House of Lords - Explanatory Note
Countryside And Rights Of Way Bill - continued          House of Lords

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Chapter III — Clauses 32 to 37: Means of Access

50. Chapter III sets out the arrangements for access to be secured or improved to access land. It allows the access authority (which is defined in clause 1 as the highway authority or, in National Parks, the National Park authority) to seek agreement with landowners for the creation or safeguarding of means of access, or in default of such agreement, to secure the means of access by carrying out any necessary works themselves.

51. Clause 32 defines a means of access for the purposes of this Chapter. It includes an opening in a fence, wall, hedge or gate on the land, or a construction (such as a stile or bridge) which allows the public to cross such a feature or any watercourse.

52. Clause 33 sets out the circumstances in which an access authority may make an agreement with an owner or occupier in relation to means of access onto their land. These are where the authority consider that an existing means of access needs to be opened up, improved, repaired or maintained, or a new means of access needs to be constructed. The authority may also make an agreement with a landowner to impose restrictions on any change to an existing means of access. Subsection (2) allows the authority to agree to carry out the works themselves, or to pay for the owner or occupier to do so. The authority may also make payments in consideration of the owner or occupier's agreement to restrictions.

53. Clause 34 sets out the action the authority may take if the owner or occupier fails to carry out his obligations under the agreement. Where the agreement was for the owner or occupier to carry out work to an agreed timetable (or in reasonable time, if no timetable is stipulated in the agreement), the authority may, after giving at least 21 days' notice, carry out the work themselves. The authority may recover any costs incurred less any contribution which they were themselves to make under the agreement.

54. Where the agreement was for the owner or occupier to observe a restriction, and he fails to abide by that agreement, the authority may serve a notice requiring him to carry out work to remedy the breach of the restriction, within not fewer than 21 days. If the landowner fails to comply with the notice, the authority may carry out any work specified in the notice. Any costs incurred by the authority in carrying out the work may be recovered from the owner or occupier who entered into the agreement.

55. Clause 35 sets out procedures which an access authority may follow if it considers that it cannot enter into an agreement on reasonable terms with a landowner to secure a means of access to the land. It may serve on the owner or occupier a notice stating its intention, after a period of at least 21 days, to carry out work to provide the means of access. The authority must serve a copy of the notice on any other owner or occupier of the land.

56. Clause 36 allows for an appeal to the Secretary of State (or the National Assembly for Wales) against a notice from an access authority alleging the breach of an agreement imposing restrictions (under clause 34(3)) or requiring the creation or safeguarding of a means of access (under clause 35(1)). The appeal may be made on the grounds that any of the work specified in a notice under clause 34(3) is not necessary to remedy the breach of the agreement or has been carried out or requires more time. An appeal against a notice under clause 35(1) may be made on the grounds that any of the work specified in the notice is not necessary to secure reasonable public access to the land, or has been carried out, or that the means of access should be provided elsewhere (for example, because it would be detrimental to the effective management of the land). The Secretary of State (or the National Assembly for Wales) may confirm the notice with any modifications, or cancel it. The access authority will not be able to carry out any works while they remain the subject of an appeal.

57. The Secretary of State (or the National Assembly for Wales) may make regulations as to the making of appeals. Clauses 7 and 8 (and Schedule 3) apply to the procedure on appeal as they apply to the procedure on appeals against provisional maps.

58. Where an owner or occupier repeatedly fails to comply with notices served by the access authority, clause 37 enables the authority to seek an order from the courts. The clause applies where two or more notices have been served on the owner or occupier within a period of three years under clause 34(3) or 35(1), and the period for compliance with those notices has expired. In these circumstances, a magistrates' court may grant an order requiring the owner or occupier to remove any obstruction and to keep the means of access clear. Failure to comply with the order is an offence, attracting a fine on conviction of up to level 3 on the standard scale (currently £1,000). The access authority may also remove any such obstruction at the expense of the offender.

Chapter IV — Clauses 38 to 42: Supplemental

59. Clause 38 concerns powers of entry to land. It may be necessary for the bodies charged with functions under Chapters I to III of Part I of the Bill to enter land in order to carry out their functions. The clause sets out the circumstances in which the countryside bodies, the highway authorities, the Forestry Commissioners and the National Park authorities may enter land. Any person authorised by these bodies for the purposes of entering land which is not access land must give the occupier 24 hours' notice, unless it is not reasonably practicable to do so, or the entry is in relation to a possible offence under clause 14 or 37. He must also produce evidence of his authority at any time. It will be an offence to obstruct access for authorised persons, attracting a fine on conviction of up to level 2 on the standard scale (currently £500). The power of entry does not extend to dwellings.

