planning law news - May 2012
another step forward for public rights of way
This month the Government published a
consultation paper with proposals designed to improve the process
of recording and making changes to public rights of way.
The National Parks and Access to the
Countryside Act 1949 introduced the definitive map and statement of
public rights of way. The aim was for local authorities to
create a legal record of all public rights of way to ensure that
they were not "lost for ever".
While it was originally envisaged that this
process would be completed within five years or so, completion of
the legal record of historical rights of way (i.e. those in
existence before 1949) has remained a significant challenge,
despite several subsequent attempts to improve the legislative
framework.
The Countryside and Rights of Way Act 2000
sought to resolve this by introducing a cut-off date. After
25 years (ie in 2026), all rights of way in existence in 1949 and
not recorded on the definitive map and statement would be
extinguished, subject to exceptions provided for in the Act.
This means that a right of way that could be shown to have existed
before 1 January 1949 could not be added to the definitive map and
statement and would cease to exist. The intention was that
this would:
- remove uncertainty for landowners, who might otherwise have a
'lost' right of way discovered on their land at any point in the
future, and
- provide an incentive to complete the definitive map and
statement before the 2026 deadline.
However, it has become clear that neither a
volunteer-led, nor a centralised, systematic approach to gathering
evidence and making applications is likely to be capable of
delivering the required number of applications within the
legislative timeframe. Therefore completion of the definitive
map and statement by 2026 will not be viable unless a streamlined
approached to recording public rights of way is adopted.
The Department for Environment, Food and Rural
Affairs (Defra) initiative, now out for consultation, is based upon
a package of recommendations from a stakeholder working group set
up by Natural England. As well as implementing the 2026
cut-off provisions, the package contains measures to "protect
useful or potentially useful rights of way from extinguishment;
give local authorities more scope to use their judgement in dealing
with insubstantial or irrelevant applications and objections;
enable negotiated solutions; and make procedures more streamlined,
flexible and light-touch".
One of the options for change, described in
the paper, would create a new integrated process requiring a local
planning authority to consider and decide upon development
proposals and any associated changes to rights of way as a single
package. However, it is unclear how this would operate where
the local planning authority is not the same as the surveying
(highway) authority.
The consultation period ends on 6 August
2012.
