Public Rights of Way: The Presumptions Guidance! At last!
1 August 2023
What is it?
It is guidance published by Defra advising local authorities on the weight they should attach to the impact of public footpaths, bridleways or restricted byways where they run by private houses and gardens, farmyards and commercial and industrial premises. It is effective from 1 August 2023.
When does it apply?
It applies when an application is made to a county, district, borough or unitary authority for the diversion or extinguishment of a public right of way under S119 or S118 of the Highways Act 1980, or when an authority is considering making such an order without an application.
When further legislation is implemented, it will apply to applications for extinguishments and diversions made under S119ZA and S118ZA of the Act – applications for public path orders altering the routes of public footpaths and bridleways made using “the right to apply”. It will also apply in due course when orders are being considered under S54B of the Wildlife and Countryside Act 1981, when the making of a Modification Consent Order is being considered. It concludes:
“In determining an application to which this guidance applies, 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, taking account of this guidance.”
Why is it happening?
The year 2000 brought us the Countryside and Rights of Way Act. While some of the provisions were implemented straight away, such as a right to access open country (known as “the right to roam” and now extended to include coastal access), other provisions, such as “the cut off” (currently proposed by Defra to apply in 2031) and the right to apply for a public path extinguishment or diversion order, were delayed until further work was completed to deal with the detail and – hopefully – avoid unintended consequences. Public rights of way law is notorious for its complexity and the strong feeling on both the landowner and user sides of the debate, both of which serve to make legislative changes fraught with difficulty.
Now Defra has decided that the Presumptions Guidance should not wait any longer and has published the advice to local authorities and Inspectors ahead of implementing other outstanding legislation.
What does it mean in practice?
Councils considering making orders for the extinguishment or diversion of footpaths, public bridleways, and restricted byways under the relevant sections of the Highways Act, should be able to show that they have considered the adverse impact on the landowner or occupier of the existing route, where it runs close to a private dwelling and within its garden or curtilage, across a farmyard or within commercial and 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 by a user group representative should not be sufficient to deter Councils from making an order where there is clear benefit to the landowner or occupier in improving privacy, security and safety by diversion or extinguishment of a route.
Inspectors appointed to determine opposed orders will also consider the Guidance and apply it to their decision making.
What should I do now?
Please do get in touch if you have a public right of way you would like to divert or extinguish to:
- improve the privacy and security of your home,
- make your farmyard easier to manage and more secure, or
- enable your business premises to operate more efficiently without the public passing through.
This is work in which we specialise. We have a national practice acting for landowners who wish to alter the public rights of way network and would be pleased to advise you.
Carol Ramsden has an established and successful national practice achieving changes to the public rights of way network. She is a landowner representative member of the Stakeholders Working Group. The Group, managed by Defra, has worked on many versions of the Presumptions Guidance and continues to work on outstanding legislative changes to public rights of way law, including the right to apply for a public path order and the implementation of a cut-off date for the addition of historic routes to the definitive map and statement.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2023.