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Respond to the Government's consultation English rights-of-way legislation

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The Department for the Environment, Food and Rural Affairs' consultation on the processes for recording, diverting and extinguishing public rights of way (England) is a chance to suggest ways to make it easier for cyclists to engage with the system and help open more of the countryside for cycling.
This footpath is a metalled road, but the bridleway is a muddy trail!
This footpath is a metalled road, but the bridleway is a muddy trail!

Why do cyclists need to respond to this consultation?

At the moment, the system for recording, diverting and extinguishing public rights of way in England is extremely bureaucratic, but the Department for the Environment, Food and Rural Affairs' (Defra) consultation on the processes involved is a good opportunity to press for the changes that will help enhance the experience of cycling in the countryside.

Take action!

This is a public consultation, so if you would like to add your support to CTC's recommendations for improving the system in the interests of cycling, please send in your own response to Defra along the lines we suggest below.

Details of the consultation, response forms and Defra's contact details are all on their website. The deadline is 6/08/2012.

We suggest that you make any cycling specific comments as part of a covering email to Defra with their ‘consultation response form’  (if used) attached.

Please send us an email if you have any queries.

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CTC View

Introduction

The 2000 Countryside & Rights of Way Act included a proposal to stop any changes to the definitive map of rights of way after 2026, and Natural England was mandated to provide data on all unrecorded rights in England to ensure that no unrecorded paths would be lost as a result of this closure. Unfortunately, this process failed.

Natural England convened a Stakeholder Working Group to recommend ways of resolving this problem, and their report Stepping Forward was published in March 2010. This suggested how the highly bureaucratic process of adding, deleting or changing rights of way could be improved.

Defra are now consulting on these recommendations with a list of 29 questions, plus a further 33 questions over the suggested impact assessments. Many of these questions require a good working knowledge of the current process, and others appear to be aimed at rights of way professionals.

However, the proposal in ‘Stepping Forward’ of most interest to off-road cyclists was Proposal 31, outlined in more detail below. This proposal suggests a review to see how cyclists and other non-motorised users can be better catered for, but has not been included in the consultation. Nevertheless, we do need to gather support for this idea, so we urge as many people as possible to comment on it.

The consultation consists of three sections. CTC broadly supports the intentions underlining all of them:

 

Section 1. Improvements to the Definitive Map Modification Order process

This process assesses historic and user evidence to correct the definitive map, and facilitate the addition of unrecorded rights of way.

  • Qs 1 - 16

Suggested response: Agree to the proposals outlined in questions 1 - 9 + 12 - they will help smooth the process.

Note, however, that even if these proposals are implemented, the process will continue to be slow and costly, with unacceptable delays continuing to be a problem.

  • Q 3 refers to routes that need protection from any map closure

Suggested response: Many paths start/finish on ‘roads’ which were assumed to be public when the definitive map was drawn up in the 1950s, but are not actually recorded as public on any highway authority maps or documents. If these ‘roads’ are not now recorded on the definitive map or list of streets, the paths that start/finish on them will become cul-de-sacs, not through routes. 

  • Q 8 refers to the risk that a local authority may use any streamlined process to eliminate reasonable applications as a means of avoiding its statutory duties

Suggested response: On balance, most local authorities will not abuse any new processes, but that some habitually poorly performing authorities may abuse this process. There may be a role for Local Access Forums to oversee this process.

  • Q 14 asks about agreeing and using diversions before orders are confirmed

Suggested response: Agree with the change in process.

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Section 2. Changes to the Public Path Order (PPO) process

PPOs are largely used for path diversions.

  • Qs 17, 18, 21 and 23

Suggested response: these changes are acceptable – they will largely benefit the landowner.

  • Qs 19 & 20 ask about the effects on best practice by local authorities

Suggested response: diligent local authorities will use any new systems effectively, but poorly performing local authorities are less likely to "assert and protect" rights of way (in accordance with their legal status) to the benefit of the user.

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Section 3. The implications of the 2010 Penfold Report - this recommended how rights of way modifications could be assimilated into the planning process

  • Q 26-29

Suggested response: agree with the intentions to better co-ordinate planning processes with any order to change rights of way; no comment to make on the potential outcomes of any changes.

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Impact assessments (3)

  • Q i to Q xxxiii - these questions appear to be pointed at rights of way professionals.

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Cycling on the rights of way network - Proposal 31

In Section 12 (p16) of the consultation, Defra state:

"Defra proposes to collaborate with all relevant stakeholders to look at the best way of providing 'offroad routes' that benefit all types of non-motorised traffic, including both cyclists and equestrians, and that also improve the cohesiveness of the network."

This is in response to Proposal 31 in the Natural England Stakeholder Working Group report Stepping Forward, which stated:

"A review should be carried out of how routes for cyclists could best fit in with the highways network to form an integrated whole, and provide for usage by all non-motorised users".

The full text of the comments are as follows – with para 7.9 being particularly relevant:

"ROUTES FOR CYCLISTS

7.6 A particular example of the difficulties that arise from the separation between recording legal status and managing the highways infrastructure is that of routes for cyclists.

7.7 Cycling is very much a part of the sustainability agenda, and this sector has seen hugely successful improvement schemes in recent years. You might expect routes for cyclists to be recorded on the definitive map and statement – a record of non-motorised rights of way – but they are not. Currently where a footpath is converted into a cycle track, it gets removed from the definitive map and statement, and that alone is sufficient to draw objections. It would be strange to record a cycle track as a bridleway – meaning that cyclists would need to give way to horse riders – or as a restricted byway. Equally it is a cause of resentment that horse-riders have no right to use cycle routes in the same way that cyclists may use bridleways. In principle, the Group feels that this separation is looking outdated: cycle routes should be recordable on the definitive map and statement, and where appropriate should be available for use by all non-motorised users. This idea and the whole issue of how cycle tracks are created require further thought and development, so that Government can consult on it in due course.

"SIMPLIFYING LEGAL STATUS

7.8 A related topic is whether the current classification of public highways is the most appropriate for modern needs. Currently the legal status may be shown on the definitive map and statement in any of these ways:
a. footpath;
b. bridleway;
c. restricted byway; or
d. byway open to all traffic.

7.9 On the face of it, a single type of legal status for horse-riders, cyclists and carriage drivers would be simpler. All are forms of non‐motorised transportation. There would be significant practical difficulties in giving effect to this principle, and the subject is not within the core scope of this Group, but the issue should be given further consideration by Government."

Suggest response: CTC strongly supports the concept of simplifying legal status, and suggests that any response to Defra includes a recommendation that this option is positively examined with the aim of opening the whole of the rights of way network to cyclists unless there is a good reason not to. There should be a reasonable process for identifying these limited exceptions to the general rule, with clear criteria and an accountable process for doing so.

CTC is happy to support opening up cycle routes in certain circumstances to horse-riders in principle, provided the path in question is suitably surfaced, of sufficient width and presents no height restrictions (e.g. tunnels too low for horse-riders) to ensure that sharing is conflict and hazard-free.
 

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