COUNTRYSIDE AND RIGHTS OF WAY BILL
Memorandum by the Department of the Environment,
and the Regions
1. The Countryside and Rights of Way Bill was introduced
into the House of Commons on 3 March 2000 and brought from the
Commons on 16 June 2000.
2. This Memorandum -
- summarises the main provisions of the Bill;
- identifies the delegated powers and describes
- explains the reason for leaving these matters
to delegated powers; and
- explains the nature of and reason for any Parliamentary
procedures which apply.
OUTLINE AND SCOPE OF THE BILL
3. The Bill contains measures to improve public access
to open country and registered common land; amends the law relating
to rights of way; and amends the law relating to nature conservation
by strengthening protection for sites of special scientific interest
and providing extra powers in connection with the prosecution
of wildlife crime.
4. The Bill is divided into four Parts:
- Access to the countryside;
- Public rights of way and road traffic;
- Nature conservation and wildlife protection;
- Miscellaneous and supplementary.
PART I: ACCESS TO THE COUNTRYSIDE
5. Part I of the Bill contains provisions to introduce
a new statutory right of access for open-air recreation to mountain,
moor, heath and down (known as "open country") and to
registered common land. It also allows landowners, if they wish
to do so, irrevocably to dedicate any land to public access. Land
to which the right of access applies is called "access land".
6. Chapter I provides for the new right to be subject
to various restrictions, set out in clause 2 and Schedule 2. For
example, the right will be lost if a person commits any criminal
offence. The right does not extend to using a vehicle and, at
certain times of the year, dogs must be kept on leads. Chapter
I also requires maps of open country and registered common land
to be prepared by the Countryside Agency and the Countryside Council
for Wales. Chapter II contains provisions for the exclusion or
restriction of access. Landowners will be able to exclude or restrict
access for any reason for up to 28 days each year. Landowners
will also be able to apply for exclusions or restrictions for
land management reasons and for the avoidance of the risk of fire
and danger to the public. The Countryside Agency, the Countryside
Council for Wales and, in National Parks, National Park authorities
will be able to give directions for these purposes and, in addition,
will be able to direct exclusions and restrictions on the grounds
of nature and heritage conservation.
7. Local highway and National Park authorities ("access
authorities") will have the power under provisions in Chapter
III to enter into agreements with owners and occupiers regarding
means of access to access land. These agreements may cover such
things as maintenance and improvement of means of access. Access
authorities will be able to contribute to the cost or undertake
the necessary work. Where agreements cannot be reached, access
authorities will have the power to proceed on their own and they
may also require owners and occupiers to remove obstructions or
refrain from stopping up a means of access. Clause 40(1) provides
that wherever the power to make an order or regulations is conferred
by Part I on the Secretary of State or the National Assembly for
Wales ("NAW"), it is exercisable by statutory instrument.
Under clause 40(2), any such power includes the power to make
different provision for different cases and to make such incidental,
supplementary, consequential or transitional provision as is considered
necessary or expedient.
POWERS IN PART I OF THE BILL
CLAUSE 40: GENERAL PROVISIONS AS TO ORDERS AND REGULATIONS
UNDER PART I
8. Clause 40 provides that all regulations made by
the Secretary of State under Part I are subject to the negative
resolution procedure. This is considered the appropriate level
of Parliamentary scrutiny, given that the scope of the regulations
is limited and the powers largely deal with administrative or
technical matters. In the case of the order-making power under
clause 3 (which would extend the right of access to coastal areas),
a matter of principle is involved and the Government is therefore
of the view that a higher level of scrutiny is justified. Accordingly,
clause 40(3) provides that no such order may be made by the Secretary
of State unless a draft has been laid before and approved by resolution
of each House of Parliament.
9. Clause 41(1) defines "regulations" as
meaning regulations made (as respects England) by the Secretary
of State or (as respects Wales) by the NAW. Clause 41(1) also
defines "prescribed" as meaning prescribed by regulations.
CHAPTER I: RIGHT OF ACCESS
SCHEDULE 2, PARAGRAPHS 3, 4(2) AND 6(3): RESTRICTIONS
TO BE OBSERVED BY PERSONS EXERCISING RIGHT OF ACCESS
10. Paragraph 3 of Schedule 2 provides a power to
amend the list of restrictions in paragraph 1 and the associated
definition provisions in paragraph 2. This will enable the restrictions
to be amended in the light of experience of the operation of the
statutory right and to take account of, for example, new forms
of recreational activity.
11. Paragraph 4(2) enables the period in each year
during which a person who is exercising the right of access must
keep a dog on a lead to be changed from the period specified in
paragraph 4(1). This will enable the period to be adjusted if
it becomes apparent that it should start or finish at a different
12. Under paragraph 6, the restrictions under Schedule
2 may be lifted if the owner agrees. Paragraph 6(3) provides a
power to make detailed provision as to the giving of directions
and consent for this purpose and publicity for any such direction
or its revocation.
CLAUSE 3(1): POWER TO EXTEND TO COASTAL LAND
13. Clause 3(1) provides that the Secretary of State
(for England) or the NAW (for Wales) may by order amend the definition
of open country to include a reference to coastal land (or coastal
land of any description). Coastal land is defined in clause 3(3).
In Part V of the National Parks and Access to the Countryside
Act 1949, which provided for access agreements and access orders,
open country was defined to include "foreshore (including
any bank, barrier, dune, beach, flat or other land adjacent to
14. Clause 3(2) enables an order under this clause
to make consequential amendments of Part I of the Bill and to
modify the provisions of Part I in their application to coastal
land. The Government intends there to be widespread consultation
before any extension of the statutory right to coastal land. As
part of that consultation, it may become apparent that aspects
of the scheme which apply to mountain, moor, heath or down and
registered common land are not appropriate in the case of coastal
land, and it will then be possible to make the necessary modifications.
15. Since an extension of the categories of access
land would significantly widen the scope of the new right and
there is power to modify the provisions of Part I in its application
to coastal land, it is appropriate that a coastal land order made
by the Secretary of State is subject to the affirmative resolution
CLAUSES 4 -11: MAPS
16. Clauses 4 and 5 require the Countryside Agency
and the Countryside Council for Wales ("the countryside bodies")
to draw up and consult on maps of open country and registered
common land. Clause 5 sets out a procedure for public consultation
on draft maps. The countryside bodies will take any comments during
that consultation into account when revising the draft maps which
they will then issue as provisional maps.
