The Act had proved an opportune vehicle for some major changes in the area of our complex and archaic law on public access, and was due for implementation on 1 April 2016.
Regular readers of Agricultural Brief with an interest in public rights of way matters may recall that a year ago we launched a three part series of articles looking at provisions in the Deregulation Act. The Act had proved an opportune vehicle for some major changes in the area of our complex and archaic law on public access, and was due for implementation on 1 April 2016.
We anticipated then that Part Three of our series would by now be taking a look at how the changes were working in practice. To re-cap, the major changes are listed below.
- Implementation of a ‘cut-off’ date of 1 January 2026 – a provision included in the Countryside and Rights of Way Act 2000 by which unrecorded rights of way cannot be added to the Definitive Map after this date if the evidence for their existence pre-dates 1 January 1949.
- Procedural changes to simplify the process for determining whether unrecorded rights of way exist.
- Implementation of a right to apply for a public path diversion or extinguishment order on types of land to be prescribed and for full local authority cost recovery, and for a determination within four months.
- Power for local authorities to authorise gates across Restricted Byways and Byways Open to All Traffic on agricultural land to control stock movements.
Unfortunately our enthusiasm to work with the new legislation and complete our series of articles has had to be put on hold by the postponement of the implementation date by Defra. The ‘devil in the detail’ has proved very complex and raised many issues. Changes to public rights of way legislation in the past have led to many unintended consequences and perhaps the delay is inevitable. Public access over private land continues to be an issue which inspires passion on all sides.
Defra advises that it remains committed to implementing the package of changes and that, as agreed at the outset, the package will only be implemented as a whole. There is however still work to be done and no commitment to a date at present. This is frustrating for landowners unable to submit applications for the diversion or extinguishment of public rights of way on their land where councils are now refusing to accept applications in anticipation of the new legislation. In addition the ‘cut off’ date of 2026, which seemed a very long way off when it was included in the Countryside and Rights of Way Act 2000, now begins to seem very close indeed - without the details of how it will be effected available to councils.
It would probably be rash to think that we can provide Part Three of our series in time for the next edition of Agricultural Brief in early 2018. However, we continue to stay in touch with Defra and watch for the announcement of a new implementation date.