Recording Rights of Way on Definitive Maps – Estimated 10,000 Delays Across England
Tuesday 28 February 2023 is the fortieth anniversary of the commencement of Part III of the Wildlife and Countryside Act 1981, legislation forged to improve the efficiency of the ground-breaking definitive map legislation introduced by the post war Attlee Government. The ambition of the National Parks and Access to the Countryside Act 1949 was to correctly record all rights of way on a "Definitive Map" with details of each recorded in an accompanying statement and to provide for it to be reviewed on a five yearly basis.
The 1949 Act and its 1981 successor is a project of immense public value in providing certainty about the recording of public rights. In practical terms it also removes the settlement of disputes about the existence of rights of ways from prohibitively expensive court cases to a quasi-judicial process overseen in the first instance by local authorities.
The reforms introduced by the 1981 Act were developed in the face of a backlog of around 15,000 revisions to definitive maps sitting with the then Department of the Environment. That's before we consider the other blockers and stoppers to progress within local authorities including those still stuck - 30 years out from the start - on the creation of their original definitive maps.
The 1980 Bill was introduced for the Thatcher Government by Lord Bellwin (yes he of the Bellwin Scheme) where he explained the purpose of the changes :-
"the current arrangements for the review of definitive maps of public rights of way in the countryside have not worked well. The periodic county-wide reviews have attracted numerous objections which have taken a long time to determine. The revised map cannot take effect until all the objections have been resolved, and in some cases this has meant that decisions made years ago have still to be implemented. The requirement for a review every five years will be replaced by a provision allowing definitive maps to be amended continually by means of definitive map amendment orders. This will enable the maps to be amended as soon as any objections to each amendment order have been determined. [1]
As introduced the Bill effectively changed the five yearly review process into one where authorities could carry out the review process in a planned and targeted way and it is clear that responses to the consultations undertaken in the Autumn of 1979 that the there was general support for the changes, although local authorities, quelle surprise, say no need for an application process when authorities didn't make orders.[2] The Bill, as introduced, did not include it either and we have to offer thanks to the opposition Front Bench in the House of Lords for proposing amendments which Peter Melchett (later President of the Ramblers Association) explained thus: -
"The aim behind these two amendments is to
introduce into the Bill a procedure for appealing against a refusal or a
failure by a surveying authority to act on a claim."[3]
There was cross party support and the principle was accepted by Lord Bellwin, undertaking to introduce Government amendments at report stage. Those amendments introduced the application process set out in what is now Section 53(5) and Schedule 14. I think there is an interesting argument to make that the extent to which individuals and organisations resort to applications is perhaps indicative of the extent to which authorities have failed to undertake comprehensive and effective methods of “continuous review”.
I must confess that I am acutely aware of how Gloucestershire is performing on DMMO applications or rather not performing and regularly data crunch their register data to see the painfully slow progress of applications through to being recorded as “resolved” - which in the majority of cases results in the addition of a right of way to the definitive map. The result is that there is a backlog of 172 undetermined applications and 34 awaiting referral to the Secretary of State.
I’m also aware of how those figures are massaged when they are reported to Councillors and the jaundiced view of very senior officers that it’s those who complain who are the cause of the delays. 16 years all told I’ve been waiting for one application and I’m the problem? But,I also know that Gloucestershire have a highly dedicated team of professional officers whose skills and competency I personally respect. There are simply not enough staff doing the work.
What is the position across the country?
Like so many processes operated by local authorities it’s a postcode lottery and even if there is some standardisation of reporting to a Government Department (and there is no reporting process for Rights of Way matters to DEFRA). How the information is recorded is up to each individual authority, this is even the case with the on-line register of Definitive Map Modification Order applications as each register reflects the way the authority chooses to comply with the Register Regulations.[4]
There are flaws in the data I have collated – I have not sat there and looked at every application but have datamined the registers. For some its been enormously easy. I’ve been able to copy and paste information from the website into a spreadsheet and its comes across in sortable columns including a status – and with perhaps 10 minutes of summarising the statuses I have the numbers of undetermined applications and a little later with brief examination of the actual data an estimate of the numbers of undetermined applications and also the objected orders awaiting referral to the Secretary of State.
