Archived decisions
Regulatory Committee Item 3
9 January 2002
Rescission of three Orders made under s.54 Wildlife and Countryside Act 1981
Contact Alex Lewis: 6044
1. Summary
The Countryside and Rights of Way Act 2000 provides for all Roads Used as a Public path (RUPPs) shown on the Definitive Map to be recorded as Restricted Byways, but preserves the effect of any reclassification orders outstanding when the relevant provisions come into force. Three reclassification orders have been identified which have been made (in one case as long ago as 1987), but not confirmed. Members are asked to approve the rescission of these orders to avoid any uncertainty over the future designation of the RUPPs affected by the orders.
2. Background
2.1 Section 54 of the Wildlife and Countryside Act 1981 required Highway Authorities to reclassify those rights of way shown on their Definitive Maps as RUPPs, so that they could be shown on the Definitive Map instead as Footpaths, Bridleways or Byways Open to All Traffic (BOATs), as appropriate. In the late 1980s the County Council gave a high priority to the reclassification of RUPPs and undertook an extensive programme of reclassification. As a result of this programme, 385 of the County's 578 RUPPs have been reclassified. However, on 26th May 1993 the Rights of Way Panel approved a change in the priority given to reclassification work, and resources were instead directed at other types of Definitive Map work. This change recognised that the reclassification process was expensive, controversial and often misunderstood. It also reflected the view that the limited resources of the Rights of Way Section were better applied to matters of more tangible benefit to the public.
2.2 To all intents and purposes the County Council had stopped making reclassification orders by 1993, although some public inquiries into those orders were still being held as late as 1998. 193 RUPPs still remain undetermined.
3. The Countryside and Rights of Way Act 2000
3.1 This Act recognises the difficulties which have been faced by Highway Authorities in reclassifying RUPPs by revoking section 54 of the Wildlife and Countryside Act and providing, by s. 47, that no more RUPPs are to be reclassified. Instead, all remaining RUPPs are to be recorded on the Definitive Map as Restricted Byways and be open to walkers, riders and non-mechanically propelled vehicles. This move is without prejudice to any vehicular rights which might exist over the restricted byways. If vehicular rights exist, these can be recognised by the making of a Definitive Map Modification Order and consequent amendment of the Definitive Map to show a BOAT. The provisions of Section 47 have not yet come into force (this is currently anticipated for June 2002).
3.2 The Act specifically provides that the effects of any outstanding reclassification orders are to be preserved, so that RUPPs currently undergoing the reclassification process will continue to be reclassified under the old rules. One reclassification order, made in 1997 and affecting RUPP 13 in the parish of Sparsholt, is on-going and will continue until determined by the Secretary of State. There are however, three further reclassification orders, made between 1987 and 1992, affecting five paths, which were not disposed of promptly following the orders and, owing to the decision to prioritise other work, have yet to be resolved. Details of the five RUPPs concerned are set out in paragraph 4.
3.3 Concern has been expressed that these orders may prevent a clean conversion of the relevant RUPPs to Restricted Byways (regulations currently being drafted may cover this point but the content and extent of these regulations is at present uncertain). Concern has also been expressed that, if these orders are to be proceeded with, a fresh investigation and re-evaluation of the evidence would be necessary. This is in order to take account of new sources of evidence, to reflect recent changes in the way in which evidence is interpreted and also to reflect changes in the law relating to RUPPs and the dedication of highways since the decisions to make the orders were taken. The costs of a fresh investigation into the status of these RUPPs and any public inquiries that might follow are not insubstantial and it would also have an adverse effect on the current workload of the Rights of Way Section.
3.4 In view of the automatic conversion of RUPPs to Byways under the CROW Act it is considered that it is neither necessary nor cost effective to proceed with the orders. To avoid any uncertainty over the future of these RUPPs it is proposed that the orders be rescinded so as to ensure a smooth conversion of the RUPPs to Restricted Byways under the Act. Any higher rights which may exist over the routes will not be lost, but can be recognised by an order made under s.53 Wildlife and Countryside Act 1981.
4. The affected RUPPs
The orders which remain outstanding are:
4.1 The Hampshire (New Forest District No. 5) (Parish of Bramshaw) Public Path Reclassification Order 1987. The process of reclassifying RUPP 11 stalled when there was a simultaneous application by the Forestry Commission to remove the RUPP from the Definitive Map on the grounds that it should never have been shown on it in the first place. This application was not pursued; neither was the reclassification order. The Forestry Commission has agreed that there is little point in proceeding with the reclassification of this RUPP.
4.2 The Hampshire (Test Valley Borough No. 8) (Parish of Upper Clatford) Public Path Reclassification Order 1988. This was made on 19th April 1988 and affected RUPPs 14, 15 and 16. The order was confirmed in so far as it related to the reclassification of RUPP 16 to a BOAT, but objections were received to the reclassification of RUPPs 14 and 15 to BOATs. Progress towards reclassification ceased in 1991.
4.3 The Hampshire (Basingstoke and Deane Borough No. 32) (Parish of Newtown) Public Path Reclassification Order 1992. This was made on 16th November 1992 and attracted objections both to the reclassification of RUPP 37 to BOAT and RUPP 38 to bridleway. There has been no correspondence on the matter since 1995, although the issue of vehicular access to properties on Newtown Common has been the subject of some concern in recent years. This concern was recognised by the Countryside and Rights of Way Act 2000 which makes provision for private access rights over common land be legitimised.
5. Conclusion
It is expedient, in view of the automatic reclassification of RUPPs under the Countryside and Rights of Way Act 2000, and in view of the fact that the reclassification of RUPPs has long since been a low priority for the Rights of Way Section that the aforementioned orders be rescinded.
RECOMMENDATION
That members approve the rescission of The Hampshire (New Forest District No. 5) (Parish of Bramshaw) Public Path Reclassification Order 1987, The Hampshire (Test Valley Borough No. 8) (Parish of Upper Clatford) Public Path Reclassification Order 1988 and The Hampshire (Basingstoke and Deane Borough No. 32) (Parish of Newtown) Public Path Reclassification Order 1992.