§ Mr. Andrew Hunter (Basingstoke)
It has been said: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."—[Official Report, 17 July 1995; Vol. 263, c. 1426.]
I acknowledge that it may be regarded as the height of vanity to quote oneself, but that is how I started my previous Adjournment debate on this subject, nearly four years ago. I have repeated those words today because, tragically, the situation has not improved in key respects. Sections of the country's green lanes are being extensively damaged through misuse by modern vehicles.
The process of reclassifying public rights of way under the Wildlife and Countryside Act 1981 has, at the very least, been profoundly unsatisfactory. Clarification is urgently needed, and has been for some time. More than that, there is growing consensus that we need to adopt a wider land management approach to our green lanes and the countryside through which they pass—an approach that goes beyond merely classifying user rights.
Without doubt, some of the damage to our green lanes is caused by agricultural vehicles—perhaps a considerable amount. Much of it is caused by 4x4s and other recreational vehicles. In parenthesis, I acknowledge that national organisations representing the interests of 4x4 drivers and many 4x4 clubs are environmentally aware and operate extremely responsibly.
My first substantive point is that the root cause of much of the misuse by vehicles of our green lanes in recent times has been, and remains, the reclassification process under the 1981 Act. In 1996, my hon. Friend the Member for Hertsmere (Mr. Clappison), who was then Under-Secretary of State for the Environment, registered concern that legal dedication of vehicular rights was being established on the back of wrong advice from a number of highway authorities.
In the then Government's opinion, some highway authorities were misconstruing the 1981 Act. The present Government, as I understand the situation, have followed suit. In July 1997, the Department of the Environment, Transport and the Regions issued guidance in the form of a legal view that it is unlawful for vehicles to use roads used as public paths—RUPPs—unless vehicular rights have been established in accordance with the Road Traffic Act 1988. In Stevens v. the Secretary of State, of 16 January 1998, the High Court, on appeal, upheld that position. There is a presumption of only bridleway and lower rights attaching to RUPPs, unless and until higher rights have been shown to exist.
However, the judgment in the Stevens appeal went on to say that recent vehicular use could be used as supporting evidence of historic rights and that to rule vehicular rights out before the matter of historical rights had been determined would be to prejudge the issue. That second part of the judgment has complicated rather than resolved matters, because there is now considerable debate and uncertainty over whether it is illegal to drive on a RUPP unless it has been proved that there are historic 883 vehicular rights and whether it is legal to drive on a RUPP until it has been demonstrated beyond reasonable doubt that there are no vehicular rights.
In other words, what should be straightforward criminal proceedings can become complex civil matters. It is therefore no wonder that reclassification under the 1981 Act appears to have stalled in some counties. I submit that it is imperative that the issue is clarified. My own position is that I support those who vigorously argue that vehicular use of RUPPs should be illegal unless or until historic vehicular rights have been proved.
Secondly, I turn to a related point: the Countryside Commission's objective 8, which is to reclassify all RUPPs and unclassified country roads as a new category of byways. I share the concerns expressed by the Country Landowners Association in its submission to the Countryside Commission, and by the environmental group Green Lanes Environmental Action Movement, known as GLEAM, and others.
I argue that this proposal is a step in the wrong direction. If implemented, it would create vehicular rights over many routes where such rights do not currently exist. It would extend the potential to inflict damage on our green lanes. We know perfectly well from the process of reclassification under the 1981 Act that many RUPPs sustain bridleway rights, not vehicular rights. The proposal would extend vehicular rights to hundreds of RUPPs for the first time. Much the same line of argument applies to the unclassified county roads. In a letter dated 24 August 1998, which was generally circulated, the Department confirmed that the status of individual UCRs must be established on a case-by-case basis. Many UCRs are nothing more than unsealed minor tracks. Most important, a significant number of UCRs have been held, after public inquiry, not to carry vehicular rights.
If UCRs and RUPPs are to constitute a new category of byways, vehicular rights will also apply to them. The Countryside Commission's objective 8, if implemented, would expose more of our green lanes to misuse by vehicles. I greatly hope that the Government will, in due course, accept the Country Landowners Association's recommendation that, instead of the objective 8 reclassification, all RUPPs and UCRs should be shown on definitive maps as bridleways.
