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Rights of Way: Maps

Volume 701: debated on Wednesday 14 May 2008

asked Her Majesty’s Government whether they will review the programme for updating the definitive maps of rights of way and in particular the 25-year time limit on making claims for changes.

The noble Lord said: My Lords, this Question is about the rights of way provisions of the Countryside and Rights of Way Act and Section 53 in particular. It introduces a 25-year cut-off date for historic claims which runs from 1 January 2001 and expires on 1 January 2026. It means that rights of way that existed before 1949 that are not recorded on the definitive map will be extinguished. This refers to footpaths and bridleways and it can also refer to higher rights on recorded footpaths. There are two broad areas of concern on this. One relates to the rural, mainly recreational rights of way and the other relates to the very different urban rights of way, and the two obviously run together.

I should declare an interest as a member of the British Mountaineering Council and of its access and conservation working group. I am also a member of the Open Spaces Society and, more generally, I am a walker and cyclist. I have also been known to sit on a horse but that does not happen very often. I particularly want to thank the Ramblers’ Association, Sue Hogg, chair of the National Federation of Bridleway Associations, Alan Ibbotson, president of the Institute of Public Rights of Way Management, or IPROW, and my colleague Trevor Jones, who is a councillor in Dorchester and a member of Dorset County Council. I also thank some of the Dorset County Council staff for helping to research this subject. It is an important matter and, in the three or four months since I first tabled this Question, it has become very much more topical.

Section 53 of the Countryside and Rights of Way Act was an attempt to bring certainty to the definitive map and, in many ways, it was a sop to landowners, who were up in arms about the provisions of the Act that referred to access—the so-called “right to roam”. As a result of the discussions, some further concessions were made to ramblers, users of bridleways and so on, with a possible five-year extension to 2031. In particular, the Discovering Lost Ways project was introduced, in which it was hoped that there would be a mechanism for discovering rights of way which had been lost or not recorded. There were also promises of funding to volunteer groups to assist in the process.

Where are we now? Discovering Lost Ways has lost its way and is being closed down. Some £4.5 million spent in two counties—Cheshire and Shropshire—have resulted in a grand total of no additions to the definitive map. Therefore, it has been a complete flop. It was based on library research, and local volunteers were not really involved. It was a case of looking at ancient maps and documents, inclosure awards, tithe maps and even the land surveys which Lloyd George instituted for his land tax in 1910. However, the promises of funding and support for volunteer groups never really came to fruition, including a promise of £2 million per annum. On 23 July 2001 the then Minister, the noble Lord, Lord Whitty, in a Written Answer to me said, among other things:

“The agency invited consultants to advise on the most effective way of involving voluntary groups in research on unrecorded rights of way ... The contract was offered on 12 July and, if accepted, we expect work to begin in August with a view to having a scheme to support voluntary work in place by spring 2002”.—[Official Report, 23/7/01; col. WA 190-91.]

Unfortunately, so far as I can see, that never happened. It certainly did not produce anything on the ground.

In the mean time, the existing system for claims grinds on. There are long backlogs and, in 2005, a Countryside Agency report said that the backlog was increasing. It is slow and cumbersome, very legalistic and lawyers earn lots of money. I quote from a May 2006 document from the South Pennine Packhorse Trails Trust on the Discovering Lost Ways project:

“The main obstacle to reinstating the historical network is the definitive map process itself: it is long-winded, increasingly debased, increasingly partial, increasingly costly, and often leaves members of the public disillusioned, depressed, and feeling that their efforts have been wasted and that they themselves have been cheated. Today few sensible people are prepared to research and submit dmmo”—

definitive map modification order—

“applications, and even fewer are prepared to attend public inquiries. And the longer the time taken to complete the definitive record, the more difficult the task becomes, as communities increasingly become severed from their roots”.

