Countryside and Rights of Way Bill - continued        House of Lords

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  PART II
  PUBLIC RIGHTS OF WAY AND ROAD TRAFFIC
 
Public rights of way and definitive maps and statements
Redesignation of roads used as public paths.     44. - (1) In the Wildlife and Countryside Act 1981 (in this Act referred to as "the 1981 Act"), section 54 (duty to reclassify roads used as public paths) shall cease to have effect.
 
      (2) Every way which, immediately before the commencement of this section, is shown in any definitive map and statement as a road used as a public path shall be treated instead as shown as a restricted byway; and the expression "road used as a public path" shall not be used in any definitive map and statement to describe any way.
 
Restricted byway rights.     45. - (1) Subject to subsections (2) and (3), the public shall have restricted byway rights over any way which, immediately before the commencement of section 44, is shown in a definitive map and statement as a road used as a public path.
 
      (2) Subsection (1) has effect subject to the operation of any enactment or instrument (whether coming into operation before or after the commencement of section 44), and to the effect of any event otherwise within section 53(3)(a) of the 1981 Act, whereby a highway-
 
 
    (a) is authorised to be stopped up, diverted, widened or extended, or
 
    (b) becomes a public path;
       and subsection (1) applies accordingly to any way as so diverted, widened or extended.
 
      (3) Subsection (1) does not apply to any way, or part of a way, over which immediately before the commencement of section 44 there was no public right of way.
 
      (4) In this Part-
 
  "restricted byway rights" means-
 
 
    (a) a right of way on foot,
 
    (b) a right of way on horseback or leading a horse, and
 
    (c) a right of way for vehicles other than mechanically propelled vehicles; and
  "restricted byway" means a highway over which the public have restricted byway rights, with or without a right to drive animals of any description along the highway, but no other rights of way.
 
      (5) A highway at the side of a river, canal or other inland navigation is not excluded from the definition of "restricted byway" in subsection (4) merely because the public have a right to use the highway for purposes of navigation, if the highway would fall within that definition if the public had no such right over it.
 
      (6) Subsection (1) is without prejudice to any question whether the public have over any way, in addition to restricted byway rights, a right of way for mechanically propelled vehicles or any other right.
 
      (7) In subsections (4) and (6) "mechanically propelled vehicle" does not include a vehicle falling within paragraph (c) of section 189(1) of the Road Traffic Act 1988.
 
      (8) Every surveying authority shall take such steps as they consider expedient for bringing to the attention of the public the effect of section 44(2) and this section.
 
      (9) Where-
 
 
    (a) by virtue of an order under subsection (3) of section 92 ("the commencement order") containing such provision as is mentioned in subsection (5) of that section, an order under Part III of the 1981 Act ("the Part III order") takes effect, after the commencement of section 44, in relation to any way which, immediately before that commencement, was shown in a definitive map and statement as a road used as a public path,
 
    (b) the commencement order does not prevent subsection (1) from having effect on that commencement in relation to that way, and
 
    (c) if the Part III order had taken effect before that commencement, that way would not have fallen within subsection (1),
       all rights over that way which exist only by virtue of subsection (1) shall be extinguished when the Part III order takes effect.
 
Provisions supplementary to ss. 44 and 45.     46. - (1) Every way over which the public have restricted byway rights by virtue of subsection (1) of section 45 (whether or not they also have a right of way for mechanically propelled vehicles or any other right) shall, as from the commencement of that section, be a highway maintainable at the public expense.
 
      (2) Every way which, in pursuance of-
 
 
    (a) paragraph 9 of Part III of Schedule 3 to the Countryside Act 1968, or
 
    (b) any order made under section 54(1) of the 1981 Act before the coming into force of section 44,
       is shown in any definitive map and statement as a byway open to all traffic, a bridleway or a footpath, shall continue to be maintainable at the public expense.
 
      (3) Nothing in subsections (1) and (2) or in section 45(1) obliges a highway authority to provide on any way a metalled carriage-way or a carriage-way which is by any other means provided with a surface suitable for cycles or other vehicles.
 
      (4) Nothing in section 45, or in section 53 of the 1981 Act, limits the operation of orders under the Road Traffic Regulation Act 1984 or the operation of any byelaws.
 
