Countryside and Rights of Way Act 2000 (Substitution of Cut-off Date Relating to Rights of Way) (England) Regulations 2023

Lord Hodgson of Astley Abbotts Excerpts

Monday 27th November 2023 Lords Chamber

I can appreciate why the Government want to set a deadline: it focuses minds and should help to bring down the backlog, while at the same time hopefully providing more certainty for farmers and other landowners. So can the noble Lord, Lord Benyon, reassure this House that the exemptions to the cut-off date are fit for purpose and will cover all necessary considerations, and that, following a review, an extension for the former county boroughs could be brought in if necessary? It is critical that we do not lose public rights of way and access because of these regulations. Can the Minister guarantee that this will not be the case?

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have tabled a parallel regret Motion but, before I get to that, I will say what a pleasure it is for those of us who have followed this through the long night—many years—to see the noble Lord, Lord Rosser, back in his place. He has been with us for many of these debates, and he and I have debated many times in the past. I know he has not been in the best of health, and I am sure I speak for the whole House when I say that we wish him back here in full health ASAP.

When I joined your Lordships’ House in 2000, one of the first Bills I was involved with was the Countryside and Rights of Way Bill, as it then was. I remember a short debate on footpaths—it was before I made my maiden speech, so I did not participate—during which the Labour Government Minister pointed out that there was a 25-year timetable during which we could finish this task. The universal reaction to this was, “Well, that’s job done, isn’t it?”. This just shows how wrong we all were then. During the intervening 20 or so years, I have had the chance to raise, and support other Members of your Lordships’ House raising, this important policy issue. So I find myself echoing the famous words attributed to a football manager: “It’s déjà vu all over again”.

We heard a magisterial speech from the noble Baroness, and I will not repeat what she said. One issue that could usefully be picked up is the work of the stakeholder working group, which was an attempt to draw together all the people who have an interest in footpaths. It was set up in 2008 and reported unanimously in 2013. On 20 January 2022, nearly two years ago, I put down a Question for my noble friend on whether the Government would set a date for the commencement of the provisions of that working group. I received the famous words that

“the Government intends to lay legislation as soon as reasonably practicable”.

That was two years ago, and it will shortly be seven or eight years since this group reported unanimously. The Government really must decide that we can use this information to try to pull together the many people who have an interest in this area.

My regret Motion is rather more specifically focused. I thank my noble friend most sincerely for his five-year extension. Of course, I am disappointed that there has been something of a U-turn in government thinking, but half a loaf is better than no bread. My Motion points out that while we have put off the potential car crash for five years, it is still unlikely, given the glacial progress we have made over the last 20-plus years, that we will solve the problem in five years from now.

Before I go any further, I need to put on record, as I have previously, that I am a member of the Ramblers and have been briefed by it, as has the noble Baroness. As a brief background to Members of your Lordships’ House who are not familiar with how bureaucratic the system is, I will give a short personal example.

My family investment company owns a trivial amount of agricultural land in Shropshire, a county that features quite high on the list in the Ramblers briefing. Our family policy is that if an adjoining field becomes available, we will make an offer for it. So it was that a couple of years ago we purchased a field with a footpath that went diagonally across it. Every year, in accordance with the regulations, after the crops had been planted we went on a quad bike with a sprayer on the back and sprayed out the two-metre wide strip, through the middle of the crops, that followed the line of the footpath. Obviously, you lose a certain amount of land from that but, equally, you are asking people to walk across a ploughed field and a sown field that is muddy, wet and so on. The corners and sides of the field have headers, two-metre strips of grass that protect the hedgerows and the wildlife in them.

It occurred to us that it might be a good idea, and better for walkers, if they could use the strips rather than the mud, so we discussed it with Shropshire Council. I have only praise for its help in the work it did with us, which was very constructive and helpful—but, my goodness, the process you have to go through. This small change affected one cottage. I spoke to the people at the cottage and together we sent in a letter from them saying that they had no objection. There was silence.

Some months went by, and we were then told by the legal department of the county council, “Sorry; it wasn’t in the right form to meet the regulations”. So back we went with another set of letters. The trouble is that this goes on and on. We started this in February this year, and we are told we are unlikely to have a determination, a final resolution, before early summer next year. That will be a year and a half just to redirect, not to remove or add to, a footpath in a way the county council thinks is beneficial for walkers.

The time and effort and diversion of precious resources to carry this out seems disproportionate. It seems to me really important that we discuss and tackle the one size fits all that we have built into the regulations. The Defra plan—here I quote from the excellent report from the Secondary Legislation Scrutiny Committee—is that it will

“speed up and streamline existing bureaucratic procedures”.

That is a critical decision. It needs to be brought in, and quickly, if it is to have any measurable impact over the next five years.

At the heart of my regret Motion is concern about performance and how we instil a sense of urgency in this issue. How do interested parties monitor the progress—if any? We have this debate today and my noble friend, in winding up, will no doubt give us enthusiastic and encouraging words that we will all be pleased to hear. We will then go on our way, and the danger is that the status quo will prevail.

How might performance—actual and relative—in different local authorities be measured? How, as a result, might a certain amount of pressure be supplied to the laggards? There is a wonderful new body called Oflog—the Office for Local Government—which might have an important role to play. I shall quote a couple of lines of the Written Ministerial Statement from July, when its establishment was announced. It said:

“Oflog is a new performance body focused on local government in England. It will provide authoritative and accessible data and analysis about the performance of local government, and support its improvement … By collating, analysing, and publishing existing data about the relative performance of councils, it will help councillors and the public have the information they need to scrutinise more effectively … it will ensure council leaders can compare themselves against their peers and find examples of good practice to learn from; and it will allow central Government and their partners to identify where there might be challenges and a need to step in to give support, where appropriate”.—[Official Report, Commons, 4/7/23; cols. 35-6WS.]


