Historic Rights of Way

Question for Short Debate

Asked by

To ask Her Majesty’s Government what assessment they have made of the progress that has been made in the registration of historic rights of way and of the benefits of extending the cut-off date for their registration.

My Lords, this debate is about historic rights of way: those that have never been registered but existed before 1949. I want to talk about the procedural and technical problems involved in historic rights of way, so I will not talk about their value and so on. I assume for the purposes of this debate that that is a given and people do not need an explanation of why they are such a good thing. I thank in particular the British Horse Society, the Ramblers, the Open Spaces Society and the Trails Trust for the wonderful briefings they have sent. I declare an interest as vice-president of the Open Spaces Society. I also thank everybody who has put their name down to speak in this debate.

It all started with the CRoW Act in 2000, so I decided to look up what I said in the debate on the Bill as it went through the Lords. On 26 June 2000, which seems a remarkably long time ago, I was talking about resolving conflict over local rights of way et cetera. This, I said,

“must, essentially, take place at local level. As it stands, the Bill relies too much on national quangos sorting things out when what is really required is for local people on the ground to negotiate with each other in a sensible way”.—[Official Report, 26/6/00; col. 671.]

I do not believe we thought at the time that nearly 20 years later we would still be talking about the problems.

Sections 53 to 56 of the CRoW Act set out the process for claiming old, unclaimed historic rights of way—crucially, with a cut-off date of 1 January 2026. Any that have not been claimed by then will cease to exist for ever, although with the possibility under Section 56 of an extension by regulations to 2036.

The passage I have just quoted was, in retrospect, a bit naive. Things are not quite as simple as I thought at the time—but we have seen in the system for claiming historic rights of way the worst of all worlds: national inaction and delays, half-hearted efforts to get things going, followed by more inaction and delays. Local authorities have sometimes tried and sometimes been unwilling; they are increasingly unable to cope because of financial cuts. There is an increasing reliance on local groups, charities and volunteers to sort this out. They are wholly underresourced, frustrated and dismayed by the hopelessness of the task.

According to a freedom of information request from the Ramblers, 4,400 or more applications are stuck in the system. What happened? First, the Countryside Agency set up the Discovering Lost Ways project in 2004. That was closed down three years later, with four new rights of way registered. In 2008, Natural England set up the Stakeholder Working Group on Unrecorded Public Rights of Way, a body which consisted of local authorities, user groups, landowners and management interests, and really did get people together to thrash things out. It produced the Stepping Forward report in 2010 with 32 recommendations. Five more years went by before the Deregulation Act 2015 legislated for many of the recommendations in Stepping Forward. Another five years have now gone by and nothing has happened. We are still waiting for that part of the Deregulation Act to be brought into play through regulations.

I was going to quote what the Minister in the Commons said about the Act in 2000 but the noble Baroness, Lady Taylor, is here and she can give evidence.

I shall intervene only briefly. I was Chief Whip in the Commons when the legislation went through, and I assure everyone here that it was not anticipated that there would be a difficulty within that timeframe. It is the problems that arose later, particularly the pressures on local government, that have got us into the position today where it is vital that we look at the timescale again.

I am very grateful for that intervention in person, as it were. In evidence that it has sent to us, the Trails Trust says that the Countryside Agency said in 2010 that there were 16,100 kilometres of unrecorded rights of way and that another 36,000 kilometres of historic route existed and needed investigating. That was just in England; there were more in Wales. So there is a huge problem.

There is a huge backlog involving competing local authorities with diversion and other public footpath orders, enforcements, disputes, commons claims and disputes and so on. In addition, the original definitive maps from 1949 vary hugely in quality and accuracy. Some are hopeless and some are good. Even when they record a route, as I know well from examples in my own area in the Pennines, a bridleway can simply stop at the parish boundary and turn suddenly into a footpath where bridleway rights are not allowed. Sometimes they simply stop where the person who was doing the surveying back in the early 1950s changed over to someone else.

