Terry Norris, Consultations Manager at Taylor House
This article is from Signpost 65, Spring 2020
On our website we state that “Local Authorities in the region are required by law to inform us about proposals diverting or closing rights of way”. We are listed in the appropriate regulations governing public path orders in the counties of Cheshire, Derbyshire, Greater Manchester, Lancashire, Merseyside, South Yorkshire, Staffordshire and West Yorkshire. The period of notice of the order is a minimum of 28 days. The vast majority of proposals to divert or extinguish paths arise from either applications under the Highways Act 1980 or the Town and Country Planning Act 1990. The former category includes applications made by local residents, farmers or businesses or by the council itelf. Reasons for seeking a change are many and varied and may include seeking to increase privacy, to make agricultural operations more efficient or to resolve an intractable enforcement issue, eg where a path has been built over several years ago or to avoid a difficult and expensive maintenance problem.
Most councils operate a system of preliminary consultation in accordance with the practice guidance note 4 published by the Rights of Way Review Committee (a body including representatives of national walking and riding organisations and public rights of way officers and politicians). This means that the Society is sent a draft of the proposals including a statement of the reasons for the order being sought, a map and description of the revised route setting out widths, surfaces and path furniture. The proposal will then be considered by the assessors in Taylor House or an Area Officer. It is often very helpful for there to be a site inspection by a local inspector or other volunteer. In most cases amendments will be made to alleviate any concerns, eg improvements to avoid a drainage problem or change of route to reduce a gradient. If no compromise can be reached the case is referred to a Courts and Inquiries Officer to consider if there are legal grounds for an objection. We can then, if necessary, object within the 28 day period when we receive the path order as a statutory consultee. The Council will then refer the order to the Planning Inspectorate who will resolve the matter after written representations, a hearing or a public inquiry. In my experience these procedures are operated in a fair and impartial manner and we have a reasonable opportunity to raise matters of concern.
The position with regard to proposed diversions and extinguishments under the Town and Country Planning Act 1990 to allow development is much less satisfactory. By the time we are formally consulted and sent a copy of the order the layout of the development will have been agreed by the developer and the planning officer so it will be difficult to secure changes to provide a more satisfactory route for walkers. In addition we have lost an opportunity to make suggestions for improvement of paths in the vicinity of the development and for the creation of links to other paths and safe routes to local amenities such as village centres. There is no statement of the reasons for the order. The order is couched in dense legalese and difficult to follow. That would not matter so much if there had been an earlier step in the consultation process conducted in non-technical language but there is often no such stage.
DEFRA Rights of Way Circular 1/09 Guidance fo Local Authorities puts it well. It is likely to be to the benefit of the planning authority, highway authority and the developer to be aware of the impact on a development scheme on the local rights of way network as early as possible in the process (this might be at the pre-application stage). Any potential disadvantages to the public arising from alternative arrangements proposed for an affected right of way can be minimised by means of early liaison between the developer, planning and highway authorities, local amenity groups and prescribed organisations (that’s us!).
All planning applications which affect a public right of way have to be advertised on site and in a local newspaper under Article 15 of the Town and Country Planning (Development Management) Procedure order 2015. A good way forward would be for every planning authority to send us a copy of the notices which will appear in the press so we can look at the planning application and the associate documents on line. The application form will tell us whether a diversion is anticipated. The site plan will show us the layout of the development. Unfortunately there is no longer a requirement to show the line of any public right of way within or adjacent the proposed development, an unhelpful change in the law. Whilst the Society can object to the final order in the 28 day consultation period the legal criteria for the order is narrow, ie that the order is “necessary to enable the development” giving us a limited area for argument as by this time the planning permission wil have been granted. However our objection will hold up the development so we can use this as a weapon to negotiate a solution which better protects the interests of walkers.
The Council may be resistant to sending out copies of Article 15 notices, eg Cheshire and Tameside. Not Kirklees and Derbyshire however! A viable alternative may be to look on line at the public notices in the local press, eg Tameside Council use the Tameside Reporter and the Stockport Express. All councils publish a complete list of planning applications online but that is of no help to us as it does not indicate which are subject to an Article 15 notice. Trying to work out which applications are in this category would be a herculean task.. Hopefully a public rights of way officer will look at these applications and raise concerns with the planning officer. The main fear is the path being built over or used for vehicular access or that the possibility for improvement of the paths at the expense of the developer is being missed. However I fear this is a counsel of perfection in the present climate of continuing austerity. At this point I want to cheer Bolton who provide a good model. Proposals for path orders are discussed at PROW liaison meetings and representative of users groups given an opportunity to inspect the site and comment of the proposals before it enters the formal procedure.
I would very much like to see the Society monitoring planning applications and playing an active role to safeguard walkers interests. This would be despite not because of the government's approach to consultation. We also need to develop some policies setting out what we regard as good practice in the area of consultation.
Next: Letter to the Editor
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