17. Clause 6 creates a right of appeal to the Secretary
of State and the NAW against the showing of any land on provisional
maps as access land. The right may be exercised by anyone with
an interest in the land (as defined in clause 41(1)). Clauses
7 and 8 and Schedule 3 set out a procedure for the hearing of
appeals and make provision for the Secretary of State and the
NAW to delegate appeal functions. Clause 9 provides for a provisional
map to be confirmed as a conclusive map once all appeals have
been determined or, if no appeals ensue, after the period for
lodging appeals has passed. Clause 10 requires the countryside
bodies to review any conclusive map within 10 years and at least
every 10 years thereafter.
CLAUSE 5(B): PUBLICATION OF DRAFT MAPS
18. Clause 5(b) confers a power to prescribe the
period within which any representations on draft maps which are
received by the countryside bodies must be considered by them.
It is intended that the length of this period will be prescribed
after taking into account the views of the countryside bodies
and other interested parties.
CLAUSE 10(3): REVIEW OF MAPS
19. The periods within which the first review of
a conclusive map and subsequent reviews must be undertaken may
be amended by regulations. The purpose of this power is to provide
flexibility. With changing patterns of land use and the possibility
of human error, maps showing mountain, moor, heath and down must
be subject to periodic review. Once the mapping and appeal processes
have been completed and the right has been in force for some time,
it will be possible to gauge how often a review is necessary.
If experience suggests that 10 years is inappropriate, the period
may then be amended.
CLAUSE 11: REGULATIONS RELATING TO MAPS
20. Clause 11(1) provides that regulations may be
made supplementing the provisions contained in clauses 4 to 10.
The purpose is to specify in detail the procedures to be followed
in connection with mapping. It is expected that regulations will
be made in relation to all the matters set out in clause 11(2).
The level of detail required and the need for flexibility make
the use of delegated powers appropriate.
21. Clause 11(2)(a), (b) and (e) are closely related.
Clause 11(2)(a) and (b) enable regulations to address the scale
on which maps are to be prepared and the manner and form in which
maps will be prepared and issued. Clause 11(2)(e) provides that
the Secretary of State and the NAW may make provision with respect
to the manner in which maps in draft form, provisional form or
conclusive form are to be published or made available for inspection.
It is anticipated that both physical inspection and electronic
access will be made available, although any map must be capable
of being produced in printed form (clause 11(3)).
22. Clause 11(2)(c) provides that the Secretary of
State and the NAW may make regulations with respect to consultation
with access authorities and other persons on maps in draft form.
It is intended that there should be wide consultation with respect
to draft maps. Related to this is the power in clause 11(2)(d)
to make provision with respect to the steps to be taken for informing
the public of the issue of maps in draft form, provisional form
and conclusive form.
23. Clause 11(2)(f) provides that the Secretary of
State and the NAW may make provision with respect to the period
within which and the manner in which representations about a draft
map may be made to the countryside bodies. The countryside bodies
are under a duty to consider representations received with respect
to draft maps within the prescribed period (clause 5(b)). It is
hoped that it will be possible for representations to be made
by electronic means as well as in paper form.
24. Clause 11(2)(g) provides that the Secretary of
State and the NAW may make provision by regulation with respect
to the confirmation of a map under clause 5(c). Clause 5(c) provides
that the countryside body, having considered any representations,
is to confirm the draft map with or without modifications. The
map is then issued in provisional form, which is the form upon
which an appeal may be taken to the Secretary of State or the
NAW. If no challenge is made to a provisional map, it will be
issued in conclusive form.
25. Clause 11(2)(h) to (j) concern appeals on maps
in provisional form. Appeals are made to the Secretary of State
in the case of land in England and to the NAW in the case of land
in Wales. Provision may be made for the period within which and
manner in which appeals are brought, the advertising of such an
appeal and the manner in which appeals are to be considered.
26. Clause 11(2)(k) provides that the Secretary of
State and the NAW may by regulations make provision with respect
to the procedure to be followed on a review under clause 10, including
the issue of maps in draft form, provisional form and conclusive
form on a review. It is envisaged that such regulations may provide
for notification of the review, consultation, representations
from the public and publication of the conclusions of the review.
Clause 11(4) provides that regulations made pursuant to clause
11(2)(k) can include the application of any of the appeal provisions
in Chapter I to an appeal against a map in provisional form issued
following a review.
27. Clause 11(2)(l) enables regulations to be made
permitting the countryside bodies to make minor corrections to
maps independently of either the appeal process or the full review
of maps under clause 10. Such provision will help ensure that
maps are as accurate as possible.
CLAUSE 16: DEDICATION OF LAND AS ACCESS LAND
28. Clause 16 enables the owner of land to dedicate
land for the purposes of Part I of the Bill (unless it becomes
excepted land), so that the land will be treated as access land
for the purposes of the general right of access under clause 2(1).
Clause 16(1) provides for regulations to be made to prescribe
the steps necessary to effect a dedication. Clause 16(2) provides
a power to prescribe interests in land (in addition to the leasehold
interest) the holder of which is required to give his consent
in order for a dedication to be valid in any case where the holder
has not joined in the dedication. The consent is to be given in
such manner as may be prescribed.
29. The power to prescribe interests other than the
leasehold interest is designed to allow the specification of other
interests significant enough to warrant involvement in a dedication.
The use of delegated legislation will allow any such interests
to be specified following widespread consultation and for modifications
to be made if this should prove necessary. Clause 16(6)(a) provides
that regulations may be made prescribing the form of any instrument
used for the purposes of effecting a dedication.
30. Clause 16(6)(b) provides a power to enable dedications
to exclude one or more of the general restrictions in Schedule
2, while clause 16(6)(c) enables regulations to permit the amendment
of dedications which have been made so as to exclude one or more
of the general restrictions.
31. Clause 16(6)(d) enables regulations to be made
dealing with notification of dedications to the countryside body
and access authority. The purpose is to ensure that these agencies
are aware of any dedications, since they are concerned with the
administration of access.
