Defra consults on modernising process of recording rights of way

The Government has launched a consultation on proposals to make the process of recording, diverting and extinguishing public rights of way more efficient.

The Department for the Environment, Food and Rural Affairs' plans are based on a package of recommendations from a stakeholder working group on unrecorded rights of way that was set up by Natural England.

One of the working group’s core proposals was that the statutory provisions in the Countryside and Rights of Way Act 2000 that will, on 1 January 2026, extinguish – subject to certain exceptions – all rights of way in existence before 1 January 1949, should be brought into force, so long as its package as a whole was implemented.

The 2006 Act means that all unrecorded footpaths and bridleways created before 1949 cannot be recorded after the cut-off date in 2026.

The working group’s package also contains measures to: protect useful or potentially useful rights of way from extinguishment; give local authorities more scope to use their judgment in dealing with insubstantial or irrelevant applications and objections; enable negotiated solutions; and make procedures more streamlined, flexible and light-touch.

The consultation document also looks at improvements in three areas not within the working group’s terms of reference.

These are:

• Whether improvements, similar to those identified by the working group for recording rights of way, should be applied to procedures creating rights of way and for diverting or extinguishing them. “This would make these processes less burdensome and more responsive to local needs and would maintain consistency across the rights of way legislative framework,” Defra said;
• Given that the outcome of an earlier Defra consultation was that the current ‘right to apply’ provisions were unworkable, how it could be “made easier for landowners to progress proposals for the diversion or extinguishment of rights of way crossing their land, while maintaining the existing checks and balances that ensure that the interests of the public are safeguarded”;
• Options for improving the way that changes to rights of way are dealt with in relation to applications for planning permission. “This is one of the ways in which the Government will be addressing barriers to growth which result from consents, other than planning consents, that have to be obtained before a planning permission can be implemented – as highlighted in the 2010 Penfold Review.”

Defra said the plans in the consultation paper – Improvements to the policy and legal framework for public rights of way – were expected to cut the time taken to record a right of way “by as much as several years, so that routes set to be lost in 2026 can be preserved”.

The Department insisted that the proposals would also save almost £20m a year by removing bureaucracy. It stressed that no changes were being made to the protections for rights of way.

“Landowners’ applications to move a right of way will continue to be approved only if they do not affect the public’s enjoyment of it, in which case it will be more straightforward for landowners to see them through,” Defra said. 

The Department added that redundant routes and unsubstantiated rights of way claims would be prevented from getting in the way of farming and business interests.

Environment Minister Richard Benyon said: “Footpaths, bridleways and trails are the life-blood for many rural communities, providing access to our world-renowned landscapes. Our changes will help protect access for the thousands of people who walk, ride and cycle in the countryside every week.”

Writing in the foreword to the consultation paper, Benyon said: “In 1949 there began a process to make a legal record of public rights of way so they would not be lost for ever. That process proved far more difficult than originally envisaged and remains unfulfilled to this day.”

Defra has also launched a new £2m grant fund and called on local volunteer groups to bid for money to create new rights of way or increase the accessibility of existing ones.

“This may include making rights of way accessible for horses and bikes, improving way marking, creating maps and making better links with local transport services and tourist destinations,” it said.

The consultation paper can be viewed here. The consultation closes on 6 August 2012.

The Government expects to announce its conclusions on taking forward any changes later this year.