Introduction
 

The Open Spaces Society, founded in 1865, is Britain’s oldest national conservation body.  A registered charity, we campaign to create and conserve common land, village greens, open spaces and rights of public access, in town and country, in England and Wales.  We have 2330 members consisting of individuals, organisations and local authorities.

We are the leading pressure group concerned with the protection, management and public enjoyment of common land, village greens and open spaces and public paths.

Statutory guidance - general
 

Question A

Does the guidance reflect the statutory requirements?  If not, in what ways is it deficient?

The guidance should set out sections 60 and 61 of the Countryside and Rights of Way Act 200 (CROW Act) in full, instead of the present, summarised version.

The guidance is severely flawed.  Section 60(1)(b) of the CROW Act requires local highway authorities to prepare and publish ‘a statement of action they propose to take for the management of local rights of way’.  Of course it is vital that authorities first get all their public paths in order and their definitive maps up to date.  Public paths are still shamefully neglected, abused and under-funded.  The guidance needs to set out how local authorities must comply with their legal duties on public rights of way.

2.1 Context and Scope of  Rights of Way Improvement Plans

 
The duty on local highway authorities
 

Para 2.1.1

This should give an indication of what are the other matters relating to local rights of way as the Secretary of State may direct.  The most important is the guidance on how local authorities should comply with their legal duties, mentioned in the paragraph above.

This paragraph states unequivocally that the local highway authority’s improvement plan must cover the whole of its area, which would seem therefore to extend to urban paths not on any definitive map and, indeed, to all those areas formerly excluded under the National Parks and Access to the Countryside Act  1949 and for which a definitive map and statement have never been produced, despite the instructions in the Wildlife and Countryside Act 1981.  This strengthens the need to get the definitive maps up to date first.

Funding
 

Para 2.1.6

The first sentence should be strengthened to make it clear that the new funding must be used for this purpose.  The third sentence should be amended to ‘There must be no reduction….’.

Relation to other plans
 

Question B

Are the links to other plans sufficiently explored?  Are there other plans that are likely to be relevant to rights of way improvement plans that should be identified in the guidance? (paras 2.21.7, 2.1.8, 2.3.6)

Para 2.1.7

This should mention local transport plans, walking and cycling strategies, local plans, and national park and ANOB management plans.

Other statutory duties and responsibilities
 

Para 2.1.10

This must remind authorities that making path orders is only a discretionary power, and that the rights of way improvement plan is about genuine improvements and not trade-offs.

Monitoring
 

Para 2.1.11

Does the Secretary of State intend to make regulations?  We trust so, and it would be helpful if that could be spelt out here.

2.2  Assessing the needs of different classes of user
 

Question C

Is the guidance on the matters that local highway authorities should address in assessing the needs of different classes of user sufficient? (section 2.2)

Question C1

Are there other interests that should be included? (para 2.2.21)

Making the assessments
 

Para 2.2.2

Add ‘consider where traffic calming would help’.  Add material from para 2.2.13 on means of access to access land to this para.  The eighth bullet point should read ‘convenient and safe crossings over or under roads, railways, rivers and canals’  Add routes to points of interest, ancient monuments, wildlife sites etc’.

Some of these items could be more precisely worded.

This para should remind authorities that they are seeking creations and not diversions or extinguishments.

Para 2.2.3

Authorities should be required to consult prescribed organisations about the needs of users and potential users, among others.

Cyclists
 

Para 2.2.6

There must be no upgrading of footpaths to bridleways or conversion to cycle tracks.  The needs of riders and cyclists should be catered for by creating new bridleways, cycle tracks and restricted byways.

Para 2.2.10

We welcome the creation of bridleways and restricted byways.  These must not be in exchange for other routes.

People with mobility problems
 

Question D

Notwithstanding the separate guidance to be issued under section 69, and the advice provided in the Countryside Agency publications listed in Annex A, is the guidance on assessing the needs of those with mobility problems - including blind or partially sighted people - sufficient? (para 2.2.14)

There are a wide range of mobility problems ranging from arthritics to amputees, but one problem that relates to all (including the blind and wheelchair and pushchair users) is the furniture that interrupts the path.  Most stiles are impossible and kissing gates present problems for many.  In many countries in Europe, a simple, self-closing gate using a cable and weight is used.  This makes the path open to all including wheelchairs and pushchairs.  Obviously it is best to have no barriers whatever.  However we do not advocate removal of those important local features such as squeeze stiles.

Partially-sighted people need assistance to walk in the country, so paths need to be wider to accommodate two people with arms linked.

As things are at present, to talk about assessing the needs of blind or partially-sighted people when footpaths are in the state they are is ludicrous.  Barbed wire alongside footpaths is dangerous to ordinary walkers let along partially-sighted people.

Minimising conflicts between different classes of user
 

Para 2.2.20

We strongly agree that proposals for improving rights of way should not unduly benefit one class of user at the expense of another.

Accommodating other interests
 

Para 2.2.21

While the interests of land managers and others may be taken into account, they certainly shouldn’t be given undue weight.  This proposal is about genuine improvements to the network and we are concerned that it could lead to diversions and extinguishments.  Please see our comment on the departmental guidance paragraph 4, below.

