DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS

CONSULTATION ON IMPLEMENTATION OF THE RIGHT TO APPLY FOR ORDERS TO EXTINGUISH AND DIVERT PUBLIC RIGHTS OF WAY, AND ASSOCIATED RIGHTS OF APPEAL,  MAY 2007

 

  Introduction
   
1. 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 over 2,500 members consisting of individuals, organisations and local authorities.
   
2. As you will know, we strongly opposed the introduction of these measures in the Countryside and Rights of Way Act 2000 and we remain opposed to them. The diversion and extinguishment of public rights of way is only a power for local authorities and should not have to compete for resources with the authorities’ statutory duties, of getting all paths in good order and the definitive map up-to-date. Unfortunately these proposals will take a great deal of local authority time and resources and will deflect them from the vital task of getting all paths recorded and in good order, which is of far greater benefit to the population as a whole. We note that the total costs to the local authorities are estimated to be £2 million a year, and we cannot see how the authorities will be able find the resources to implement these new measures without a disastrous effect on their other work.
   
3. Moreover, these proposals are heavily biased towards landowners and occupiers. There should at the very least be an equivalent right for the public to apply for creation orders and diversions which are purely in the public interest.
   
4. If Defra insists upon these measures being introduced, we recommend that it be left to each local authority to decide when the measures are introduced. If authorities wish for the time being to give priority to their legal duties of getting all paths open and getting the definitive map up to date, they should be permitted to do so and they should not be required to introduce the right to apply measures until those legal duties have been completed.
   
5. In addition, if these measures are introduced, they should not apply to any owner or occupier who has illegally obstructed or otherwise abused a public right of way within the last 12 months. We therefore strongly disagree with the statement in paragraph 2.15 of the consultation document that the landowner being responsible for an illegal obstruction will not constitute reasonable grounds for refusal. We consider that it should constitute reasonable grounds for refusal. Provided the local authority has adopted a policy that it will not process path-change applications where the owner or occupier is known to have one or more illegally obstructed paths on his land, that should be an acceptable reason for refusing an application. Paragraph 2.15 is contradictory. It refers rightly to authorities’ discretion in deciding whether to make an order and then seeks to remove that discretion.
   
6. We cannot agree with paragraph 2.24 which lists alleged additional benefits for users of rights of way from the proposals. We disagree that there is any benefit in regularising informal diversions and we disagree that there is any benefit in reducing the number of illegal obstructions which presumably can only be done by diverting the path around them. That is a shameful practice and the authorities should be requiring the owner to remove the illegal obstruction and not accepting moving the path as an alternative solution.
   
7. Without prejudice to our strong opposition to these proposals, we answer your questions as follows.
   
  Applications
   
  Question 1 Do you agree that the regulations should (a) require authorities to make available application forms for use by applicants, and (b) that the content of the application form should be for the authorities to determine ?
   
8. We agree that the regulations should require authorities to make available application forms for use by applicants, but we consider that the content of the application form should be prescribed by the Secretary of State so that they are standard. Alternatively, if it achieves the same result, there should be a standard Defra form not requiring regulations, which can be amended in the light of experience.
   
9. However, the form should make it clear that ‘expedient’ in section 119 of the Highways Act 1980 means better land-use and not privacy and security. The form should also make it clear that paths should not be diverted onto the two-metre wildlife margin.
   
  Question 2 Do you agree that the regulations should require authorities to seek basic information in the application form, as listed in the consultation paper ?
   
10. We consider that the regulations should require authorities to obtain as much information as they can right at the start of the process to reduce the workload for local authorities.
   
11. The applicant should also be required to demonstrate that the diverted route will not be substantially less convenient for the user.
   
12. We suggest that the applicant should be required to make a declaration that the right of way affected is currently in good order and has been in such a state for the past 12 months. He should also be required to make a statement for all the paths on his land. Failure to make this declaration should disqualify the applicant from this process.
   
13. The question in paragraph 4.3(e) should be treated with some caution since applicants all too readily claim that little or no use is made of a path when often this is not true.
   
  Question 3 Do you agree that the right to apply should allow for the making of applications to extinguish or divert restricted byways ?
   
14. Since we are opposed to this legislation, we would wish it to be as limited as possible and therefore we do not agree that it should apply to restricted byways.
   
