Countryside and Rights of Way Act 2000 (Substitution of Cut-off Date Relating to Rights of Way) (England) Regulations 2023

Baroness Hayman of Ullock Excerpts

Monday 27th November 2023 Lords Chamber

Moved by

[Baroness Hayman of Ullock]

That the Countryside and Rights of Way Act 2000 (Substitution of Cut-off Date Relating to Rights of Way) (England) Regulations 2023 were laid before Parliament during the prorogation period and are due to come into force before the House has sufficient time to scrutinise them following debate on His Majesty’s Most Gracious Speech; notes the lack of public consultation on the policy implemented by the regulations; and calls on His Majesty’s Government to outline whether and how they expect the existing backlog of applications relating to unregistered rights of way to be cleared before the deadline contained in the regulations.

Relevant document: 1st Report from the Secondary Legislation Committee

[Baroness Hayman of Ullock (Lab)]

My Lords, I have laid my Motion to Regret because I believe that proper records of our public rights of way are so important. We know that public rights of way encourage recreation and tourism. In my county of Cumbria, they generate much-needed income in a very rural area. They are also an integral part of our heritage. We also learned, particularly from Covid, of the important role that being in the countryside has in the prevention of ill health, improving well-being and reducing loneliness.

The National Parks and Access to the Countryside Act 1949 first required local surveying authorities, which are now the county councils and the unitary authorities, to prepare official records of public rights of way. However, the problem has been that those records are incomplete. The Ramblers has provided research—I thank it for its briefing—which suggests that there may be as much as 41,000 miles of unrecorded historical public rights of way in England.

The Countryside and Rights of Way Act 2000 included provisions for a cut-off date of 1 January 2026 for registering those rights of way. That was subject to some exemptions, after which any remaining unrecorded paths would be lost. The purpose of the regulations we are debating today is to move that cut-off date from 1 January 2026 to 1 January 2031. My Motion regrets that the regulations were laid before Parliament during the Prorogation period, which we consider to be pretty poor form. They are also due to come into force before, we think, the House has had sufficient time to scrutinise them, which is why I wanted the debate today, as much of our time since Prorogation has been taken up with the debates on His Majesty’s gracious Speech. Can the noble Lord, Lord Benyon, say why the decision was made to lay the regulations during this time?

My Motion also expresses concerns about the lack of public consultation on the policy that will be implemented by the regulations. Can the noble Lord explain the lack of public consultation on a matter that is clearly of great interest to many people? Finally, my Motion calls on the Government to outline whether and how they expect the existing backlog of applications relating to unregistered rights of way to be cleared before the deadline contained in the revised regulations.

I also express our support for the Motion in the name of the noble Lord, Lord Hodgson of Astley Abbotts, which welcomes the extension of the period for officially recording footpaths but regrets that no permanent solution has been found. I look forward to his comments on his Motion.

Clearly, an additional five years to apply for historical rights of way to be added to the definitive map is welcome, as the process requires extensive and time-consuming research, which we understand has largely been undertaken by volunteers. I would therefore like to speak a little more in detail about our concerns about the current backlog of applications. Estimates suggest that in England there could already be over 10,000 applications currently waiting to be processed by authorities, with some waiting 20 years to be determined. We believe that it is inevitable that the number of applications will increase significantly in the run-up to 1 January 2031.

It is significant that the Secondary Legislation Scrutiny Committee made it clear in its report that Defra should have included information about the local authority backlog in the Explanatory Memorandum and criticised the lack of information about the impact. I draw the attention of your Lordships’ House to one or two of the comments made in that report. First:

“The Explanatory Memorandum … states that there will be no impact on business, charities, voluntary organisations or the public sector”.


However, as local authorities are responsible for assessing and determining the applications, I cannot understand how there can be no impact.

In addition, the report noted that the backlog of applications was likely to increase in the run-up to 2031, as I said. It talked about a submission that had been received from the Open Spaces Society,

“which, while not opposing the Regulations, questioned Defra’s assumption that there will be no significant impact”.

