§ (" .—(1) Any public right to use a way with mechanically propelled vehicles that—
- (a) existed before 1st January 1949;
- (b) is not over a trunk, classified, principal or special road;
- (c) is over a way that does not appear at the cut-off date on the definitive map as a byway open to all traffic; and
- (d) is not shown to have been exercised by the public at any point between the commencement of this Part and the cut-off date,
§ (2) Any owner or lessee of premises adjoining or adjacent to a way over which public rights have been extinguished under subsection (1) above shall, so far as is necessary for the reasonable enjoyment and occupation of the premises, have a right of way for vehicular and all other kinds of traffic over the way.").
§ The noble Baroness said: My Lords, I again thank the Minister for agreeing to meet myself and the noble Baroness, Lady Scott, following our discussions in Committee. In Committee I believe that the noble Lord referred to my amendment as a "brave" attempt. We have subsequently met the Minister and have tried to improve it, but this is a difficult problem.
§ Amendment No. 166 is my revised version of what was Amendment No. 360A. The proposed new clause has four tests in paragraphs (a) to (d) that need to be satisfied for vehicular rights (only for mechanically propelled vehicles) to be extinguished. The extinguishment applies only to rights pre-1949 over effectively unclassified ways that do not appear on the definitive map and which are not used. A way would only have to fail on one of the criteria in paragraphs (a) to (d) to preserve the right of the public to drive on the route.
§ Much of the debate in Committee concerned the misconception that all ways not recorded as byways open to all traffic (BOATs) would be extinguished. That is not the case with this amendment, nor was it with the previous amendment. The only routes over which vehicular rights were extinguished would be minor, unclassified ways that were not used and did not appear on the definitive map as BOATs.
§ Noble Lords also seemed concerned that the public's right to use vehicles over each route would have to be dealt with on a case-by-case basis. That is the case now for vehicular routes that are used by the public but do not appear on the definitive map.371
§ There is not now a mountain of claims against the public's right to use such roads, so why should there be in the future? In theory all such ways could be challenged but the cost sanctions which exist for losers in the civil cases guard against spurious claims. If the amendment were accepted, it is unlikely that routes used by the public would be challenged.
§ I corrected a drafting error by changing "or" to "and". The amendment provides that only rights in mechanically propelled vehicles in existence before 1949 would be extinguished. I hope that that clarifies the matter. I beg to move.
§ Baroness Scott of Needham Market
My Lords, I am grateful to the noble Baroness for bringing forward the amendment. It gives us another opportunity to debate the vexed issue of vehicular use of rights of way. Perhaps noble Lords will bear with me for a short moment, I should like to take a short stroll down the byways of history.
In 1705 Lord Justice Coke laid down a three-fold classification of public highways: packways (now bridleways), footways and cartways. We no longer use the expression "cartway". However, we still call part of a road a carriageway. For many years the inhabitants of parishes maintained the highways as best they could. It was at the end of the 19th century that rural district councils began to take responsibility for highways maintenance. They began to survey the routes. At that time the routes began to be lost; they were never put on to surveyors' maps.
The Countryside Act 1949 described something called a RUPP—a route to be used as a path and bridleway but over which there might be vehicular rights. The 1968 Act allowed local authorities to take into account suitability when deciding whether such vehicular rights would exist. Unfortunately, that power was removed by the Wildlife and Countryside Act 1981. Therefore, the current position is that byway status will be established if documentary evidence can be produced to suggest that it was once a cartway. We now have the situation that the old use of a route by horse and cart today translates into the right of 4x4 vehicles and quadbikes to use those rights of way.
It is time to grasp the nettle and decide what these routes are for. Walkers and riders prefer not to be confronted by vehicles. For most of us, the joy of walking off the highway is precisely because it forms an escape from vehicles. Along many sunken lanes, the presence of many high banks makes escape impossible if walkers, horses and vehicles coincide. Many of those lanes have become valuable habitats which are threatened by vehicular use.
Of course, a local authority faced with evidence of vehicular rights can use Section 116 of the Highways Act 1980 to remove those rights. Alternatively, it can use the traffic regulation order procedure to ban vehicles. Local authorities can and do make widespread use of these. But in Suffolk, the county I know best, of the 221 RUPPs which were reclassified, 84 became byways. We still have 265 left to deal with. Those will become restricted byways under this 372 legislation but they could still be subject to claims for vehicular use. In addition, in Suffolk alone another 179 byways have come into being through the claims process. It is not uncommon for people researching claims for footpaths to discover old vehicular rights. Given that this is the scale of the problem in one county, it reaches magnificent proportions when applied over the whole country. Does it really make sense for local authorities to have to deal with hundreds if not thousands of individual cases either by magistrates' courts closure or traffic regulation orders when we could deal with the matter through primary legislation?
In principle, I have difficulty accepting the removal of rights for a whole category of user. But in this case I am well on the way to being convinced that the amendment of the noble Baroness, Lady Byford, has much to commend it. It preserves the ancient rights of use by horse and cart. The only rights removed are modern rights for vehicles which did not exist when the routes originally came into being. It keeps in place the routes already on the definitive map and takes into account those routes which are currently not on the map but are used by vehicles as an informal part of the rural highway network.