15. In any case, until recently, restricted byways (as roads used as public paths, RUPPs) could only be moved using section 116 of the Highways Act 1980, so as to be ‘nearer or more commodious to the public’. To include these in the right to apply would be a significant shift from the public interest to the private interest.
   
16. These ways are hard surfaced from the days when they were used by horses and carts, pack horses, horses and carriages and horse drawn sledges for transporting felled trees etc. Although motorised vehicles are now excluded they can be used by horses and horsedrawn vehicles so the hard surfaces are essential and it is unlikely that such a surface condition would apply on the diversion. In wet weather the diverted way would become impassable and create a huge maintenance cost for the local authority.
   
17. Byways are usually hedged each side and never subjected to any chemical treatments and are corridors for wildlife and flora that have disappeared in other rural areas.
   
18. Many of these byways are part of our history. Many were trade routes and saltways dating back to the bronze age.
   
19. Because at present byways are not diverted, the hedges and trees have not been removed – an important factor for bird life and landscape value.
   
  Question 4 Do you agree that the scale of the map accompanying an application should be at the scale of 1:2,500 or, where a map of such a scale is not available, at the largest scale readily available ?
   
20. Yes, we agree.
   
  Question 5 Do you agree that the maps accompanying an application should only be amended with the agreement of the authority ?
   
21. We assume that by ‘amended’ you mean ‘substituted’ as set out in paragraph 4.7. Assuming that is what you mean, yes.
   
  Question 6 Do you agree that the applicant should only be required to notify: other landowners, lessees or occupiers whose land they consider will be affected by the order ?
   
22. Yes we agree that the applicant should do all the notification to reduce the burden on the order-making authorities, but he should also notify all the prescribed user groups listed in footnote 15 on page 22.
   
  Question 7 Do you agree that authorities should be required to consult other councils within whose area the right of way lies, and such other persons as the authority considers appropriate, before deciding an application ?
   
23. In principle yes, but we wonder how the authorities can manage to do this within the short timescale allowed and given their limited resources. ‘Such other persons …’ must include the prescribed user groups mentioned above.
   
24. The council must allow ample time for objections, both to applications and orders. We propose that a period of 56 days be allowed in each case, since that is the time given to the applicants for appeals (question 9 below). Applicants and objectors must be treated equally.
   
  Question 8 Do you agree that authorities should be required to notify any persons who made representations on an application, of the outcome ?
   
25. Yes.
   
  Appeals
   
  Question 9 Do you agree that 56 days is a fair period of time within which appeals should be brought ?
   
26. We consider this to be a very generous amount of time especially when compared with the 28 days allowed for appeals against decisions not to make definitive map orders. We trust that government will look to increasing the period allowed for appeals against decisions not to make a definitive map order, to increase that from 28 to 56 days as well.
   
  Question 10 Do you agree that appeals should be brought by using a form obtained from the Secretary of State, but that the form of appeal need not be prescribed by regulations ?
   
27. We agree.
   
  Question 11 Do you agree that the authority should be required to provide the Secretary of State with the required information within four weeks of receiving notice from the Secretary of State (or such other date as agreed with the Secretary of State) ?
   
28. We consider that four weeks is a very short timescale for the local authorities but provided the Secretary of State is willing to agree an extension this would be acceptable. However, the same rule should apply to applications for orders under the Wildlife and Countryside Act 1981.
   
  Question 12 Do you agree that the applicant (appellant) should not be required to give notice of the making of an appeal to any other parties ?
   
29. We agree provided that the Secretary of State gives all the notifications set out in paragraphs 5.12 to 5.14.
   
  Question 13 In the case of appeals under section 121D(1)(a) do you agree that the Secretary of State should be required to give notice of an appeal to any person who made representations or objections on the application ?
   
30. Yes.
   
  Question 14 In the case of appeals under section 121D(1)(b) or section 121D(1)(c), do you agree that the Secretary of State should be required to give notice of an appeal to any person who made representations or objections on the order (and which have not subsequently been withdrawn) ?
   
31. Yes.
   
  Charges and costs
   
32. Paragraphs 6.4 and 6.6: We do not agree that applicants, who are gaining private advantages from these measures, should only be required to make ‘a reasonable contribution’ towards the costs. They should pay the full costs.
   
  Question 15 Do you (a) agree that the regulations should prescribe an Application Charge set at £1000 per application, and (b) what impact do you consider this would have on the numbers of applications made ?
   
