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House of Lords Hansard
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Historic Rights of Way
02 April 2019
Volume 797

Question for Short Debate

Asked by

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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.

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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.

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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.

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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 agreed 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?

In view of the evidence of the failure to achieve the intentions of CRoW and the provision in Section 56 to allow an extension to 2031, will the Government now make the necessary regulations for the extension? Do they understand that there are thousands of volunteers who are struggling thanks to the time and costs involved, the complexity of the system and the inadequate and seriously reducing resources of local highways authorities to cope? If so, what further assistance will they provide for that process?

I have an additional question: what resources do the Government think are needed to achieve the CRoW aims by 2036 or 2031, and how will they provide them? In view of everything that has happened and of their own failure, will the Government now stand by the historic position of “once a highway, always a highway”, and seek to repeal Section 53 and related sections of the CRoW Act?

I have reached my cut-off date. I look forward to the answers to my questions.

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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.

As a footpath walker, I do not want to walk through somebody’s farmyard. It is bad for disease and bad for the farm. There can be hazards. If I am taking my grandchildren on a walk, I certainly do not want a tractor coming round the corner. We must be able to divert footpaths quicker. There is no doubt that some landowners have been harassed about this in the past.

Getting footpaths diverted is part of what the Government want to do under the new proposals. I ask my noble friend: when will these new proposals come in? When will the Deregulation Act 2015 be fully implemented? The whole system needs to be sped up; the noble Lord, Lord Greaves, is absolutely right. I want to ask another question. Will my noble friend confirm that she will not accept bicycles being used on footpaths? There is a push by Cycling UK to open all footpaths to bicycles. Footpaths are footpaths; they are sometimes used by disabled or slightly disabled people such as me, and I do not want bicyclists running me over on a footpath. It is bad enough on a pavement. I hope she will be very firm on that.

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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 want to say something on behalf of the horses before I finish; they cannot speak for themselves. They are the ones who have lost their access. I have heard from the British Horse Society that some 3,000 horses were injured in accidents on roads in the last few years. Of those horses, 340 died, with 40 riders or handlers also killed. These were traffic accidents, and I am sure that many of them could have been avoided if the bridle paths were a joined-up network, which once upon a time they were.

I conclude with a request to remove the deadline—or a question to the Government on why there should be a deadline. I fail to understand the wisdom of that when the information will continue to surface as the years go by, to the great benefit of the public.

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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.

I have a final point to make on local authority budgets. The evidence base for historic rights of way is often found within documents such as tithe maps, enclosure awards and so on, many of which are held in local archives. Local archives themselves are coming under enormous pressure as council budgets are squeezed. I am a board member of the National Archives and we have oversight of all this. In some councils, the situation is very serious. One contingency that many are looking at is a significant reduction in the opening hours of local archives, which would make it even more difficult for local voluntary groups to gather the evidence that they need.

Under the existing legislation, the Secretary of State can extend the cut-off date by five years, and that leeway was put into statute with a purpose. I believe that, with the points that have been made, and to which I have added—the situation in local government, the absence of the secondary legislation and the collapse of the Discovering Lost Ways project—a very good case has been made for delay and, preferably, an entire review.

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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.

Secondly, we can then move on to better understand what rights of way look like across the country and ensure that they are properly preserved and maintained.

Thirdly, the cut-off process allows for reform to the administrative process of rights of way claims. Where currently decisions can take years, if not decades, the new system should take a matter of only weeks.

Fourthly, this provides much-needed clarity to property owners and protects them from the appalling situation where a claim is suddenly made for an historic unused right of way to be made on their land.

Finally, the new system after the cut-off date will also take into account present-day uses. The current arcane system will not easily allow footpaths to be diverted to avoid such unattractive and dangerous features as slurry lagoons. Walkers and farmers will be the winners from a more flexible system. We have all heard of the unintended horror cases, such as a livestock farmer in East Anglia who has owned his farm for more than 50 years and carefully maintains existing rights of way on his land, who suddenly faces the prospect of a byway in the middle of his farm buildings. Within living memory, there has been no public path on this route and no public use of it. This claim would ruin his business, as there can be no gates or other barriers on a byway.