The situation is hopeless. I am grateful for the large number of letters that I have had from people on the ground all over the country—from Yorkshire, Burnley, Rochdale, Northumberland, Bromley, Rossendale, Cambridgeshire and Wales—explaining how hopeless it is. I shall quote from one or two of them to show what the position is. Cosima Towneley, chairman of the Burnley Bridleways Association and chairman of the National Federation of the Bridleway Associations, says:

“The Government—of which ever hue—gallops towards the Cut Off but has failed to undertake a single action promised … Where is the 2015 report which should have given an indication as to the viability of projects such as Discovering Lost Ways … Where is the support at Local Authority level to carry the huge backlog of claims and the enquiries they generate through to implementation on the ground?”.

From Northumberland, Susan Rogers writes:

“Even when a decision has been made for an order to add or to upgrade a path, there can be a long delay before the legal department of the council makes the order … At the moment if there is an objection, even an irrelevant one, the order has to be sent to the Secretary of State for confirmation”.

And so on. There is a huge amount of frustration and dismay from people who are doing tremendous work at their own expense and in their own time.

At the request of the Minister, I sent her some questions that I would like the Government to answer. I shall finish by reading them out, if there is time. Do the Government stand by the commitment given in 2000 at the time of CRoW to make every effort to register all historic rights of way before the cut-off date? Do the Government agree that Discovering Lost Ways resulted in the loss of almost a decade in the registration of historic rights of way that has not been made up since? Do they agree that the stake- holder working group set up in 2008 saw a welcome coming together of different interests and that its Stepping Forward report in 2010 represented a practical means of achieving the intentions of CRoW, but the fact that the 32 recommendations have still not been enacted makes the 2026 target date impossible to achieve? When do the Government intend to bring into effect the 2015 Deregulation Act containing these recommendations?

My Lords, I am a great supporter of footpaths. I owe them a great debt of gratitude because they played an important part in my rehabilitation since my accident. I would say only that I am saddened by the condition of some footpaths and even more saddened by the amount of rubbish left on them by people who ought to follow the country code slightly better.

If you think it is taking a long time to get a definitive answer on Brexit, let us talk about rights of way. I congratulate the noble Lord, Lord Greaves, on raising this. It is the 70th anniversary of the legislation to introduce a definitive map of rights of way and we are still arguing and debating about it. That is a nonsense. How right the Government were to bring forward a cut-off date when they did.

I will go off on a slight tangent. People must not get the impression that we are short of footpaths in this country. There are over 94,000 miles of footpaths here and that is being added to regularly. In particular, at the end of February, another 16 miles of new path was added to the English coastal path. I congratulate Natural England on the work it is doing and I look forward to seeing that path completed next year.

The noble Lord, Lord Greaves, raises an important point. As I said, we must not lose sight of the fact that we have been battling on this for 70 years. I remember dealing with it as a land agent in the 1970s and it is a hugely complex, expensive and time-consuming task. The noble Lord was absolutely right to point out some of the difficulties. Councils are spending thousands of pounds and committing a lot of resources to try to solve the problem. On the other side of the coin, where there might be historical rights of way, landowners and involved parties have to defend situations that are not terribly relevant. When they end up in judicial review or in court, they are proved not to be rights of way. That is a waste of time and money.

My Lords, I thank the noble Lord, Lord Greaves, for sponsoring this discussion. I declare conflicts: I am a farmer in Scotland with rights of way involved. I fail to understand why public access to footpaths, rights of way, bridle-paths and so on should ever be restricted, if they are legitimate. They are sometimes restricted by barbed wire and by having to register by a specific date.

This is about an extension. We let the pathways that we had historically be covered with Tarmac as the horse became redundant. Many of the networks involved in those pathways have subsequently been lost. The 1949 maps, as we have heard, are frequently inadequate and unhelpful. Recording these rights of way is vital. Ramblers and riders do not want Tarmac. The routes are often contested, as we have heard. The public should be able to access up-to-date digital maps, and constantly be involved in improving them.