60. Clause 39 explains that the access legislation binds the Crown as it does any other landowner.

61. Clause 40 provides that orders and regulations made under this Part of the Bill are to be made by statutory instrument and as respects England are to be subject to annulment by either House (except that an order made under clause 3 extending the right of access in England to coastal land will require to be approved in draft by a resolution of both Houses).

62. Clause 41 comprises definitions of a number of terms used in this Part of the Bill.

63. Clause 42 and Part I of Schedule 11 effect repeals consequent on the provisions of Part I. Paragraph (a) of subsection (1) provides for the repeal of section 193(2) of the Law of Property Act 1925. Section 193(2) allows the owners of common land to execute a deed of dedication so that the common will become subject to the right of access for air and exercise provided for in section 193(1). This power will be rendered obsolete in view of the new powers to dedicate access over land contained in clause 16. Any commencement order bringing this repeal into force is expected to contain a saving for existing deeds.

64. Paragraph (b) of subsection (1) provides for the repeal of sections 61 to 63 of Part V of the National Parks and Access to the Countryside Act 1949. These sections imposed an obligation on local planning authorities to survey the extent of open country within their areas, and to consider the need for increasing access to such open country by means of access agreements and orders. By virtue of subsection (2), local planning authorities will continue to be able to make access agreements and orders using their powers under Part V of the 1949 Act, other than over land which is open country or registered common land for the purposes of the Bill (the powers will continue to apply to open countryside which comprises woodland, land including or adjacent to rivers or canals, and, pending any order made under clause 3, the foreshore).

65. Subsection (3) of clause 42 introduces Schedule 4, which includes an amendment of section 193(1) of the Law of Property Act 1925 so that limitations or conditions qualifying the right of access to urban and other commons under the 1925 Act may also be imposed by the Secretary of State (or National Assembly for Wales) for the purpose of nature conservation. Paragraph 4 of Schedule 4 amends section 2(6) of the Countryside Act 1968, so that the duties of the countryside bodies, which include giving advice to local authorities about the use of their byelaw-making powers under the National Parks and Access to the Countryside Act 1949 and the Countryside Act 1968, extend equally to the giving of advice to access authorities about the use of their powers in clause 17.

PART II: PUBLIC RIGHTS OF WAY AND ROAD TRAFFIC

Summary

66. Part II of the Bill contains provisions designed to reform and improve rights of way in England and Wales.

67. The Bill introduces measures for the strategic review, planning and reporting of improvements to rights of way, and to promote increased access for people with mobility problems. A new category of right of way - restricted byway - having rights for walkers, cyclists, horse riders and horse drawn vehicles, will replace the current category of Roads Used as Public Paths.

68. Local authorities will be required to have regard to nature conservation when performing some of their rights of way functions. Other environmental safeguards include extended powers to regulate traffic for conservation purposes and new powers to divert rights of way to protect Sites of Special Scientific Interest (SSSIs).

69. The Bill provides for a cut-off date for the recording of certain rights of way on definitive maps and the extinguishment of those not so recorded by that date. There are provisions for excepting rights of way from extinguishment; for extending the cut-off date; and for making savings for cases where modification orders have been made but not confirmed before the cut-off date, where applications for such orders have been submitted before the cut-off date, and where such orders have been quashed because of a legal error.

70. The Bill gives a new right to landowners and occupiers to apply to a local authority for an order to divert or extinguish a footpath or bridleway over their land, and to appeal against refusal. Any resulting order would proceed in accordance with existing legislation which provides for objections to be heard and for a public inquiry to be held. Proprietors of schools are given similar rights, and local authorities will be able to make orders closing or diverting rights of way for school security reasons and to assist in the prevention of crime in certain areas.

71. There is provision for occupiers of any land temporarily to divert a footpath or bridleway which passes over that land where works (to be prescribed in regulations made by the Secretary of State or the National Assembly for Wales) are likely to cause danger to users of the right of way.

