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

Lord Thurlow Excerpts

Monday 27th November 2023 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I thank the noble Lord, Lord Hodgson of Astley Abbotts, for his kind words, which I much appreciated. I would like nothing more than to be able to be back here in the House on a regular basis. I miss the House and everyone here very much indeed.

I want to take this opportunity to add my voice to the disquiet that has already been expressed about these regulations, which are now in force and about which, as has been said, there has been no proper consultation despite the impact that they could have on so many members of the public with the loss of access to potentially thousands of miles of historic rights of way.

In an Answer on 27 May 2022, the Government stated that they had

“decided to take forward a streamlined package of measures to implement rights of way reform including repealing the 2026 cut-off date to record historic rights of way, as well as giving landowners the right to apply to divert or remove rights of ways in specific circumstances”.

No reason was given in that Answer for the change in policy, welcome as it was, to repeal the 2026 cut-off date. Likewise, no reason is given in the Explanatory Memorandum to these regulations as to why the Government have gone back on that policy of repealing the cut-off date provisions and are instead introducing a new cut-off date of 1 January 2031. I would be grateful if the Minister could set out the change in circumstances between the Answer on 27 May 2022 repealing the cut-off date and now that has led to the complete change in announced policy on the repeal of that cut-off date.

The Explanatory Memorandum does not even admit that the Government are going back on the policy announced on 27 May 2022 of repealing the 2026 cut-off date. Yet it goes on to say:

“No formal consultation is required or been undertaken … There is no, or no significant, impact on business, charities or voluntary bodies”


or “on the public sector”. The Ramblers, of which I think the noble Lord, Lord Hodgson of Astley Abbotts, said he was a member, is a charity. It has 100,000 members and, through volunteering, works hard to keep our rights of way, including footpaths, open. They will be affected by these regulations and the reinstated cut-off date by which to register the estimated 41,000 miles of unregistered historic rights of way or risk losing them, as compared with the impact of the policy announced by the Government on 27 May 2022 to repeal the cut-off date. Likewise, local authorities may be stretched resource-wise to cope with the potential workload that the newly imposed cut-off date, as compared to having no cut-off date, will in all probability generate. Are the Government really saying that these regulations, on which there has been no consultation, will have no significant impact on organisations and bodies such as the Ramblers and their volunteers or on local authorities?

It is a question I hope the Minister will answer, because it also raises the issue of how often the Government meet organisations representing the public on access and rights of way issues, such as the Ramblers, the Open Spaces Society, the Byways and Bridleways Trust and the British Horse Society. How many times have the Government met these and similar organisations, for example, either collectively or individually, over the last two years? I would be grateful for an answer.

The Secondary Legislation Scrutiny Committee has also commented on these regulations, saying:

“We take the view that it would have been helpful to explain the current backlog of applications in the explanatory memorandum. While the planned rights of way reform may streamline the application and determination process, many local authorities are nevertheless likely to receive a significant number of new applications, adding to the existing backlog and to current resource pressures”.


On the basis of Defra’s own incomplete figures, there are already 4,000 applications for a definitive map modification order waiting to be determined. However, this figure covers only 21 local authorities. Will the Government say how many local authorities are potentially affected? Estimates from the Ramblers suggest that in England, there could already be over 10,000 applications waiting to be processed by authorities, with some, as has already been said, waiting 20 years to be determined.

It is inevitable that the number of applications will increase significantly in the run-up to 1 January 2031, based on the increase in applications researched and submitted for determination between 2018 and 2023 that have already been made in many local authority areas. In Lincolnshire, for example, that increase in applications is from 56 to 378 with 1,934 potential miles of historical rights of way to be researched and applied for by 2031, largely by volunteers, against a background of a pending decision, apparently, by the Government, to apply a higher threshold for applications for adding unrecorded pre-1949 rights of way. It looks as though going back on the commitment to repeal the 1 January 2026 cut-off date is but one part of a government programme to load the dice more heavily against volunteers and short-staffed, underfunded local authorities, seeking on behalf of the public to register an estimated 41,000 miles of historical rights of way. And still, the Government maintain there is no need to consult on these regulations.

