What presumption?

On new year’s eve I was telephoned by Jill Sherman, Whitehall editor of the Times.  She wanted to talk about the government’s proposals for public rights of way in the forthcoming Deregulation Bill.  The draft bill had been published last summer and had been scrutinised by a Parliamentary Joint Committee.

The clauses in the draft bill, which have been repeated subsequently in the bill (which was published on 23 January and received second reading yesterday) are intended to simplify and streamline the process for claiming public paths for the definitive map, in the interests of path-users, landowners and local authorities (for more information see here). The bill largely follows the recommendations of Natural England’s stakeholder working group on unrecorded ways, which consisted of all three interests and produced a unanimous report in 2010.  I have been a member of the group from the start. 

It is now urgent to get the maps up to date because on 1 January 2026 parliament intends that any pre-1949 historic routes will be extinguished and can no longer be added to the official (definitive) maps.  These routes will be lost for ever.  So it’s vital to claim them in the (less than) 12 years remaining.

Intention
Jill wanted to know what I thought of an intention by Owen Paterson, the environment secretary, to introduce a presumption in favour of path diversions away from landowners’ properties.  I told her that there was no such presumption in the package of measures in the stakeholder group’s report, nor in the draft Deregulation Bill.   The group still exists and Defra officials consult us on any new ideas with the aim of achieving consensus.  There was no chance of the group reaching consensus on such a contentious proposal.

Nevertheless, the Times published the story on 2 January with an over-the-top and misleading headline ‘Homeowners win right to bar ramblers from land’.  The article claimed that ‘a concession by Mr Paterson will give property owners the right to ask for a public path to be diverted so it goes round a house, garden or farmyard rather than straight through it’.  The Telegraph published a similar story with the same statement, in a news article and a leader.

I wrote letters to both papers pointing out that Paterson had made no such concession.  Neither was printed.  Defra did not issue a rebuttal as it should have done.  There followed about ten days of correspondence in the press, some of it misinformed.

In fact, as I had explained to Jill Sherman, the press were mixing up a number of different things in a complicated set of proposals.  

New regime
Under the new regime, when a surveying authority receives a path claim it  will make a preliminary assessment to enable it to reject a claim which does not meet the required standard (and give the applicant an opportunity to improve it).  Once an application has web footpath signpassed the test, the authority must tell the landowner of the claim (at present this is left to the applicant and the first a landowner may hear of it is when he receives a notice by post).  If the landowner wishes to propose a diversion for the historic route, the authority may discuss this with the landowner.  The diversion must fulfil the tests for diversions under section 119 of the Highways Act 1980; the authority must be satisfied that it is not substantially less convenient to the public and that any new termination point is substantially as convenient. 

If the diversion satisfies the tests, it may be made at the same time as the definitive map modification order.  As the order is then unopposed, the path can be swiftly added to the map.

There is no automatic right for the landowner to get his diversion in return for not objecting to the claim.  This is not a presumption in favour of landowner diversions and it only applies to newly-claimed historic routes.

Right to apply
In another clause of the bill, landowners are given the right to apply for diversions or extinguishments under the Highways Act 1980 (a provision which was included in the Countryside and Rights of Way Act 2000 but never enacted because it was flawed).  Again, there is no presumption in favour of these path changes, the provision merely means that the authority must consider them within a timescale.  The applications and orders still have to pass all the existing tests about need, convenience etc.

There is of course no need to give landowners a helping hand in moving paths.  They have for centuries had the right to seek to divert paths on their land and the tests in the legislation already favour their interests more than those of the public.

Best chance
Once enacted, the Deregulation Bill’s clauses on rights of way should make a big difference to the speed and ease of getting claims through the system.  They take much of the contention out of the process and are the best chance we have of getting the definitive map up to date by 2026 when the portcullis falls and many pre-1949 routes are extinguished for ever. 

It’s in everyone’s interest to let the bill have a smooth passage onto the statute book. Misleading claims, scare stories and inaccurate press reports obstruct its path.

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About campaignerkate

I am the general secretary of the Open Spaces Society and I campaign for public access, paths and open spaces in town and country.
This entry was posted in Defra, parliament, Public paths and tagged , , , . Bookmark the permalink.

10 Responses to What presumption?

  1. Geoff Mullett says:

    Following an email to me from Central Office, I received a phone call three weeks ago from the Producer of BBC Look North, who wanted a TV crew to film and interview me on a walk I was leading the following day. The subject was the Telegraph’s item on this story. CO had primed me with the information I’d need, so when asked by the Producer I explained the non-story saying the Press was making mischief. The BBC decided to “park” the story and interview!
    Interestingly, none of the 15 walkers that day knew anything about the Deregulation Bill, or the newspapers’ stories!

  2. I’m very glad you managed to stop the spread of this nasty virus.

  3. Keep at it Kate – don’t let the slippery b…..ds get away with corrosive misreporting!

  4. Adam says:

    Hello Kate, Is there any news about when the “new regime” for DMMO applications will come into effect?

  5. Adam says:

    Just out of interest what is your opinion on the clause allowing landowners to seek extinguishments? It concerns me that many paths could be argued to be unnecessary for public use. Councils have seldom utilised this power but now any farmer with a seldom used path running through his field might have an opportunity to stop it up.

    • I don’t like the new provisions (not yet commenced) which give landowners the right to apply for diversions and extinguishments, but the tests for these remain the same. Once these provisions are commenced, landowners can apply to highway authorities for changes and the HA must consider them within a timetable and let the owner know the decision, the owner may appeal to the magistrates’ court if the HA doesn’t respond within the timetable or if it rejects an application and the landowner wants to challenge the decision. My main worry is that it puts a greater burden on the hard-pressed HAs and means that they will give this work higher priority than their statutory duties of opening, maintaining and recording paths. The landowners have to pay the costs, but that could lead to the HAs employing staff or consultant on the basis of the proceeds, again with a skewing of its priorities. However, it is important to remember that the legal tests are unaltered and so the farmer with the seldom-used path still has to prove that it is not needed for public use.

  6. Adam says:

    My apologies for enquiring via the comments section of this old blog post.  I am afraid that I could not find anywhere more appropriate.

    It seems that there is still little readily-available information about the enactment of the Deregulation Act. Do you know when the Rights of Way sections are likely to come into force?

    Also, have any exemptions to the 2026 cut-off been confirmed? I read Phil Wadey’s article for the OSS in which he suggested that routes on a council’s ‘List of Streets’ would be protected from extinguishment, but I haven’t yet read anything official to that effect.

    Many thanks.

    • Dear Adam, none of the rights-of-way provisions in the Deregulation Act have been implemented yet, and we don’t have a date. So none of the presumptions have been confirmed.

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