Recreational Vehicles (Green Lanes) (Hansard, 17 July 1995)

§ Mr. Andrew Hunter (Basingstoke)
I rise breathless, having been caught unawares by the sudden end of business. Between my gulps of air, I welcome the opportunity provided by the debate to return to a subject that I have raised with successive Ministers during the course of several years. I do so without apology because the subject is important in its own right and of increasing concern to many people. I refer to the appalling damage inflicted each year on hundreds of miles of the unmetalled green lanes of our countryside. The problem is nationwide. Environmental damage to and the fate of the Ridgeway, Old street in Berkshire, Denton track in Cambridgeshire, Pilgrim's way in Kent and, to a lesser extent, the Harrow way and Weston Patrick track in my constituency, have attracted national attention. Those are only a few of many instances.
Many green lanes are old drove roads or drift ways, along which sheep and cattle were driven to market long before the invention of motorised vehicles. Great stretches of those ancient green lanes are reduced to muddy quagmires in wet weather and rendered almost impassable by ruts—sometimes up to 2 ft deep even in dry weather.
As for the culprits, the private landlord is by no means entirely innocent, but the main culprits are four-wheel drive, off-road vehicles and trail bikes. The increase in annual sales of 4×4s has been phenomenal. In 1984, only 8,000 were sold. Last year, sales are estimated to have exceeded 60,000. The problem seems destined to increase as the years pass, unless firm action is taken soon.
I acknowledge the responsible attitude of the Land Access and Recreation Association—LARA. Not all 4×4 owners and certainly not all 4×4 clubs are irresponsible, but too many off-roaders are ruining our ancient green lanes. Most damage is done by unclubbable rogues. They must be stopped. To compound matters, under existing legislation they are entirely within their rights to pursue their pastime on all designated byways unless the highway authority has imposed a traffic regulation order. Existing legislation allows off-roaders to commit the environmental equivalent of rape and pillage.
The underlying cause is to be found in the Wildlife and Countryside Act 1981. To be fair, that legislation was framed before off-roading became so popular and it was not designed to deal with today's problem. Nevertheless, the 1981 Act compels county councils to reclassify all rights of way as footpaths, bridleways or byways open to all traffic. It eliminated the former category of ruts—roads used as public paths. Nationwide, many thousands of miles of tracks still have to be reclassified. At the present rate of progress, that will take decades. Hampshire, for example, has approximately 2,250 miles of rights of way. So far, only 550 miles have been reclassified.
As my hon. Friend the Minister knows, if historic vehicular use can be established, the right of way must be declared open to all traffic—even if vehicular use has not been continuous and predated the combustion engine. One green lane in Hampshire has been declared open to all traffic at the end of the 20th century only because horse-drawn Army vehicles used it during the Napoleonic 1427 wars. Moreover, until 1981, under the Countryside Act 1968, councils could impose a test of suitability that gave them powers to impose restrictions on vehicles wishing to use byways. Tragically, that power has been taken from them.
The 1968 Act required amendment. It favoured people who wished to extinguish public rights, not those who sought to control vehicles. It was felt that the test of suitability was a threat to ancient rights of way, but that was before the advent of the off-roaders. Paradoxically and contradictiously, the Wildlife and Countryside Act 1981 reclassification process contains no provisions for protecting species that other parts of the Act seek to safeguard.
The Government's reply to criticism has not yet been as positive as many of us would like. The Government suggest that counties can and should use traffic regulation orders to limit access. But at £4,000 a go, and taking Hampshire as an example, that would mean that limiting access across the county could cost the county council £300,000.
Nor did a traffic regulation order save the Ridgeway in 1992. Objections to the traffic regulation order led to a public inquiry. At that inquiry the inspector dismissed the county's application.
The Government have said that road closures can be enforced by the highway authority under section 116 of the Highways Act 1980, either entirely or subject to the reservation of a footpath or bridleway along the route. The Government have said also that individuals or organisations can ask the highway authority to apply to magistrates for closure. But under section 117 of the Act, the cost of initiating the process has to be borne by the highway authority. All costs go to the individuals or organisations that goad the highway authority into action. That is a mightily effective deterrent.
Meanwhile the Department of the Environment word processors churn out a standard paragraph in reply to letters of concern. It states: We have considered very carefully whether to propose changes in the law. However, there appears to be no consensus in favour of fundamental changes to the legislation. We have therefore decided against any such action at present. I hope that the debate will help to bring about a change in the Department's thinking.
As for the remedy, there are many suggestions. Not all of them are mutually exclusive and I recommend them to my hon. Friend. Some people suggest that a legal distinction should be drawn between motorised and unmotorised vehicles, a distinction that already exists in our driving licence regime, and that discretionary suitability test powers should be returned to the counties. Others argue for a legal distinction not between motorised and unmotorised vehicles but between rights of way the surface of which can withstand use by motorised vehicles at all times and others which may need protection for some or all of the year.
