This is an article which I wrote for the summer 2021 issue of Signpost, the magazine of the Peak and Northern Footpaths Society (PNFS) of which I am a vice-president.
I have always thought that the PNFS’s cast-iron signposts were fine symbols of permanence and rock-hard stability, a statement that these paths are not for moving. But changes coming in the Deregulation Act 2015 could undermine this.
We are familiar with the fact that the Deregulation Act gives effect to the cut-off date for historic claims for the definitive map on 1 January 2026, and aims to streamline and speed up the process for adding paths to the map. User groups are lobbying for an extension, or ideally revocation, of the cut-off date. Not only has the pandemic severely hampered our opportunities to research routes, but also it was always government’s intention that there should be a review of the effectiveness of the streamlining provisions, after they were commenced and some time before the cut-off took effect—now we have less than five years with no time to test and review.
But there is another aspect of the Act which could have a far-reaching effect on our path network, and that is the introduction of the right for landowners, lessees, and occupiers to apply for public-path diversion and extinguishment orders. First introduced in the Countryside and Rights of Way Act 2000, these provisions were not implemented because they were found to be flawed. The flaws have been addressed in the Deregulation Act.
The effect of the ‘right to apply’ will be that highway authorities must respond to landowners’ applications for change. Many authorities, commendably, refuse to consider landowners’ applications (or give them low priority) because diversions and extinguishments are only a power not a duty, and applications from landowners frequently have no public benefit. Authorities have more important work to do than diverting paths: dealing with obstructions and updating the definitive map for instance.
However, once the right to apply is implemented, the authority must consider an application from a landowner, lessee or occupier within four months and give the applicant notice in writing of the decision and the reasons for it. If the council fails to consider the application within that time, the applicant can appeal to the Secretary of State for Environment, Food and Rural Affairs for a direction requiring the council to determine the application.
Where the council refuses to make an order for a landowner application, the applicant may appeal to the environment secretary who can prepare a draft order and determine whether to make it. The applicant can also appeal against the council’s failure to confirm an unopposed order, and to submit an opposed order to the secretary of state.
While the legal tests remain the same, the new right to apply will place an additional burden on hard-pressed highway authorities to consider and determine applications from landowners which may not be in the public interest (and four months is a very short period in which to determine an application). Increasingly it appears that people move into the countryside to be reclusive; many are paranoid about paths passing close to their properties (even though they knew the path existed when they bought the property). Fences, gates, CCTV notices and hostile signs go up, and diversion applications on grounds of alleged ‘privacy and security’ go in. Too often such diversions shove the public off the direct path.
The right to apply will also put an additional burden on voluntary bodies like the PNFS [as well as Ramblers, Open Spaces Society, and others], as our volunteers must assess the applications and oppose any which are contrary to the public interest. There will no doubt be many applications because landowners have been storing them up for the new provisions.
It is fortunate that we have the PFNS with its excellent team of inspectors to consider all such applications. I feel confident that the organisation which invented those solid signposts will rise to the challenge and resist any applications which are not in the public interest. It’s a battle worth fighting.