I want to refer to the management of byways open to all traffic where vehicular rights exist. Some of my hon. Friends feel instinctively uneasy when they hear the word "regulations", and I am not unsympathetic to that point of view. However, there is a strong case for national regulations to regulate the use of byways open to all traffic. The Minister will note that my remarks again reflect the CLA position. National regulations could restrict use to motor vehicles below a certain weight and fitted with flotation tyres, apply a speed limit to all motor vehicles, ban use by motor vehicles during winter months, perhaps, although controversially, make exceptions to enable continued use by agricultural and forestry vehicles if they are part of the ordinary traffic of the neighbourhood, and require all restrictions on use to be shown on signs on all BOATs where they meet other highways carrying vehicular rights.
In the context of preserving such byways, it can also be argued that two changes to local traffic regulation orders are desirable. One of those changes would be to provide that such orders can override any national 884 regulations on BOATs by adding or removing specific preservations in relation to specific byways and specific types of traffic.
A second change would be to widen the grounds for making traffic regulation orders to include avoiding disturbance to livestock, game or wildlife, and protecting flora, fauna, geological, geomorphological or physiographical features. That proposal highlights the need to consider the sustainability of rights of way not only to maintain their surfaces, but—and I emphasise this point—for their wider wildlife and environmental value.
I welcome the fact that the Minister for the Environment, in a written answer on 5 February 1998, emphasised that wider dimension. He also referred to the Government publication "Making the Best of Byways", which he described asa practical guide to managing vehicles on byways".—[Official Report, 5 February 1998; Vol. 305, c. 730.]
It is unfortunate that "Making the Best of Byways", at least in the opinion of some people who follow these issues closely, is misleading in key respects. First, the booklet states that its focusis upon unsealed ways which carry public vehicular rights. These include: roads used as public paths (RUPPs) (where rights of way for vehicles exist).As it stands, that is highly ambiguous. The last phrase in brackets could be taken as asserting that vehicular rights exist on all RUPPs, which is not the case. As has been pointed out to the Government on a number of occasions, the ambiguity would be removed if that phrase were corrected to read "in cases where rights of way for vehicles exist." I find it hard to understand the Government's reluctance to issue such a correction.
Secondly, among the unsealed ways that carry public vehicular rights the booklet listsroutes formerly defined as unclassified county roads".Surely the Government are mistaken. Some years ago, the Secretary of State, in the Cumbria decision, held that the term "UCR" was only administrative. In the letter of 24 August 1998 to which I have referred, the Department acknowledged that the status of UCRs should be established on a case-by-case basis, and, most important, that a significant number of UCRs had been held, after public inquiry, not to carry vehicular rights. In the light of that, it is hard to understand why the Government assert that UCRs carry public vehicular rights.
Thirdly, some argue that the Government are adding further confusion to this complicated issue by inventing a new definition of the word "byway". According to the booklet,this word byway has been used in the guide to cover all three classes"—that is RUPPs, BOATs and UCRs. I use the term "green lanes". Over the years, there has been a Government-led convention that the word "byway" should be the accepted abbreviation for byways open to all traffic. It is argued that it is a dubious practice suddenly to give the word a new and wider meaning.
As time is short in these Adjournment debates, I have been obliged to be ultra-selective. I have touched on only some of the key issues. We can be sure that the problems will intensify and damage to our green lanes will continue unless effective action is taken.
§ Mr. Hunter
I note the approval of the hon. Member for Newbury (Mr. Rendel), who follows these issues 885 in detail. I hope that the Minister will consider these issues seriously. The preservation of our ancient green lanes demands positive action with minimum further delay, and I look forward to the Minister's reply.
§ The Parliamentary Under-Secretary of State for the Environment, Transport and the Regions (Ms Glenda Jackson)
I congratulate the hon. Member for Basingstoke (Mr. Hunter) on securing a debate on a subject in which I know he is interested, and has been interested for a long time. We are aware of the concern about damage to green lanes as a result of inappropriate use by motor vehicles, not only from the hon. Gentleman's efforts but from letters from hon. Members on behalf of their constituents, from the early-day motion—mentioned by the hon. Gentleman—tabled by the hon. Member for Newbury (Mr. Rendel), who I am happy to see is present, and from media reports.