The recently formed pressure group, the Green Lanes Environmental Action Movement—it is known as GLEAM—argues that motorised vehicles other than those requiring access to land or property should be banned from vulnerable byways unless allowed by a traffic enablement order, effectively the reverse of a traffic regulation order. It is further suggested that some traffic 1428 enablement orders could be seasonal—for example, banning off-roaders between October and May when the ground is soft and easily damaged.
Yet another suggestion is that in the reclassification process only evidence of continuous use by motorised vehicles for at least 20 of the past 40 years should be considered relevant.
The problem can surely only intensify as time passes. There are ideas for a solution and the need for action is irrefutable. I hope that my hon. Friend will consider the issue seriously. The preservation of our ancient green lanes demands that positive action is taken with the minimum further delay.

§ The Parliamentary Under-Secretary of State for the Environment (Mr. James Clappison)
I congratulate my hon. Friend the Member for Basingstoke (Mr. Hunter) on securing time for a debate on a subject in which he has great interest. He may know that the Select Committee on the Environment has recently chosen to examine the environmental impact of leisure activities on the countryside. The Government are well aware of the level and nature of current concern about recreational vehicles, as witnessed by debates on the Environment Bill. I shall make some general points in the hope of overcoming some general misconceptions, as well as taking on board my hon. Friend's particular concerns.

§ Mr. Geoffrey Clifton-Brown (Cirencester and Tewkesbury)
My hon. Friend referred to the report on tourism and leisure produced by the Environment Select Committee, of which I have the privilege to be a member. He will be aware of the considerable amount of evidence that we have received on the subject, which states that the present law is not working. I do not wish him to prejudge the report, but will he give it careful consideration, and reflect on whether the present mechanism can be amended in any way?

§ Mr. Clappison
The Government will give careful consideration to that report before making their response in due course. I intend to persuade my hon. Friend the Member for Basingstoke, that there are already appropriate means of addressing the matters that he has brought to my attention.
"Green lane" is a term of art rather than law. It is seen as covering all unsurfaced tracks in the countryside, although not all of those will be legally open to vehicles. Some will carry public rights only on foot, or on horseback, and others may be only private tracks. Some will already be recorded on definitive maps of rights of way; others may form part of the network of unclassified county roads in rural areas. Yet more may simply be shown as "white roads" on ordnance survey maps.
I am aware of concern, through correspondence and through the media, about damage to green lanes. My Department was involved in an important conference on the issue, organised by Hampshire county council as long ago as 1989. There was significant interest in that conference, but local authority members attending it confirmed that actual problems were isolated, although they could be severe where they occurred.
Subsequent surveys of highway authorities and users have looked further at the evidence. One of the most recent was carried out by Berkshire county council. I 1429 believe that I am right in saying that it supported a view that has been presented to the Department of the Environment consistently over recent years: that most authorities are experiencing few problems of damage caused by recreational vehicles, and then only on particular routes. All the evidence suggests that incidents of damage are isolated and sporadic—although I acknowledge that where they do occur they can be serious, and expensive to repair. Furthermore, where damage occurred, recreational vehicles may not always be to blame; there is also evidence of damage by agricultural and other users.
Let me say a little about the procedures—about which we have heard tonight—for recording public rights of way on definitive maps. Definitive maps record public footpaths, which people can use on foot, and public bridleways, which people can use on foot and on horseback—and on bicycles. They also record byways open to all traffic, or BOATs, to which my hon. Friend has already referred. They are ways that the public have a right to use in vehicles, but which are mainly used by walkers and riders. They are most often unsurfaced tracks in the countryside, and many have historic origins—although they may originally have been surfaced for the vehicular traffic of the time, or may simply have lacked repair in recent years.
The duty to record BOATs arises principally from the decision made when definitive maps were introduced, in the National Parks and Access to the Countryside Act 1949, to include as roads used as public paths—the RUPPs also familiar to those versed in the subject—those ways which, while carrying public vehicular rights, were principally used as footpaths and bridleways, and hence should be brought to public attention. The term was misunderstood, however, largely because the Act and the accompanying instructions were perhaps not sufficiently clear about the ways that it was intended to record.
The Countryside Act 1968 therefore introduced provisions to address the problem; but, again, they were applied inconsistently and problems occurred. We reviewed the legislation radically in 1981 and, in the Wildlife and Countryside Act 1981, introduced what I believe are now clear provisions. Those provisions require councils to review and reclassify all RUPPs to resolve legal uncertainty about the rights that the public have over them. We deliberately separated the ascertainment of rights—that is the term used in the Act—from a council's separate role of managing the use of such ways.