The question is: is the present system broken? A lot of people say that it is. Organisations such as the Ramblers’ Association and IPROW say no; they say that funding is the key. It will be interesting to know the Government’s view on this. Can the process of definitive map modification orders be simplified? Can the process, procedure and paperwork be reduced and simplified? Can common sense be introduced into the process? At the moment, it is extremely legalistic, and common sense often does not seem to prevail at all. One thing on which I think everyone agrees is that maintaining the definitive map is essential; it is at the core of the whole system.

Then there are rights of way improvement plans, most of which have now been completed, the deadline having been, I think, last November. Alan Ibbotson, president of IPROW, suggested that they are “hanging there”. The improvement plans may be there but in very many cases the resources are not there to implement them or to do very much about them.

I now want to talk about urban rights of way. I was originally provoked into tabling this Question for Short Debate by my colleague Trevor Jones in Dorchester, Dorset. He is a member of the town council and I shall quote from a letter that he wrote to me last July:

“About two years ago, Dorchester Town Council learned that unless they were ‘formally recorded as Rights of Way by 2026’, all our innumerable walkways and back alleys would cease to be protected for public use after that date”.

He is referring to paths in urban areas. He continued:

“Accordingly, they agreed with County Council staff that they would make a start on the procedures”—

that is, for recording them on the definitive map. He went on:

“After not many months, they chucked the towel in because the procedures are simply a nightmare”.

The town council found that they were just too costly and it could not continue with them.

How many urban rights of way exist? Very often they are unrecorded but they are used, not lost. No one knows how many there are but they total many thousands, and there may well be hundreds of thousands in the country. There are a vast number of active paths which are often well used but rarely on the map. There is a proliferation of local names for them, which shows how local but important they are. They include alleys, ginnels, snickets, drongs, vennels, twittens, twitchels or lonnies, and no doubt there are many more. I was brought up in the land of the snicket and I now live in the land of the ginnel. My noble friend Lord Shutt would, if noble Lords wished, produce a map that he has researched showing the boundary in the Pennines between the land of snickets and the land of ginnels. They are all important and are all used, but if they are no longer rights of way, there is a real chance that the people who own the land will block them.

Ipswich apparently has only four recorded rights of way and no definitive map. I have no idea what they call them in Ipswich but they must be there and they must be important.

It has been suggested that the exception provisions in Section 54 of the CROW Act could be used to define urban paths in this way as an exception to Section 53 and so avoid ending their status as rights of way in 2026. Do the Government intend to make regulations under Section 54? Do they think that this is a way forward or is more fundamental legislative change needed?

People see a major crisis looming. That crisis is 17 years away but the process is slow. What is happening now? Natural England has decided not to go ahead with the Discovering Lost Ways project because it is not working. It made a report to its board in February, which suggested that there should be a fundamental review. At a meeting in March, it produced a very interesting report called Discovering Lost Ways, covering the outcome of the review and recommendations on the way forward. I understand that it has been forwarded to the Government. I have concentrated on setting out the problems but I hope that the Minister will concentrate on some of the possible solutions and indicate the Government’s thinking in response to this interesting report from Natural England.

I understand that it has been proposed that a stakeholder working group should be set up. I thought that perhaps it was intended to create some more fences but apparently that is not the case; it is a working group of all the people involved in this matter. Have the Government decided what the terms of reference should be? Will the process be transparent? Will they get an agreed agenda with all the different groups from landowners through to ramblers and so on? Do they agree that the review needs to encompass all aspects of the rights of way system or will it simply replace Discovering Lost Ways? Do they agree that the membership of the stakeholder working group must reflect all the main user groups? Finally, do they believe that the answer is to repeal and abolish Section 53 and not have this sword of Damocles hanging over the whole process? If not, what is the answer?

When we were—a long time ago it seems—in your Lordships’ House discussing the Rights of Way Bill going through the House, there were concerns that Section 53 would be a problem when it came up and that has proved to be the case. The answer that the Government came up with—Discovering Lost Ways and the funding of voluntary groups—has not happened or has not worked and we need something else. I very much look forward to the Minister’s response.