32. Clause 17(1) confers on access authorities the
power to make, as respects access land (or part thereof) in their
area, byelaws for the preservation of order, for the prevention
of damage to the land and for securing that persons exercising
the right of access avoid undue interference with the enjoyment
of the land by others. This is similar to the byelaw-making powers
in, for example, section 90(1) of the National Parks and Access
to the Countryside Act 1949 and section 41(1) of the Wildlife
and Countryside Act 1981. An access authority is required to consult
the relevant countryside body before making any byelaws. Any byelaws
made are not to interfere, inter alia, with the exercise of any
public right of way or with any authority having under an enactment
functions relating to the land over which the byelaws apply. The
procedure for making these byelaws will be that applicable under
sections 236 to 238 of the Local Government Act 1972. The purpose
of the power in clause 17 is to give access authorities the flexibility
and discretion to make byelaws over areas where access has given
rise to specific problems, perhaps due to large numbers of the
public visiting a particular site.
CHAPTER II: EXCLUSION OR RESTRICTION OF ACCESS
CLAUSE 21: EXCLUSION OR RESTRICTION AT DISCRETION
OF OWNERS AND OTHERS
33. Under clause 21 an "entitled person"
may exclude or restrict access for up to 28 days in any year.
Aside from the owner of the land, "entitled person"
is defined by clause 21(3) as covering "any other person
having an interest in the land and falling within a prescribed
description." "Interest" is defined widely (clause
41(1)) to include rights over land under an agreement or licence,
sporting rights and rights of common. Where the Secretary of State
or the NAW make such regulations, he or it must provide that where
there are two or more entitled persons having different interests
in relation to the land, the total number of days on which access
may be excluded or restricted does not exceed 28 days: clause
34. Clause 21(7) provides that regulations may be
made varying the days stipulated in clause 21(6) on which discretionary
exclusions and restrictions under clause 21(1) are not permitted.
These are weekends, Christmas Day, Good Friday and any bank holiday.
The purpose of this power is to enable modifications to be made
if experience shows this to be necessary.
CLAUSE 29: EXCLUSION OR RESTRICTION OF ACCESS IN
CASE OF EMERGENCY
35. Clause 29(1) provides that regulations may be
made so that, in an emergency, the relevant authority (ie. the
countryside bodies, National Park authority or, in certain cases,
the Forestry Commissioners) may direct that access is to be restricted
or excluded under clauses 22 to 24 for a period of up to three
36. The power to provide for emergencies is supplemented
by clause 29(2), which enables regulations under clause 29 to
apply any of the preceding provisions in Chapter II with modifications
to a direction made in response to an emergency. For instance,
the Secretary of State or NAW could modify clause 25(1) in this
application so as to permit variation of a direction in an emergency
without consulting the original applicant or his successor. The
power will enable the exact modifications to be amended as experience
shows what is needed in such situations.
CLAUSE 30: REGULATIONS RELATING TO EXCLUSION OR RESTRICTION
37. Clause 30(1) provides that the Secretary of State
and the NAW may make regulations on a series of matters all relating
to the exclusion or restriction of the right of access. Those
matters are set out in subsection (1)(a) to (m).
38. Clause 30(1)(a) and (c) deal with notice to be
given to the relevant authority. Paragraph (a) enables regulations
providing for the giving of notice of discretionary restrictions
or exclusions to the relevant authority. Paragraph (c) enables
regulations to provide, in the case of other exclusions and restrictions,
as to the giving of notice of the period during which the restriction
or exclusion will be in force. This will be necessary in cases
where the direction by the relevant authority leaves the determination
of the actual period to the discretion of the applicant, a specified
person or a person authorised by the Secretary of State.
39. Restrictions or exclusions for land management
or for the avoidance of fire or danger to the public may be made
following application by a person interested in the land (clauses
22(1) and 23(3)). Clause 30(1)(b) provides that regulations may
address the timing of such applications and the procedure governing
their submission. Clause 30(1)(d) enables the form of any notice
or application under Chapter II to be prescribed.
40. Clause 30(1)(e) enables regulations to make provision
for restricting applications from commoners for directions under
Chapter II. It may be desired, for example, to provide for a minimum
proportion of the commoners to be required to join in any application
for a direction.
41. Clause 30(1)(f) permits regulations to be made
covering the requirements to be met as regards consultation on
exclusions or restrictions. Such requirements may apply to consultation
undertaken by relevant authorities and the Secretary of State,
whether the consultation is pursuant to a duty imposed under Chapter
II or not.
42. Subsection (1)(g) of clause 30 provides that
regulations may be made regarding the giving of directions by
relevant authorities and the Secretary of State. Subsection 1(h)
provides a similar general power to regulate notifications by
relevant authorities and the Secretary of State of decisions under
Chapter II, for example, a decision as to whether to give a direction
restricting or excluding access on an appeal.
43. Subsection (1)(i) of clause 30 is a power to
make regulations addressing the steps to be taken to inform the
public of any restrictions or exclusions on the right of access
over land. A requirement to inform the public may be placed upon
persons interested in the land, and on the relevant authorities,
the Secretary of State, and the relevant advisory bodies specified
in clause 24(6), depending on the purpose of the restriction or
exclusion. It is clearly in the interests of both users and landowners
that the public are as fully informed as possible of any exclusions
or restrictions. Specific reference is made in clause 30(1)(i)
to the display of notices, but it is envisaged that other methods
will be required, such as newspaper notices and the Internet.
44. Subsection (1)(j) of clause 30 enables regulations
to be made in connection with reviews that must be conducted where
exclusions or restrictions having long term effect have been made
(see clauses 25(2) and 26(4)). The purpose of the review is to
ensure that such exclusions or restrictions remain appropriate
over time. This power will allow a procedural framework to be
established for such reviews, covering aspects such as consultation
and publicity. Such regulations may include provision applying
appeals provisions in Chapter II to reviews with such modifications
as are necessary (clause 30(2)).
45. Subsections (1)(k) to (m) of clause 30 deal with
appeals. They provide that regulations may be made regarding the
manner and form by which appeals are brought, advertising and
the manner of consideration of appeals respectively. Clause 28(5)
applies clauses 7 and 8 (and Schedule 3) to these appeals in the
same way that those provisions apply to appeals regarding maps.
The power is the same as that in respect of maps under clause
11(2)(h) to (j).