33. We do not know what are the true, total costs of processing an application but the charge should be set to cover all the costs so that the local authority is not out of pocket. If this deters owners and occupiers from making applications so be it. A charge of £1,000 would be far too low where a public inquiry is involved.
   
34. We consider that there should be a limit to the number of path changes per application as otherwise the charging regime will encourage applicants to submit rationalisation schemes. We suggest an application be limited to one path change.
   
  Question 16 Do you agree that the regulations should provide for a standard order-making charge, plus four Further Charges, at the levels proposed ?
   
35. We consider that the regulations should provide for the local authority to recoup all its costs from the applicant.
   
  Question 17 Do you agree that authorities should be required to refund the difference, where the actual cost of placing the newspaper notice is less than Further Charge C ?
   
36. For authorities to have to make refunds is an extra administrative burden. We would much prefer that they need not have to do this.
   
  Question 18 Do you agree that Further Charge C should be set at a higher level in those areas where costs are unavoidably higher ?
   
37. Yes.
   
  Question 19 For Order-making authorities only: Do you consider that Further Charge C should be set higher than £500 in your area ? If so, provide evidence to show that costs unavoidably exceed £500, and state what level you consider it should be set at in your area ?
   
38. Not applicable.
   
  Question 20 Do you consider that the prescribed charges for public path diversion and extinguishment orders should apply to special orders (for school security) ?
   
39. Yes, applications for special orders should be treated the same as any other. There is little if any evidence that paths pose a threat to security and safety of school children or staff.
   
  Question 21 Do special orders raise any additional issues which the Secretary of State should take into account in making regulations which meet the needs of schools ?
   
40. We are not aware of any.
   
  Question 22 Do you consider that (a) there is a risk of authorities erring on the side of refusing applications (which will minimise their own costs) thereby forcing applicants to appeal, and if so, (b) what measures would most effectively mitigate the risk ?
   
41. There is clearly a risk which can be mitigated by enabling authorities to charge the full costs.
   
  Question 23 Do you agree that applicants who appeal against an authority’s refusal to make an order, should be required to meet the expenses incurred by the Secretary of State in drafting and publicizing an order, through payment of a charge of approximately £150 plus the actual cost of erecting site notices and publishing newspaper notices ?
   
42. The applicant should pay the full cost incurred by the Secretary of State in drafting and publicising an order, erecting site notices and publishing newspaper notices.
   
  Question 24 Do you agree with the proposed circumstances in which authorities should be required to remit or refund charges ?
   
43. We strongly disagree with this. The authorities should be able to charge the actual costs regardless of the number of paths or the distance between them. If authorities could remit or refund charges, it will merely encourage owners and occupiers to apply for damaging rationalisation schemes in the expectation of a refund if the whole thing is not adopted.
   
  Question 25 Should a partial or full refund of the Application Charge be made when the authority refuses an application for an order ?
   
44. There should be no refund since the authority will incur the costs regardless of whether it decides to make the order. That is a risk that the applicant must take.
   
  Question 26 Do you agree that applicants should be entitled to claim refunds as proposed, and that authorities should be required to make a refund on receiving such a claim ?
   
45. There should be no refund where an authority declines to determine an application under section 121C, since the applicant should be aware of the previous application.
   
  Question 27 Do you agree with the proposed levels of remittance/refund to be prescribed in the regulations ?
   
46. No comment.
   
  Question 28 Do you consider authorities should be given the power and/or should be required to remit or refund the Application Charge and/or the Further Charges, in any other circumstances ?
   
47. We know of no other circumstances.
   
  Assessment of impacts, commencement and other matters
   
  Question 29 Does the partial RIA adequately assess the likely level of uptake, costs, potential impacts, risks, and benefits ?
   
48. We consider that the partial RIA is totally inadequate to justify the measures which Defra proposes to introduce. The justification given is that ‘land managers often encounter difficulties in persuading local authorities to make extinguishment or diversion orders in respect of public rights of way over their land’. But there is no evidence to back this up. We see no survey information to show how many landowners encounter these difficulties, or how often they are encountered. It appears to be based purely on conjecture and the complaints made by the leaders of the National Farmers’ Union and Country Landowners’ Association. Moreover we are told in paragraph 3.2 that ‘the figures contained in this document are for illustrative purposes and are based on assumptions which may or may not be accurate’. This is an extraordinary statement and goes to show that Defra has not carried out the necessary research to justify the need to introduce these provisions.
   