      (5) Section 67 of the 1981 Act (application to the Crown) has effect as if this section and sections 44, 45 and 47 were contained in Part III of that Act.
 
Private rights over restricted byways.     47. - (1) Restricted byway rights over any way by virtue of subsection (1) of section 45 are subject to any condition or limitation to which public rights of way over that way were subject immediately before the commencement of that section.
 
      (2) Any owner or lessee of premises adjoining or adjacent to a relevant highway 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 relevant highway.
 
      (3) In subsection (2), in its application to the owner of any premises, "relevant highway" means so much of any highway maintainable at the public expense by virtue of section 46(1) as was, immediately before it became so maintainable, owned by the person who then owned the premises.
 
      (4) In subsection (2), in its application to the lessee of any premises, "relevant highway" means so much of any highway maintainable at the public expense by virtue of section 46(1) as was, immediately before it became so maintainable, included in the lease on which the premises are held.
 
      (5) In this section-
 
 
    "lease" and "lessee" have the same meaning as in the 1980 Act;
 
    "owner", in relation to any premises, means a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of the premises, whether in possession or in reversion, and "owned" shall be construed accordingly; and
 
    "premises" has the same meaning as in the 1980 Act.
Amendments relating to definitive maps and statements and restricted byways.     48. Schedule 5 to this Act (which contains amendments relating to definitive maps and statements and restricted byways) has effect.
 
Restricted byways: power to amend existing legislation.     49. - (1) The Secretary of State may by regulations-
 
 
    (a) provide for any relevant provision which relates-
 
      (i) to highways or highways of a particular description,
 
      (ii) to things done on or in connection with highways or highways of a particular description, or
 
      (iii) to the creation, stopping up or diversion of highways or highways of a particular description,
 
    not to apply, or to apply with or without modification, in relation to restricted byways or to ways shown in a definitive map and statement as restricted byways, and
 
    (b) make in any relevant provision such amendments, repeals or revocations as appear to him appropriate in consequence of the coming into force of sections 44 to 47 or provision made by virtue of paragraph (a) or subsection (6)(a).
      (2) In this section-
 
  "relevant provision" means a provision contained-
 
 
    (a) in an Act passed before or in the same Session as this Act, or
 
    (b) in any subordinate legislation made before the passing of this Act;
  "relevant Welsh provision" means a provision contained-
 
 
    (a) in a local or private Act passed before or in the same Session as this Act and relating only to areas in Wales, or
 
    (b) in any subordinate legislation which was made before the passing of this Act and which the National Assembly for Wales has power to amend or revoke as respects Wales.
      (3) In exercising the power to make regulations under subsection (1), the Secretary of State-
 
 
    (a) may not make provision which has effect in relation to Wales unless he has consulted the National Assembly for Wales, and
 
    (b) may not without the consent of the National Assembly for Wales make any provision which (otherwise than merely by virtue of the amendment or repeal of a provision contained in an Act) amends or revokes subordinate legislation made by the Assembly.
      (4) The National Assembly for Wales may submit to the Secretary of State proposals for the exercise by the Secretary of State of the power conferred by subsection (1).
 
      (5) The powers conferred by subsection (1) may be exercised in relation to a relevant provision even though the provision is amended or inserted by this Act.
 
      (6) As respects Wales, the National Assembly for Wales may by regulations-
 
 
    (a) provide for any relevant Welsh provision which relates-
 
      (i) to highways or highways of a particular description,
 
      (ii) to things done on or in connection with highways or highways of a particular description, or
 
      (iii) to the creation, stopping up or diversion of highways or highways of a particular description,
 
    not to apply, or to apply with or without modification, in relation to restricted byways or to ways shown in a definitive map and statement as restricted byways, and
 
    (b) make in any relevant Welsh provision such amendments, repeals or revocations as appear to the Assembly appropriate in consequence of the coming into force of sections 44 to 47 or provision made by virtue of subsection (1)(a) or paragraph (a).
      (7) Regulations under this section shall be made by statutory instrument, but no such regulations shall be made by the Secretary of State unless a draft of the instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.
 
      (8) Where the Secretary of State lays before Parliament the draft of an instrument containing regulations under subsection (1) in respect of which consultation with the National Assembly for Wales is required by subsection (3)(a), he shall also lay before each House of Parliament a document giving details of the consultation and setting out any representations received from the Assembly.
 
 
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