Let us bring this whole contentious issue to an end in 2026 by creating certainty and properly maintained public paths in the interests of both the general public and property owners. Can the Minister give us that assurance?

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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.

In the few minutes I have, I want to look at the position from the other end of the telescope—in fact, from the point of view of the noble Lord, Lord Carrington: the position of the owner of the land which the footpath or bridleway will cross. I undertook for the Government an investigation into what was holding up the development and growth of small charities. I produced a report called Unshackling Good Neighbours. One of the most important issues stopping the growth of charitable activity was the lack of, improper use of, or inability to get, insurance. There is an application here when we come to look at the opening up of bridleways and footpaths. In that report, we had examples of people who had had a fete in their garden, at which somebody fell over a guy rope and they got sued.

When farmers open up bridleways, it starts with a few horses and a few walkers; then you get more walkers and a few cyclists; then you get a lot of cyclists and then motor-bicyclists; and then, finally, you get off-the-road vehicles. I therefore much associate myself with the question put by my noble friend Lord Caithness about ensuring that footpaths are used appropriately. I look forward to hearing what my noble friend the Minister has to say about that. What happens when you get that mixed use of traffic is that a horse shies and runs into a group of walkers, and then the landowner suddenly finds himself in the firing line.

There are issues here of usage and priority, and of consideration and courtesy. It may be that somewhere along the way we should think about a new code of behaviour to deal with and reconcile these interests. Many of your Lordships have experienced the satisfaction, thrill or sense of achievement when, having sweated up some hill to reach the top, one can see the beauty of Britain laid out before one. We should not allow these opportunities to be denied to our fellow citizens.

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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 of 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.

My insights do not reveal an easy way forward. Genuinely held viewpoints are too often based on narrow, inflexible principles that stand in the way of compromise, often to the point where conceding anything becomes an existential threat to its proponents. This drains the lifeblood from reasoned dialogue on the future and stagnates progress. The huge costs of implementing the CROW Act 2000 and the disproportionately small results on the ground are another case in point. Yet there is space enough in this realm to satisfy reasonable aspirations if we could bypass dirigiste principles and obduracy, with their huge costs and delays, and replace the concept of rights with one of consensual facility.

The object must surely be to protect and enhance the best of our rights-of-way system, rationalise and improve coherence, avoid conflicts, and allow routes to be amended or created, with redundant ones being closed. Even after the cut-off, the lodged claims to date will still need to be dealt with, and it is arguable that the definitive modification arrangements are no longer fit for purpose. Failing movement on the Deregulation Act 2015 proposals, might it not be better if it was all taken out of its legalistic arena and put in the sole control of some other non-partisan statutory body with a remit based on need, network coherence, fair balance, conflict reduction and cost benefit? Much of the private and taxpayers’ money spent on historical research and public inquiries might then be directed to infrastructure improvements, eliminating the more severe landowner risks and doing a power of good for the general public, tourism and the economy.

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My Lords, I thank my noble friend Lord Greaves for securing this important debate and for setting out the case so well. Rights of way are very dear to the public’s heart, if not necessarily to the landowners. I declare an interest in that there is a footpath running along the edge of our garden and within our boundary. Currently, it is used by children playing hide-and-seek, and by ramblers once a year.

Towards the end of my time on Somerset County Council, I was a member of the environment committee, which met once a month. Not every meeting contained an application to put a right of way on the definitive map. If there was one, often a site visit would have taken place earlier in the month. We also had written evidence, in addition to the views we may have gleaned when we were out on site. All of this was six to 12 years ago, when the rights-of-way department was small and the offices were overworked. At that time, there was a five-year backlog on rights-of-way applications. As one of those contacting me eloquently said: “By the time the application comes forward, many of those who would have given evidence will have died”.

Given the Government’s drive to make us all healthier and most of the public’s wish to embrace this ethos, it would seem extremely short-sighted not to put some investment into ensuring that rights of way are fully investigated and not lost forever. Relying on volunteers is unsustainable, as the noble Lord, Lord Thurlow, and my noble friend Lady Scott of Needham Market have indicated. I have received interesting briefs from a range of organisations, all saying that the deadline of 2026 will cause a huge loss of potential access for the public to the countryside. Many give examples of how difficult it is to provide the necessary proof that a bridleway or footpath ever existed over a disputed route, as has been demonstrated by the noble Lord, Lord Thurlow.