Let me say a little about the legislation on rights of way, and local authorities' duties and powers. The term "green lane" is not recognised in law, but it is usually acknowledged to cover all unsurfaced tracks in the countryside. Not all such tracks carry vehicular rights. Some green lanes carry rights only for those on foot, some for those on foot and on horseback, and some carry no public rights at all, being for private use only.
Public rights of way are recorded on definitive maps. If a way is shown on such a map, that constitutes conclusive evidence of the public rights along the way. Local authorities—usually county councils, which involve two tiers—are responsible for definitive maps. They are required to keep the maps under continuous review to amend them when missing rights, or errors in previously recorded information, are identified.
§ Mr. Harry Barnes (North-East Derbyshire)
Does a definitive map always constitute conclusive evidence? I have had numerous problems in this connection in my constituency, and representations have been made to Derbyshire county council. Is it really the case that, when a bridleway is included in a definitive map, that is it? The Trail Riders Fellowship wants to be able to provide facilities for its members to ride bikes on lanes, and intends to challenge the authority of definitive maps, but it is proving difficult to persuade the police and the Crown Prosecution Service to act.
§ Ms Glenda Jackson
I understand that the legal definition of a right of way is what appears on a definitive map, but I am the first to acknowledge that there can be—and often are, in specific areas—differences of opinion on the names that should be given to rights of way.
The rights-of-way network in England amounts to some 169,000 km, or 105,000 miles, and represents an important recreational resource. Footpaths make up about 78 per cent. of the network; bridleways, for people on foot, on horseback and on bicycles, make up about 17 per cent., and byways open to all traffic, or BOATs—a rather unusual acronym, given that we are discussing routes for people on foot, on horseback, on cycles and in or on vehicles—make up 3 per cent. BOATs are intended mainly for use by horse riders and walkers, but vehicular 886 uses have the right to use them. It should be borne in mind that the description of vehicular users extends beyond motorised traffic. BOATs provide a valuable network of off-road routes for horse-drawn vehicles. The remaining 2 per cent. of routes are currently classified as roads used as public paths.
The duty to record rights of way arose principally from the National Parks and Access to Countryside Act 1949. Under that Act, local authorities were required to record as roads used as public paths—RUPPs—not only footpaths and bridleways, but ways which, while carrying public vehicular rights, were used principally as footpaths and bridleways. The term "RUPP" was misunderstood, however—perhaps because the Act and the accompanying instructions were not sufficiently clear about the ways that they were intended to record.
The Countryside Act 1968 introduced provisions to deal with those misunderstandings, but again the provisions were applied inconsistently, and problems—albeit different problems—occurred. The legislation was reviewed again in the Wildlife and Countryside Act 1981—on which the hon. Member for Basingstoke made his opinion clear—and provisions were introduced to require local authorities to resolve the legal uncertainty that had grown up over the years about the rights that could be exercised on RUPPs. Local authorities were to review and reclassify RUPPs as footpaths, bridleways or BOATs, depending on the rights that local authorities found to exist.
That reclassification exercise is itself misunderstood. Let me emphasise that no new rights have been created as a consequence; instead, there is certainty about the rights that already existed. One consequence of the 1981 Act was the separation of the issue of rights from management measures available to local authorities to ensure that inappropriate use of ways—footpaths, bridleways or BOATs—does not occur.
Reclassification is not an easy task. It rests largely on historic documentary evidence that was not drawn up for the purpose, and sometimes evidence is or appears to be conflicting. The quality of evidence differs from case to case and from area to area, and, in many instances, must be seen in the local context. Some authorities have reviewed and reclassified all their RUPPs; others have some way to go. In 1997 authorities in England made some 86 reclassification orders, only a few of which appeared to cause difficulties. Many of the ways reclassified as BOATs see few or no vehicles; some are capable of sustaining vehicular use with no detriment to the enjoyment of others.
It has been argued that ways that were created for the use of cars and carriages 100 or more years ago should not now be open to motor vehicles. I sympathise with that view, but the modern road network evolved in part from the network established in past centuries. When rights that have not been exercised are shown to exist, there is a case for recording them. The question that then needs to be addressed is whether those rights—or any others, if exercised—are likely to cause damage.