Have I misinterpreted the data? Possibly but its better than putting a finger in the wind. The rest have tested my excel spreadsheet skills to the limit and beyond!
The other - probably an “unknown unknown” is the number of applications where the applicant hasn’t certified that they have served notice on the landowners as some authorities don't record them on their register until notice has been served on the landowners.
Well after data crunching the registers of 78 out of 116 Surveying Authorities in England outside of London, I’d estimate that there are nearly 9,000 undetermined applications and 650 objected orders waiting to be referred to the Planning Inspectorate. That's arrived at by grossing up the figures of 5881 undetermined applications and 479 opposed orders for the 78 authorities. Authority level data can be found on the accompanying Google Drive file.[5]
In recent months there have been a number of interesting Ombudsman decisions Staffordshire’s processes came under scrutiny in a decision published in August 2022 for failing to make a decision on a particular application, and part of this resolution was for the authority to undertake a review of the DMMO process including looking at how other authorities are performing. [6] Unfortunately, there is no evidence available that any of these agreed actions in paragraph 31 have been completed. The Council's Rights of Way Panel is a paragon of transparency with only verbal reports being presented to the Committee in secret session recorded in the briefest of details.[7] In Nottinghamshire a similar outcome to Staffordshire arose with the Council also being required to undertake a review and report to councillors.[8] Progress? Who knows? In East Sussex a complaint didn't even get properly investigated as the Ombudsman has adopted a policy of not investigating councils which are "under pressure" due to budget cuts commenting “We cannot require the Council to recruit more staff to process DMMO applications".[9] This suggests that the outcome of a complaint depends on how the complaint is framed rather than how bad the authority delivers the service.
Not all authorities are poorly performing by any means and some authorities are very self aware of how they are performing and even if they have started from a poor position are actively working to resolve the problems they face. Kent for example has managed to get nine opposed cases decided by the Secretary of State within an average of 18 months of the order being made by the Council, 3 of these included cases which went to formal Inquiry. Some were decided within 9 months of the order being made, which means that whatever process they are using means that it was ready to go to the Inspectorate very shortly after the objection period closed.
In terms of the Kent backlog it appears that the longest undetermined application was made about 4 years ago. It is also clear that the Council's Regulation Committee has a good understanding of the issues and the team manager presents an annual report to the Committee - this is an approach that all Councils should be encouraged to do.[10] [10A]
Sometimes just looking at the council rights of way webpages it is possible to get the sense that an authority, to use a rugby pun, have picked up the ball and are running forward. Bath and North East Somerset is a good example of this, even though they have been hindered by an incomplete Definitive Map for the City of Bath area.[11]
Of 74 decisions made by the Planning Inspectorate in 2022 the average time from order date to decision date was 3.82 years but 65% of applications were made within this period, meaning that a smaller number of applications took much longer to be decided, largely due to unacceptable delays by the local authorities concerned.[12]
A Broken System Forty Years On
Forty years on from the
commencement of Part III of the Wildlife and Countryside Act 1981 the
system in many areas is still clearly broken. Whilst there are system
improvements that could be made - including much of the package of reforms
envisaged in the Deregulation Act 2015, the key challenge are about improving
the efficiency of local authorities to deliver high quality decisions promptly.
Much of that is about smarter working and better sharing of good practice
but for many it will also require additional posts.
We also must recognise that the
proposed abandonment of the 2026 "cut off date" whilst very welcome
is not a "done deal" and has not yet been repealed. And we also need
to work on the basis that every effort is made to identify and claim all
unrecorded rights of way so that we are not caught unawares if it re-emerges in
the future.
There are I think four system challenges to improve matters.