72. Stronger measures will be available for dealing with obstructions. Magistrates convicting a person of wilfully obstructing a highway will be able to order the removal of the obstruction and any person will be able to serve notice on a local highway authority to secure the removal of certain obstructions, and if necessary to seek a magistrates' court order requiring the authority to comply with the notice.

73. The unauthorised driving of off-road vehicles will become an offence.

Background

74. The Government's intention to legislate on rights of way was announced on 8 March 1999 in Access to the Countryside in England and Wales: The Government's Framework for Action. The Government's consultation paper on rights of way, Improving Rights of Way in England and Wales8, was published in July 1999. The responses are summarised in a report: Improving Rights of Way in England and Wales: Analysis of Responses9.

Commentary on clauses

Clauses 43 to 48: Definitive Maps and Statements and Restricted Byways

75. Currently surveying authorities (normally the unitary authority, or the county council where there are two tiers of local government) are required to prepare and keep under review their definitive map and statement(s) which form the legal record of public rights of way in their area. The existing classes of public rights of way covered by these maps and statements are:

  • Footpaths: highways over which there is a public right of way on foot only.

  • Bridleways: highways over which pedestrians, horse riders and bicyclists (who must give way to people on foot or on horseback) have public rights of way. A bridleway may also carry a public right to drive animals.

  • Byways open to all traffic (BOATs): highways over which the public right of way is for vehicles and all other traffic, but which are used mainly for the purposes for which footpaths and bridleways are used (i.e. by walkers or horse riders).

  • Roads Used as Public Paths (RUPPs): an earlier classification used for various kinds of highway. Section 54 of the Wildlife and Countryside Act 1981 requires surveying authorities to review all RUPPs appearing on their definitive maps and reclassify them according to the rights which are found to exist. If vehicular rights are found to exist over a RUPP then it should be reclassified as a byway open to all traffic. If no vehicular rights are shown to exist, a RUPP should be reclassified as a bridleway, unless bridleway rights are shown not to exist, in which case it should be reclassified as a footpath.

76. Clauses 43 and 44 provide for a general redesignation of RUPPs, which are instead to be treated as shown in definitive maps and statements as restricted byways. All RUPPs will become restricted byways (defined in clause 44) unless they already carry full vehicular rights of way. This will give people clear rights of way and relieve surveying authorities from their current duties to reclassify RUPPs. Those having evidence of full vehicular rights over a particular way will still be entitled to apply for an order for its reclassification in the map and statement as a BOAT.

77. Clause 43 repeals section 54 of the Wildlife and Countryside Act 1981 and provides that every road used as a public path which is shown on a definitive map and statement is to be treated as shown as a restricted byway.

78. Clause 44 specifies that the public are to have restricted byway rights over ways shown on a definitive map and statement as a RUPP. It sets out what those rights are and stipulates that the existence of those rights is without prejudice to whether there are other public rights of way other than restricted byway rights.

79. Clause 45 provides for the RUPPs affected by provisions in clause 44 to be highways maintainable at the public expense. It provides for those RUPPs reclassified under section 54 of the 1981 Act, and earlier legislation, to remain maintainable at the public expense. It also sets out that highway authorities are not to be obliged to provide metalled or similar surfaces on former RUPPs merely because they have been re-designated as restricted byways or BOATs.

80. Clause 46 ensures that the conditions or limitations to which a RUPP was dedicated, such as a right to erect a gate on it or plough its surface, shall continue to be exercisable. It also provides a vehicular right of access to owners of property adjoining or adjacent to former RUPPs.

81. Clause 47 introduces Schedule 5, which contains amendments relating to definitive maps and statements and restricted byways. Paragraph 2 makes an amendment of a procedural nature relating to the circumstances in which the definitive map and statement can be modified when a legal event has occurred. The new section 53A inserted in the 1981 Act makes it possible for surveying authorities to include in those orders which are prescribed by regulation provision to modify the definitive map and statement. Regulation making powers are provided, for example, to set out how the relevant date is to be determined in the case of such orders and to regulate the procedure governing the new power.

82. Paragraph 4 of Schedule 5 inserts a new section 54A into the Wildlife and Countryside Act 1981. The new section prevents any order being made after the cut-off date (1 January 2026) to record a BOAT on a definitive map except in the place of any other way already recorded in the definitive map. The new section also empowers the Secretary of State or the National Assembly for Wales to make regulations containing transitional provisions and for extending the cut-off date.