CHAPTER III: MEANS OF ACCESS
CLAUSE 36: APPEALS RELATING TO NOTICES
46. A right of appeal is provided under clause 36
against a notice served under clause 34(3) or 35(1) on an owner
or occupier in respect of means of access to access land. Provision
for regulations to be made about the conduct of appeals is contained
in clause 36(6), similar to the provision in relation to appeals
on maps under clause 11(2)(h) to (j) and in relation to appeals
in respect of exclusions or restrictions under clause 30(1)(k)
POWERS IN PART II OF THE BILL
PART II: PUBLIC RIGHTS OF WAY AND ROAD TRAFFIC
47. Part II relates primarily to the reform and improvement
of the law regarding rights of way in England and Wales. Part
II includes: the introduction of a new category of highway - 'restricted
byway' - which will replace the current category of 'road used
as a public path'; 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; a new right for owners and occupiers
to apply to a council for an order to divert or stop up a footpath
or bridleway over their land, and to appeal against refusal; and
stronger measures to deal with obstructions on highways.
48. In general, where a power to make orders or regulations
is conferred on the Secretary of State, it is conferred on the
NAW as respects Wales. The power taken in clause 48 is exercisable
as respects both England and Wales by the Secretary of State.
49. The textual amendments of the Highways Act 1980
("HA 1980") and of the Wildlife and Countryside Act
1981 ("WCA 1981") do not expressly refer to the NAW.
In general, existing functions of the Secretary of State under
those Acts were transferred to the NAW by the National Assembly
for Wales (Transfer of Functions) Order 1999 (SI 1999/672). Clause
73 of the Bill provides that the references in Schedule 1 to that
Order to the HA 1980 and the WCA 1981 are to be treated as referring
to the relevant Act as amended by the Bill. So wherever powers
are conferred on the Secretary of State by textual amendments
of either of those Acts, clause 73 ensures that as respects Wales
the power is exercisable by the NAW.
50. All regulation-making powers conferred by the
Bill on the Secretary of State or the NAW are exercisable by statutory
instrument. All order-making powers conferred on either of them
are also exercisable by statutory instrument, with the exception
of the powers to make orders stopping up or diverting highways
that are conferred by virtue of the amendments of the HA 1980
in Schedule 6. In the case of regulations and orders made under
provisions inserted in the HA 1980, it is section 325(1) of the
HA 1980 as amended by paragraph 13 of Schedule 6 that produces
51. Except in the case of regulations under clause
48 and orders under subsection (1)(a) of the new section 118B
inserted in the HA 1980 by paragraph 4 of Schedule 6 (which are
discussed respectively at paragraphs 56 to 58 and 79 below), orders
or regulations made by statutory instrument are subject to the
negative resolution procedure. In the case of regulations made
under provisions inserted in the HA 1980, it is section 325(2)
of the HA 1980 that produces this result. The negative resolution
procedure is considered the appropriate level of Parliamentary
scrutiny where there is a clear indication on the face of the
Bill of the scope of the regulations or orders and where powers
are being taken for either technical or administrative purposes.
52. The Government believes that a higher level of
scrutiny is appropriate in respect of clause 48, where the Secretary
of State will have the power by regulations to make amendments
to existing legislation in relation to restricted byways (see
further paragraphs 56 to 58 below).
Public Rights of Way and Definitive Maps and Statements
CLAUSES 43-44: RESTRICTED BYWAYS
53. By way of background, clause 43(2) provides that
all rights of way which immediately before the commencement of
clause 43 were shown on definitive maps and statements as roads
used as public paths (RUPPs) are to be treated as shown as restricted
byways. This new category is defined in clause 44(4) and, in essence,
is a highway over which there are public rights of way on foot,
on horseback and by vehicles other than mechanically propelled
vehicles. These rights of way are together referred to in the
Bill as restricted byway rights.
54. Clause 44(8) relates to the power under subsection
(6) of clause 77 to include saving and transitional provisions
in commencement orders under subsection (3) of that section. Its
effect is that, if that power is exercised so as to allow a way
to be reclassified as a footpath or bridleway after restricted
byway rights have been created over it by clause 44(1), the new
rights which are inconsistent with the amended classification
will be extinguished. For example, provision is likely to be needed
to give effect to orders under section 54 of the WCA 1981 which
reclassify RUPPs as footpaths or bridleways and which are confirmed
CLAUSE 47: AMENDMENTS RELATING TO DEFINITIVE MAPS
AND STATEMENTS AND RESTRICTED BYWAYS
55. These amendments are contained in Schedule 5
to the Bill. The powers they insert or apply are described below
at paragraphs 69 to 75.
CLAUSE 48: RESTRICTED BYWAYS: POWER TO AMEND EXISTING
56. Clause 48 confers on the Secretary of State a
power to make regulations as to the effect in relation to restricted
byways of any "relevant provision" which relates to
highways or highways of a particular description, or to things
done on or in connection with highways or highways of a particular
description, or to the creation, stopping up or diversion of highways
or highways of a particular description. A "relevant provision"
is defined as any provision contained in an Act passed before
or in the same Session as the Bill or in any subordinate legislation
made before the passing of the Bill. The regulations may disapply
a relevant provision which would otherwise apply in relation to
restricted byways or ways shown as restricted byways - for example,
where a relevant provision applies in relation to carriageways
of a description that would include restricted byways. Alternatively
the regulations could provide for such a provision to apply with
modification. They could also apply, with or without modification,
a relevant provision which would not otherwise apply - for example
a relevant provision applying in relation to footpaths and bridleways.
The clause also gives a power to make consequential amendments
that arise out of clauses 43 to 46 or out of regulations made
under clause 48(1)(a).
57. It is necessary to take this power because of
the numerous provisions that relate to highways. The creation
of a new class of highway (that is, restricted byways) will require
detailed examination of existing legislation applicable to highways
to determine which of those provisions should apply (if any) and
in what manner. For example, there are a number of different provisions
relating to the diversion of particular classes of highways and
it may be appropriate to apply only some of those provisions to
58. In view of the importance that Parliament attaches
to the power to amend primary legislation in this manner, the
Government believes that a higher level of scrutiny is appropriate.
Clause 48(4) provides for the affirmative resolution procedure
to apply to regulations made under this clause, so that any regulations
must be laid before and approved by each House of Parliament.
Only the Secretary of State may make regulations under this power.