My Lords, the House owes my noble friend a certain debt of gratitude for bringing this subject forward, despite the fact that, this late at night and after having enjoyed so much of the European Union debate, some of us may not think so. It is a very important issue that touches on many areas of government policy, including obesity, the state of the nation’s health, and so on. There is a sort of mantra that goes round: let us encourage more sport, more recreation. Then you go down and realise which groups are which and which ones are more appropriate.

There is no more appropriate form of mass exercise than pleasant or useful walking. If you can make it a pleasant walk to the shops, people will walk to the shops, provided that the distance is reasonable and they are not going for a huge weekly shop. If you have to clamber into a car and drive to the shops, people are not going to take the exercise. They will increase the number of journeys and make it more unpleasant for people who are walking round the streets. As my noble friend pointed out, if you encourage those urban walkways, many of which are unofficial, you will help many other government directives and areas of activity that we want to encourage.

I always feel slightly sorry for Ministers in this House, because they are answering for the whole of the Government. Thus, they always have a slight pressure on them to have a better idea of what other parts of the Government are doing. Has the noble Lord had any communication about this from other parts of Government? Shall we give them guidance on how to help people to find out what areas where you can walk are available? Either one of the two noble Lords on the Front Bench could have this question quite fairly put to them. What is the cross-reference between the two? How does it work? The historic and ancient walkways, especially in and around towns, allow greater access to those walkways outside which are probably the most pleasant. Unless you establish a walkway system that allows you to get on and off it on foot, you cannot achieve what you intend. I now live in Berkshire, which has the great walk of the Ridgeway running through it. One of the great disappointments with that is that people drive to get on to it. More often, they should be encouraged to walk on to it. That is a part of the country which is not that badly served by walkways.

You should encourage people to find out what is there and the cutways through it. Whenever I go for a walk, I try to stay on the paths, but occasionally I will go off them on to the short tracks—often a farm track—that link up two paths. I think everybody does it. Are we going to encourage their usage? Are we going to try to get some feel of what is going on? What is seen to be the right amount of support in identifying pathways, historic or otherwise? It is fair enough to extend this down—even to the creation of one or two new ones—to make sure older paths are used. What is being done here?

We can go round this a thousand times, but unless the Government take on some real commitment here to encourage this usage, much of what was done on the CROW Bill—I remember the very late night sittings as if it were yesterday—

And overnight indeed. That is rather reminiscent of this current Bill. The same feeling of hopelessness comes in at about the day five or six of the process in any Bill.

When we were trying to establish what the limitations were, the Government put in things like the Discovering Lost Ways project and, at that time, they effectively said it was important, that something should be done and that there should be some area of activity. What are we going to do to enhance this? Are we trying to drive on? Are we trying to find out what goes on? I do not think there has been any dispute about the fact that we should be encouraging recreational walking and walking as a form of local transport at dozens of different levels. The Government can probably help themselves in many other fields if they at least say what they are going to do here; what other departments are encouraging them is the correct thing. We are at least entitled to know that. If the Government have decided it is all too difficult, at least we should know. If we do not, we are going to carry on doing this again and again.

My Lords, I too thank the noble Lord, Lord Greaves, for tabling this question and bringing about an interesting debate, because it brings to our notice a good idea that has got bogged down. I have to declare an interest. We are farmers and in horticulture and we own and occupy land with rights of way. None are known to be lost ways, but we have been talking to Lincolnshire County Council about diverting a path to provide both a more practical field shape and a more engaging walk.

My wife is a Lincolnshire county councillor and I have used her as a researcher. I have had the opportunity to talk to Chris Miller who is the principal rights of way and access officer on Lincolnshire County Council. He gave me some interesting information on how a typical county council is dealing with these things. Lincolnshire has a total of 159 cases, of which 138 are from direct applications from the public. Others were initiated by the county council following the discovery of evidence by the authority. The oldest of these cases date back to 1983. In 2007-08, the authority completed just 23 cases but received 10 new claims. The backlog is clearing only slowly. The process is slow and not working particularly well.