83. Paragraph 6 of Schedule 5 inserts a new section 57A into the Wildlife and Countryside Act 1981. The new section enables surveying authorities to produce a single consolidated definitive map and statement for their area comprising maps and statements which have been made for different parts of their area, including partial maps and statements inherited from other surveying authorities following local government reorganisation. However, the power will not be available to a surveying authority if any parts of its area have no definitive map at all.

84. Schedule 5 also contains, in Part II, amendments relating to the provisions in Clauses 43 to 46 creating the new category of public right of way, "restricted byway", in place of ways presently recorded on definitive maps as RUPPs. The amendments mainly provide for legislation which applies to RUPPs to apply instead to restricted byways.

85. Clause 48 enables the Secretary of State to make regulations providing for any existing legislation applying to highways, or to highways of a particular kind (such as footpaths or bridleways) to apply, or to be excluded from applying, to restricted byways or ways shown in a definitive map and statement as restricted byways. This power could, for example, be used to enable new restricted byways to be created. There is also power to make consequential amendments.

Clauses 49 to 52: Cut-off date for recording certain rights of way on definitive maps and extinguishment of those not so recorded

86. These clauses prescribe a cut-off date (1 January 2026) for the recording on definitive maps of footpaths and bridleways created before 1949. The provisions also provide for the extinguishment of certain rights of way which have not been claimed by the deadline. The cut-off date may be extended by regulations made by the Secretary of State or the National Assembly for Wales.

87. Clause 49 provides that rights of way over a footpath or bridleway which was created before 1 January 1949, is still a footpath or bridleway on the cut-off date, and is not shown on a definitive map on the cut-off date, are to be extinguished immediately after the cut-off date. The clause also provides that any unrecorded higher rights created before 1 January 1949 over what is shown on a definitive map on the cut-off date as a footpath, bridleway or restricted byway will be extinguished immediately after the cut-off date.

88. Clause 50 sets out exceptions to clause 49. In respect of pre-1949 footpaths and bridleways which are not shown on a definitive map on the cut-off date, the following are not to be extinguished:

  • as much of a footpath or bridleway as, after 1 January 1949, has been diverted, widened, extended or stopped up as respects only its width, provided it connects with another highway directly or indirectly. If it connects indirectly then as much of the rest of the path as is necessary to connect with the other highway is also saved.

  • a bridleway which became a footpath after 1949 following the stopping up of bridleway rights, or a footpath which became a bridleway after 1949 by the creation of bridleway rights over it, provided in either case the way connects with another highway as (a) above.

  • as much of a footpath or bridleway as passes over a bridge or through a tunnel and connects with a highway as above.

  • a footpath or bridleway any part of which is in inner London.

  • a footpath or bridleway which runs at the side of a carriageway or between two carriageways.

  • a footpath or bridleway of any other description specified in regulations made by the Secretary of State or the National Assembly for Wales.

  • a particular footpath or bridleway specified in regulations.

89. In respect of unrecorded higher rights over ways shown on the map on the cut-off date as footpaths, bridleways or restricted byways the following are not to be extinguished:

  • higher rights of way (eg bridleway rights over what is shown as a footpath) created after 1 January 1949.

  • rights of way over a highway any part of which is in inner London.

  • rights of way specified or of such description as may be specified in regulations made by the Secretary of State or the National Assembly for Wales.

90. Clause 51 provides that where a footpath has been wrongly recorded on a definitive map as a bridleway on commencement of the provisions and remains wrongly recorded at the cut-off date, bridleway rights are created over it. It will not be possible after the cut off date to apply for the bridleway to be downgraded to a footpath but clause 52 provides for the making of savings for example for applications for modifications made before the cut-off date.

91. Clause 52 provides that the cut-off date for the purposes of extinguishing rights of way is to be 1 January 2026. The clause empowers the Secretary of State or the National Assembly for Wales to make regulations substituting as the cut-off date a date later than 1 January 2026. Different dates may be specified for different areas but, in relation to areas in which rights of way have been recorded on definitive maps since the National Parks and Access to the Countryside Act 1949 took effect, the date may not be postponed beyond 1 January 2031. There is no upper limit on the period for extending the deadline in other areas. These are the Isles of Scilly; the areas of former county boroughs for which definitive maps were not required until the Wildlife and Countryside Act 1981 took effect; and built-up areas which county councils were able to exclude from the requirements of the 1949 Act by resolution. Where a highway crosses the boundary between two areas with different cut-off dates, then the later date applies to that highway.