If the 2026 deadline is adhered to, I cannot see how the promises in the Government’s 25-year environment plan to create new green infrastructure will be delivered. Would the Minister care to comment on this? As my noble friend Lord Greaves said, in 2010, the Countryside Agency estimated that there were 16,000 kilometres of unrecorded rights of way in England, with 1,500 in Wales, and a potential 36,000 kilometres of historic routes that existed and needed investigating. The lack of local authority funding impacts on route maintenance and definitive map work. This means that the grass routes which the horse industry uses is severely threatened. This is an activity which attracts a high proportion of women, girls, children, disabled people and older people, and because of its rural nature, it is a big contributor to the rural economy.

If the cut-off date of 2026 remains, it should be only with the agreement that all existing recorded rural footpaths be made equally accessible to the non-motorised user groups—equestrians, cyclists and walkers—and I cannot agree with the noble Earl, Lord Caithness, on this. Many children wish to ride their bicycles to school, but the roads are not safe to do so. If byways and bridleways could be made available over green lanes, they could enjoy exercise safely. It is not necessary to design rights of way as though they were super-highways costing thousands of pounds.

This has been a fascinating debate. It is obvious from everything that has been said that there are differing opinions about whether there should be a cut-off date or not. As my noble friend Lord Greaves said, in 2007, the Discovering Lost Ways project recorded only four lost ways in one county and had to be abandoned at a cost of £8 million; what a chronic waste of money.

There are areas of the country such as Cornwall with a vast number of paths to investigate. Walkers spend more than £6 billion a year supporting 24,000 full-time jobs, while the economic value of the equestrian sector stands at £4.3 billion. The Government would be unwise to ignore this economic impact. Surely the Minister will accept that it would be better to abandon the 2026 deadline and think again.

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My Lords, I am very grateful to the noble Lord, Lord Greaves, for tabling this debate and for reminding us of this looming deadline. As other noble Lords have done, I should declare an interest as the president of Friends of the South Downs, which does fantastic work campaigning to protect and preserve the landscape of the South Downs National Park and providing a huge range of guided walks on its footpaths and bridleways.

As the noble Lord pointed out, the Countryside and Rights of Way Act 2000 introduced the cut-off date of 2026 to register historic rights of way. At the time it was a ground-breaking piece of legislation which created the right to roam on common land and opened up access to 3 million acres of mountains and moorland. I am very proud of my party’s record in championing the right to roam. It built on the foundations of Labour’s National Parks and Access to the Countryside Act 1949, which took the bold step of creating 10 national parks with extended public access to the countryside. This month, we will be participating in a commemoration on Kinder Scout of the mass trespass that led to the legislation being passed 70 years ago. We have made a great deal of progress and have much to celebrate.

However, as my noble friend Lady Taylor of Bolton made clear, when we included the cut-off clause in the 2000 Act, I do not think that we anticipated the consequences today. As noble Lords have said, we are now in danger of hitting the 2026 deadline with the job half done. First, we should recognise that walkers are already faced with huge challenges in exercising their rights. It is estimated that 9% of the existing network is impassable, blocked off or unstable. Rather than extending their rights over historic footpaths, for many walkers there is a battle to retain what they already have. Secondly, the task of identifying the missing historic routes has proved to be much more complicated than was first imagined. Records are incomplete or contradictory and subject to local folklore which is often difficult to prove. They have also proved on occasion to be hugely controversial, with planning applications, disputes and legal challenges all too often causing delay.

Thirdly, for historic rights of way to be rescued and re-established, local authorities are required to step up to the mark by investigating claims and dealing with objections before a footpath can be officially recognised. As the deadline grows near and receives more publicity, the number of claims has been increasing at the very time when local authority resources are being cut to the bone. Moreover, if it is difficult and costly for local authorities, it is even more problematic for individuals wishing to make a claim. You have to gather evidence for the continued use of a path over 20 years and find sufficient witnesses to verify its use. The challenge for individuals and groups is enormous.