Timescales for resolution vary depending on whether objections are received. As a rough estimate, it takes about a year for a case to be resolved. However, the authority has some old cases that have not significantly progressed for a number of years. It receives approximately 50 requests a year. Many people who make a request are put off by the fee or their request does not meet the statutory or local criteria for acceptance.

The briefing, for which I am grateful to Chris Miller, paints a picture of a process that is not working well. That is not because the department is badly funded. Obviously, all local authority departments are finding things tight when they want to be generous with funds, but this department is relatively well funded. Lincolnshire is a rural county and has probably more than its fair share of rural footpaths.

The picture that the noble Lord, Lord Greaves, has presented to us shows that the task is complex and burdensome. That is not likely to be resolved in the absence of primary legislation to simplify the process. However, knowing the Government’s position on legislative timetables, I think that it is unlikely that we will see any such legislation. I would be interested to know what the Minister proposes to do in the interim to make the project much less bureaucratic. Amanda Earnshaw, a project manager for the Discovering Lost Ways scheme, which was set up by Natural England, said:

“What should have been a sensible process has got itself mired in bureaucracy and as yet we haven’t got any more rights of way on the map”.

The project found that even a systematic research approach could not remove the requirement for further detailed research into cases by the highway authority and for a public inquiry to be held whenever the recording of such a right was opposed. The costs of advertising are a factor, too. Local newspapers are not cheap places in which to advertise. The Government may need to find other ways of making details available to the public. As we know, Natural England has decided, given the budget pressures that it faces, that further funding cannot be justified after the £4.5 million that it has invested so far.

The noble Lord, Lord Greaves, referred to the stakeholder working group. The Government have said that they will not bring Section 53 into effect until they hear the outcome of the working group, so it would be useful to know from the Minister when he expects the group to report back to him.

It was interesting to hear the noble Lord, Lord Greaves, talk about urban paths, because in many ways these are more used than rural paths. Rural paths are used largely, although not exclusively, for recreation purposes, but urban paths, too, are important in local communities. Often, what started with people nipping through a gap in the hedge has become a well tracked alleyway through to the shops and people have become used to it. The establishment of rights of way by precedent means that new paths are being created all the time in urban environments.

I hope that the Minister will present us with some positive solutions to what I see as a difficult problem. No one can deny the delight of walking in the British countryside, which, at present, looks absolutely magnificent. Whether it is the Cumbrian hills or the Lincolnshire fens, we are all privileged to be able to enjoy it. I hope that the Minister will say that he supports the continuing development and maintenance of the definitive map. As the noble Lord, Lord Greaves, said, we must approach that in a practical way.

My Lords, I, too, congratulate the noble Lord, Lord Greaves, on bringing forward the debate. I do not have many interests to declare, but in the past couple of weeks I have walked both in the Cotswolds and in the Lake District, so that is where I am coming from.

Let me give the House a few facts. I am not criticising the noble Lord, Lord Addington, but anyone listening to him would think that we are closing down walking in the countryside. It is worth putting on record that in England there are 94,000 miles of footpaths, 20,000 miles of bridleways, 38,500 miles of restricted byways and 2,500 miles of byways open to all traffic. A 1 per cent reduction in the sedentary population in the UK could provide almost a £500 million saving in averted healthcare costs. That is a big cost. Perhaps we ought to be doing the debate standing up rather than sitting down. That is where we are coming from—there is a great benefit to walking and, as the noble Lord, Lord Taylor, says, the countryside looks quite magnificent at present.

I have some comments but I certainly have not got all the answers. The Government’s position has been clearly set out in answer to Questions in both this House and the other. The latest that I have in my notes is a fairly substantial Answer in the other place from 8 May.

We recognise the importance and value of the rights of way network. The health and quality-of-life benefits of walking, cycling and horse riding are well known. I could give the House the figures on the substantial percentage of the population who visit the countryside. There are enormous economic as well as health benefits, so the gains are not only recreational.