Public access to these routes is anyway enshrined in government policy. We have heard just now from the noble Earl, Lord Caithness, about the farm steward- ship schemes that are coming along and, I too, would like to know the detail. It does not seem to me contentious that these are an important national resource. Fundamentally, therefore, why have a cut-off date at all?

Where is the information? Why should it be so difficult? We know that the resource made available around 19 years ago was consumed by consultants to a large degree, rather than actually helping establish and identify rights of way. Much of this information is buried. It lies in estate maps, on estate office walls, and will never be revealed. It is in libraries, family archives, parish council records, local authority records, old diaries and books. This should not be time-limited. This information is going to emerge as time goes by, and as we have discovered in the past 10 years, increasingly it has been the job of volunteers rather than any organised resource. We know the funding problems of local authorities; that has made matters worse. We have heard that some 4,400 applications are currently awaiting registration. Some of those will be contentious. I cannot see how this will all be done within the timetable without the extension—and even with the extension I question the wisdom. We should remove the deadline.

I would like to thank my noble friend Lord Greaves for securing today’s debate, for setting out the issues so clearly, and for his tireless advocacy of public access and rights of way.

Between 1993 and 2005, I was a county councillor in Suffolk and, for most of that time, I chaired the public rights of way committee, so I have got quite some form in this area. I remember reading a summing up by Lord Denning in which he said that nothing excites an Englishman so much as a footpath—I have always thought that said a lot about English men.

The cut-off date for claiming these historic rights of way might have seemed a good way off at the time the legislation went through, but it is now coming into the near horizon. There are two points I wish to make. The first concerns the reliance on the voluntary sector to make sure that the claims are made before the cut-off date. Groups such as the Ramblers do, and always have done, an amazing job, but they are volunteers, with all the limitations of time, money and expertise that that entails. There is a very strong reliance on local groups. Admittedly, they all know their own areas very well but, like all voluntary groups, their capacity will ebb and flow over time, with more or fewer members and so on. I just do not think it is right that the capacity of the volunteers should determine whether an ancient right of way is extinguished—that just does not feel right to me.

My second concern is around the capacity of local government to deliver within this timeframe. It is well known that council finances are now at breaking point. The legal teams that have to deal with public rights of way claims are now often part of more generalist teams, and they have to compete with areas such as child protection, which—absolutely naturally—take priority. As we have heard, the current caseload is around 4,500. I suspect that, by 2026, the backlog will be so enormous that it will pretty much negate the whole idea of providing certainty for landowners—this will just drag on for decades. Therefore, there should be common cause rather than pitting one side against the other.

My Lords, I too thank the noble Lord, Lord Greaves, for introducing this debate. I declare my interests as set forth in the register as both a farmer and a landowner. I am a member of the Country Land and Business Association and the National Farmers’ Union, and I am an avid walker. I am also happy to state that, as far as my own property is concerned, I do not have and never have had any contentious issues or arguments relating to rights of way, of which we have many being located in the Chilterns. We welcome responsible walkers and riders, who often help us by reporting incidents of sheep worrying and other anti-social behaviour.

Like Brexit, public access creates a vast amount of heat, depending on which side of the fence you sit, and often very little light, which is evidenced by the weighty House of Lords Library briefing and all its references. In my view, the best way forward in these circumstances is to realise that no one has a monopoly of right and that only in a spirit of compromise can these contentious issues be resolved.

As noble Lords know, all the interested parties endorsed the coalition Government’s proposal that all unrecorded footpaths and bridleways created before 1949 cannot be recorded after 1 January 2026. Not unexpectedly, since then, with cuts to local authority budgets and with the demands of Brexit, the resources available for this process have diminished, causing much frustration.