That brings into play another key element of local authorities' responsibilities for the rights-of-way network. They are also responsible for ensuring that the use of rights of way is regulated, and is not inappropriate. They can do that by means of their powers to make traffic regulation orders. Such orders can be made for a variety 887 of reasons, but, in the context of today's debate, the most relevant criteria are those preventing use by vehicular traffic of a kind or in a manner that is unsuitable, having regard to the character of the way and to preserving the character of the way in cases in which it is especially suitable for use by persons on horseback or on foot. Using those powers, local authorities can regulate use for all or some users for all the year, or at times when ways are vulnerable.
Traffic regulation orders, however, have incurred some criticism as a management tool to protect rights of way, and there may be a case for changing local authorities' powers in that regard. Last year, we announced our intention to consider whether the scope for the making of orders should be widened to include nature and landscape conservation. Also last year, we published our document "Making the Best of Byways". I am sorry that the hon. Member for Basingstoke does not share our view that it constitutes a practical guide to management of the use of vehicles on public rights of way.
The guide was prepared with the help of groups representing landowners, farmers, users and local authorities. It is intended to assist and encourage the development of clear management strategies for unsealed ways, and to set out measures that can be taken to protect them as a resource and to benefit a wide range of users.
The hon. Gentleman expressed concern about the introduction to the guide. The guide does not state that all RUPPs carry vehicular rights. To be included in it, ways must be unsealed and also carry vehicular rights. The sub-set in the document includes some RUPPs, some BOATs and some routes formerly defined as UCRs. Excluded from the sub-set are RUPPs that are sealed, RUPPs that do not carry vehicular rights and BOATs and former UCRs that are sealed. The guide goes on to say that rights of way in the sub-set, which for the purposes of the guide are referred to as byways, are available to all users. As all the ways in the sub-set carry vehicular rights by definition, that is true. The guide does not seek to redefine terms used in legislation, or the rights associated with particular statutory definitions.
Nevertheless, we are aware that there is considerable concern about rights of way. The concern is not only about protecting green lanes, or reclassifying RUPPs, but about procedures for the whole network. Last year, the Countryside Commission—as it was then—set out its proposals in a document entitled "Rights of Way in the 21st Century", which was mentioned by the hon. Member for Basingstoke, and which the commission used as the basis for discussions with national organisations with an interest in rights of way.
Much interest was expressed in the commission's proposals on the objective of promoting a more effective approach to managing vehicular use of rights of way. The strong responses were an indication of the feelings on the matter. Some people interpreted the commission's 888 proposals as an attempt to increase the number and length of routes that may be used by vehicles. However, that was not the proposals' objective—which was to achieve greater clarity over the rights that may be exercised on rights of way.
Following its discussions, the Countryside Commission has made its recommendations for change in "Rights Of Way in the 21st Century, Conclusions and Recommendations", which was published last month. The commission concluded that it was essential to establish clear arrangements to replace the current system, and made several recommendations to that effect. It noted the interest shown in vehicular rights and the antipathy often shown towards any motorised use. It proposed that the Government should invite the new Countryside Agency to establish a working group of representatives of the main organisations with an interest in vehicular use of rights of way to identify and agree specific proposals for improving both the management and recording of byways.
On 8 March, my right hon. Friend the Minister for the Environment announced that the Government would be proposing changes to the legislation and procedures on rights of way, as part of our package of measures to give people more freedom to enjoy the countryside. Before reaching conclusions on the details, we are considering the Countryside Commission's recommendations and will be consulting shortly.
I am grateful to the hon. Member for Basingstoke for raising the issue. The debate is timely in the light of our recent announcements and our commitment to change.
§ Mr. Hunter
May I ask the hon. Lady to extend her comments to the suggestion that I made on national management regulations? Does she see scope for those within the Government's thinking?
§ Ms Jackson
As I have already told the House, we shall shortly be going out to consultation on the matter. In the light of what the hon. Gentleman has just said, however, I shall pass on his concerns to my right hon. Friend. It is always possible—whatever the consultation document, and regardless of whether a particular idea is defined by Government—for recipients of the document, and others who wish to respond to it, to offer their own ideas on how our approach in addressing any specific issue may be improved.
As I said, we shall shortly be seeking views from the public and interested organisations on our proposals. Today's debate will be a contribution to the forthcoming wider debate on the procedures and processes for the network as a whole.
§ It being before Two o'clock, the motion for the Adjournment of the House lapsed, without Question put.
§ Sitting suspended, pursuant to Standing Order No. 10 (Wednesday sittings), till half-past Two o'clock.