Hampshire County Council

Recreation and Heritage Policy Review Committee Item 8

14 July 2005

Executive Member - Recreation & Heritage Item 1

14 July 2005

Proposed changes to priority guidelines for dealing with claims made under s.53(5) Wildlife and Countryside Act

Report of the Director of Recreation & Heritage

Contact Alex Lewis, Ext 6044 Email alex.lewis@hants.gov.uk

1. Summary

1.1 The report seeks Members' approval, in principle, to a change in the current policy for dealing with claims to amend the definitive map of public rights of way made under s.53(5) Wildlife and Countryside Act 1981 to allow the County Council greater flexibility in the order in which it investigates such claims.

2. Background

2.1 s.53(5) Wildlife and Countryside Act 1981 allows members of the public to make an application to the County Council for an amendment to the definitive map - usually adding a path to the map or upgrading a path already shown. The applications must be determined according to the evidence of the history and past use of the path in question. In order to achieve the correct result, consistent with facts and the law, officers investigating such claims undertake thorough and detailed research into the relevant evidence, in each case, making a substantial commitment in time and resources.

2.2 Although not stated explicitly, the legislation envisages that claims will be determined within 12 months. It does this by providing that an applicant may apply to the Secretary of State for a direction requiring a relevant authority to determine a claim if it has not done so within 12 months of the date of receipt of the completed application.

2.3 In deciding whether to direct an authority to determine a claim within a specified timescale, the Secretary of State will have regard to any statement of priorities adopted by the authority. He or she is unlikely to make such a direction if the authority can demonstrate that it is progressing claims in accordance with a statement of priorities that is published and fair. (There is clearly no point in directing an authority to determine a claim within any given timescale if the authority is already committing all its resources to the determination of such claims in accordance with a published programme: the power to make a direction is intended to prevent authorities `cherry-picking' claims, or allowing unfavourable or difficult claims to languish, unaddressed). This is why it is important to have a set of priorities for determining claims.

3. The existing policy

3.1 The existing claims policy states that claims will be dealt with in chronological order, save where a path is in danger of being lost (usually, although not necessarily, through development), in which case that claim will be placed at the top of the list of outstanding claims.

4. Why the policy needs to be reviewed

4.1 The policy is seen to be fair to all applicants and landowners, and is easy to operate in practice. However, it has the disadvantage of being inflexible. So if, for example, a claimed path serving as access to a school would provide a safe route to school in accordance with a current strategy or project, there would be no ability to take that claim out of turn in order to meet the actions or targets of that policy.

4.2 At present the waiting time for investigating a claim is approximately 4 - 5 years. Although the rate of uptake has recently increased as a result of a greater commitment of resources to this type of work, this improvement is offset by an increase in the number of claims, caused by the proposals in the Countryside and Rights of Way Act 2000 (CROW) for the extinguishment of rights of way not recorded on the definitive map by the cut off date (2026, but earlier for vehicular claims). There are currently 128 outstanding claims on the claims list. 59 of these are typical of the types of claims that the Rights of Way Section normally deals with - claims for different types of right of way, in different parts of the county and made by different individuals. The remainder have been lodged by a single applicant on behalf of a minority interest group, in response to the cut off date proposed by CROW. More such claims are expected, and this will increase the waiting time for claims, perhaps to in excess of ten years. This increase in waiting time, coupled with the desire to have more flexibility in addressing claims that might meet a current need or objective has caused the current review of the claims policy.

5. The proposed new policy

5.1 A draft of the proposed new policy is attached. It has been prepared following an initial consultation with the Hampshire Countryside Access Forum, which rejected a points based system as being too subjective, but nonetheless supported a change to allow more flexibility in dealing with claims that, if successful, would meet a public need.

5.2 The response to the wider consultation has not been high. No clear preference has emerged from the consultation: representatives from vehicular user groups are, naturally, anxious that no change is made which prejudices the progress of byway applications and their preference would appear to be for the existing policy to remain. A contrary view has been expressed by someone who sees the holding back of byway claims as an advantage. It has been suggested that a list of outstanding claims should be sent to the statutory consultees who should be asked to rate them in order of merit, although this suggestion pre-supposes that the existing backlog will be cleared and thereafter that claims can be dealt with as and when they came in.

5.3 Other points raised included the importance of communication between the County Council and those making and/or affected by the claims and the need to ensure that low priority claims would be dealt with and not lost.

5.4 With the exception of the two responses from the members of vehicular user groups, there is a consensus that a more flexible approach, which takes into account the merit of the claim, would be an improvement on the current policy. There was no real demand for a greater or more comprehensive change.

5.5 The attached policy is, perhaps, a less radical departure from the existing policy than had originally been envisaged, and recognises the view expressed in consultation that dealing with claims in chronological order is the fairest way of proceeding. It proposes that, as now, all claims will be listed in chronological order and claims will be investigated as and when they come to the top of the list. If a claimed path is in danger of being lost, it can be removed from its position in the list and will then be the next claim to be dealt with. Thus far, there is no change from the existing policy. What is new in the proposal, is that a claim may also be removed from its position in the list and expedited if it is in the public interest to deal with it promptly.

