Footpaths – on the move at last!

Should you need to delve into the world of public rights of way, it’s best to recognise the challenge of achieving resolution at a speed faster than glacial. Be it a claim to record a route over private land, a change to the existing network or a knotty maintenance issue, complex legislation and long-winded procedures often seem designed to ensure that no public rights of way problem will be resolved quickly. This, coupled with limited specialist resource at councils, means that rights of way problems last not just years but sometimes for decades. 

Achieving change to the actual legislation is equally difficult. There are strong feelings on both sides of the access debate, with landowner-favourable provisions in the Countryside and Rights of Way Act 2000 (CRoW Act) and Deregulation Act 2015 remaining unimplemented while details are thrashed out. However, 2023 bucked the trend and saw DEFRA grasp the nettle of outstanding public rights of way legislation and begin a programme to bring in changes before the next general election.   

What’s new? 

The presumptions guidance: August 2023  

This DEFRA guidance advises councils to attach weight to the impact of public footpaths, bridleways or restricted byways that run near private houses and in gardens, farmyards and commercial and industrial premises. It applies to diversion or extinguishment applications made under the Highways Act 1980 – the most common legislation under which changes are achieved and concludes: “…it is for the authority to consider the case on all its merits taking into account all the statutory requirements and available guidance. In making its decision as to whether the existing path should be diverted or extinguished, an authority should consider in particular the impact of the existing path on the property owner and/or occupier against the benefit that having the right of way through the land brings to the public…”  

What does it mean in practice? 

Councils deciding applications should consider the adverse impact of the existing route on the landowner or occupier, where it runs within the garden or curtilage of a private dwelling, across a farmyard or within commercial or industrial premises. They should be aware that reducing or eliminating the impact of a route, in terms of privacy, security and safety, are important considerations to which due weight should be given. So, the threat of a formal objection to a diversion or extinguishment order should not be sufficient to deter councils from making orders where there is clear benefit to the landowner or occupier in improving privacy, security and/or safety by the diversion or extinguishment of a route.   

The cut-off 

The cut-off is shorthand for the CRoW Act provision which extinguishes unrecorded historic footpaths and bridleways on 1 January 2026, preventing additional routes being added to the definitive map on the basis of pre-1949 documentary evidence of their existence. The extinguishment would bring certainty to landowners but intense debate over exceptions to the extinguishment has seen the legislation stalled for many years. The legislation finally came into force on 17 November 2023 with DEFRA using an option date of 1 January 2031 for the extinguishment to take effect. Regulations for the exceptions are in hand. Certainty is still some way off, but now repeal of the legislation is required for the cut-off not to happen. 

“The Right to Apply” 

Another provision of the CRoW Act, much needed in areas of the country where councils refuse to accept any applications for public path diversion or extinguishment orders or have long waiting lists meaning years of delay. DEFRA has committed to bringing in the right to apply in 2024, along with full cost recovery by councils. Applicants will be entitled to a determination within four months of submission, although will have to do much pre-application work and can expect significant costs.   

Other changes 

There is a raft of smaller, but important, changes that DEFRA has committed to introducing as soon as it can, including: 

  – Revision to the tests for claimed routes. 

– Agreement between landowners and Councils to divert claimed routes. 

– Council power to dismiss ‘irrelevant’ objections to orders. 

– Removal of the need for expensive press advertisements. 

– Power to authorise gates on restricted byways to control livestock. 

New at Birketts… 

We have been delighted to welcome Camilla Rhodes to our national public access team.  Camilla is a qualified chartered surveyor with a background in private practice and 20 years’ experience at a local highway authority. She brings expertise in highway and public rights of way law and will add depth to our ability to react to the new legislation. Camilla looks forward to assisting clients all over the country with the challenges that come from public access over their land.