Even so, I recognise that the process of clarifying that legal uncertainty has not been easy. It involves careful evaluation of documentary evidence that is often conflicting. I believe, however, that the procedures that we have helped to develop for the consideration of objections deal with these complex matters in the fairest possible way. We have sought to make it clear that the purpose is to clarify rights that already exist, and that this is the issue that objections should address. The inspectors appointed by the planning inspectorate to decide opposed orders receive careful training. They are required to reach an impartial decision on each order, based on the evidence and representations. They are aware that the quality of documentary evidence will differ from case to case, and must be seen in the appropriate local context.
It has been argued that we should not now open up to modern vehicles ways that were dedicated for the use of carts and carriages. But it is a clear principle that the law 1430 does not distinguish between the means of propulsion. The modern network of roads has evolved in part from the network that was laid down in previous centuries. Simply because rights have not been exercised does not mean that the public have lost those rights.
We also realise that recognising rights comprises only part of the responsibilities of the local highway authority. It is responsible for maintaining the way, and it also has a clear role in managing use and resolving conflict. These are becoming particularly important roles as the pressures for countryside access increase and diversify.
We know that many of the ways reclassified as byways that are open to all traffic have seen little use by modern vehicles—nor are they likely to. Some may sustain a level of occasional use, others require better maintenance for the normal traffic of the parish. A number of applications to show routes as BOATs come from parish councils. We are satisfied that highway authorities have the tools at their disposal to carry out their responsibilities and deal with any problems that might arise. In particular, we have consistently emphasised the availability of traffic regulation order powers to highway authorities to regulate and control vehicular use on rights of way. They are sufficiently flexible to impose restrictions at the time most damage is likely to occur, or to separate users at various times during the week, where the issue is one of conflict. They can regulate all vehicles, or can distinguish between them. They do not inhibit essential access.
The first principle of effective management is to seek the co-operation of all those involved—and in this case, it will involve those organisations representing recreational vehicle users as well as landowners, local people and other users. While regulation is the backstop, negotiation can often provide a solution that all can accept. Organisations such as the motoring organisations' Land Access and Recreation Association have shown themselves prepared to accept voluntary restraints on use, and to persuade others to do so, and to publicise codes of conduct that take account of the needs of others and of the environment.
It would be wrong to paint too rosy a picture. There are problems. There are perceived difficulties among local authorities, for example, in seeking to impose traffic regulation in the countryside. Orders are seen as contentious and difficult to process and enforce. The Department of Transport has been looking at the procedures to see if they can be made simpler, and will be consulting shortly on revisions to the regulations. But we also need to ensure that authorities are made more aware that the powers can be used not just to regulate traffic in towns, but to improve amenity in the countryside.
My hon. Friend the Member for Basingstoke mentioned environmental damage to the Ridgeway. I understand that in that case the Secretary of State for Transport decided not to make the traffic regulation order for very specific reasons. The problems on the Ridgeway are not solely related to recreational vehicles. The Secretary of State placed great emphasis on alternative voluntary means of reducing conflict. The Countryside Commission has taken account of a wide range of views in formulating a management plan, which will also be of use to other authorities in resolving conflict on byways in similar circumstances.
1431 Ministers in the Department of the Environment have been aware for some time of the growing wealth of experience among highway authorities in dealing with conflicts on rights of way. A number are developing sensitive techniques in maintaining unsurfaced tracks in a good condition for all users. Others have developed constructive dialogues with user groups, or have successfully used traffic regulation orders in particular circumstances.
We have therefore asked officials to undertake the preparation of a best practice guide to managing the use of rights of way by vehicles. This will draw on the experiences of local authorities, users and landowners, and publicise practical solutions for resolving difficulties. It will also include an assessment of the process of reclassification so that we can help ensure that the procedures work more smoothly. I believe that that will be an important step forward.
I am, nevertheless, aware of a groundswell of opinion that the legislation is inadequate, that we need to accommodate a test of suitability for every road used as a public path and that we need to provide a new class of highway from which mechanised vehicles are excluded or to impose an automatic weight limit on vehicles using BOATs. Some of the proposals are superficially attractive, but I do not believe that they are at present appropriate 1432 or necessary. I have described some of the powers and techniques already available at the local level—powers and techniques that have been used in Hampshire. I do not believe, on the evidence available, that it is possible to justify fundamental changes to the legislation. Nor do I believe, on the evidence, that authorities would welcome such fundamental changes. They are generally working constructively towards the millennium target of getting the whole of the rights of way network in good order by the year 2000 and this includes the vital task of bringing definitive maps up to date.
I shall be quite clear, however. I do not believe that authorities should tolerate the attitude of users whose enjoyment on public rights of way comes from making as much noise and mess as they can. Ancient highways are there to be enjoyed and they can be enjoyed by a wide range of users. They do not exist simply to be destroyed by thoughtlessness and intemperate use should not affect others' enjoyment. The place for that kind of excitement is not the public highway, but the purpose-built course.
Although I am not at present persuaded that further legislation is justified, I hope that I have assured my hon. Friend that we are working hard to improve procedures and to provide a measure of clarity in a complex and difficult area.