Can the noble Lord explain why it was decided that there would be no significant impact—how was that conclusion reached? The Open Spaces Society suggests that setting back the cut-off date

“will have a very substantial impact on charities and voluntary bodies”.

Regarding local authorities, although the cut-off date cannot be postponed beyond 2031 in general, the provision enables a further postponement, without limit, in relation to the former county boroughs, which were excluded from the operation of Part IV of the National Parks and Access to the Countryside Act 1949. That duty was given to them only by the Wildlife and Countryside Act 1981. The Countryside and Rights of Way Act 2000 clearly envisaged that it might be necessary for those places to be granted a longer period to prepare their maps, but this opportunity has not been taken.

I mentioned my county of Cumbria, where I was a county councillor. We have an enormous number of footpaths that need to be managed and recorded. Why has no provision been made for a later cut-off date in relation to the county boroughs? How do the Government intend to support the work of local surveying authorities and the voluntary sector to make progress in researching, submitting and determining applications? This is a huge amount of work.

--- Later in debate ---

[Lord Benyon (Con)]

This was a product of an Act that was passed many years ago. There was a cut-off date of 2026 to give certainty, because otherwise this will roll on and on. It is also for people to be able to understand the complications in certain areas, such as biosecurity and safety. In the past, many footpaths went through farmyards, which are now not safe places for walkers to go, so this is also to be able to divert those paths to where they are safe, and protect stock from issues related to that. But the key point is about creating certainty; that is what we seek to do. By 2031, we should be able to get most of those historic rights established. I hope I have been successful in getting that point across, but I am happy to follow this up with meetings or further correspondence with noble Lords.

We recognise the benefits that our rights of way reforms will bring, and are working to complete and lay the necessary secondary legislation as soon as we can. Officials will continue to work closely with key stakeholders, including Members of this House, to ensure that all sides will benefit from these reforms.

The noble Earl, Lord Russell, raised a point about the cut-off date; there are approximately 4,000 applications for definitive map modification orders waiting to be determined by local authorities, most of which are applications to recorded historic rights of way. We expect the volume of applications to increase up to the cut-off date, which is why we have committed to ensuring that all applications remain live after the cut-off date until they are concluded—a key concern of the noble Lord, Lord Rosser. The reforms we are introducing will help to address the backlog, making it faster and less expensive to resolve historic rights of way applications. Commencing and extending the cut-off date now has provided certainty to all parties, both that the cut-off date will have effect and over when it will apply. By extending the date to 2031, we have provided an additional five years to submit these applications. We fully recognise the importance of regulations specifying exemptions from extinguishment, and we are committed to introducing these as soon as possible.

The noble Earl, Lord Russell, asked about the additional financial burden. I think I have addressed that. This will be a continuing concern for local authorities. We recognise that, but we hope that there are existing resources available to suit this. The noble Lord, Lord Rosser, asked how many local authorities are affected. All local authorities in England are affected—all 317 of them. The stakeholder working group meets monthly and has all parties of interest attending. It is chaired by a senior Defra official, and Ministers take close interest in what they bring forward and have been key to the debate surrounding this.

I recognise that a great many other points were raised. I do not believe I have the opportunity to answer them all in detail, but I will reply in letter form, if I may. I thank noble Lords for their attention. I hope that what I have said has persuaded the Members who tabled these Motions of this Government’s commitment to greater access and to seeing historic paths recorded.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank all noble Lords who took part in the debate. I particularly welcome my noble friend Lord Rosser, and listened to him speak with such passion and authority today.

When the Minister started, I thought perhaps he had listened to the debate and seen the light, as he seemed so keen on rights of access and preserving public rights of way. It was disappointing that he then went on to not acknowledge the challenges facing local authorities and voluntary groups to manage the task ahead of them. On the consultation point, I recognised in my speech that the cut-off date could not be postponed beyond 2031, but consultation does not have to be just about timing. It could have looked at exemptions and resources, and considered that as part of a wider consultation on the matter. But I hope the debate will enable the Minister to focus on the task ahead and keep a close watch on progress, because that is what we all want. Having said that, I beg leave to withdraw my Motion.

Motion withdrawn.