The rights of way provide important social and economic benefits. They can be functional journeys as well. But they are not all necessarily in the countryside. My former constituency was about 16 square miles in a very urban part of Birmingham, but it was littered with rights of way. They are usually not very well lit, so people are always campaigning for reassurance from the council that they are safe to use. That is the issue in urban areas. Traditionally they are away for other forms of traffic, so they can play a significant part in reducing accidents, particularly in urban areas.

There is a big issue of rights of way being a key ingredient for tackling congestion and reducing dependency on private car use, particularly for short journeys. As the noble Lord said, short-cuts to the shops are very important. But we need to have a rights of way network that is relevant to people’s everyday lives, otherwise the rights of way would not be fully utilised and we would lose the benefits. I was not involved in the passing of the Countryside and Rights of Way Act 2000, because I was in another department. The CROW Act introduced the rights of way improvement plans. In order to ensure the long-term sustainability of the way network we integrated these with local transport planning.

The rights of way improvement plans are only a part of the process of developing a rights of way network that serves current and future needs. The 25-year time limit on making claims to changes to the definitive map and statement that the noble Lord, Lord Greaves, referred to was introduced to assist this process. The date is there for a reason. But this time limit, introduced by Sections 53 to 56 of the Countryside and Rights of Way Act 2000, applies only to historic rights of way; that is, those that were in existence before 1949 when the definitive map and statement were introduced by the National Parks and Access to the Countryside Act. These provisions would not prevent the recording of rights of way created after 1949. As the noble Lord said, rights of way are being created regularly.

The provisions in Sections 53 to 56 have not yet been implemented and we would not seek to implement them without undertaking a full consultation. The 25-year limit—that is the 2026 cut-off point—had two principal aims. The first was to give landowners and occupiers more certainty about whether public rights of way existed over their land. The noble Lord, Lord Greaves, referred to this but not in such technical phrasing. The second was to provide an impetus to getting the definitive map and statement completed within a foreseeable time frame. In looking to provide a network that meets the current and future trend, rights of way that already exist but are unrecorded represent a significant resource on which to draw.

Finding the legal evidence necessary to add these unrecorded rights of way to the definitive map and statement under the current legislative framework is by no means an easy task. All three noble Lords who have spoken have made that quite clear from practical experience. It requires considerable expertise and resource. It was originally envisaged that the work needed to find and record the rights of way would be undertaken by volunteers with government funding. Natural England’s predecessor, the Countryside Agency, was charged with administering the process. The agency examined the possibility of funding volunteers to undertake the work and found that, although there are people out there who are very proficient at this, there are not enough of them in the right places to be able to complete the task by the 2026 deadline.

The agency and its successor body, Natural England, has also tried a systematic approach—a trawl through all the archives by professional researchers. While local authorities have appreciated the benefits that this approach brought, it did not produce rights of way claims that could be processed without significant further investigation by the local authority. Moreover, the establishment and recording of rights of way is—and this is a very polite and technical way of putting it—an emotive, contentious and increasingly litigious area, and a very exacting standard of legal evidence is required to see through a successful application, hence the delay on all the inquiries, as noble Lords have mentioned. It now therefore seems that, under the current procedures for recording rights of way, many local authorities would not be able to cope with the number of claims that would be generated.

Research into rights of way has not been attempted on that scale. Much has been learned, however—and the three counties have been referred to. For example, we now know that many rights of way are not lost; they are actually in daily use but they are simply not recorded. That is quite an important point. We are talking only about rights of way from before 1949. But we also recognise the real risk that, where lost rights of way are discovered, they may now run through dwellings and other properties and be quite incompatible with the current use of the land. That can happen. It is no excuse for not looking for them—I make that absolutely clear—but the current mechanism for dealing with these issues may not be adequate because of that point.

