A change of direction for rights of way?Print publication
The Deregulation Bill (the Bill) was laid before Parliament in January this year. The Bill is part of the Government’s Red Tape Challenge, the aim of which is to reduce the burden of regulation. The Bill will go some way to achieving that aim by amending or repealing 182 pieces of legislation. From a real estate perspective some of the most interesting amendments are those which will affect public rights of way.
Public rights of way: what is the position now and what is changing?
The Bill proposes a raft of amendments to legalisation affecting rights of way. Of these, the amendments to the Highways Act 1980 (HA) have attracted the most attention. A report in the Times on 2 January 2014 suggested that the amendments would have the effect of granting landowners an ability to divert public rights of way, a statement which, whilst based in truth, is somewhat over-simplifying the reality of the proposals.
Powers already exist permitting landowners and land managers to apply to a local authority to make an order to either divert or close a public path crossing their land; as such the changes to the HA do not really introduce any new law. What they do however is introduce new provisions dealing with rights of application and appeal.
The current position
Diversions of public footpaths and bridleways  occur as a result of an application made to a local authority for a public path order made under section 119 of the HA. It is also possible to apply for the extinguishment of a public path under section 118 of the HA. The success of such an application is dependant upon conditions set out in the HA being satisfied namely that, in the case of a diversion order, the proposed new path is not substantially less convenient and will not have an adverse effect on the public enjoyment of the path, and in the case of an extinguishment order, that the path is not needed for public use. The local authority must therefore balance the interests of a private landowner with the impact the making of an order would have on the public.
Under present legislation local authorities are under no obligation to make an order (it is a power given to them, and not a duty) and as such, it is common for local authorities to allocate very limited resource to dealing with applications. Such limited resources have led to applicants waiting many years for their application to be considered and, to add insult to their injury, local authorities often charge substantial administration fees for dealing with the application. As such the process is not necessarily that useful for a landowner wishing to divert a right of way to permit development on their land.
The process involved in making such an order is relatively complex. An application must be made to the relevant authority supported by a plan showing the existing and proposed paths and the written agreement of owners and tenants of any land forming part of the path to be closed and the proposed path. The process can involve a period of informal consultation with interested parties with some local authorities requiring applicants to undertake all preparatory and consultation work and present a report to them, to cut down their work to the bare minimum. Landowners will be required to agree the precise standard of the proposed alternative route with the local authority and will, in the majority of cases, require the applicant to either undertake all work required to bring the route up to that standard themselves, or fund such work.
Orders can be determined at public enquiry, a more informal hearing for exchange of written representations. Local authorities currently have no power to overrule any objection received and an opposed order must be referred to the Planning Inspectorate for determination if it is to proceed. Local authorities therefore seek to encourage agreement to be reached on an informal basis to avoid any objection being lodged once an order is made.
Once an order is made it has to be confirmed before becoming operative. Confirmation can be given by the local authority if the starting and finishing points of the new path are not substantially less convenient, it is expedient to confirm the order given the effect:
- the diversion would have on public enjoyment of the path and
the new right of way and the extinguishment of the existing right would have on the lands served by them
- and finally that there are no objections or all objections have been withdrawn.
At this stage, if there are any unresolved objections to the order, the local authority cannot confirm it but it can be submitted to the Secretary of State for confirmation. There is however no obligation on the local authority to refer the opposed order to the Secretary of State.
Once the order has been made the diversion becomes permanent and definitive map and Ordnance Survey maps must be modified.
Proposals for change
There is, at present, no right of application and no right of appeal in the event that a local authority refuses to make an order or to determine an application. Any redress would need to be sought via an application for judicial review. Furthermore there is no obligation on a local authority to consider an application in a timely fashion. This can lead to landowners becoming frustrated because of the delays that can occur and because the process is, as a whole, expensive, unwieldy and complex. User groups take full advantage of the fact that a single objection can delay an application and therefore are in strong position to negotiate the terms of proposed diversions to maximise public benefit in return for agreeing not to object. Some users go so far as to object to all orders which would benefit landowners as they believe that local authorities should only use their powers when a diversion would be entirely in the public interest.
The proposals in the Bill reflect amendments previously made to the HA by the Countryside and Rights of Way Act 2000 (CRWA) but which remain unimplemented. The CRWA sought to introduce an appeal procedure to be used in situations where an authority did not make an order within a defined period of time or refused to deal with an application altogether. Unfortunately however, a number of pitfalls were identified with the changes introduced by the CRWA meaning that they were never commenced. The Bill therefore will amend the provisions in the CRWA to deal with the shortcomings.
The provisions, once commenced, will oblige local authorities to consider applications within four months and give the applicant written notice of their decision accompanied by reasons for it. In circumstances where the local authority fails to consider the application within this time the applicant can make an appeal to the Secretary of State for a direction requiring the local authority to determine the application. Where a local authority refuses to make an order an appeal can also be made to the Secretary of State to make the order. Finally, the category of applicant to which the rights of appeal would apply looks likely to be extended. The original amendments in the CRWA only applied to paths over land that was used for agriculture, forestry or the breeding/keeping of horses, however, it would seem that the classes of land use will be widened.
Whilst the changes that could be implemented by the Bill at first glance appear radical, the effect that they have may not be as far reaching as first thought. The amendments to not introduce any new rights, as an ability to apply for a diversion or extinguishment of a right of way already exists and as such the effect of the new provisions is procedural. The proposed amendments may potentially make the process of diverting a right of way fairer to landowners wishing to develop land which could otherwise potentially be sterilised by the existence of a right of way, but the interests of private landowners will still need to be balanced against the public benefit.
The Bill currently rests at the committee stage in the House of Commons. No date for enactment has yet been given but it is thought that the Bill will become law this year. As such we will have to wait and see what impact the amendments to the procedures relating to diversion and extinguishment of public paths actually have.
 A footpath is a highway over which the public has a right of way on foot only, but which is not a footway (a footway is a pavement or path running alongside a road and is part of a highway, but is not a highway in its own right)(section 329 HA.).
A bridleway is a highway over which the public has rights of way on foot, on bicycle, on horseback and when leading a horse (section 329 HA, section 66 of the Wildlife and Countryside Act 1981 and section 30 of the Countryside Act 1968).