92. Regulations made under clause 52 may also make transitional provision and savings, in particular for cases where (a) definitive map modification orders have been made but not confirmed before the cut-off date; (b) applications for definitive map orders have been submitted before the cut-off date; or (c) orders have been quashed because of a legal error.

Clause 53 and Schedule 6: Creation, stopping up and diversion of highways

93. Clause 53 introduces Schedule 6. The Schedule contains a number of amendments of the 1980 Act relating to the creation, stopping up and diversion of footpaths, bridleways and certain other highways. The main changes produced by the Schedule include:

  • the conferring on owners and occupiers of land used for agriculture, forestry or the breeding or keeping of horses of a right to apply to a local authority for the making of a public path extinguishment order or a public path diversion order,

  • a new power for local authorities to stop up or divert footpaths, bridleways (and certain other highways) for the purpose of preventing crime,

  • a similar power for local authorities to stop up or divert footpaths, bridleways (and certain other highways) in cases where they cross school premises, for the purpose of protecting pupils and staff at the school,

  • a new power for local authorities to divert footpaths, bridleways (and certain other highways) for the purpose of protecting SSSIs, and

  • a new power for the occupier of any land crossed by a footpath or bridleway to divert it temporarily for up to five days a year in a case where dangerous works are being carried out.

94. Paragraph 1 of Schedule 6 substitutes a new section 29 in the Highways Act 1980. Under the existing section 29, councils are required to have due regard to the needs of agriculture and forestry in the exercise of certain functions in respect of the creation, stopping up and the diversion of footpaths and bridleways. New section 29 preserves that requirement and introduces the additional duty to have regard to the desirability of conserving flora, fauna and geological and physiographical features. The new duty will not apply in those circumstances where there is already a pre-existing duty to have regard to nature conservation. For example, under section 11 of the Countryside Act 1968, public bodies are required to have regard to the desirability of conserving the natural beauty of the countryside in the exercise of their functions relating to land.

95. Paragraph 2 of Schedule 6 amends the Highways Act 1980 to ensure that highways created in consequence of special diversion orders and SSSI diversion orders become maintainable at the public expense.

96. Paragraphs 3, 5 and 6 of the Schedule amend the Highways Act 1980 to allow an owner, lessee, or occupier of agricultural and other types of land to apply to a council for the making of an order under section 118 or 119 of the 1980 Act closing or diverting a footpath or bridleway which crosses their land. Land managers currently wishing to secure the diversion or extinguishment of a footpath or bridleway across their land may request a council to make orders under section 118 or 119. If the authority declines, the Secretary of State may be requested to use his reserve powers, but in practice these powers are rarely used.

97. Sections 118ZA(2) and (3) and 119ZA(4) and (5) allow for regulations to be made prescribing the form in which an application should be made and what charges may be payable. Subsection (6) of new section 118ZA enables a council to require an applicant to enter into an agreement to make a contribution towards any compensation that may become payable as a result of a closure of a footpath or bridleway. This parallels current provisions in section 119 of the 1980 Act. Sections 118ZA(8) and 119ZA(9) require a council to give the applicant notice of its decision in writing and set out its reasons. There is provision (in subsections (7) and (8) respectively) to enable an applicant to request the Secretary of State to direct a council to decide an application if the council has not done so within four months of receiving it. Sections 118 and 119 (which confer power to make the orders concerned) are not substantively altered, so the criteria for the making and confirmation of the orders remain unchanged.

98. Paragraphs 4 and 7 of the Schedule insert new sections 118B, 118C, 119B, 119C, 119D and 119E into the Highways Act 1980.

99. New sections 118B, 118C, 119B and 119C empower local highway authorities to make special extinguishment and special diversion orders for closing or diverting footpaths, bridleways, restricted byways and byways open to all traffic. In areas which have been designated by the Secretary of State by order, the new powers may be exercised for the purpose of preventing or reducing crime which would otherwise disrupt the life of the community. An extinguishment or diversion order may only be made for this purpose if premises near a right of way are affected by high levels of crime and the existence of the highway is facilitating the persistent commission of offences. The special diversion and extinguishment order powers are also available to protect staff and pupils where rights of way cross school grounds. The local highway authority is required to consult the police authority for the area before making a special extinguishment order or special diversion order for either purpose.