The first is to the Department of Environment, Food and Rural Affairs, which is the responsible Government Department have failed to deliver the package of reform measures agreed as far back as 2010. And what is clear is that DEFRA have no real interest in holding local authorities to account. Write to your MP and the private office sends out the same inadequate standard responses whatever is asked. A linked issue is the lack of effective Parliamentary scrutiny, either by the departmental Select Committee or even an All-Party Parliamentary Group with an interest in the issues.
The Second is that Surveying
Authorities are well able to delay and undermine progress with impunity by
turning a blind eye to Secretary of State directions to determine applications,
bat away findings of maladministration by the Ombudsman or just act with
blatant disregard for the law. This is because there are not effective
sanctions that individuals are able to pursue, which will become even worse if
the Government restricts the opportunities for Judicial Review
Proceedings.
The third challenge is to the national interest groups - Ramblers Association Open Spaces Society and British Horse Society and others. Those who understand the sector can only have immense admiration for the incredible teams of volunteers working across the country supported by very small teams of professional staff but a key question is what can be done to mobilise action by Government and local authorities to achieve real change?
The fourth challenge issue is to move on up from a "back of an envelope" estimate to fully transparent data on the crisis we face so that we can build a shared understanding and detailed knowledge of the issues that arise throughout the country. Perhaps a starting point might be for every Local Access Forum to publish a standard dataset of information on the status of the Definitive Map and Statement and the position on the backlog of applications with the local authority areas that they monitor.
Next year will be the 75th Anniversary of the passing of the 1949 Act and everyone starting with the Secretary of State, Therese Coffey, opposition spokespersons, Natural England, Members of Parliament, Local Authority Councillors and Senior Managers, Local Access Forum members need to put their shoulders to the wheel now to ensure that the aspiration and ambition of 1949 to create accurate comprehensive and up to date Definitive Maps and Statements are achieved throughout the country.
What progress will have been made when we get to that anniversary on the 16 December 2024?
This blog was updated on 28 Feb 2023 typos and adding link to Google Doc and including more information in the table graphic
_________________________________________________________________
Chas
Townley lives in Stroud, Gloucestershire and is a recently appointed Local
Correspondent of the Open Spaces Society for the Stroud District and
writes in a personal capacity.
_________________________________________________________________
[1] Lords Hansard 16 December
1980 vol 415 column 988
[2]
National Archives Department of Environment files HLG 29/1792, HLG
29/1970,HLG 29/1673
[3] Lords
Hansard 17 February 1981 col 640 Volume 417
[4] The
Public Rights of Way (Register of Applications under section 53(5) of the
Wildlife and Countryside Act 1981) (England) Regulations 2005
[6] Staffordshire
County Council (21 014 439) 15 August 2022 https://www.lgo.org.uk/decisions/transport-and-highways/rights-of-way/21-014-439
[7] See
Agenda and Minutes of Meetings of the Panel https://moderngov.staffordshire.gov.uk/ieListMeetings.aspx?CommitteeId=129
[8] Nottinghamshire
County Council (21 015 106) https://www.lgo.org.uk/decisions/transport-and-highways/rights-of-way/21-015-106
[9] East
Sussex County Council (22 009 777) https://www.lgo.org.uk/decisions/transport-and-highways/rights-of-way/22-009-777
[10]
Report to September 2022 Meeting: https://democracy.kent.gov.uk/mgConvert2PDF.aspx?ID=113707 ; Link to
webcast: https://kent.public-i.tv/core/portal/webcast_interactive/694401/start_time/81000
[11] https://www.bathnes.gov.uk/services/streets-and-highway-maintenance/public-rights-way
[12] ]https://docs.google.com/spreadsheets/d/1394H-bKhlkstXDnGbKl-Psp8y7JXvydB/edit?usp=share_link&ouid=112160062166417110889&rtpof=true&sd=true Also see my earlier blog
on the Rights of Way Decisions by
Planning Inspectorate 2022
Comments
Post a Comment