Historic Rights of Way

Baroness Vere of Norbiton Excerpts

Tuesday 2nd April 2019 Grand Committee

[Baroness Vere of Norbiton (Con)]

My Lords, our unique rights of way network is precious. The benefits go far beyond the simple necessity of getting from A to B. Access to the natural environment improves our mental and physical health and provides opportunities for recreation and tourism, as noted by my very energetic noble friend Lord Hodgson. It can even combat loneliness and bind communities together.

My noble friend Lord Caithness said that he feels that there are 94,000 miles of recorded rights of way. My notes say that in England there are around 117,000 miles, so he is right that we are not short of rights of way. They are part of our heritage and must be safeguarded so that future generations can enjoy them too. In order for them to persist, we must have a record of rights of way as they exist now. The rights of way reform project is a key part of providing certainty on where rights of way exist and of providing a streamlined and better process for recording rights of way.

The legal record of rights of way is currently incomplete. This causes uncertainty for users and for landowners on whose land the right sits. Furthermore, the process for amending the legal record is complex. The Countryside and Rights of Way Act 2000 made provision to complete the legal record of rights of way by setting a cut-off date in 2026—seven years from now. At that date, historic rights of way, meaning those which existed before 1949, will be extinguished, but only if they are not recorded on the definitive maps. A Natural England project known as “Discovering Lost Ways” was set up in 2001 to record historic routes before this cut-off date.

In light of the complexities of recording rights of way, a review of the “Discovering Lost Ways” project in 2008 concluded that a fresh look at the system was needed to enable the definitive maps to be updated before the cut-off date. A stakeholder working group was convened, formed of a balance of local authorities, user groups, landowners, the NFU, the British Horse Society, the LGA and many others. In its 2012 report Stepping Forward the group put forward a number of proposals on which Defra consulted. Defra officials then began to work with the group on a package of secondary legislation to implement its proposals, taking into account both the broad consensus and the range of views held by different people within the group. The group works well and in a spirit of compromise. That is so necessary, as noted by the noble Lord, Lord Carrington.

The proposed legislation will bring into effect provisions from the Countryside and Rights of Way Act 2000 and the Deregulation Act 2015. It will improve and streamline the process of recording rights of way in order to put as many as possible on to the definitive map, and then it will finalise the definitive maps at the cut-off date. In addition, it will provide a process through which landowners can apply for rights of way on their land to be diverted or extinguished. As noted by my noble friend Lord Caithness, sometimes this is essential where, for example, walking across a farmyard is dangerous or it could be bad for the livestock. This will be considered on a case-by-case basis and guidance will encourage local authorities to take action where a path crosses a dangerous place, for example.

My noble friend Lord Caithness asked about bicycles on footpaths. The reforms will not affect the use of registered footpaths where bicycles are not permitted. Bicycles are permitted on bridleways. The reforms will enable existing bridleways to be recorded, so protecting them and providing certainty about where they exist. Access provisions as part of environmental land management will consider all types of users, including cyclists.

As noble Lords will be aware, Defra has been required temporarily to divert resources to planning for our exit from the EU. Rights of way reform has been impacted, and work has been on a temporary hold since October 2018. However, the stakeholder working group is aware of this, believes it is necessary and understands the reason for it. We are not yet in a position to say just how soon work will resume, but I can assure noble Lords that it will be an early priority for the department.

I turn briefly to local authorities, which play an important role in this complex issue. They are responsible for recording rights of way and they do not routinely report to Defra on their progress. However, as the noble Lord, Lord Greaves, noted, I understand that many local authorities currently have a backlog of cases. On resumption of the project, officials will work with local authorities to assess the size of the backlog and consider how progress can be made. I reassure the noble Lord, Lord Thurlow, and the noble Baroness, Lady Scott of Needham Market, that where applications are outstanding, the intention is that the right of way will not be extinguished.

[Baroness Scott of Needham Market]

I did not suggest for a moment that it would be: it is very clear that the backlog is the backlog. The point I was making, which perhaps I did not make sufficiently clear, is just that the backlog will be so big that the legal certainty that landowners want simply will not exist, because it will take local authorities decades to get through the backlog.