My Lords, perhaps I may say with deep respect to my noble friend on the Front Bench, I doubt whether subsection (2) is necessary. Under the common law that right will continue to exist anyway.
§ Lord Williamson of Horton
My Lords, I shall catch up with the horse and cart in a moment or two! However, as we are coming to a large number of government amendments, I wish to put on record that I believe those amendments will greatly improve what was already a very good Bill. I mention that as we debate the new clause proposed by the noble Baroness.
I support the proposal. It is a little complicated but it is a modest proposal. We are extinguishing pre-1949 rights for motorised traffic over the minor unclassified ways which are not used and which do not appear on the definitive map as a byway open to all traffic. The individual cases exist in perhaps reasonable numbers in the country. But an overall decision establishing clarity about the use by mechanically propelled vehicles on these types of ways is desirable when we have primary legislation before us.
I support the proposal. It could be a little icing on top of the very good cake which the Government have given us in this part of the Bill.
§ Lord McIntosh of Haringey
My Lords, my speaking notes say that the noble Baroness, Lady Byford, has made another valiant attempt. However, since she reminded me that I used the word "brave" previously, I shall stick to that. Of course we recognise what is a real problem: how to deal with vehicular rights of way which are completely unrecorded on a definitive map at the cut-off date.
We acknowledged in Committee that the Government are not anxious to promote inappropriate motorised vehicular use in the 373 countryside—to put it mildly. We want to prevent inappropriate motorised vehicular use as the government amendments we have just debated make entirely clear. But we cannot accept that Amendment No. 166 overcomes the problem of how to distinguish between byways open to all traffic which are required to be recorded on definitive maps and the vast lengths of other unclassified roads in England and Wales which are not. The amendment refers to trunk, classified, principal or special roads but not to unclassified roads.
Byways open to all traffic are defined by Section 66(1) of the Wildlife and Countryside Act not only in relation to the vehicular rights over them which they have in common with unclassified roads but also by reference to their character as highways which are likely to be used more by horseriders or walkers. In order to put this into context, I should say that of all the rights of way which exist in this country only about 2 per cent are, or will be, byways open to all traffic; and 3 per cent will be roads used as public paths. The remainder will be footways or bridleways. Although I yield to the knowledge of Suffolk of the noble Baroness, Lady Scott, in the country as a whole it is a small minority problem.
Amendment No. 166 seeks to resolve the problem by disregarding the distinction between byways open to all traffic and other unclassified roads and provides, as a safeguard, that motorised vehicular rights over an unclassified road would be extinguished only at the cut-off date if those rights are not shown to have been exercised by the public at any point between commencement and that date. We note that paragraphs (c) and (d) are negative conditions. However, this would require prudent administration in order to safeguard a major part of the road network—in other words, the unclassified roads which are roads, not rights of way, not intended mainly to be used by horseriders or walkers; they are roads. The noble Baroness, Lady Byford, says that she does not want a case-by-case investigation. But that is what the amendment would require. The amendment is weighted in favour of wholesale extinguishment because extinguishment would occur unless someone showed that there had been public use; for example, the amendment would apply to all unclassified roads in inner London, despite the fact that definitive maps do not cover that area. Clause 51 excepts certain categories of highway from the cut-off date provisions.
The amendment would not expressly require evidence of use to be provided before the cut-off date. I am grateful for that. However, it stipulates that extinguishment would occur on that date if no use had been shown to have occurred. That could result in all motorised vehicular rights over all the thousands of miles of unclassified roads in England and Wales being extinguished at the cut-off date if they had not by then been shown to have been exercised. In other words, silence could mean extinguishment. A massive amount of work would be necessary before the cut-off date to preserve public vehicular rights of way over roads that are essential for local traffic.
374 The amendment provides no mechanism for deciding how or when it should be shown that vehicular rights had been used. Unclassified roads make up more than 50 per cent of the road network in England and Wales. I am afraid that the approach in the amendment does not make sense, much as we would like to agree with it.
** The noble Baroness, Lady Byford, said that she did not want a case-by-case examination, but that would be necessary under the amendment. The use of all the 113,000 miles of unclassified roads would have to be investigated, although that would not be required at the cut-off date. It is not clear from the amendment whether vehicular rights over the roads would be extinguished in the mean time. Rights of way are either extinguished or they are not; there is no half-way house.
I am sorry. I want to agree to the amendment, but it would be an unsatisfactory and bureaucratic way of dealing with its apparent primary aim: to prevent people producing evidence after the cut-off date of long-forgotten vehicular rights. The magistrates' courts have the power, on application by a highways authority, to extinguish vehicular rights of way if they appear to be unnecessary. It would be open to an authority to seek an order without any need for further legislation.
I repeat that I am sorry that I cannot agree to the amendment, because I know that the noble Baroness means well. However, the Bill provides a mechanism for dealing with the problem that she has rightly identified.
§ 5 p.m.