We recognise, too, a risk that systematic research generates a lot of inconclusive evidence that can add uncertainty about what rights exist—hence nothing has been added to the map, although there are half a dozen claims in one council ready to go forward as well as another hundred or more that could possibly go forward. Because of these potential difficulties, Natural England undertook a review of the work and concluded that it should withdraw from active research and instead try to develop consensus among stakeholders about the best way forward, through an independently chaired stakeholder working group. This is in the process of being set up. It will consist of 15 members—five from local authorities, five from user groups and five from land managers, with an independent chair. It will be tasked to report at some time in 2009, although I do not have a precise date on that. It will not be a rush job; it will probably be towards the latter part of next year.

In the light of this, the Government have given an undertaking that the implementation of the relevant Sections 53 to 56 of the CROW Act, which are the provisions that would extinguish any historic rights of way not shown on the definitive map and statement by 2026, will not be pursued at least until the stakeholder group proposed by Natural England has reported its conclusions. So there is no prospect of any jumping the gun. We are not at this stage committing to any further legislative reform, which includes any changes to Sections 53 to 56 of the Act. We value the rights of way network and recognise the need to ensure that it is protected and enhanced.

I have a small tag here on my speaking note which I call tick-tock. The natural question that would be asked about this by those outside is whether we are genuine about the stakeholder group. We will not move on the issue until we get the results from the stakeholder group. I understand that the three parties that will come together in the stakeholder group are very happy with the process and the way forward. There is a degree of consensus that, if the present system does not work, we will find another way to do it. But the clock is ticking on the 25-year limit, as was implied in the remarks of the noble Lord, Lord Greaves. It is now less than 20 years away and, as the legislation stands, the cut-off date prescribed by Section 56 is 1 January 2026. That can be extended by regulations, but only for the five-year limit up to 1 January 2031. Therefore, unless the provisions are amended by further primary legislation, the clock will continue to tick. However, the provisions that introduce the cut-off date are yet to be implemented and, as I have said, we have undertaken not to pursue implementation until there is a proposed stakeholder group.

There is a degree of uncertainty, but we still have a long way to go. The fact is that the stakeholder group will have the parties who are central to making these decisions as members. I know the groups, but not the individuals, and they know that the clock is ticking. In a way, that may give them an incentive to get cracking. If the cut-off has to be extended, an order that runs for five years would make up for the delay that we have just suffered in the last period, which is a bit more than five years. However, primary legislation would be required to knock that out.

As the years tick by, this issue will have to be addressed and the next stopping-off point to get it checked over is when the stakeholder group reports. It will be fully transparent and disclosed—there is no reason for it not to be—and then properly consulted. As I have said, there would have to be a full consultation anyway before the Government moved on Sections 53 to 56, even if they were minded to implement or use regulations.

This thing is not going away. The chances are—and I am thinking aloud now, because of the issue of legislation—that, if the stakeholder group reports, let us say, at some time next year with a decision on how to proceed on consulting on Sections 53 to 56, within a couple of years we are going to get a solution to the way forward. That may or may not require primary legislation, but we need a certain date in the first place for land managers and landholders—and developers, in that case—to get some certainty. A bit of uncertainty is being introduced at present, so it is important to clear that up. I hope that it can be done with the good will borne out by the fact that there is a good consensus on the stakeholder group.

This is a sad state of affairs, in a way, as it has not worked out as intended. Yet as I have said elsewhere—and as we were once informed by the management group at Templeton College before we became Ministers—it is never too late to avoid making a bad decision. In this case, the decision to start the research was there but enough evidence came out of it to say, “Hang on a minute, this is not the way forward”. We have to find another way.

My Lords, before the Minister sits down, could he comment on the Section 54 exceptions and whether the Government might make regulations under them to deal with urban ones?

No, my Lords, because I have spoken about Sections 53 to 56, which are taken as a group. We have no intention on moving on any of them until after having that stakeholder group.

My Lords, I beg to move that the House do now adjourn during pleasure until eighteen minutes past nine.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.57 to 9.18 pm.]