CLAUSE 50: EXCEPTED HIGHWAYS AND RIGHTS OF WAY
59. Clause 49 of the Bill provides for the extinguishment
of certain rights of way which are not recorded on a definitive
map and statement by "the cut-off date" as defined by
60. Clause 50(1)(d) and (e) and 50(5)(c) and (d)
provides powers to make regulations excluding specified descriptions
of footpaths or bridleways and specified footpaths or bridleways
from the operation of clause 49(1) and excluding specified descriptions
of public rights of way and specified land from the operation
of clause 49(3). The current exclusions in clause 50 may not cover
all those highways or rights of way which it is desirable to save
from extinguishment under the cut-off provisions. For example,
there are powers to suspend temporarily rights of way and where
this is done, it may not be possible to record them on a definitive
map. This power is intended to provide flexibility to deal with
CLAUSE 52: CUT-OFF DATE FOR EXTINGUISHMENT
61. Clause 52(1) defines the cut-off date as 1 January
2026, but clause 52(2) enables the Secretary of State or the NAW
to make regulations prescribing a later cut-off date. There may
be different dates for different areas, but any date is to be
no later than 1 January 2031 except in the case of those areas
set out in clause 52(4)(a) and (b). The latter areas are the Isles
of Scilly and those areas in respect of which sections 27 to 38
of the National Parks and Access to the Countryside Act 1949,
until their replacement by Part III of the WCA 1981, did not,
or did not always, require a definitive map to be prepared. For
these areas the cut-off date may be extended beyond 1 January
2031. For instance, some local authorities may not have begun
producing definitive maps for parts of their areas until 1983
(the commencement of Part III of the WCA 1981) and it is therefore
appropriate to allow for the cut-off date to be extended in these
cases. This is because for these areas, local authorities have
had less time to record rights of way than where there was a continuing
obligation to do so under the National Parks and Access to the
Countryside Act 1949.
62. This clause also enables regulations to be made
providing for transitional provisions or savings in connection
with the operation of clauses 49 (extinguishment of unrecorded
rights of way) and 51 (bridleway rights over ways shown as bridleways).
In particular, regulations can be made relating to orders modifying
definitive maps and applications for such orders.
CLAUSES 53-55: CREATION, STOPPING UP AND DIVERSION
OF PUBLIC RIGHTS OF WAY
63. Clause 53 introduces Parts I and II of Schedule
6 to the Bill which make amendments to the HA 1980 and make consequential
amendments to other Acts. The powers they insert or apply are
described below at paragraphs 76 to 106.
CLAUSES 56 - 57: RIGHTS OF WAY IMPROVEMENT PLANS
64. Clause 56 requires all local highway authorities
to prepare and publish rights of way improvement plans. Clause
56(1)(c) and 56(2)(d) enable the Secretary of State and the NAW
to make directions regarding the assessment of rights of way and
the contents of rights of way improvement plans.
65. Clause 57 sets out the persons or bodies whom
a local highway authority will be required to consult before preparing
or reviewing a rights of way improvement plan. Clause 57(1)(f)
enables regulations to be made prescribing further persons whom
the local highway authority shall be under an obligation to consult.
CLAUSE 59: ENFORCEMENT OF DUTY TO PREVENT OBSTRUCTION
66. Clause 59 inserts a new section 130A into the
HA 1980. This new section will enable any person to serve notice
on the relevant local highway authority requesting it to secure
the removal of specific types of obstruction from a right of way.
It is a method whereby a person can require a local highway authority
to comply with its duty to prevent obstructions. The new section
130A(3)(b) provides that the Secretary of State and the NAW may
prescribe certain descriptions of obstructions in respect of which
such notices may be served. For instance, the current provisions
do not extend to abandoned vehicles, but these could be prescribed
once section 130A comes into force. The power is, however, circumscribed
by section 130A(4) which sets out certain classes of obstruction
that are excluded from the ambit of the section. Section 130A(7)
provides that notices served either by a person or by a local
highway authority are to be in such a form and contain such information
as may be prescribed by regulations.
CLAUSE 64: ERECTION OF STILES, ETC, AND NEEDS OF
PERSONS WITH MOBILITY PROBLEMS
67. Clause 64 inserts new subsections (2A) and (2B)
into section 147 of the HA 1980. The new subsection (2B) provides
for guidance to be issued by the Secretary of State and the NAW
to competent authorities (which in most cases will be the local
highway authority) as to matters to be taken into account when
authorising the erection of stiles, gates or other works on footpaths
or bridleways under section 147(2). These authorities will be
under an obligation to have regard to any such guidance.
CLAUSE 65: REPORTS ON FUNCTIONS RELATING TO RIGHTS
68. Clause 65(1) provides that the Secretary of State
and the NAW may make regulations specifying descriptions of local
highway authorities that will be required to publish reports on
the performance of any of their functions relating to local rights
of way. Any such regulations may prescribe the information to
be given in such reports and how and when the reports are to be
published. This power will enable the Secretary of State or the
NAW to focus attention on particular highway authorities which
are not adequately performing their rights of way functions.
Definitive Maps and Statements and Restricted
AMENDMENTS OF PART III OF THE WILDLIFE AND COUNTRYSIDE
69. Paragraph 2 of Schedule 5 to the Bill inserts
a new section 53A into the WCA 1981. This new section relates
to orders that effect changes to rights of way and allows for
provision to be made in these orders making consequential modifications
to a definitive map. So, for example, where an order is made to
divert a highway, section 53A authorises that order to contain
provisions modifying the definitive map to reflect the effect
of the diversion.
70. Section 53A(1) provides that the Secretary of
State and the NAW may by regulations prescribe the description
of orders to which the new section 53A is to apply and section
53A(8) provides that the Secretary of State and the NAW may by
regulations provide that any procedural requirement in respect
of the making or coming into operation of such orders shall not
apply or shall apply with modifications. There are numerous types
of orders, such as diversion orders or stopping up orders made
under various powers for which there are different procedural
requirements. The power is being taken so that in each case, appropriate
modifications can be made to the procedural requirements to take
account of the fact that modification to a definitive map in these
cases will be a purely administrative step. For example, it may
be inappropriate for the notice of the general effect of an order
under section 118 of the HA 1980 (see paragraph 1(3) of Schedule
6 to the HA 1980) to refer to the effect of that part of the order
modifying a map. This power applies only to so much of the order
as contains provision included by virtue of section 53A(2) - that
is, that part which modifies a definitive map. Currently, when
orders are made affecting rights of way, the surveying authority
is required to make another order modifying the definitive map.