In these circumstances, it seems only right that we should revisit the 2026 deadline. As noble Lords have said, historic rights of way come to light for many different reasons and at many different times as land use changes and more historic records are unearthed. You cannot put a time limit on that. It would be a real setback to our heritage if Defra does not take this opportunity to revisit the deadline. I hope that the Minister will confirm that this is indeed her intention.

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My Lords, our unique rights of way network is precious. The benefits go far beyond the simple necessity of getting from A to B. Access to the natural environment improves our mental and physical health and provides opportunities for recreation and tourism, as noted by my very energetic noble friend Lord Hodgson. It can even combat loneliness and bind communities together.

My noble friend Lord Caithness said that he feels that there are 94,000 miles of recorded rights of way. My notes say that in England there are around 117,000 miles, so he is right that we are not short of rights of way. They are part of our heritage and must be safeguarded so that future generations can enjoy them too. In order for them to persist, we must have a record of rights of way as they exist now. The rights of way reform project is a key part of providing certainty on where rights of way exist and of providing a streamlined and better process for recording rights of way.

The legal record of rights of way is currently incomplete. This causes uncertainty for users and for landowners on whose land the right sits. Furthermore, the process for amending the legal record is complex. The Countryside and Rights of Way Act 2000 made provision to complete the legal record of rights of way by setting a cut-off date in 2026—seven years from now. At that date, historic rights of way, meaning those which existed before 1949, will be extinguished, but only if they are not recorded on the definitive maps. A Natural England project known as “Discovering Lost Ways” was set up in 2001 to record historic routes before this cut-off date.

In light of the complexities of recording rights of way, a review of the “Discovering Lost Ways” project in 2008 concluded that a fresh look at the system was needed to enable the definitive maps to be updated before the cut-off date. A stakeholder working group was convened, formed of a balance of local authorities, user groups, landowners, the NFU, the British Horse Society, the LGA and many others. In its 2012 report Stepping Forward the group put forward a number of proposals on which Defra consulted. Defra officials then began to work with the group on a package of secondary legislation to implement its proposals, taking into account both the broad consensus and the range of views held by different people within the group. The group works well and in a spirit of compromise. That is so necessary, as noted by the noble Lord, Lord Carrington.

The proposed legislation will bring into effect provisions from the Countryside and Rights of Way Act 2000 and the Deregulation Act 2015. It will improve and streamline the process of recording rights of way in order to put as many as possible on to the definitive map, and then it will finalise the definitive maps at the cut-off date. In addition, it will provide a process through which landowners can apply for rights of way on their land to be diverted or extinguished. As noted by my noble friend Lord Caithness, sometimes this is essential where, for example, walking across a farmyard is dangerous or it could be bad for the livestock. This will be considered on a case-by-case basis and guidance will encourage local authorities to take action where a path crosses a dangerous place, for example.

My noble friend Lord Caithness asked about bicycles on footpaths. The reforms will not affect the use of registered footpaths where bicycles are not permitted. Bicycles are permitted on bridleways. The reforms will enable existing bridleways to be recorded, so protecting them and providing certainty about where they exist. Access provisions as part of environmental land management will consider all types of users, including cyclists.

As noble Lords will be aware, Defra has been required temporarily to divert resources to planning for our exit from the EU. Rights of way reform has been impacted, and work has been on a temporary hold since October 2018. However, the stakeholder working group is aware of this, believes it is necessary and understands the reason for it. We are not yet in a position to say just how soon work will resume, but I can assure noble Lords that it will be an early priority for the department.

I turn briefly to local authorities, which play an important role in this complex issue. They are responsible for recording rights of way and they do not routinely report to Defra on their progress. However, as the noble Lord, Lord Greaves, noted, I understand that many local authorities currently have a backlog of cases. On resumption of the project, officials will work with local authorities to assess the size of the backlog and consider how progress can be made. I reassure the noble Lord, Lord Thurlow, and the noble Baroness, Lady Scott of Needham Market, that where applications are outstanding, the intention is that the right of way will not be extinguished.

