the cut-off date for registration of pre-1949 rights. There is a substantial existing backlog of applications and DEFRA has estimated that the original cut-off provisions would lead to an extra 20,000 applications in the period up to 2026. In these times of austerity this is likely to pose local authorities with yet another major funding conundrum.