Sarah Slade: Rights of way law on path to reform

FOR Yorkshire farmers and landowners affected by public rights of way, the Deregulation Bill offers genuine and much-needed change.

Rights of way fall under the rule: once a highway, always a highway. This means that if evidence is found that a public right of way existed a century or two ago, then it can, even if it has not been used in living memory, be added to the definitive map. The route must be exactly as it once was, even if farm buildings, housing estates or other development have occurred since it was last used, and this, of course, can cause enormous problems.

The Countryside and Rights of way Act 2000 attempted to resolve this by setting a cut off date of January 1, 2026, after which it would no longer be possible to add historic rights to the definitive map. The CLA has been concerned for many years that this legislation had not actually been implemented so it is welcome news that it finally will under the Bill.

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The Deregulation Bill is the first stage of this package of reform.

It introduces a preliminary assessment to ensure that applications for rights of way are not made on weak evidence. Authorities will have a new power to reject claims they believe are not of sufficient quality and landowners will benefit because they will not have to spend time and money defending poorly constructed claims.

Authorities will not be able to make orders simply because a route is “reasonably alleged” to exist. They will only be able to do so if the claim for the way looks justified on the “balance of probability”.

It introduces a new and potentially very important concept: when a claim for an historic way is made, landowners will, for the first time, be able to take account of the current use of land. It will be possible for a landowner to reach an agreement with the authority to put the path in a different place which causes less impact (such as around a garden or farmyard) through a new process called a modification consent order.

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It updates and implements provisions which were initially contained within the Countryside and Rights of way Act 2000. The initial proposals gave owners of agricultural land, equestrian land and woodland the right to seek a diversion or extinguishment order (the so-called “right to apply”). However, the initial regulations were not well drafted as they did not include householders or other types of business, such as tourism. They also introduced a system of set fees which, for many parts of the country, were in excess of the then current charges. Those regulations did not overcome the situation where an authority would only take on an application if it was likely to be uncontroversial – as a single objection would cause an appeal, the costs of which would fall entirely on the authority. The new legislation will open up the right to apply to other types of landowner. In addition, there will not be set fees, but instead provision for authorities to recover their costs.

There will be a power for authorities to ignore irrelevant objections, thus potentially avoiding the extra costs incurred by landowners and authorities with an inquiry.

Greater use will be made of digital communication, which should lead to a reduction in costs, including matters such as diversion and extinguishment orders.

For the first time, authorities will have the power to authorise the erection of gates and other structures on byways (currently that power exists only in relation to public footpaths and bridleways).

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Other matters for which we have been campaigning that are not included in the Bill as yet include:

Extending the power to authorise gates and other structures on public rights of way so that householders and businesses can also apply for security and safety reasons.

Ensuring that paths can be more easily diverted out of gardens, farmyards and other sensitive areas.

Ensuring that a high standard of evidence supports claims based on use: claimants currently need to prove 20 years of use by the public as of right but, in making claims, peoples’ recollections can become distorted.

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Ensuring claims that are fought and won cannot be brought again based on new (or allegedly new) evidence.

Although there is much work still to do on this proposed legislation, the foundations of a significant improvement in English public rights of way are being laid.

• Sarah Slade is the national access adviser to the Country Land and Business Association.

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