Deregulation Bill

Lord Deben Excerpts

Tuesday 28th October 2014 Grand Committee

[Lord De Mauley]

My Lords, my noble friend’s Amendments 19 to 22 seek to introduce measures that reflect the valid concerns of landowners and farmers about the impact that claims for rights of way can have on their businesses, and about the costs of dealing with such claims during due legal process.

I am aware that there are concerns about the potential effect on some landowners of applications to record a right of way, particularly about multiple applications in an area or even on a single property. An application fee has been suggested as a solution to this issue. However, the introduction of such a fee or charge would be highly contentious. Ministers specifically asked the rights of way stakeholder working group to look at the impact of applications to record a public right of way, particularly at multiple applications, and what measures, including a fee or charge for an application, might be introduced to mitigate this perceived problem. The group agreed to report back to Ministers in the following terms:

“The problem of multiple applications could be an acute one in some cases but it is not widespread and there is little prospect of coming up with a solution, particularly on application charges, on which the full range of stakeholders could agree”.

However, the group’s view was that measures already agreed as part of the reforms package will in any case alleviate most of the problems. The first measure is to raise the threshold for applications. A local authority would be able to reject applications that did not meet a basic evidential test, effectively eliminating spurious or speculative applications. We are proposing to apply this retrospectively, as agreed by the stakeholder working group, by means of the transitional regulations provided for in Clause 27(7), so it would apply to any existing applications that have not yet resulted in an order.

The second enables newly discovered rights of way to be diverted and/or reduced in width before being recorded. This would be by agreement between the local authority and the landowner, with no scope for the agreement to be thwarted by objections. It is possible that this could also be applied retrospectively through the transitional regulations, thus reducing the overall administrative and cost burden of the procedures for recording rights of way.

Taking each of the proposals in my noble friend’s amendment in turn, the proposition to introduce a time limit on applications for an order to modify the definitive map is not as straightforward as it may appear. While it is possible to envisage such a measure for applications that are based solely on evidence of recent use, most rights of way applications are concerned with recording a right of way for which there will be both user evidence and historical documentary evidence, which may not come to light until many years after a landowner makes a statutory declaration under Section 31(6) of the Highways Act 1980.

[Lord Deben (Con)]

Could my noble friend explain why it is reasonable for documentary evidence, unaccompanied by usage evidence, to come into discussion many years after an application has been made? This is a matter of history and should remain so. It is surely not an acceptable argument against my noble friend’s amendment.

[Lord De Mauley]

My Lords, I said that there will be both user evidence and historical documentary evidence. Let me continue and try to go some way towards satisfying my noble friend. The time limit on the claiming of town and village greens introduced by the Growth and Infrastructure Act 2013 is often cited as a precedent. However, this fails to recognise that the legislative framework relating to public rights of way is different from that of town and village greens. Most notably, a green is not created until it has been registered as such whereas public rights of way already exist in law, regardless of whether they are recorded on the definitive map. The recording process is simply ascertaining something that already exists. Rights of way can come into being though a variety of mechanisms, not just a qualifying period of use. In addition, rights of way can be diverted or extinguished to accommodate development whereas town and village greens cannot.

The stakeholder working group discussed the question of a time limit on applications but has not yet been able to reach consensus on it, despite a willingness to try. However, the group suggested that developments on Section 31(6) deposits should be monitored, following recent amendment to the provisions by the Growth and Infrastructure Act 2013, to evaluate the scale of the problem over time. We intend to continue to do this in collaboration with the group.

The proposed amendment to Section 31 of the Highways Act 1980 appears to be linked to the proposal to introduce a time limit for applications. However, the amendment appears to provide that the presumed or deemed dedication of a public right of way on the basis of 20 years’ use cannot have taken place unless someone has made a valid application to add the right of way to the definitive map.

I am not entirely clear if that consequence is intended but, if it is, it would prevent the local authority from recording the right of way on the basis of evidence that it has discovered itself. It would also no longer be possible to establish the public right of way through a court declaration. If this were to be the case, there is an argument that it would create an incentive for users of rights of way to make more applications to ensure that in these cases the presumed dedication had taken place.

Introducing a fee for an application for an order to modify the definitive map would be at odds with the whole basis of the legislative framework that has been in place since the National Parks and Access to the Countryside Act 1949, under which local authorities are charged with recording all the public rights of way within their areas and asserting and protecting the public’s right to use them. The fundamental problem with this proposal is therefore that, in the main, applications are made not for the benefit of the individual applicant but in the public interest. In addition, it is worth affirming that local authorities are already funded for this statutory duty through the revenue support grant. Even if there were no formal application process, if someone provided a local authority with evidence of the existence of a public right of way, the authority would still be statutorily obliged to consider whether to make an order.

The amendment seems to recognise this fundamental flaw in the proposals and seeks to remedy it by seeking to charge a fee even where evidence is submitted without a formal application. This seems unworkable, though, as I do not see how a fee can be charged when the person submitting the evidence is not making a formal application and receives nothing tangible as a result of their actions.

The final proposal seeks to amend the existing form of application for an order to modify the definitive map, which is set out in regulations, by requiring the submission with the application of a statement of truth. There is a case for strengthening the quality of user evidence to accompany applications for an order to modify the definitive map, but we do not believe that further regulation is needed to achieve this. We intend to bring about improvements in the quality of user evidence but through non-statutory means, as part of the review of existing guidance that will be required to implement the reforms package. In addition, we will be looking at extending the new preliminary assessment of applications to cover the quality of user evidence as well as documentary evidence. Moreover, it is already possible for rights of way inspectors to require evidence to be given under oath at inquiries.

Not only do the amendments proposed here go considerably beyond the finely balanced package of reforms agreed by the group but the proposed amendments on charges for applications to modify the definitive map, and on time limits for such applications, are highly contentious. They risk jeopardising the hard-won stakeholder consensus behind the proposed package of rights of way reforms.

My noble friend Lady Byford asked for specific information about costs. I am afraid that they are not collated centrally. I hope that she will understand that.

My noble friend Lord Deben asked why claims should be made many years later. Highway law is predicated on the fundamental principle, “Once a highway, always a highway”. However, the 2026 cut-off date that we are working towards, and which is a key element of the stakeholder working group package, will eventually close off the possibility of recording a right of way on the basis of historical evidence. On the basis of everything that I have said, I hope that I have persuaded my noble friend to withdraw her amendment.