[Baroness Vere of Norbiton]

I take the comment of the noble Baroness, but I will come on to what will happen to the process when the reforms come through.

The cost and complexity was noted by many noble Lords. We agree that the process is too costly and complex: the rights of way reform project is intended to address these issues and implement a more streamlined process to record rights of way before the cut-off date. The issue at the heart of today’s debate is whether the cut-off date will be delayed—this was mentioned by many noble Lords—and whether the Government will consider delaying the cut-off date from 2026. I appreciate that delaying the cut-off date until 2031 at the latest is a possibility, and some organisations wish to see that. Indeed, we must and we should weigh that against those who are craving certainty, which would be provided by finalising definitive maps. However, on resumption of the project officials will take the issue of the cut-off date forward with the stakeholder working group.

The noble Lord, Lord Greaves, and the noble Baroness, Lady Jones, asked whether we will go further than reviewing the cut-off date. I cannot commit to that. Certainly, we will go back and look at the cut-off date with the stakeholder working group, but we will not repeal the relevant sections of the Countryside and Rights of Way Act. There are arguments on both sides of this issue and at the moment we feel that there are significant numbers of stakeholders, as well as users, who need certainty as to what they are entitled to do and what they are not.

The noble Baroness, Lady Scott, asked whether there will be a review of the reforms after implementation. I am pleased to be able to tell her that there will: officials will consider the best way to monitor the impact of the reforms once they have been implemented. Like many noble Lords, I have seen briefings from the Ramblers, the British Horse Society and the Open Spaces Society, and I am grateful for them. They specifically refer to the work done by the voluntary sector to uncover historic rights of way and to a commitment by a previous Government to support this work. We absolutely recognise that the voluntary sector does very valuable work—this is probably citizenship at its best. They research and record rights of way and we believe that, based on the recommendations of the stakeholder working group, the reforms we propose will assist this work by simplifying the process involved.

Some noble Lords noted the availability of local authority resources, but the Government already provide funding for the revenue support grant to LAs, in which is included funding for rights of way improvement plans. At this time there will be no additional funding available; however, it is important to remember that the system must be as streamlined and efficient as possible, and we believe that the rights of way reforms we are proposing, which have been worked up with the stakeholder working group, will go some way to improve and speed up the process of registering rights of way.

[Lord Hodgson of Astley Abbotts]

My Lords, before my noble friend comes to her peroration, the availability of insurance reassures all parties as to their position, particularly landowners. Will she undertake to make sure that the stakeholder group takes that into consideration when it meets again?

[Baroness Vere of Norbiton]

I thank my noble friend for that intervention. I will certainly feed that back in to the stakeholder group, because I do not have any further information for him on that.

Before I reach the final bit, I turn to the Agriculture Bill. It is worth touching on this because the role that some of its provisions could play in the support of access to the countryside is very important. The Bill will make provision for public funding for access as part of the environmental land management schemes. As noble Lords will know, the Bill marks a significant shift in the Government’s support for farmers. It will make sure that they are rewarded properly for the work they do to enhance the environment around us and indeed for people’s access to it. Previously, subsidies have been paid based on the size of an individual’s landholding, not on the contribution that farmers make to society. The scheme will be focused on ensuring that public money is being allocated only where public goods are being delivered. The noble Earl, Lord Lytton, mentioned bad signage, lack of continuity and no consideration of the future needs of the network. All these issues will be able to be wrapped up in projects that will fall under the ELM schemes when they come into effect, once noble Lords have had the chance to consider the Agriculture Bill.

Our aim is for more people to engage with and spend time in the natural environment, and the Government are absolutely committed to enabling that. I reiterate that rights of way are a valuable part of our heritage and an important part of achieving this aim. Some noble Lords may have raised some issues to which I have not been able to respond. I will certainly write with further information where I can and ensure that all noble Lords are copied in. Finally, I thank the noble Lord, Lord Greaves, for securing this debate today, which has been fascinating, if short. I also thank all noble Lords who took part.