This new power enables orders modifying rights of way to achieve
modification of the definitive map by means of the same order.
71. Paragraph 2 also inserts a new section 53B into
the WCA 1981. Section 53B(1) requires surveying authorities (effectively,
local highway authorities) to keep registers of applications made
under section 53(5) for orders modifying a definitive map. Section
53B(3) and (4) enable regulations to be made as to the manner
in which registers are to be kept and the information which they
72. Paragraph 4 of Schedule 5 to the Bill inserts
a new section 54A into the WCA 1981. Section 54A(1) provides that
it will not be possible after the "cut-off date" defined
in section 54A(2) to make orders modifying a definitive map and
statement so as to show as a byway open to all traffic any way
which is not shown in the map and statement as a highway of any
73. Section 54A(2) defines the cut-off date as 1
January 2026, but section 54A(3) enables the Secretary of State
and the NAW to substitute, by regulations, a later cut-off date.
There may be different dates for different areas. The power is
constrained in that the cut-off date cannot be extended beyond
1 January 2031 except in relation to the Isles of Scilly and those
areas in respect of which sections 27 to 38 of the National Parks
and Access to the Countryside Act 1949, until their replacement
by Part III of the WCA 1981, did not or did not always, require
a definitive map to be prepared. The same considerations apply
here as apply to the corresponding provision of clause 52. Section
54A(3) also enables regulations to be made containing any transitional
provisions or savings which appear to be necessary or expedient
in relation to the new section 54A(1). In particular, it allows
for such provision to be made, for example, in relation to applications
for orders made under section 53(2) and orders made under that
section but not confirmed by the cut-off date. Section 54A(7)
provides that, where it appears to the Secretary of State or the
NAW that any provision in Part III of the WCA 1981 (that is, the
Part relating to definitive maps and statements) can have no further
application as a result of the new section 54A, they may by order
make such amendments or repeals to Part III as appear to be necessary
or expedient. Paragraphs 61 to 62 of this memorandum are also
74. Paragraph 6 of Schedule 5 to the Bill inserts,
inter alia, new subsections (3A) and (4A) into section 56 of the
WCA 1981. Section 56(3A) provides that the Secretary of State
and the NAW may by regulations prescribe the manner in which the
"relevant date" is to be calculated for the purposes
of orders which contain provisions arising from the new section
75. Paragraph 7 of Schedule 5 to the Bill inserts
new subsections (6A) and (6B) into section 57 of the WCA 1981.
Section 57(6A) provides that the Secretary of State and the NAW
may prescribe in regulations that section 57(5) and (6) is to
apply to specified types of documents relating to orders to which
the new section 53A applies. Section 57(6B) provides that the
regulations may require any such document to be prepared by a
surveying authority and may prescribe the form that document shall
AMENDMENTS RELATING TO CREATION, STOPPING UP AND
DIVERSION OF HIGHWAYS:
AMENDMENTS RELATING TO CREATION, STOPPING UP AND
DIVERSION OF PUBLIC RIGHTS OF WAY
76. Paragraph 3 of Schedule 6 to the Bill inserts
a new section 118ZA into the HA 1980. Section 118ZA(1) entitles
owners and occupiers of certain types of land to apply to a council,
in respect of a footpath or bridleway located on their land, for
a public path extinguishment order under section 118 of the HA
1980. Section 118ZA(2) provides that the Secretary of State and
the NAW may prescribe in regulations the form of the application,
the scale of the map which is to accompany such an application
and any other applicable information to be provided. Section 118ZA(3)
provides that regulations may also provide for a prescribed charge
to be payable on the making of such applications and for other
charges to be payable if an extinguishment order is made.
77. Section 118ZA(8) provides that a council shall
notify applicants of its decision and the reasons for the decision.
Section 118ZA(8)(b) provides that the Secretary of State and the
NAW may prescribe in regulations any other persons on whom a copy
of such notice shall be served.
78. Section 118ZA(10) enables regulations to be made
prescribing the circumstances in which a new map may be substituted
for the map originally submitted with an application.
79. Paragraph 4 of Schedule 6 to the Bill inserts
a new section 118B into the HA 1980. Section 118B(4) gives local
highway authorities the power to make extinguishment orders (the
effect of which is to close a public right of way) either for
crime prevention purposes in designated areas or for the protection
of pupils and staff at schools. Extinguishment orders made under
the new section 118B(4) are referred to as "special extinguishment
orders". This section provides that the areas in respect
of which special extinguishment orders may be made are to be designated
by order by the Secretary of State or the NAW. As currently drafted,
a designation order made by the Secretary of State under the new
section 118B(1)(a) is not subject to any Parliamentary procedure.
It is intended to table the necessary amendments in the Committee
stage so that the power to make such orders will be subject to
the negative resolution procedure.
80. The intention is that the powers should be targeted
at areas which are vulnerable to high levels of crime against
property from adjoining rights of way: for example, certain high
density residential areas where criminals gain access from back
81. Section 119B(4) gives local highway authorities
the power to make diversion orders (known as "special diversion
orders") on similar grounds.
82. Section 118B(9) provides that the Secretary of
State and the NAW may by regulations prescribe the form in which
a special extinguishment order is made and the scale of the accompanying
83. Section 118B(10) applies Schedule 6 of the HA
1980. Schedule 6 to the 1980 Act gives the Secretary of State
and the NAW power to make regulations, and in some cases give
directions, in respect of procedural matters relating to the making,
confirmation, validity and the coming into effect of certain orders
in respect of highways.
84. Section 118C(2) applies section 118ZA(2) to (11)
(which is inserted by the Bill). Please refer to paragraphs 76
to 78 for a description of the regulation making powers contained
in section 118ZA(2) to (11).
85. Paragraph 6 of Schedule 6 to the Bill inserts
a new section 119ZA into the HA 1980. This new provision gives
owners and occupiers of certain types of land the right to apply
to a council for a public path diversion order under section 119
of the HA 1980 as respects a footpath or bridleway that crosses
their land. Section 119ZA(4) enables the Secretary of State and
the NAW by regulations to prescribe the form of any such application
and the scale of the map which must accompany the application.
Section 119ZA(5) enables regulations to be made prescribing charges
to be payable on the making of such applications and for other
charges to be payable if a public path diversion order is made.
