The government announcement this week to re-implement the cut-off date for recording historic rights of way on the Definitive Map in England represents a major win for the CLA following many months of lobbying work.
The Countryside and Rights of Way Act 2000 (CROW) contained provisions for a cut-off date of 1 January 2026 for recording historic (pre-1949) rights of way on definitive maps. This set out how all updates to the map should be completed by this date to give certainty to landowners who may have lost rights of way on their land. After this date, any unrecorded, historic rights of way would be gone. However, these provisions would not come into force until allowed by a further change to the act.
The cut-off date agreed upon in CROW was a red line for groups that protect the rights of farmers and rural businesses to give clarity to their members.
However, in February 2022, it was announced that the Defra minister had decided to repeal the cut-off date provisions. This announcement was a huge frustration to CLA members and left many in limbo with the potential of a claim for a historic right of way hanging over every landowner indefinitely.
The CLA lobbied hard to overturn this decision. Letters were sent to ministers asking that they reconsider the decision. The CLA wrote to Lord Benyon, who was the minister at the time responsible for rights of way, and Trudy Harrison, Minister for Natural Environment and Land Use, raising concerns about the impact the repeal of the cut-off date would have on landowners. As a compromise position between user groups and land managers, the CLA suggested that a revised date of 2031 should be implemented.
We are grateful that Defra Secretary of State Dr Thérèse Coffey has seen fit to take forward our recommendations. It demonstrates recognition of the impact that increased uncertainty over unrecorded historic rights of way would continue to have on farming businesses at a time when they are already dealing with multiple challenges. These include changes to the farm subsidy regime, rising input costs and volatile commodity prices.
Dr Coffey has opted to use existing powers within CROW to implement a five-year extension to the cut-off date until 1 January 2031 to allow time for reforms to take effect. This recognises that some aspects of rights of way reform have experienced delays due to Covid.
Local authorities are under significant pressure as a result of Definitive Map Modification Order applications based on historic evidence.
Research by the CLA shows that across 33 surveying authorities, an average of 119 claims are in the queue to be reviewed for each, with most confirming they are only clearing between two and seven claims per annum.
To take particular examples, Somerset has an expected 29-year backlog before a Definitive Map Modification Order is processed, Shropshire 30 years and Worcestershire an incredible 67 years. These claims take a significant amount of staff time and authority money at a time when local authorities are more financially stretched than ever before. The implementation of the cut-off date will also, therefore, be beneficial to local authorities who will now have a backstop date from which no more applications will be added to the pile of cases to be considered. There is hope that rights of way teams will then be able to focus on making meaningful improvements to the rights of way network.
The confirmation of the cut-off date will also allow the access debate to progress from the process of claim and counterclaim to a situation where we can work together with key stakeholders and government departments to focus on improving rights of way to guarantee that we have a network that is truly fit for the future.
We will continue to work with the stakeholder working group to agree on additional measures to manage the cut-off date transition and seek to finalise and work on the necessary changes to the act to bring in the reforms as swiftly as possible.
This change of policy is a testament to the dedicated hard work of CLA staff on behalf of our members and shows how effective our lobbying efforts can be in securing real benefits for all those who own or manage a rural business.