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As part of the its Red Tape Challenge to remove unnecessary bureaucracy and regulatory burdens the Government laid the Deregulation Bill before Parliament on 24 January.
The Bill proposes a number of amendments that will affect the recording of public rights of way.
When the Bill is passed, these amendments will come into force on a day to be appointed by a commencement order but will apply in England only.
The proposed changes to the provisions relating to claims for the modification of the definitive map, to include rights either acquired by 20 years use as of right or which documentary evidence shows to exist, will be of particular interest to landowners.
Under the new procedure proposed in the Bill, within three months of receiving a modification application, the highway authority must decide if there is a reasonable basis for the applicant's belief that the definitive map should be modified, having regard to any guidance issued by the Secretary of State.
If the authority decides that there is no reasonable basis for the applicant's belief, it must inform the applicant of this decision with the authority's reasons.
If the authority decides that there is a reasonable basis for the applicant's belief, the authority must inform the applicant and serve notice on every affected landowner and occupier, stating that an application has been made and the authority is investigating further.
This new preliminary assessment procedure should not only reduce the burden on authorities of investigating and determining poorly founded or spurious applications but will also avoid involving landowners and causing them unnecessary worry and costs where an application is going nowhere.
Under current legislation the authority must modify its definitive map and statement on the discovery of evidence showing that a right of way is “reasonably alleged to subsist”.
The provisions in the Bill will amend that test so that a local authority need only make a modification order where it is satisfied “on a balance of probabilities” that a public right of way subsists.
In effect, the threshold at which an authority must make an order is raised as there will be no need to make an order where an application contains reasonable allegations, but does not meet the civil standard of proof.
Where the authority has not determined an application for modification within 12 months of receipt, the applicant and any affected landowner or occupier will have a right to apply to the Magistrates' court. This right is not available to an applicant whose application failed the preliminary assessment.
This change is intended to speed up the processing of applications and reduce the period of uncertainty. The right of appeal to the Magistrates will replace the existing right of appeal to the Secretary of State.
Although applicants have a right of appeal if the authority decides not to make a modification order, it would no longer be an absolute requirement that the authority must submit the appeal to the Secretary of State.
The authority can decide not to do so if it considers that nothing in the grounds of appeal will be relevant to the Secretary of State's decision on appeal.
Where appeals are heard by the Secretary of State, whether by an inquiry or at a hearing, the Bill introduces a new streamlined procedure and there are a number of other procedural changes aimed at streamlining and speeding up the processing of applications.
The Deregulation Bill also proposes a number of amendments to the provisions of The Countryside and Rights of Way Act 2000 and the Highways Act 1980 relating to Public Rights of Way
Although we don't know as yet when, or whether, these proposed changes will be brought in to force they should greatly reduce the incidence of scurrilous claims which currently take years to be determined and have very substantial resource implications for both landowners and highway authorities.
The streamlining of procedure is also to be welcomed as under the current procedures applications often take many years to be finally determined.
Of course prevention is always better than cure and landowners should take steps to prevent the public from acquiring any rights by prescription.
We urge landowners, when appropriate, to make a deposit with the Highway Authority under section 31(6) Highways Act which can now also protect against the acquisition of any Village Green rights.
This article was written by Ian Brothwood.
For more information please contact Ian on +44 (0)1242 246335 or email@example.com