49. The analysis of costs and benefits of option 1, ‘do nothing’, is incomplete. In the ‘do nothing’ option, authorities are able to give more time to their statutory duties of recording, maintaining, signposting and opening up public rights of way to the benefit of the population as a whole. Furthermore, they are able to concentrate on producing rights of way improvements plan which are also intended to be for the benefit of the population as a whole.
   
50. However authorities could be required to provide more information to applicants for orders, and could be required to provide the sort of standard form that is mentioned earlier in the consultation document which would assist owners and occupiers making applications.
   
51. Option 2 does not set out the full costs since the authorities will have to drop some of their statutory work in order to deal with applications for orders, which is a cost to the population as a whole who would benefit from the improvements that the authority would be able to make if it was not bogged down with the work involved in option 2.
   
52. In the detailed assessment of benefits and costs under option 2, there are vague statements such as ‘a recent survey suggests that in over half of local authority areas, applicants currently face significant difficulties ….’. This is not firm information and it does not say how many applicants. There are no numbers given as to the number of applicants who were canvassed, and the number of landowners canvassed was only six.
   
53. In paragraph 5.20 there is a list of places where land managers might wish to divert or extinguish a right of way, but of course they can do that at present. It does not need the new provisions to enable that to happen.
   
  Question 30 Do you consider that the proposals would (a) meet the needs of landowners/lessees/occupiers and (b) take full account of the needs of other stakeholder groups ?
   
54. We do not consider that the proposals meet the needs of landowners/lessees/ occupiers or take a full account of the needs of other stakeholder groups.
   
55. The RIA itself admits in paragraph 5.45 that ‘even for applicants, the cost-benefit appears marginal’. The proposals certainly do not take full account of the need of other stakeholders. At paragraph 5.34 the RIA says the new rights are not intended to deliver benefits for other stakeholder groups and indeed we consider that there will be severe disadvantages to users and to local authorities. This is because local authorities with their limited resources will be forced to give even less attention to their statutory duties of recording and opening up paths, which have a much wider public benefit than the right to apply proposals, which are of purely private benefit. Also, hard-pressed volunteers will need to sacrifice their own time and often their own money to inspect even more proposals, which are largely in the private interest. The proposals are biased and unfair.
   
  Question 31 Do you consider that the legislation relating to the right to apply and appeal should be (i) commenced in its current form, or (ii) repealed, or (iii) amended ? If you consider it should be amended please say in what ways and give your reasons.
   
56. We consider that the legislation should be repealed. We consider there is no public benefit in the proposals and that they are of only marginal benefit to landowners and occupiers, as admitted by the RIA. Even if the right to apply was fully paid for by the applicants, local authorities will still suffer severely from these proposals. They cannot now fulfil their statutory duties and the imposition of a new duty on them will have a detrimental effect on the existing duties. It is unlikely that the charges under these proposals will cover the total cost of the necessary additional members of staff to deal with all the applications under the right to apply. In any case, the authority will not know how many applications it will get, so cannot budget for this. It is therefore bound to be existing staff who are deflected to implement the new proposals.
   
57. Therefore the legislation should be repealed and should only be reconsidered once the definitive maps of rights of way are all up-to-date and in good order and all paths are open and useable.
   
  Question 32 Do you agree that the regulations should allow applications, notifications and appeals to be made online ?
   
58. If Defra decides to go ahead with these proposals, we have no objection to the regulations allowing applications, notifications and appeals to be made online.
   
  Question 33 Do you agree that a lead in-time of at least 6 months would be sufficient to prepare for the new rights ?
   
59. We consider that a lead-time of six months is too short and would recommend at least one year. As stated above, we consider that it should be left to the discretion of the authority when it introduces these measures.
   
  Question 34 Are there any other considerations which you think it is important for the Secretary of State to take into account in deciding how or when to introduce the new rights ?
   
60. We wish to repeat that these new provisions will have a severely detrimental effect on local authorities and the existing path networks and will be of huge disbenefit to the public. The measure should be repealed.
   
  Question 35 Do you consider that (a) authorities should be required to notify their local access forum of each application received, and/or (b) that the Secretary of State should be required to notify the relevant forum of each appeal made ?
   
61. No, this is not an appropriate role for the local access forum. The forum should not get involved in individual cases and it will only bog them down when they should be taking a strategic view.

August 2007