The Right Way Forward: The CLA’s common sense approach to access in the countryside 2012
The rights of way system defies common sense. Highway authorities spend tens of thousands of pounds investigating claims of alleged historic rights of way while struggling for funds to create routes which will cater for today's multiple needs – walkers, disabled users, horse riders, cyclists. It is ironic that authorities were required to create Rights of Way Improvement Plans (ROWIPs), yet are often unable to implement even simple measures because of the bureaucratic constraints of the legal system.
It defies all sense of propriety and logic when substantial resources are spent trying to open up paths unused for decades or centuries, if at all, regardless of the impact of such moves. It is ridiculous that authorities are required to go through the same drawn-out bureaucratic process to correct small errors on the definitive map as they would have to follow to make significant alterations, such as a path closure.
The CLA believes it is unjust that property owners have no right to request paths are diverted out of their gardens or away from busy, and potentially dangerous, farmyards.
It is unfair – to users and landowners – that no clear consistent width is applied to public rights of way. It is extraordinary that there is no consistency for livestock owners who currently have the right to place a gate or stile on a footpath or bridleway which crosses a field, but not if a byway does so.
An injection of common sense is required.
There must also be a greater sense of fairness within the system. Thus it cannot be right that livestock owners, with little place else to keep their livestock other than their fields, can be held liable for their stock when they have not been at fault.
Similarly, it is not clear why landowners have a secure legal process which allows them to offer informal access to the public along paths, but have no equivalent legal process to allow them to offer informal access over an area of land.
Issues of efficiency also need to be addressed. The CLA believes everyone has a vested interest in ensuring the system is as efficient as possible.
Questions of ideology are irrelevant. At present it can take many years to process a rights of way claim, resulting in enormous cost and ongoing uncertainty for all.
Even once fought and won, cases can be reopened and examined all over again – hardly a sensible use of scarce resources.
The test to be applied when a right of way is alleged to exist varies at different stages of the process. This lack of consistency means authorities are obliged to waste scarce time and resources on investigating routes that meet one test but not the other and, consequently, will never become public rights of way.
Spurious claims can be prevented by provision for the award of costs, as is the case in other areas of law, while the administrative burden can be reduced by removing rights of appeal at interim stages of the process, which slows down the system and adds nothing to the final decision.
The process can also be made more efficient by ensuring that claims for rights of way based on use are brought in a timely manner. Attempting to establish a use that took place 50 or more years ago becomes a time-consuming and near-impossible task. Where a route is being used and that use is suddenly stopped, it seems right that this should be the appropriate moment to bring forward a claim, while evidence is fresh.
Improving rights of way is not just about administrative process. It is also about the experience on the ground – the actual management of public access. For too many people, the rules are so complex that compliance becomes impossible. Simplifying the rules and applying common sense, while at the same time ensuring that paths are well signed, maintained and unobstructed, are basic principles that should apply to all paths.
Access is about more than rights of way: although local authorities have seen their budgets cut, the grand plan for an English coastal path, complete with "spreading room", remains a key objective of Natural England. It is regrettable that the Government did not use the approach taken by the Welsh Government: this would have enabled the rapid delivery of a coastal path (completion is expected in Wales during 2012, whereas in England the 2020 timescale is already acknowledged as unachievable), while at the same time ensuring that landowners' interests were taken properly into account.
It is welcome, however, to see the governments in England and Wales supporting voluntary agreements to govern access to inland waters. Care must be taken in all formal access provision not to overlook the myriad opportunities for access that already exist or could be provided. The value of permissive access is frequently dismissed but, as was illustrated by the outcry from users at the loss of permissive access from environmental schemes, such access can be highly valued.
The ideological obsession with absolutes which has shaped access and public rights of way provision is unresponsive to changes in use and demand, and fails to meet new needs and desires. A change in approach is required to produce an adaptable, versatile system, which makes sense to the ordinary person.
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Sarah Slade MRICS
A chartered surveyor with responsibility for CLA policy on public rights of way and access issues. Provides advice to members on issues arising from public access to the countryside.
T: 020 7460 7936
T: 020 7460 7934
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