§ Baroness Byford
My Lords, I have been "brave" and now "valiant", but unfortunately I am still at the wrong end of the wicket. I think that our cricketers are doing better than me. In all seriousness, I thank the noble Baroness, Lady Scott, the noble Lord, Lord Williamson, and others who have spoken in support of the amendment.
I have one or two questions for the Minister. He said that my amendment was unsuitable and would not cover the problems that I have identified. He also said that the Bill addressed those problems later. Later clauses address different problems relating to 4x4 vehicles, but they do not overcome the problem that the amendment is designed to deal with. Perhaps the Minister will be kind enough to tell me whether the Government will think about the problem further. If I cannot come up with a good suggestion, perhaps the Government can, as they have much more expertise and back-up at their disposal than we do. I should be happy to hear from him again before I decide what to do.
§ Lord McIntosh of Haringey
My Lords, that is a perfectly proper question. The issue is dealt with in Amendment No. 193A. If we have not satisfied the noble Baroness by the end of that debate, we shall have to talk about it again before Third Reading.
§ Baroness Byford
My Lords, I am being careful because we are on Report. I thank the Minister for that 375 comment, but I did not think that Amendment No. 193A, which I am looking forward to debating, covered what I am trying to cover in this amendment. The slight problem is that if I leave it until we debate Amendment No. 193A, I shall not be able to come back to this one. That is why I want to press the Minister to agree that he will at least think about the problem before I have to make my decision.
§ Baroness Byford
My Lords, I think that I am being outbowled. It is early in the day. I see that a message has just come to the Minister. Perhaps I should wait a minute.
§ Lord McIntosh of Haringey
My Lords, I do not have anything to add. We can debate the issue later. I should be very sorry if we were to part company on the amendment, because it would not achieve what the noble Baroness wants.
§ Baroness Byford
My Lords, I understand where the Minister is coming from. Pending our later debates on the issue, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Schedule 6 [Amendments relating to creation, stopping up and diversion of highways]:
Baroness Farrington of Ribbleton moved Amendment No. 167:
Page 76, line 11, at end insert—
(". In section 26 of the 1980 Act (compulsory powers for creation of footpaths and bridleways) after subsection (3) there is inserted —
(3A) The considerations to which—
- (a) the Secretary of State is to have regard in determining whether or not to confirm or make a public path creation order, and
- (b) a local authority is to have regard in determining whether or not to confirm such an order as an unopposed order,
§ The noble Baroness said: My Lords, I shall also speak to Amendments Nos. 172 and 173. The amendments arise from commitments that we gave in Committee to consider amendments tabled by the noble Baroness, Lady Miller of Chilthorne Domer, which were designed to ensure that decisions on individual orders closing or diverting footpaths and bridleways under Sections 118 and 119 of the Highways Act 1980 would be taken in the context of the area's rights of way improvement plan. We agree with that objective and believe that the same principle should apply to orders made under Section 26 of the 1980 Act creating footpaths and bridleways.
§ The amendments relate to orders made by local authorities, the Secretary of State or the National Assembly for Wales. An order made by a local authority cannot take effect until it is confirmed. A local authority may confirm its own order if it is 376 unopposed, but only the Secretary of State or the National Assembly for Wales may confirm opposed orders. The amendments would require that, when deciding whether or not to confirm an order, a confirming authority should have regard to arty material provision of a rights of way improvement plan for the area that includes land over which a footpath or bridleway would be created, extinguished or, in the case of a diversion, created and extinguished. The three amendments deal with each of those three cases.
§ Orders made by the Secretary of State or the National Assembly for Wales do not require confirmation. They are published first in draft and made only after any objections have been considered. The amendments would also require the Secretary of State or the Assembly to have regard to the rights of way improvement plan or plans for the area before making an order, just as they would be required to do before confirming one.
§ On a technical point, it might help the House if I add that it is not necessary to make express provision for the making of closure or diversion orders, because Section 120(3)(b) of the 1980 Act provides for that, when taken with Amendments Nos. 172 and 173. I beg to move.
My Lords, could an improvement plan include not only the granting of a new right of way, but also the abolition of an old one?
§ Baroness Miller of Chilthorne Domer
My Lords, I warmly welcome the amendments, which the Government have tabled in response to amendments that we tabled in Committee. We were concerned that the improvement plans should genuinely improve the rights of way network. The Bill should leave no gaps that would allow the network to be diminished. That would go against common sense, but if a loophole were left it could happen. The amendments considerably strengthen Part II.
§ Baroness Farrington of Ribbleton
My Lords, I thank the noble Baroness for her support. The answer o the question asked by the noble Lord, Lord Renton, is, yes, plans could cover extinguishment.
On Question, amendment agreed to.
Lord Whitty moved Amendment No. 168:
Page 76, line 32, at end insert—
("1A. In section 31 of the 1980 Act (dedication of way as highway presumed after public use for 20 years), in subsection (6), in each of paragraphs (i) and (ii) for "six" there is substituted "ten".
1B. After section 31 of the 1980 Act there is inserted—