86. Section 119ZA(9) provides that a council shall
notify the applicant of its decision and the reasons for it. Section
119ZA(9)(b) provides that the Secretary of State and the NAW may
prescribe by regulations any other persons on whom a copy of such
notice shall be served.
87. Section 119B(12) provides that the Secretary
of State and the NAW may by regulations prescribe the form in
which a special diversion order is made and the scale of the accompanying
88. Section 119B(13) applies Schedule 6 of the HA
1980. The discussion of Schedule 6 appears at paragraph 83.
89. Section 119B(14) applies section 27 of the HA
1980, with amendments, to special diversion orders. The purpose
of section 27 is to provide for cases where, once a diversion
order has been made, it is necessary to carry out works to land
to bring that land into a condition fit for use as a particular
category of right of way. Section 27 (as amended) applies to special
diversion orders only in cases where the order is made by the
Secretary of State or the NAW using their default powers. In such
cases, section 27(4) provides that the Secretary of State or the
NAW may direct which authority is to carry out any necessary works.
90. Paragraph 7 of Schedule 6 to the Bill inserts
a new section 119C into the HA 1980. Under the new section 119B(1)(b),
local highway authorities are given the power to make special
diversion orders in respect of highways which cross land occupied
for the purposes of a school and in respect of which they are
satisfied that a diversion order is expedient for the purposes
of protecting pupils and staff. The new section 119C entitles
proprietors of such schools to apply to the relevant highway authority
for the making of a special diversion order under section 119B(1)(b).
Section 119C(4) applies section 119ZA(3) to (12) to any such applications.
The discussion of section 119ZA appears at paragraphs 76 to 78.
Section 119C(4) provides that regulations made under section 119ZA
by virtue of section 119C(4) may make different provision for
the purposes of this section.
91. Section 119D(10) applies Schedule 6 of the HA
1980. The discussion of Schedule 6 appears at paragraph 83.
92. Paragraph 7 of Schedule 6 to the Bill also inserts
new sections 119D and 119E into the HA 1980. Section 119D entitles
local highway authorities, on an application made by the Nature
Conservancy Council (as respects England) and by the Countryside
Council for Wales (as respects Wales), to divert highways if they
are satisfied that public use of the highway is causing or is
likely to cause significant damage to a site of special scientific
interest (SSSI). Such orders are referred to as "SSSI diversion
orders". Section 119E(1) provides that the Secretary of State
and the NAW may by regulations prescribe the form of any such
application and the scale of the map which is to accompany the
application. Section 119E(2) requires the conservation body making
the application to notify certain persons and the Secretary of
State and the NAW may prescribe in regulations the form of any
such notice and the persons whom the conservation body shall notify.
93. Section 119E(5) provides that the Secretary of
State and the NAW may by regulations prescribe the form of any
such SSSI diversion orders and the scale of the map which is to
accompany such orders.
94. Section 119E(6) applies section 27 of the HA
1980 to SSSI diversion orders in exactly the same manner as that
described for section 119B(14) above.
95. Paragraph 9 of Schedule 6 to the Bill makes consequential
amendments to section 121 of the HA 1980. Section 121(2) (as amended)
applies section 28 of the HA 1980. Section 28 provides for the
payment of compensation for loss caused by an extinguishment or
diversion order and section 28(2) provides that a claim for compensation
is to be made in such time and in such manner as may be prescribed
by the Secretary of State and the NAW in regulations.
96. Paragraph 10 of Schedule 6 to the Bill inserts
new sections 121A to 121E into the HA 1980. Section 121A(1) provides
that the Secretary of State and the NAW may by regulations make
provision as respects applications under the new sections 118ZA,
118C, 119ZA and 119C. The manner in which this power will be used
is set out in section 121A(1)(a) to (f), starting with regulations
requiring applicants to issue a certificate as to their interests
in or rights in or over the land to which the application relates
and the purpose for which the land is used.
97. This new subsection also entitles the Secretary
of State and the NAW to make regulations in relation to applications
for an order, such as service of notices, requirements in respect
of the advertisement of notices and in respect of the remission
or refunding of any prescribed charge in prescribed circumstances.
98. Section 121B requires councils to keep registers
in respect of applications made under the new sections 118ZA,
118C, 119ZA and 119C. Section 121B(1), (2), (3) and (4) provides
that the Secretary of State and the NAW may by regulations prescribe
the manner in which such registers are to be kept and the information
which they are to contain.
99. Section 121D gives applicants a right of appeal,
inter alia, in respect of a council's refusal to make or confirm
orders. Section 121E(7) provides that the Secretary of State and
the NAW may by regulations make further provisions in respect
of such appeals. Section 121E(8) sets out a non-exhaustive list
of matters which such regulations may cover. For example, regulations
may make provision in respect of notices and advertisements of
appeal and of payment by the applicant of expenses incurred by
the Secretary of State or the NAW in preparing draft orders.
100. Section 121E(9) provides a power to prescribe
by regulations which councils are to be treated automatically
for the purposes of section 28 of the HA 1980 as having been nominated
by the Secretary of State or the NAW under section 28(3).
101. Section 121E(1)(b) requires the Secretary of
State and the NAW to give notice, in accordance with paragraph
1(2) of Schedule 6 to the HA 1980, of a draft of the order they
propose to make. Paragraph 1(3)(b)(iv) of Schedule 6 to the HA
1980 provides that in respect of notices required to be given
under paragraph 1(2), the Secretary of State and the NAW may make
regulations prescribing any additional persons on whom a copy
of the notice is to be given.
102. Section 121E(10) applies section 121A(2) to
(4). The discussion of section 121A appears at paragraphs 96 to
103. Paragraph 11 of Schedule 6 to the Bill inserts
new sections 135A and 135B into the HA 1980. Section 135A gives
occupiers of land the right to temporarily divert any footpaths
or bridleways located over their land where works of a prescribed
description are likely to cause danger to users of the right of
way. The works to which this section applies are to be prescribed
by the Secretary of State and the NAW by regulation. Section 135A(5)(a)
and (b) requires a person proposing to make a temporary diversion
to notify certain persons beforehand and advertise the diversion
in the local press beforehand. Section 135A (5)(c) requires that
person to display notices of the diversion and confers power on
the Secretary of State and the NAW to prescribe by regulations
how, when and where such notices are to be displayed. Section
135A(7) provides that the Secretary of State and the NAW may by
regulations prescribe the form and content of such notices and
advertisements under subsection (5).
