Recording Rights of Way on Definitive Maps – Estimated 10,000 Delays Across England

 Rights of Way Decisions by Planning Inspectorate 2022

The Secretary of State for the Environment, Food and Rural Affairs is the final arbiter of decisions to modify the official record of rights of way known as the Definitive Map and Statement. Decisions are delegated to the Planning Inspectorate and all objected orders should be referred to them for confirmation. In the 2022 calendar year 62 final decisions have been published of which 17 were refused with 45  being confirmed, sometimes with minor amendments. There were also 12 "interim decisions" where the inspector concluded that the order should be confirmed but the proposed modification meant it required further advertisement - this usually occurs where the proposal is for a different status, perhaps finding that the route should be recorded as a Restricted Byway rather than a bridleway or perhaps evidence only supports  footpath. 

The process often feels frustratingly slow and I know of examples of cases which have taken 30 plus years to get from original application to confirmation by the Secretary of State and there are over 30 applications awaiting referral to the Secretary of State within Gloucestershire with the average wait being 12 years since the order was made. 

 Lets be clear both objectors and applicants for a path to be added to the Rights of Way map have a perfect right to be heard before an Inspector, if they choose to do so but only about 40% went to a formal hearing or inquiry in 2022. The majority being decided by "written representations" or as some inspectors refer to it "on the papers". Its enormously difficult to drill down into the data as the published information does not include the date when orders were referred to PINS, but overall performance has worsened over the last 5 years, as shown in the graph below, but some of the impact has been due to Covid-19 s explained in the Annual Report information shown below. 

But the performance of the Planning Inspectorate is frankly a relatively small part of the overall problem. All inspectors reports include the date the order was made as well as the decision date and using this data shows that on average time for cases referred to the Secretary of State  it takes an average of 4 years where the case is decided by an Inquiry and 3 years 4 months by written representations. Clearly cases where an interim decision was made took longer with the time extending for these cases to an average of 5.2 and 4.4 respectively. But the minimum time for a case heard at inquiry was 18 months and 9 months by written representations.. Data crunching the 74 cases decided in 2022 by Quartile and  additionallyTop and Bottom 10%, shows a vast different between order made and PINS decision. This does not include the council internal delay before making an order.

9 of the 18 top quartile cases come from one authority - Kent County Council - which took 3 cases to Inquiry and 6 cases were dealt with by written representations. The overall average between order being made and confirmation (or not) by the inspector was 1.67 years. 

One case perhaps demonstrates the efficiency with which Kent are processing applications, overall the whole process took 6 years 4 months and time was lost in taking 4 years to determine the application and then nine months for PINS to make the order but it was only 17 months between the making of the order and it being confirmed by PNS. 

The application concerns the upgrading of a footpath to a bridleway at Ripple (path number EE427) which was made on 1 August 2016 and was rejected on 3 September 2020, following which the applicant appealed to the Secretary of State and an Inspector directed on 15 June 2021 that the order be made, which was made two weeks later, on 1 July 2021. Kent County Council's advertising of the order and decision making was relatively short with the order being referred to PINS on 27 September 2021 and the start date for the Inquiry process by written representations was set for 21 June 2022, with the decision being issued on 30 November 2022. The Inspector's Decision from November 2022 can be found here and the Direction to make the order in June 2021 can be found here. 

But given that all of  the 9 Kent cases decided  in 2022 by the Secretary of State were made within 27 months of the order being made clearly suggests that Kent has established an effective and efficient process. Strictly speaking Kent's DMMO register does not comply with the Register Regulations but it does provide a clear and understandable picture of progress with applications. All 230 applications before 26 April 2017 have been completed except for 2 which are currently with the Secretary of State for confirmation and 2 currently under investigation. Some after that date have already been completed and others are currently under investigation. Overall it gives a clear impression of an authority which has committed the resources to undertake an efficient and effective job of Definitive Map Modification Order applications. 

The  KCC Regulation Committee has oversight for Definitive Map matters and receives an annual update from the Manager, most recently at their meeting on 21 September 2022  The report states:- 

"The next application to be allocated was received in December 2018 indicating a backlog of 4 years. However, when considering that on average, 10-12 applications are determined each year, the reality is that the current backlog has increased to nearer 8 years. It is hoped that 2  newer members of staff will be allocated their own applications by the end of this year, increasing the capacity allocated to this work and therefore the number of applications that can be progressed."

What was clear from dipping into the webcast, where the meeting considered the report for about 30 minutes, that members of all parties were actively concerned about reducing the baclog and the medium term financial plan (after an staffing increase in 2019) envisages an increase in staff. There was a clear recognition that there is a shortage of skilled staff (one of the managers mentioned lack of consultants and another the need to recruit people with transferable skills and train and develop them "grow our own". 

I'm sure that people with more local knowledge than me have criticisms of how individual applications are being dealt with but my perception was of a council well on top of the issues and actively working to manage the issues well.

At the other end of the scale the most delayed application decided by PINS during 2022 was an application made by Derbyshire some 15 1/2 years before. As is plain from the Inspector's report this was made more than 30 years ago, But this is not the only longstanding order before the inspector from Derbyshire with 3 others made some years before they were submitted to PINS for decision. A headline look at the on-line register identifies 28 application stage, catogrising them 240 are applications which have been received, 196 completed and about 180 currently in progress including 4 which are stated to be with the Secretary of State. 

There is work to do on highlighting the councils which are not performing but equally there may be benefits in understanding more fully how the best performing councils are delivering a good service and ensuring that the good practice is shared more widely.