A stakeholder working group was, I believe, established by Natural England in 2008 and involving Defra, to advise on what could be done to reform the processes governing the application and determination of historical rights of way. The group comprised a balance of interests: user groups, landowners and local government. The consensus reached by the SWG was put forward to Defra and the reforms enshrined, as I understand it, in the Deregulation Act 2015. However, the reforms required detailed regulations to be enacted, which still have not been, eight years on. It was always agreed by the SWG that the package of reforms should be delivered as a whole: all sides, users and landowners, for example, accepting that they had had to give way on some things to deliver the consensus.

The SWG, I understand, still exists. It is chaired by Defra officials and is still advising on the detail of the regulations. These include, crucially, the paths that will be exempt from the deadline, but also the right for landowners to apply for diversions. I understand, though, that the former Secretary of State, Thérèse Coffey, took some unilateral decisions of late which break the consensus achieved. The exemptions regulations, for example, would no longer include those paths that are unrecorded yet are currently in use by the public. Why do this? It would be helpful if the Minister could clarify the past and present role and position of the stakeholder working group, as well as the recent decisions by the previous Secretary of State in relation to the consensus achieved by the SWG.

I made reference to paths and historical rights of way that will apparently be exempt from the deadline. How many miles of rights of way, in how many local authority areas, is it expected that these exemptions will cover, and what kinds of historical rights of way are we talking about? Not knowing what impact these exemptions will have on the organisations and bodies involved in identifying the estimated 41,000 miles of historical rights of way not yet on local authority definitive maps makes it difficult, if not impossible, to assess any reduction in their potential workload.

Although the cut-off date would not be postponed beyond 2031 in general, a provision, I believe, under the Countryside and Rights of Way Act 2000, enables a further postponement, without limit, in relation to the former county boroughs which were excluded from the 1949 Act and given a duty to prepare definitive maps and statements only under the Wildlife and Countryside Act 1981. My noble friend Lady Hayman of Ullock addressed that issue. The 2000 Act appears to envisage that it might be necessary for those places to be granted a longer period to prepare their definitive maps and statements, but this opportunity has not been taken. Will the Government say why?

The Government’s Environmental Improvement Plan 2023 includes a clear commitment to ensure that everyone lives within a 15-minute walk of green and blue spaces, but 38% of people fall outside that threshold. Completely changing government policy to repeal the cut-off date and risking losing tens of thousands of miles of unregistered rights of way will do nothing to help achieve that 15-minute walk policy objective. Instead, it will deny people routes that they could have used to access green and blue spaces close to home.

I have asked a number of questions about government policy and its impact, and about changes made and the reasons for them, and would be grateful for answers from the Minister, either today or subsequently in writing.

[Lord Thurlow (CB)]

My Lords, I will take the same tack as the noble Lord, Lord Rosser, and add my voice to his, following his welcome return to his place in this Chamber.

Unless I have misunderstood the proposal—if I have, the explanation is well buried—why proceed with a cut-off date on the registration of these long-forgotten rights of way at all? They are an ancient and important contribution to our social fabric in England. For a thousand years and more, these rights of way have evolved into a wonderful network of publicly accessible walks and bridle paths, which are much enjoyed by a large and growing cross-section of society.

The objective of the 2000 Act appears to be a desire to create

“a final and complete record of historical public rights of way”.

There seems to be no reason for not adding to maps as old, long-lost or forgotten rights of way come to light; simply update the records. As we know, this Government agreed to drop the cut-off date and, for no good reason, wish to reintroduce it. Scotland and Northern Ireland do not want a cut-off date. There is no explanation for why we need this. It sounds as though it is the result of a horse deal between different lobby groups of landowners and farmers. Where did the public fit into this discussion? I do not think that they have a voice or that they have been heard at all. I do not deny that irresponsible walkers in the countryside are a nuisance, but they are a small minority. Without access to the countryside, those who abuse it will never have a chance to learn the rules of good behaviour and learn to treat this resource as something so precious and special.

There has been comment on the backlog awaiting registration. This is a resourcing problem that can be dealt with, but the Act is not about resourcing; it should be about access to this national network. Defra says that it will

“speed up and streamline … bureaucratic procedures”

for the recording process. That is good news, but it is not a reason to prevent new registrations. The Explanatory Memorandum states, as we have heard more than once, that there will be no impact on businesses, charities, voluntary organisations or the public sector, but there is no mention of human beings. What about the impact on them—citizens, the public and society as a whole? Does Defra not credit this greater good?