100. Subsection (7) of 119B prevents a diversion from creating a cul-de-sac. Subsection (8) provides for the completion of any necessary works before a diversion order takes effect, and subsection (9) allows conditions to be attached to a right of way created by a diversion. Subsection (14) applies the provisions of section 27 of the Highways Act 1980, which relate to the making up of new rights of way, to a diversion made under section 119B.

101. Sections 118B(9) and 119B(12) provide for the form of orders to be prescribed by regulations. Sections 118B(10) and 119B(13) apply the provisions of Schedule 6 to the Highways Act 1980 which sets out the procedure to be followed for making and confirming closure and diversion orders.

102. The confirming authority (that is, the local highway authority in the case of unopposed orders, otherwise the Secretary of State) must be satisfied as to certain matters, in particular whether a diversion or extinguishment order would be expedient, and including, for proposed extinguishments, the availability of an alternative route or the practicability of diverting the existing way instead. In addition, the confirming authority is to consider whether an order in respect of a designated area is consistent with any statutory crime and disorder strategy for that area. In the case of an order relating to a school, the authority is to consider what other security measures have been or could be taken and whether it is likely that the coming into operation of the order would result in a substantial improvement in the security of the school in question. Account is also to be taken of the effect which closure would have on any land served by the right of way in question.

103. New sections 118C and 119C give a right to school proprietors to apply to a highway authority for orders to divert or close footpaths, bridleways, restricted byways and byways open to all traffic where these cross school grounds. (The term "proprietor", in relation to a school, has the same meaning as in the Education Act 1996: see paragraph 15(b) of the Schedule.)

104. New sections 119D and 119E empower highway authorities, following an application from the Nature Conservancy Council for England or the Countryside Council for Wales, to make SSSI diversion orders diverting footpaths, bridleways, restricted byways and byways open to all traffic for the protection of sites of special scientific interest (SSSIs) designated under the Wildlife and Countryside Act 1981 if public use of the highway is causing or is likely to cause significant damage to the SSSI in question. Before doing so, the highway authority must consider whether the damage could be prevented by the making of a traffic regulation order and whether such an order would cause less inconvenience to the public than a diversion. Diversion orders under these new sections may not be confirmed until the confirming authority has considered the effects of the diversion on public enjoyment of the right of way and the effects on the land affected by the diversion. The Secretary of State is given powers to make regulations prescribing the form of applications and requirements for notice.

105. Paragraph 8 of Schedule 6 amends sections 120 of the 1980 Act inserting references to special extinguishment orders, special diversion orders and SSSI diversion orders. It empowers the Secretary of State to make such orders and to require applicants for orders to enter into agreements with the relevant highway authority relating to compensation and expenses.

106. Paragraph 9 of Schedule 6 makes consequential amendments of the existing section 121 of the 1980 Act. It also makes a further amendment enabling the "appropriate Minister" to appoint any person to determine whether a statutory undertaker has unreasonably withheld consent to the extinguishment of a right of way over land where their apparatus is located or which is used by statutory undertakers for their undertaking.

107. Paragraph 10 of Schedule 6 inserts new sections 121A, 121B, 121C, 121D and 121E in the Highways Act 1980. These new sections relate to applications under the new sections 118ZA, 118C, 119ZA and 119C. Section 121A enables regulations to be made, for example requiring the applicant to certify certain matters and to give notice of their application. It creates offences relating to false or misleading certificates. Section 121B relates to councils keeping a register of the applications made under the new sections 118ZA, 118C, 119ZA and 119C. It specifies that such registers must be available for inspection by the public free of charge at all reasonable hours, and allows for regulations to be made about the form and content of registers and when information may be removed from them. Section 121C allows councils to refuse to determine applications when appeals regarding similar applications have been refused or where the Secretary of State has otherwise refused to confirm a similar order. Section 121D sets out the types of decisions which applicants may appeal to the Secretary of State against and the circumstances where rights of appeal do not apply. It also allows for regulations to be made setting out the time within which and the manner within which appeals are to be brought. Section 121E sets out the powers and duties of the Secretary of State in relation to appeals against local authorities' decisions on applications under the foregoing provisions. It ensures that diversion orders made on appeal do not come into effect where any consents required have not been obtained for works to make up the new way or to provide any necessary facilities. It also gives the Secretary of State powers to make regulations governing appeals procedures, compensation and charges. The effect of section 121E is to provide that provisions of Schedule 6 to the 1980 Act relating to objections, hearings and public inquiries apply in appeal cases.

