right to divert or extinguish rights of way deferred

The statutory right for landowners, lessees and occupiers of land to apply for an order to divert or extinguish certain public rights of way along with the associated rights of appeal were introduced (although not actually brought into force) by the Countryside and Rights of Way Act 2000. Following a recent announcement from DEFRA, it now seems unlikely that these rights will be implemented any time soon. 

Under existing Highways' legislation, local authorities do have powers to make diversion and extinguishment orders. However, these order-making powers are discretionary and consequently, the authority is not under any obligation to make an order, even where there are good land management or biosecurity reasons for requesting one. Furthermore, if the authority refuses to make an order, there is very little that the applicant can do about it as there is no right of appeal against their refusal.

The attitude of local authorities to making these orders varies widely across the country. While some are willing to consider such requests, many decline to make orders which they suspect will be controversial or will only make orders in exceptional circumstances. Some authorities simply refuse to make an order unless there is a clear public benefit. There are also wide variations between authorities in the associated costs and time-scale of implementing the orders.

The provisions in CROW were introduced to address these difficulties. They would have enabled owners, lessees and occupiers of land used for agriculture, forestry or for the breeding or keeping of horses to apply for an order to divert or extinguish public rights of way across their land and the local authority would have had to accept, consider and make a decision in respect of the application and give reasons for their decision. There would also have been a statutory right of appeal if the authority refused to make an order.

Following consultation on the implementation of these provisions, DEFRA concluded that the legislation as it stands would not achieve the desired effects as it was too prescriptive. They have therefore decided that new legislation will be necessary, but have not given any indication of the timescale for implementing this.

Details of DEFRA’s decision can be found at: http://www.defra.gov.uk/wildlife-countryside/issues/public/rta-letter.pdf

For more information on this, please contact Jane Hanney 023 8090 8090 or email her at jane.hanney@bllaw.co.uk

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