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I did not suggest for a moment that it would be: it is very clear that the backlog is the backlog. The point I was making, which perhaps I did not make sufficiently clear, is just that the backlog will be so big that the legal certainty that landowners want simply will not exist, because it will take local authorities decades to get through the backlog.

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I take the comment of the noble Baroness, but I will come on to what will happen to the process when the reforms come through.

The cost and complexity was noted by many noble Lords. We agree that the process is too costly and complex: the rights of way reform project is intended to address these issues and implement a more streamlined process to record rights of way before the cut-off date. The issue at the heart of today’s debate is whether the cut-off date will be delayed—this was mentioned by many noble Lords—and whether the Government will consider delaying the cut-off date from 2026. I appreciate that delaying the cut-off date until 2031 at the latest is a possibility, and some organisations wish to see that. Indeed, we must and we should weigh that against those who are craving certainty, which would be provided by finalising definitive maps. However, on resumption of the project officials will take the issue of the cut-off date forward with the stakeholder working group.

The noble Lord, Lord Greaves, and the noble Baroness, Lady Jones, asked whether we will go further than reviewing the cut-off date. I cannot commit to that. Certainly, we will go back and look at the cut-off date with the stakeholder working group, but we will not repeal the relevant sections of the Countryside and Rights of Way Act. There are arguments on both sides of this issue and at the moment we feel that there are significant numbers of stakeholders, as well as users, who need certainty as to what they are entitled to do and what they are not.

The noble Baroness, Lady Scott, asked whether there will be a review of the reforms after implementation. I am pleased to be able to tell her that there will: officials will consider the best way to monitor the impact of the reforms once they have been implemented. Like many noble Lords, I have seen briefings from the Ramblers, the British Horse Society and the Open Spaces Society, and I am grateful for them. They specifically refer to the work done by the voluntary sector to uncover historic rights of way and to a commitment by a previous Government to support this work. We absolutely recognise that the voluntary sector does very valuable work—this is probably citizenship at its best. They research and record rights of way and we believe that, based on the recommendations of the stakeholder working group, the reforms we propose will assist this work by simplifying the process involved.

Some noble Lords noted the availability of local authority resources, but the Government already provide funding for the revenue support grant to LAs, in which is included funding for rights of way improvement plans. At this time there will be no additional funding available; however, it is important to remember that the system must be as streamlined and efficient as possible, and we believe that the rights of way reforms we are proposing, which have been worked up with the stakeholder working group, will go some way to improve and speed up the process of registering rights of way.

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My Lords, before my noble friend comes to her peroration, the availability of insurance reassures all parties as to their position, particularly landowners. Will she undertake to make sure that the stakeholder group takes that into consideration when it meets again?

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I thank my noble friend for that intervention. I will certainly feed that back in to the stakeholder group, because I do not have any further information for him on that.

Before I reach the final bit, I turn to the Agriculture Bill. It is worth touching on this because the role that some of its provisions could play in the support of access to the countryside is very important. The Bill will make provision for public funding for access as part of the environmental land management schemes. As noble Lords will know, the Bill marks a significant shift in the Government’s support for farmers. It will make sure that they are rewarded properly for the work they do to enhance the environment around us and indeed for people’s access to it. Previously, subsidies have been paid based on the size of an individual’s landholding, not on the contribution that farmers make to society. The scheme will be focused on ensuring that public money is being allocated only where public goods are being delivered. The noble Earl, Lord Lytton, mentioned bad signage, lack of continuity and no consideration of the future needs of the network. All these issues will be able to be wrapped up in projects that will fall under the ELM schemes when they come into effect, once noble Lords have had the chance to consider the Agriculture Bill.

Our aim is for more people to engage with and spend time in the natural environment, and the Government are absolutely committed to enabling that. I reiterate that rights of way are a valuable part of our heritage and an important part of achieving this aim. Some noble Lords may have raised some issues to which I have not been able to respond. I will certainly write with further information where I can and ensure that all noble Lords are copied in. Finally, I thank the noble Lord, Lord Greaves, for securing this debate today, which has been fascinating, if short. I also thank all noble Lords who took part.