108. Paragraph 11 of Schedule 6 inserts two new sections, 135A and 135B, into the Highways Act 1980.

109. New section 135A enables the occupier of any land to temporarily divert a footpath or bridleway which passes over that land where works, which are to be prescribed in regulations made by the Secretary of State or the National Assembly for Wales, are likely to cause danger to users of the right of way. Subsection (2) limits the period during which an occupier may divert a right of way under this new section to no more than 5 days in any one calendar year per footpath or bridleway located on that person's land. Subsection (3) requires the occupier to ensure that the diversion is reasonably convenient for the exercise of the right of way and that the line of the diversion is indicated on the ground to not less than the path's or way's minimum width. These widths are to be ascertained in accordance with Schedule 12A of the 1980 Act. Subsection (4) prevents a person from being able to divert a right of way on to land occupied by another person without that person's consent. Subsections (5) and (6) require the occupier to give the local highway authority at least 14 days notice of a diversion; to publish a notice of the diversion in a local newspaper at least 7 days before it takes effect; and to display such notices at such times and in such places as may be prescribed in regulations. If the footpath or bridleway passes over or is contiguous with land to which the public have access under Part I of the Bill, the occupier is required to give 14 days notice to the Countryside Agency or the Countryside Council for Wales, as the case may be. Subsection (7) provides that notices under subsection (5) are to be in such form, and contain such information, as may be prescribed in regulations made by the Secretary of State or the National Assembly for Wales. Subsection (8) creates offences of making a false statement in a notice; of displaying a notice on or near a footpath or bridleway falsely purporting that the diversion is authorised under section 135A; or of diverting a right of way without complying with the requirements in subsection (3).

110. New section 135B requires a person diverting a footpath or bridleway to make good, before the diversion ceases to be authorised, any damage caused by the prescribed works to the right of way and also requires that person to remove any obstruction which may have been caused by the works. Subsection (2) creates an offence of failing to comply with these requirements. Subsection (3) empowers the highway authority to make good any damage or remove any obstruction, if the person concerned fails to do so. This subsection also entitles the highway authority to recover, from that person, the reasonable expenses they may have incurred in carrying out the works. Subsection (4) applies paragraphs 7 and 8 of Schedule 12A to the Highways Act 1980. These provide powers for a person duly authorised by the highway authority to enter on to land for the purpose of carrying out any works under subsection (3) and contain provisions in respect of service of a notice on the occupier. Subsection (5) provides that a person's liability for doing anything to a footpath or bridleway other than for the purpose authorised by the new section 135A shall not be affected. It also prohibits a person diverting a right of way under section 135A from interfering with the apparatus or works of any statutory undertakers. Subsection (6) places a duty on the highway authority for the footpath or bridleway to enforce the provisions of the two new sections. This is without prejudice to the authority's general duty under section 130 of the Highways Act 1980 to prevent, as far as possible, a highway from being obstructed.

111. Paragraphs 12 to 16 of Schedule 6 make amendments of the Highways Act 1980 which are consequential on the new provisions about special extinguishment orders, special diversion orders and SSSI diversion orders.

112. Paragraph 17 of Schedule 6 makes related amendments to Schedule 6 to the Highways Act 1980. New paragraph 2A of that Schedule requires the Secretary of State to arrange a public inquiry or hearing if requested to do so by an authority or appellant before making or confirming an order on an appeal. New paragraph 2ZA of that Schedule requires a council which has made an order following an application under new section 118ZA or 119ZA to give the applicant written notice of their decision to confirm the order (if unopposed) or submit it to the Secretary of State for confirmation (if opposed). If the council has not made a decision within 2 months of the end of the period for representations on the order, the Secretary of State may, on request from the applicant, direct them to do so.

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8 Published by the Department of the Environment, Transport and the Regions, September 1998. Available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237

9 Published by DETR March 2000 (Full Report): Price o12 product code 99WACD1034. Available from DETR Publication Sale Centre, Goldthorpe Industrial Estate, Goldthorpe, Rotherham, S63 9DL. Tel. 01709 891318, Fax. 01709 881673. A summary document is available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237. Published on the internet at: http://www.wildlife-countryside.detr.gov.uk/cl/index.htm

 
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