Issue details

Proposed decision

Acceptance by Kent County Council of the delegation by Kent District Councils of their functions in respect of public path orders and applications made under the Highways Act 1980 sections 118ZA and 119ZA .

Background

Amendments to the Highways Act 1980 (sections 118ZA & 119ZA) to provide a right for landowners to apply for public path diversion and extinguishment orders were included in the Countryside and Rights of Way Act 2000. After a considerable delay DEFRA notified local authorities that the statutory instruments required to implement the amendments were to be  be laid later this year. This will not now be the case although work on the statutory instruments continues.  The amended provisions and administrative obligations that go with them apply to both the County Council and District Councils. In order to ensure a consistent approach to delivery and decision making relating to the provisions and the determination of applications  agreement is sought to allow District Councils to delegate their function, in respect to public path orders, to the County Council.

The introduction of the new provisions (Highways Act 1980 sections 118ZA and 119ZA) apply equally to  County and District Councils. There are benefits to both Kent County Council and the District Councils in Districts delegating the functions to the County Council, principally it would:

a.   secure economies of scale in terms of expertise, knowledge and meeting the ancillary requirements of the new provisions

b.   remove the burden the function would place on Districts       

c.   ensure greater consistency in the delivery of the function

d.   it may mitigate potentially adverse financial/ resource impacts resulting from poor proposals or poorly drafted orders.

Options (other options considered but discarded)

The only other option available would be to not accept a delegation of the function by the District Councils. It may be, of their own volition, that Districts choose to deliver the function. There are likely to be negative outcomes for both Districts and the County should this be the case. Specifically:

a.    A resource implication for the Districts who would be unlikely to secure any economies of scale due to insufficient demand.

b.    Difficulty in recruiting and developing staff with the relevant knowledge and skill set.

c.    Inconsistency in approach , decision making and the quality of public path orders.

d.    Demands on County Council resource to check, amend, or object to applications for which it cannot charge.

A similar function, the making of public path diversion and extinguishment orders under the  Town and Country Planning Act 1990, is currently delivered by the Public Rights of Way and Access Service on behalf of eleven of Kent’s thirteen planning authorities for the reasons above.

How the proposed decision supports Framing Kent’s Future 2022-2026: (https://www.kent.gov.uk/about-the-council/strategies-and-policies/corporate-policies/our-council-strategy)

The proposed decision relates to the introduction of legislative changes. The recommended decision therefore does not tie in directly with the County Council’s Strategy “Framing Kent’s Future”. However, in supporting more efficient service delivery it does contribute in small measure to the objective as set out in Environmental step change . Priority 3: Improve access for our residents to green and natural spaces especially in urban and deprived areas and through our Public Rights of Way network to improve health and wellbeing outcomes.

How the proposed decision supports Securing Kent’s Future: Securing Kents Future - Budget Recovery Strategy.pdf 

The proposed decision seeks to deliver this work in the most efficient, economic and effective way by maximising existing economies of scale, expertise and knowledge and meeting the ancillary requirements of the new provisions prioritising the Council’s best value duty.  It seeks to minimise unrecoverable costs and long term costs to the County Council and in that respect it is well aligned with Securing Kent’s Future.

Financial Implications

 It is intended that authorities will be able to recover the costs incurred in processing applications under the new provisions. Further cost recovery regulations are to be laid before Parliament to that end. While it is intended that the regulations will enable full cost recovery in accepting and determining correctly made applications it is clear that the full potential financial impacts of the new provisions have not been considered. Examples of where the County Council’s costs would not be met include:

a.    Considering consultations where applications are made to or determined by a District.

b.    Correcting a draft order, order plan or associated notices where drafted by a District.

c.    Objecting to a proposal or order made by a District Council, the Secretary of State, or even by the County Council on direction of the Secretary of State, in cases where a proposal or order is not considered to be in the interests of the public or Kent County Council. For example a diversion proposal does not meet the legal tests as set out in the Act or it involves a bridge that would become maintainable at the public expense.

The cost recovery regulations will extend the charges that we are able to make for public path orders and we are not, at this point, seeking any additional resource to meet the requirements of the new functions. We expect demand for the determining of applications and processing orders to be cost neutral. While we do not know what demand there will be , we do not believe that it will be significant as Kent has traditionally accepted applications.ie there should be no supressed demand.

In so far as there is an adverse financial impact, the delegation of the function by Districts would help mitigate a number of the avoidable impacts.