The Deregulation Act 2015 received royal assent on 26 March 2015. A small but important part of the act concerns public rights of way, and will take effect once the regulations and guidance have been completed, probably on 1 April 2016. The relevant sections are 20–26 and schedule 7.
On 1 January 2026 the government intends to close the definitive maps to the claim of historic paths which existed before 1949 (section 53 of the Countryside and Rights of Way Act 2000 (CROW Act)), with the aim of providing certainty to landowners about what highways exist on their land. So the job of users is to ensure that all such routes which are useful or potentially useful are claimed before that date. Since most surveying authorities have a huge and growing backlog of claims, the aim of the Deregulation Act is to speed up the processing and determination of path claims. It is the result of many years’ work, and the consensus reached, by the rights of way stakeholder working group, consisting of balanced representation from landowners, local authorities and users.
Once the act takes effect, when an application for a route is submitted to the authority it must be given a preliminary assessment to ensure it reaches a basic standard. Then the authority (rather than the claimant as now) contacts the landowner, with an offer to consider a simultaneous diversion if that will make the claim palatable to the landowner and avoid time-consuming and costly objections. If the authority does not act on a claim within a certain period, the claimant can seek a court order directing it to act. There are many other provisions which will expedite the process.
The stakeholder working group, of which our general secretary is a member, will now assist in drafting the regulations and guidance. Importantly, it will also help to determine exactly which categories of route will be exempt from the 2026 cut off.
The provisions in more detail
Sections 20-26 and schedule 7 relate to public rights of way.
Section 20 ensures that a surveying authority may not, after the cut-off date, make a deletion order if this will 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 will reduce the number of deletion orders.
Section 21 empowers the Secretary of State to make regulations further reducing or mitigating the effect of the cut off.
Section 22 protects the rights of landowners 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 gives owners, lessees or occupiers the right to apply for a public path diversion or extinguishment order under the Highways Act 1980. (The right was introduced in the CROW Act but never implemented for various reasons.) The change will not increase the landowner’s chances of achieving change; the application and order must still pass all the same tests, but the clause 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 council doesn’t consider the application within that time, the applicant can appeal to the Secretary of State for a direction requiring the council to determine the application. If the council refuses to make an order, the applicant can appeal to the Secretary of State to make the order. All the same criteria for making an order under the Highways Act apply.
Section 24 empowers highway authorities to authorise the erection of gates on a restricted byway or byway open to all traffic. It is hoped that this will reduce the number of opposed claims for byways, since landowners may be willing to agree to a modification if a gate is erected.
Section 25 allows an authority and the Secretary of State fully to recover their costs from the applicant for applications and orders made under section 23.
Section 26 introduces schedule 7 which makes changes to the procedure for ascertaining public rights of way in England.
Schedule 7 contains many detailed provisions, the principal being as follows.
There is a simplified procedure for correcting administrative errors on the definitive map and statement.
The surveying authority is required, within three months of receiving an application for a definitive map modification order (DMMO), to make a preliminary assessment to determine if there is a reasonable basis for the claim.
• 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. This means that the first formal contact with the owner will be via the surveying authority not 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 when the authority does not adhere to the prescribed timescales.)
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, the authority is also required to 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 provided certain changes occur to the claimed route at the time it is added to the map. In such a case, the authority would be empowered to make a ‘special order’, which would be one or more of the following: a diversion order, an order altering the width of the path, or an order imposing a new limitation or condition on the path.
In the case of a diversion order, the authority must be 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), ie the modification incorporating the special order. The MCO may be confirmed by the authority itself, whether or not representations or objections are made.
An authority 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 can be recorded swiftly, without opposition. The downside is that the recorded route is not the historic one.
The Secretary of State may divide in two an order modifying the definitive map 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 are empowered to dismiss irrelevant objections. They will also no longer be required to give notice of the making of a public path order in a newspaper but must instead publish the order on the authority’s website and ‘on such other websites or through the use of such other digital communications media as the authority may consider appropriate’.