104. Paragraph 13 of Schedule 6 to the Bill amends
section 325 of the HA 1980. The amendments ensure that special
extinguishment orders, special diversion orders and SSSI diversion
orders made by the Secretary of State or the NAW are not required
to be made by statutory instrument. The amendments also provide
that rail crossing extinguishment orders under section 118A of
the HA 1980 and rail crossing diversion orders under section 119A
of that Act (which at present are required to be made by statutory
instrument if made by the Secretary of State or the NAW) are no
longer required to be so made.
105. Paragraph 14 of Schedule 6 to the Bill makes
consequential amendments to section 326 of the HA 1980.
106. Paragraph 17 of Schedule 6 to the Bill makes
consequential amendments to Schedule 6 to the HA 1980. A new paragraph
2ZA is inserted into Schedule 6 to the 1980 Act. Paragraph 2ZA(1)
requires an authority which has made a diversion order under sections
118ZA, 118C, 119ZA or 119C to decide whether to confirm the order
if it is unopposed and if the order is opposed, the authority
is then under a duty to submit the order to the Secretary of State
or the NAW for confirmation. Paragraph 2ZA(2) requires the authority
to give an applicant notice of their determination and the reasons
for it and provides that the Secretary of State and the NAW may
by regulations prescribe any other persons on whom a copy of such
notice should be given.
POWERS IN PART III OF THE BILL
PART III: NATURE CONSERVATION AND WILDLIFE PROTECTION
107. Part III of the Bill provides greater protection
for wildlife and natural features by improving protection for
Sites of Special Scientific Interest ("SSSIs") in England
and Wales and strengthening the enforcement of wildlife legislation.
The provisions enable the conservation agencies in England and
Wales (the Nature Conservancy Council and the Countryside Council
for Wales) to impose permanent restrictions to prevent damaging
operations on SSSIs. There will also be a power for the conservation
agencies to secure the management of an SSSI. The Bill gives various
rights of appeal to owners and occupiers of land who are affected
by these provisions.
108. Paragraph 1 of Schedule 8 to the Bill substitutes
new provisions for section 28 of the Wildlife and Countryside
Act 1981. Section 28D in paragraph 1 of Schedule 8 gives an owner
or occupier a right of appeal against -
(a) the refusal of consent by the Nature Conservancy
Council for the carrying out of operations likely to damage the
features of special interest on a site of special scientific interest;
(b) the imposition of conditions on such a consent;
(c) the modification of such a consent; and
(d) the withdrawal of such a consent.
109. Section 28D(6) provides that the Secretary of
State may by regulations make provision for notices of appeal,
the required supporting documentation and also the manner in which
appeals are to be brought and considered. Section 28D(7) provides
that these regulations shall be made by statutory instrument subject
to the negative resolution procedure.
110. Section 28J(8) provides that the Secretary of
State may make regulations concerning appeals made by persons
as respects management notices served by the Nature Conservancy
Council under section 28H requiring the carrying out of works
(or the doing of such other things as are specified) in respect
of an SSSI. These regulations may in particular provide for the
period within which and the manner in which appeals are brought
against management notices, as well as the manner in which they
shall be considered. As in the case of regulations under section
28D(6), they are to be made by statutory instrument subject to
the negative resolution procedure: section 28D(9).
111. The Government considers that the negative resolution
procedure is appropriate for both of these regulation-making powers.
They are akin to those taken with respect to maps in clause 11(1)(h)
CLAUSE 71(2): ENFORCEMENT OF WILDLIFE LEGISLATION
112. Clause 71(2) extends the power to make regulations
under section 2(2) of the European Communities Act 1972 ("ECA
1972") for the purpose of implementing the instruments mentioned
in subsection (3) of the clause. Under that power as extended,
regulations implementing those instruments will be able to create
offences punishable on summary conviction with imprisonment for
up to six months. This overrides paragraph 1(1)(d) of Schedule
2 to the ECA 1972 under which such regulations cannot create offences
punishable on summary conviction with imprisonment for more than
three months. The extension of the power under section 2(2) of
the ECA 1972 means that such regulations can create offences punishable
in the same way as similar offences under Part I of the WCA 1981,
penalties for which are increased by paragraph 10 of Schedule
10 to the Bill to include imprisonment for up to six months on
113. The power to make regulations under section
2(2) of the ECA 1972 is exercisable by the Minister designated
under section 2(2), in relation to the implementation of the instruments
mentioned in clause 71(3) - the Secretary of State for the Environment,
Transport and the Regions. Under paragraph 2 of Schedule 2 to
the ECA 1972 such regulations must be made by statutory instrument
which, if made without a draft having been approved by resolution
of each House of Parliament, is subject to annulment in pursuance
of a resolution of either House.
POWERS IN PART IV OF THE BILL
PART IV: MISCELLANEOUS AND SUPPLEMENTARY
CLAUSE 74: ISLES OF SCILLY
114. Clause 74(2) gives the Secretary of State the
power, after consultation with the Council of the Isles of Scilly,
to make an order applying to the Isles any provision of Part I
or contained in clauses 54 to 57 and 65, subject to such modifications
as may be specified. The order is to be made by statutory instrument.
Under section 344(3) of the HA 1980 the Secretary of State has
a similar power, after consultation with the Council of the Isles
of Scilly, to provide by order that provisions listed in subsection
(2)(a) of that section are, subject to such modifications as may
be specified, to apply in the Isles of Scilly as if those Isles
were a separate county. Under section 325 of the HA 1980, any
such order is to be made by statutory instrument. Clause 59 and
paragraphs 1, 3 to 10 and 12 of Schedule 6 to the Bill insert
provisions which will be subject to this power (by virtue of section
344(2)(a) of the HA 1980 as amended by clause 74(3)) or amend
provisions already subject to it.
CLAUSE 77: COMMENCEMENT
115. Clause 77(3) provides for the Secretary of State
to commence Part II on a day appointed by him in an order made
by statutory instrument. Clause 77(4) enables the Secretary of
State (as respects England) or the NAW (as respects Wales) to
commence the remaining provisions of the Bill on an appointed
day or days. Different days may be appointed for different purposes
or different areas. Finally, clause 77(6) provides that any such
order may contain such transitional and savings provisions as
appear to the Secretary of State or the NAW to be necessary or
expedient. Orders made under clause 77 are made by statutory instrument.
26 June 2000