Historic Rights of Way

Baroness Taylor of Bolton Excerpts

Tuesday 2nd April 2019 Grand Committee

[Lord Greaves (LD)]

My Lords, this debate is about historic rights of way: those that have never been registered but existed before 1949. I want to talk about the procedural and technical problems involved in historic rights of way, so I will not talk about their value and so on. I assume for the purposes of this debate that that is a given and people do not need an explanation of why they are such a good thing. I thank in particular the British Horse Society, the Ramblers, the Open Spaces Society and the Trails Trust for the wonderful briefings they have sent. I declare an interest as vice-president of the Open Spaces Society. I also thank everybody who has put their name down to speak in this debate.

It all started with the CRoW Act in 2000, so I decided to look up what I said in the debate on the Bill as it went through the Lords. On 26 June 2000, which seems a remarkably long time ago, I was talking about resolving conflict over local rights of way et cetera. This, I said,

“must, essentially, take place at local level. As it stands, the Bill relies too much on national quangos sorting things out when what is really required is for local people on the ground to negotiate with each other in a sensible way”.—[Official Report, 26/6/00; col. 671.]

I do not believe we thought at the time that nearly 20 years later we would still be talking about the problems.

Sections 53 to 56 of the CRoW Act set out the process for claiming old, unclaimed historic rights of way—crucially, with a cut-off date of 1 January 2026. Any that have not been claimed by then will cease to exist for ever, although with the possibility under Section 56 of an extension by regulations to 2036.

The passage I have just quoted was, in retrospect, a bit naive. Things are not quite as simple as I thought at the time—but we have seen in the system for claiming historic rights of way the worst of all worlds: national inaction and delays, half-hearted efforts to get things going, followed by more inaction and delays. Local authorities have sometimes tried and sometimes been unwilling; they are increasingly unable to cope because of financial cuts. There is an increasing reliance on local groups, charities and volunteers to sort this out. They are wholly underresourced, frustrated and dismayed by the hopelessness of the task.

According to a freedom of information request from the Ramblers, 4,400 or more applications are stuck in the system. What happened? First, the Countryside Agency set up the Discovering Lost Ways project in 2004. That was closed down three years later, with four new rights of way registered. In 2008, Natural England set up the Stakeholder Working Group on Unrecorded Public Rights of Way, a body which consisted of local authorities, user groups, landowners and management interests, and really did get people together to thrash things out. It produced the Stepping Forward report in 2010 with 32 recommendations. Five more years went by before the Deregulation Act 2015 legislated for many of the recommendations in Stepping Forward. Another five years have now gone by and nothing has happened. We are still waiting for that part of the Deregulation Act to be brought into play through regulations.

I was going to quote what the Minister in the Commons said about the Act in 2000 but the noble Baroness, Lady Taylor, is here and she can give evidence.

[Baroness Taylor of Bolton (Lab)]

I shall intervene only briefly. I was Chief Whip in the Commons when the legislation went through, and I assure everyone here that it was not anticipated that there would be a difficulty within that timeframe. It is the problems that arose later, particularly the pressures on local government, that have got us into the position today where it is vital that we look at the timescale again.

[Lord Greaves]

I am very grateful for that intervention in person, as it were. In evidence that it has sent to us, the Trails Trust says that the Countryside Agency said in 2010 that there were 16,100 kilometres of unrecorded rights of way and that another 36,000 kilometres of historic route existed and needed investigating. That was just in England; there were more in Wales. So there is a huge problem.

There is a huge backlog involving competing local authorities with diversion and other public footpath orders, enforcements, disputes, commons claims and disputes and so on. In addition, the original definitive maps from 1949 vary hugely in quality and accuracy. Some are hopeless and some are good. Even when they record a route, as I know well from examples in my own area in the Pennines, a bridleway can simply stop at the parish boundary and turn suddenly into a footpath where bridleway rights are not allowed. Sometimes they simply stop where the person who was doing the surveying back in the early 1950s changed over to someone else.

The situation is hopeless. I am grateful for the large number of letters that I have had from people on the ground all over the country—from Yorkshire, Burnley, Rochdale, Northumberland, Bromley, Rossendale, Cambridgeshire and Wales—explaining how hopeless it is. I shall quote from one or two of them to show what the position is. Cosima Towneley, chairman of the Burnley Bridleways Association and chairman of the National Federation of the Bridleway Associations, says:

“The Government—of which ever hue—gallops towards the Cut Off but has failed to undertake a single action promised … Where is the 2015 report which should have given an indication as to the viability of projects such as Discovering Lost Ways … Where is the support at Local Authority level to carry the huge backlog of claims and the enquiries they generate through to implementation on the ground?”.


From Northumberland, Susan Rogers writes:

“Even when a decision has been made for an order to add or to upgrade a path, there can be a long delay before the legal department of the council makes the order … At the moment if there is an objection, even an irrelevant one, the order has to be sent to the Secretary of State for confirmation”.


And so on. There is a huge amount of frustration and dismay from people who are doing tremendous work at their own expense and in their own time.

At the request of the Minister, I sent her some questions that I would like the Government to answer. I shall finish by reading them out, if there is time. Do the Government stand by the commitment given in 2000 at the time of CRoW to make every effort to register all historic rights of way before the cut-off date? Do the Government agree that Discovering Lost Ways resulted in the loss of almost a decade in the registration of historic rights of way that has not been made up since? Do they agree that the stake- holder working group set up in 2008 saw a welcome coming together of different interests and that its Stepping Forward report in 2010 represented a practical means of achieving the intentions of CRoW, but the fact that the 32 recommendations have still not been enacted makes the 2026 target date impossible to achieve? When do the Government intend to bring into effect the 2015 Deregulation Act containing these recommendations?

In view of the evidence of the failure to achieve the intentions of CRoW and the provision in Section 56 to allow an extension to 2031, will the Government now make the necessary regulations for the extension? Do they understand that there are thousands of volunteers who are struggling thanks to the time and costs involved, the complexity of the system and the inadequate and seriously reducing resources of local highways authorities to cope? If so, what further assistance will they provide for that process?

I have an additional question: what resources do the Government think are needed to achieve the CRoW aims by 2036 or 2031, and how will they provide them? In view of everything that has happened and of their own failure, will the Government now stand by the historic position of “once a highway, always a highway”, and seek to repeal Section 53 and related sections of the CRoW Act?

I have reached my cut-off date. I look forward to the answers to my questions.