On 16th February Defra announced changes to the rights of way package of reforms included in the Countryside and Rights of Way Act 2000 and the Deregulation Act 2015. A considerable amount of work remains to complete the legislation required to implement the measures, and. Defra has therefore decided on a pragmatic approach to take the package forward. The 2026 cut-off date, on which unrecorded historic public rights of way would have been extinguished, will be repealed, but the landowners’ right to apply for diversion and extinguishment orders will be progressed with the necessary statutory instruments being made before the summer recess of Parliament. Defra staff feel that this strikes a balance across stakeholder concerns and interests, while recognising that it does not deliver all the benefits originally envisaged.
This is cause for celebration by users of public rights of way. The 2026 cut-off would have extinguished public rights which have the potential to improve public access with benefits for physical and mental health and sustainable travel, and it is right that it should be abolished. However, there are several downsides. Briefly, the right to apply for public path orders will make it easier for landowners to obtain diversions which reduce the enjoyment of users of public paths, and it will divert local authority rights of way staff away from other aspects of rights of way management such as maintenance and enforcement. The reforms which would have helped users, such being freed from the burden of notifying owners about applications to recognise public rights over their land, and changes enabling authorities to progress such applications more quickly, will now no longer be a priority for Defra. Revision of the out-dated regulations for making public path orders, the Consistency Guidelines, and Circular 1/09, will be delayed further. User groups and other volunteers will no longer have the incentive to press on with their research into historical rights. And since Defra will have to wait for a suitable legislative vehicle to repeal the 2026 date, there is a real possibility that political pressure will build again to retain or re-introduce a cut-off date.