5.6 Defining what is in the interest of the public in this situation is very difficult, bearing in mind that is not possible to anticipate future circumstances in which it may be justified to take a claim out of turn. Too wide a definition will defeat the purpose of the new, `expedited', list (list `C' in the draft policy) which is intended to assist a few exceptional claims, rather than delay unpopular applications. Too narrow a definition will defeat the object of changing the policy, which is to introduce an element of flexibility, allowing the County Council to respond to public need at a time when the backlog of claims is unusually high.

5.7 The means whereby officers will decide whether a given case is in the interests of the public (and it is currently intended that this should be an officer decision, although it need not be) has been linked to Countryside Access Plans and published policies and strategies. This reflects the County Council's commitment to the implementation, where possible, of such access plans, and the fact that published strategies or initiatives have undergone a process of public consultation which is, presumably, reflected in the published documents. It is intended that an applicant or other person wishing a claim to be expedited should make the case for the claim to be removed from the initial list: officers are not in a position to commit time to making such a decision in every case. The policy does not envisage that anyone will have the right to have a claim expedited.

5.8 The new policy provides that, in the interests of expediency, officers investigating a claim which involves the same (or substantially the same) evidence or witness as are concerned in a claim further down a list, may investigate that second claim at the same time as the first and not, therefore, in chronological order.

5.9 All claims must be progressed, and so it is in appropriate simply to put the expedited claims at the top of the standard list: this might simply cause the claims at the bottom of that list to stay forever undetermined. To avoid this, it is proposed that claims in both lists will be addressed at the same time, but that claims in the `expedited' list will be dealt with at a greater rate of uptake than those in the standard list. A suitable ratio may depend on the number of claims in each list, which is why the proposed policy is not specific on this point, but it is likely to be in the region of 2 claims taken up from the `expedited' list for every one from the standard list.

5.10 It is proposed that the policy be implemented promptly. Consideration has been given to postponing implementation of the policy, so that it applies only to those claims made after the policy has been approved, or after a given date (say, 1st January 2005, when the public consultation commenced) but, given the current backlog of claims, it seems more prudent to implement the policy without undue delay.

5.11 Hampshire Countryside Access Forum has been asked to be kept informed about the progress of the policy and its implementation. Figures will be provided to the Forum showing how many claims are expedited under the proposed new policy and it was agreed that a review of the policy will be undertaken with the Forum should there be concern about how the policy is operating in practice.

6. Legal Implications

6.1 The County Council is under a duty to respond to applications under s.53(5) where they show that the definitive map requires modification on one of the grounds set out in section 53(3)(b) or (c). The County Council has a discretion how to address the claims but, as pointed out by the Government Office for the South-East in response to consultation, it should not do so in any way that prejudices a particular group of claimants, or claims for a particular type of path or claims for paths in a particular area. The basis of the prioritisation must be transparent and once adopted, must be adhered to. Failure to adhere to these principles might constitute maladministration and is potentially judicially reviewable.

7. Financial Implications

7.1 There no cost implications in the adoption of a revised policy for handling s.53(5) claims. Existing resources will be utilised in processing the claims according to any new prioritisation guidelines.

8. Impact Assessment

8.1 The proposed policy should not raise any equality or diversity issues. The decision to prioritise a claim is based on public interest, rather than any characteristics of the applicant but, inevitably, those claims that are not expedited will be dealt with less quickly than might otherwise be the case.

9. Crime Prevention

9.1 The policy has no impact on the prevention of crime.

10. Personnel Implications

10.1 There are no implications for personnel.

11. Views of Local Councillors

11.1 The policy will apply county-wide, and so no individual consultation of members has taken place.

12. Links to Corporate Strategy

12.1 The work of the rights of way section, like that of the Countryside Service, is closely linked to Aim 2, Stewardship of the Environment. The identification and management of a good and accessible right of way network helps to shape our surroundings, thereby making Hampshire a better place to live, and contributes to sustainable travel and transport policies. The adoption of the proposed, more flexible, approach to the handling of claims will assist the County Council in achieving its desired outcomes in these areas, by enabling claims that might satisfy such outcomes to be determined more quickly.

13. Conclusions

13. 1 The recent, and likely future, increase in the backlog of claims justifies a review of the existing policy on prioritisation of claims. The presumption in favour of dealing with claims in chronological order is generally favoured as being fair, although support has been given to the introduction of some flexibility in the policy, so that a claim can be dealt with expeditiously if it is in the interests of the public to do so. The draft attached proposes a scheme whereby such flexibility can be introduced. There is an inevitable reduction in certainty (one of the advantages of the present policy), but it will enable the County Council better to respond to or implement relevant access, transport or similar policies or plans. It is proposed that the policy be implemented without undue delay.

Recommendation

That the report proposing a change in the prioritisation of Definitive Map Modification Applications be submitted to the Executive Member for Recreation and Heritage for consideration.

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

Title :

N.B the list excludes:

1. Published works

2. Documents that disclose exempt or confidential information as defined in the Act