2.3  Making the assessment
 

Question E

Is the guidance on how local highway authorities should set about the process of making their assessments sufficient? (section 2.3)

Question E1

Are there other documents that should be scrutinised as a matter of routine? (paras 2.3.2, 2.3.6)

Question E2

Are there other sources of information that should be scrutinised as a matter of routine? (paras 2.3.6 - 2.3.8)

The process
 

Para 2.3.1

This should include a requirement for the authority to ‘list all the outstanding problems to be resolved and how and when the authority proposes to resolve them’.

Assessment based on the definitive map and statement and related documents
 

Para 2.3.2

This assessment is only very preliminary because definitive maps generally only show some, not all, of the definitive routes.

Para 2.3.3.

This para needs strengthening if local authorities are really going to cover those areas without a definitive map, and it is vitally important that they do.

Para 2.3.5

This gives the only reference to ‘cycle tracks and permissive routes’ but linking them to ‘towpaths and routes through woodlands and forests’ gives the impression that these permissive routes are of sufficient width for walkers and cyclists to enjoy sharing.  This is definitely not the case and DEFRA’s stated preference for legally converted cycle tracks under the Cycle Tracks Act 1984 should be included in the guidance here.

Other documents and sources of information
 

Para 2.3.6

Documents to be consulted should, where applicable, include the 1949 - 1952 parish path surveys under the 1949 Act, of areas subsequently excluded by the Secretary of State.  Where these surveys were completed before exclusion was granted, they could provide useful information on the status of paths.

In view of the future embargo on the acceptance of historical evidence for use in making path claims, highway authorities should positively encourage and assist volunteers in a systematic examination of records, eg enclosure awards, for such evidence.

Working with other local authority departments, neighbouring authorities and others
 

Para 2.3.12

This should require authorities to consult the prescribed user organisations.  If section 61 (1)(g) of the CROW Act is meant to refer to the user organisations, we would ask the Secretary of State to exercise her power under this section to ensure that we are consulted.

The role of local access fora
 

Question F

Should there by more involvement of local access fora in the preparation of rights of way improvement plans that that suggested? (para 2.3.15)

Question F1

If yes, in what ways should they be further involved?

Para 2.3.13

Where it has a local access forum, the local highway authority must give proper attention to the views of that forum, and the guidance isn’t strong enough here.

It would be helpful if earlier in the guidance the provisions of section 94 relating to the requirement to set up a local access forum are spelt out.

Reporting during plan preparation
 

Question G

Should local highway authorities be required to report after they have completed their assessments but before they start preparing their statement of action? (paras 2.3.16 - 2.3.17)

We submit that local highway authorities should be required to report after they have completed their assessments so that rights of way users can comment.

2.4  Preparing the statement of action
 

Question H

Is there sufficient material in the example of a statement of action? (para 2.4.3)

Para 2.4.3

We do not consider that there is sufficient material in the example of a statement of action.  They must be much more precise and should also show how the authority is going to deal with the existing problems.  Every column on this proposed statement of action should contain much more detail of what is proposed, what priority it has and how it will be funded.

2.5  Publicising and published the draft plan

Question I

Is 12 weeks sufficient time for representations to be made on draft plans? (para 2.5.4)

Yes 12 weeks should be sufficient provided the authority makes it easy for people to obtain and comment on the plan.  This must include depositing the plan in all the main libraries and other public places, and publishing it on the internet.

Para 2.5.1

The proposed ‘reasonable charge’ must be defined.

Para 2.5.2

All prescribed organisations should receive a copy of the plan free of charge.

Dealing with representations

Question J

Are the proposals for dealing with representations on published draft rights of way improvement plans adequate? (paras 2.5.4, 2.5.5)

Para 2.5.4

The phrase that local highway authorities must ‘consider any representations made’ is weak and we trust that such consideration will be done properly.  The authority should also be required to inform those who commented why their comments have not been adopted.

Departmental guidance

Question K

Bearing in mind that there is no duty on local highway authorities to implement their rights of way action plans, nor any statutory provision to issue guidance on this matter, is the draft Departmental guidance helpful to local highway authorities in taking forward their plans?

Because there is no duty on local authorities to implement the rights of way improvement plan, the public is very sceptical about whether any of these improvements will come about.  So the departmental guidance needs to state very strongly that it expects to see rights of way improvement plans delivering the improvements promised by the legislation and that it expects local authorities to spend the extra money on this purpose.

We are deeply concerned by paragraph 4 of the departmental guidance which says that local highway authorities ‘should be prepared to consider changes to the network that landowners might seek as corollaries to agreements…..’.  That is not the purpose of the rights of way improvement plan and such a phrase will just encourage land owners to seek diversions under the guise of ‘improvements’.  The rights of way improvement plan is about genuine improvements which means an overriding presumption in favour of creations without any compensating diversions or extinguishments, and the departmental guidance must make this absolutely clear.  Otherwise you are just opening the doors to many changes of route, leading to many public inquiries and much opposition and bitterness.  So please be clear from the start that this is about improvements, ie creations.

Other issues - creation of restricted byways

Question L

Should local authorities be given the power to create restricted byways in the same way as they can create footpaths and bridleways?

We agree that they should be given these powers.

Kate Ashbrook
General Secretary
Open Spaces Society

28 March 2002