Purpose

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. 
 

Decision

As Cabinet Member for Community and Regulatory
Services, I agree to the 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 .