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.     47. - (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.     48. - (1) Subject to subsections (2) and (3), the public shall have restricted byway rights over any way which, immediately before the commencement of section 47, 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 47), 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 47 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 47(2) and this section.
 
      (9) The powers conferred by section 103(5) must be so exercised as to secure that nothing in section 47 or this section affects the operation of section 53 or 54 of, or Schedule 14 or 15 to, the 1981 Act in relation to-
 
 
    (a) a relevant order made before the commencement of section 47, or
 
    (b) an application made before that commencement for a relevant order.
      (10) In subsection (9) "relevant order" means an order which relates to a way shown in a definitive map and statement as a road used as a public path and which-
 
 
    (a) is made under section 53 of the 1981 Act and contains modifications relating to that way by virtue of subsection (3)(c)(ii) of that section, or
 
    (b) is made under section 54 of the 1981 Act.
      (11) Where-
 
 
    (a) by virtue of an order under subsection (3) of section 103 ("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 47, 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. 47 and 48.     49. - (1) Every way over which the public have restricted byway rights by virtue of subsection (1) of section 48 (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) As from the commencement of that section, any liability, under a special enactment (within the meaning of the Highways Act 1980) or by reason of tenure, enclosure or prescription, to maintain, otherwise than as a highway maintainable at the public expense, a restricted byway to which subsection (1) applies is extinguished.
 
      (3) 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 47,
  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.
 
      (4) Nothing in subsections (1) and (3) or in section 48(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.
 
      (5) Nothing in section 48, 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.
 
      (6) Section 67 of the 1981 Act (application to the Crown) has effect as if this section and sections 47, 48 and 50 were contained in Part III of that Act.
 
Private rights over restricted byways.     50. - (1) Restricted byway rights over any way by virtue of subsection (1) of section 48 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 49(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 49(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.     51. 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.     52. - (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 47 to 50 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 47 to 50 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.
 
Extinguishment of unrecorded rights of way.     53. - (1) Subsection (2) applies to a highway if-
 
 
    (a) it was on 1st January 1949 a footpath or a bridleway, is on the cut-off date (in either case) a footpath or a bridleway, and between those dates has not been a highway of any other description,
 
    (b) it is not on the cut-off date shown in a definitive map and statement as a highway of any description, and
 
    (c) it is not on the cut-off date an excepted highway, as defined by section 54(1).
      (2) All public rights of way over a highway to which this subsection applies shall be extinguished immediately after the cut-off date.
 
      (3) Where a public right of way created before 1949-
 
 
    (a) falls within subsection (4) on the cut-off date, and
 
    (b) is not on that date an excepted right of way, as defined by section 54(5),
  that right of way shall be extinguished immediately after the cut-off date.
 
      (4) A public right of way falls within this subsection if it is-
 
 
    (a) a public right of way on horseback, leading a horse or for vehicles over a bridleway, restricted byway or byway open to all traffic which is shown in a definitive map and statement as a footpath;
 
    (b) a right for the public to drive animals of any description along a bridleway, restricted byway or byway open to all traffic which is shown in a definitive map and statement as a footpath;
 
    (c) a public right of way for vehicles over a restricted byway or byway open to all traffic which is shown in a definitive map and statement as a bridleway; or
 
    (d) a public right of way for mechanically propelled vehicles over a byway open to all traffic which is shown in a definitive map and statement as a restricted byway.
      (5) Where by virtue of subsection (3) a highway ceases to be a bridleway, the right of way created over it by section 30 of the Countryside Act 1968 (riding of pedal cycles on bridleways) is also extinguished.
 
      (6) In determining-
 
 
    (a) for the purposes of subsection (1) whether any part of a highway was on 1st January 1949 a footpath or bridleway, or
 
    (b) for the purposes of subsection (3) whether a public right of way over any part of a highway was created before 1st January 1949,
  any diversion, widening or extension of the highway on or after that date (and not later than the cut-off date) is to be treated as having occurred before 1st January 1949.
 
      (7) Where a way shown on the cut-off date in a definitive map and statement has at any time been diverted, widened or extended, it is to be treated for the purposes of subsections (1) to (5) as shown as so diverted, widened or extended, whether or not it is so shown.
 
      (8) In this section-
 
  "cut-off date" has the meaning given in section 56, and
 
  "mechanically propelled vehicle" does not include a vehicle falling within paragraph (c) of section 189(1) of the Road Traffic Act 1988.
 
 
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