It seems to me that Oflog hits all the hot buttons as far as footpaths and their preservation are concerned. If, as I fear, my noble friend the Minister is unable to say in his reply that he is already on the case and Oflog is the answer, could he give the House undertakings that he will examine the possibility of Oflog being used in this case; and that he will write to all Members of your Lordships’ House who have participated in the debate as to what progress has been made and what the results of those discussions were?

I conclude by saying, as is common ground among all of us, that the network of footpaths in England and Wales is a unique and irreplaceable resource. We surely have to use the next five years to establish an approach that will preserve it for future generations.

[Earl Russell (LD)]

My Lords, I thank the noble Baroness, Lady Hayman, and the noble Lord, Lord Hodgson, for their regret Motions. My view is that the Government have got themselves in a bit of a mess with this statutory instrument, which was laid during Prorogation and has not had time to be debated in the House.

Obviously, the funding promised in the original Labour Government Act to be given to voluntary bodies has never really materialised. These reforms should have been delivered and monitored long before 2026 to inform enactment but endless delays have prevented this happening. Although most bodies welcome the extension of the proposed cut-off date, most bodies also oppose the implementation of Part II as a whole. Defra’s decision to bring into force the relevant provisions in Part II with immediate effect and without any agreed exemptions for now is not a welcome development.

The regulations that have already come into force extend the cut-off date by which time applications have to be made to local authorities to register historic rights of way for footpaths and bridleways from 1 January 2026 to 1 January 2031. This reverses the previously understood position that the cut-off date would be repealed altogether. After the new date, any unregistered historic rights of way in England will be extinguished unless they are subsequently found to be exempt from the cut-off date, but these measures are yet to be announced.

Defra has argued that it does not expect any significant impact on business, charities or local authorities, but there is already a considerable backlog of applications and many more cases are expected to come with the new extended cut-off date. Each case costs many thousands of pounds and, as we have heard, the process for this is extremely complicated. The new cut-off date will have considerable impacts. Among the 21 local authorities for which data is available, there are 4,000 applications for a definitive map modification, 80% of which are likely to be pre-1949 rights of way. Based on calculations, it has been estimated that these backlogs alone could take 20 years to work through.

The number of applications will continue to increase the closer we get to the final cut-off date. The additional costs on local authorities, voluntary bodies and landowners alike will be considerable—estimated to be as high as £40 million. How will the Government ensure that the additional financial burden for this extension is paid for? How will they ensure that the existing backlog of cases is dealt with and that there is sufficient capacity in the system to meet the projected future applications? What happens to any cases in the system that are not processed before the cut-off date? When will clarity be given on the grounds for the exemptions that Defra says will be put in place? Footpaths are a precious national resource; we must work to ensure that none is lost, never to be replaced.

--- Later in debate ---

We did not carry out a consultation because a five-year extension is the maximum permitted for most areas of England under the regulation-making powers, as I said. Implementing a five-year extension is a compromise between providing the certainty that the cut-off date will bring and recognising that more time is needed before the cut-off date takes effect. I believe this is a fair compromise. In my time as Minister responsible for this policy area at Defra I was assailed on both sides, by access campaigners and land management bodies. The feeling that I was in a pincer movement from both directions made me think that we were just possibly getting this right. I assure noble Lords that we intend to take forward that word “compromise”, which was mentioned a number of times and was an achievement of the stakeholder working group, which meets every month and is very important to us. On the polarities of the argument, you have an often-depicted angry farmer saying, “Get off my land”, and on the other side a rather extreme view that everyone should be able to go everywhere anytime they want. The rest of us—all of us in this House and most people in this country—sit in the middle. It is in all our interests that we see more access and more provision, and that we meaningfully tackle this problem.

[Lord Hodgson of Astley Abbotts (Con)]

I sense that my noble friend has reached his peroration. Could we just go back to Oflog? I absolutely accept his good intentions and what he has told us, but we know that we will leave this Chamber, that things will move on and that this Office for Local Government will give those of us who are interested in this topic a chance to chase the laggards, because there will be information, if Oflog has this as part of its remit. Could my noble friend look at this and come back to those of us who have contributed to the debate with conclusions as to what he has found out?

[Lord Benyon (Con)]

I thank my noble friend. I noted his point about Oflog. I will write to him with a detailed reply and convey his sensible suggestion to my colleagues at Defra. I hope they will be able to take that forward because it is a good suggestion.

I am conscious of the time, but I know there is concern about resourcing. I have talked about local authorities but, on funding for voluntary bodies, we recognise and value the important work carried out by the voluntary sector over many years to identify and apply for historic rights of way to be legally recorded. We want to continue the good working, particularly at a local level, between organisations such as the Ramblers and the land managers and the local authority through local access fora to get these issues resolved in a timely way.

A concern was raised about exceptions. Regulations to except certain historic rights of way from extinguishment will be laid as soon as possible. Officials are currently working with stakeholders to complete these regulations as part of our wider package of rights of way reforms.

There was some interest in what exactly is going to be excepted. We have committed to introduce regulations that will except unrecorded historic rights of way from extinguishment in a number of different ways. This will include all rights of way subject to applications that have not been concluded before 1 January 2031, rights of way in urban areas, and those that appear on the list of streets or National Street Gazetteer that are shown as maintainable at the public expense. Where the recorded width of a historic right of way is less than the actual true width, regulations will ensure that the width necessary for the continued safe and convenient passage of users will be saved from extinguishment—a key concern of many campaign groups.