In 1949, a process began to record all public rights of way; however, this exercise has never been concluded. A Stakeholder Working Group (SWG) was set up by Natural England to examine how to complete the recording of all historic, unrecorded rights of way. The SWG’s recommendations formed the basis of a consultation by the Department for Environment, Food and Rural Affairs, which closed on 6 August.

Possible changes afoot

DEFRA agrees with the SWG’s suggestion to extinguish any unrecorded and redundant historic public rights of way created before 1949. This would commence in 2026 and be subject to various protections and exclusions for useful or potentially useful rights of way. Examples include routes maintained with public money and used by the public, and rights of way in regular use which existed before 1949. Rather than changing the protection for rights of way, the proposals relate to making the process of recording or altering them more efficient.

The DEFRA consultation also considered:

  • Potential improvements to procedures for diverting or extinguishing rights of way and creating new ones
  • An easier way for landowners to progress proposals to divert or extinguish rights of way across their land where, for example, the right conflicts with current land uses
  • Better integration of the public rights of way network into the planning process

In streamlining and recording public rights of way, thought is being given to:

  • Dispensing with the need for applicants to submit copies of documents where a local authority already has them in its possession (or they are already publicly available)
  • Allowing others to take over the original applicant’s role
  • Avoiding costly disputes between landowner and applicants

The current procedure where an applicant serves notice on a landowner could be replaced by a dialogue between the local authority and the landowner, who would be given a public rights of way claim (once basic tests have been fulfilled). Greater discretion may be given to local authorities to weed out vexatious, irrelevant, inadequate or unsound applications to record public rights of way and objections to such orders. The number of times an appeal can be made to the Secretary of State may also be reduced in a case where the local authority has failed to determine an application to reward a public right of way and where an objection exists.

Costs

One problem is the failure of local authorities to pursue the creation, extinguishment and/or diversion of public rights of way. Cost is identified as the main reason for this. The consultation suggests that most landowners or managers would be willing to meet the administrative costs of processing a public right of way order (including an objection), given that there is often an enhanced land value and increased security to be had. The question of whether local authorities should be given enhanced means of recovering costs in relation to a public right of way order is under consideration.

Planning

Within the context of the planning process, public rights of way consents were considered a source of cost and risk. They were normally dealt with after a planning application had been granted and this opens the door to further delay. DEFRA’s consultation looks at options to change this, such as considering public rights of way changes or proposals as part of the development/planning package, allowing the rights of way order-making process to run concurrently with planning permission determination, and addressing public rights of way issues earlier as part of the determination of planning applications.

What next?

A summary of responses to DEFRA’s consultation will be made by early November.