However, we are where we are and, bearing in mind that there is no such thing as a perfect world, we need to reflect hard on the likely benefits of extending this interminable and expensive process, as well as the harm that is being caused to innocent owners faced with unexpected and at times vexatious legal challenges over their previously unencumbered registered land. I would like to make five short points in favour of maintaining the existing timetable.

First, agreeing that the current cut-off date stays in place leaves unaffected routes already used by the public and in no way limits access granted by rights of way provision.

My Lords, I add my thanks to the noble Lord, Lord Greaves, for giving us the chance to debate this important topic— an eternal topic, as several noble Lords have said. I declare an interest as a member of the Ramblers; I undertake long-distance walks each year—not like my noble friend Lord Bates, who does serious long-distance walking, but I expect to clock up 100 to 150 miles this year. As the Ramblers point out in their briefing, along the way we will stay in pubs, use restaurants, and, occasionally, if we are too exhausted, get a taxi to take at least our luggage if not us. The supplementary income walkers give to the countryside community is very important, and I look forward to seeing more of the countryside on my way from Land’s End to John O’Groats. I also declare an interest by proxy: my wife, my noble friend Lady Hodgson of Abinger, is a committed horsewoman and a member of the British Horse Society.

This is an important but narrow topic, and I do not want to repeat what other noble Lords have said. It seems to me that the argument for extending the cut-off date is, as they say in the trade, a slam-dunk proposition. We have heard from noble Lords about the delays along the way in the handover from the Countryside Agency to Natural England and in the implementation of the Deregulation Act. That seems a very good reason why those years should be added to the period before it comes to an end. It must surely be public policy to encourage our fellow citizens to exercise more, and how better to do this than walking on the footpaths, seeing the countryside and its flora and fauna at first hand rather than through the window of a motor car?

With respect to the noble Lord, Lord Carrington, he is wrong to suggest that we should stick to the cut-off date. As I have already said, the delays in implementing the legislation should give us additional time at the end, and, as the Ramblers point out, more than 4,000 applications are already in process. No matter how strict a view one takes, these need to be taken into account when we look at any end date for the legislation.

My Lords, I add my congratulations to the noble Lord, Lord Greaves, on securing this debate, and declare my interests as a landowner, a Local Government Association vice-president, a property professional and chairman of a body known as the Rights of Way Review Committee. I pay tribute to those who attend that committee’s meetings to seek consensus, despite some opposed standpoints, but I have to say that our work is on hold. At a risk of covering things that have been raised already, here I will express my personal views.

My starting point is to affirm the importance of our rights-of-way system to users and, perhaps not so obviously, to the businesses—mine included—that provide services along the way. It is a critical social and national tourist asset, with no better recommendation of its importance than that contained in the report Stepping Forward and the simplification proposals that followed in 2012.

It is self-evident that not all of the network is useful or convenient. Despite significant advances, it suffers from underfunding, poor conditions, bad signage, discontinuity, inadequacy for the range of current users and a sclerotic legal structure. The equally obvious need for policy consensus is still hampered by polarised views, conflict and lengthy arguments, the tragic and avoidable ruination of some rights, and the deprivation of rights for others—this is all sucking resources from other important work. Local authorities are still forced into costly technical battles based not on current or future needs but often on claimed usage from long ago, when people walked to work or church and drove their livestock to market. Yet that remains the basis of the lost ways and many such definitive map modifications that follow: hence the need for some sort of cut-off.

Caseloads grow, partly, as we have heard, because some post-1949 work incorporated errors and omissions. It was also not flexible enough to meet modern requirements, never mind the local government spending constraints. Seemingly only in the national parks do rights of way have adequate priority or anywhere near appropriate management or funding. This does not translate into modern green commuting, safe routes to school, or facilities for urban fringe dwellers; nor does it cater for—or segregate, for that matter—the wide range of recreational users of our linear routes and open access areas, let alone for people with infants in buggies or mobility scooters.