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Baroness Byford: I thank the Minister for his response and accept what he says. I readily acknowledge that the Government will be seeking to make savings. However, it seems odd to have two different systems; that is, to be able to upgrade to a BOAT but not to be able to downgrade. That seems to be nonsense. However, I shall consider the matter again. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 313:



("( ) 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.").

The noble Lord said: In moving Amendment No. 313, I shall speak also to Amendments Nos. 315, 320, 338, 339 and 449A. These are technical amendments relating to the Bill's provisions for redesignating roads used as public paths (RUPPs) as restricted byways.

The amendments concern RUPPs over which there are public rights of towage at the time of redesignation. The law is not entirely clear whether these rights are a

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species of right of way. The amendments would clarify the relationship between these rights and the specific rights conferred on restricted byways by the Bill.

Amendment No. 313 to Clause 44(4) provides that a RUPP is not prevented from being treated as a restricted byway merely because it carries public towpath rights. The amendment is based on Section 66(2) in the Wildlife and Countryside Act 1981, which is of the same effect in relation to footpaths, bridleways and byways open to all traffic.

Amendments Nos. 338 and 339 in Schedule 5 are similar to Amendment No. 313 but relate to Section 329 of the Highways Act 1980. It is necessary to ensure the same approach under this legislation. Otherwise, for example, some restricted byways could fall outside the provisions of that Act. Amendments Nos. 315 and 320 to Clauses 44(5) and 45(1) would ensure that any towpath rights or other public rights which are not rights of way but exist over a RUPP would not be extinguished on the RUPP's redesignation as a restricted byway.

Amendment No. 449A to Schedule 7 relates to Section 34 of the Road Traffic Act 1988 which makes it an offence to drive elsewhere than on a road. For the purposes of Section 34, the amendment would ensure that the definition of restricted byway is consistent with the footpath and bridleway in Section 192 of the 1988 Act in so far as these might also carry public rights of towage. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees: I must inform the Committee that if Amendment No. 314 is agreed to, I cannot call Amendment No. 315.

Lord Williams of Elvel moved Amendment No. 314:


    Page 27, line 13, leave out subsection (5).

The noble Lord said: I recognise that when we come to Part II of this Bill, we have a slightly new cast of characters. I am part of that new cast. I do not necessarily agree with the Government on all of Part I, and certainly do not agree with some of the amendments tabled by the Opposition on Part II. Nevertheless a major problem arises which I wish to flag in moving Amendment No. 314.

For the convenience of the Committee I should say that Amendment No. 316 is consequential and I shall therefore not bother with that. This is not an amendment for Division; it is a probing amendment to discover the views of the Committee on a matter of serious interest. Perhaps I should say also that I speak as somebody who has a house in mid-Wales and is vice-president of the Campaign for the Protection of Rural Wales.

Having said that, perhaps I can turn to the problem which my amendment addresses. The history to this matter is the problem of off-road driving by 4x4s--I am sure Members of the Committee understand that expression--and motorcycles. I shall return to this when we come to Schedule 7 and common land, as the noble Baroness, Lady Byford, will appreciate. But I

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am sorry that the noble Baroness did not agree to group her Amendment No. 360A, which roughly covers the same territory, with this amendment. I shall go briefly through the history because I do not want to detain the Committee.

It was clear from the Road Traffic Act 1988 that it was an offence to drive a motor vehicle on any footpath or bridleway. It was equally clear that, thanks to the Wildlife and Countryside Act 1981, roads used as public paths (RUPPs) should be reclassified in the definitive manner as either,


    "byways open to all traffic",

or as a bridleway or footpath. There was some confusion as to what "RUPP" meant. The Stevens judgment, followed by a further court judgment, led to the conclusion that "RUPPs" in practice are the same as bridleways. But the status of a RUPP does not mean that there are any additional rights beyond rights on foot and horseback.

What of the application of the law? Two problems arise. First, the magistrates have not enforced the law on bridleways on the ground that the prosecution of motorists or motorcycles driving on bridleways could not be sustained there was no "reasonable doubt" that there were no carriageway rights on the bridleway in question, whatever the definition might say. The Grimsell Lane case is the locus classicus on this and the magistrate in that case stated that the definitive map was not definitive. So nobody knows quite how the restriction of bridleways on a definitive map should be enforced. Some people say it should be the courts; some say it should be the Lord Chancellor; we simply do not know.

The second problem is that we now have RUPPs turned into restricted bridleways. But if bridleways are not protected by any reasonable judgment by the court, how can restricted bridleways, as defined in the Bill, be sustained? The failure of the courts to enforce what seem in the law to be clearly bridleways spills over into what appears to be the law in the Bill on restricted bridleways. Either they are or are not bridleways. I do not quite understand what the Government are aiming at.

The effect of this confusion, speaking from the Welsh perspective--I am sure the noble Earl, Lord Peel, will be able to enlarge on the English perspective--is that people do not know who is allowed to drive on what. It is not to be thought that this is a frivolous issue in the Welsh uplands in mid-Wales where I have a home. If the Government are not prepared to produce something rather better, then we have a case that we may wish to pursue. Nothing is worse than having confusion in the law, people not knowing where they stand and how we can control motorcycles and 4x4s driving across byways and so forth. Until the law is precise on this matter, there will be continuing debate. In that context, I hope that my noble friend will produce a constructive reply. I beg to move.

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5.15 p.m.

Earl Peel: I support the noble Lord, Lord Williams of Elvel, and I added my name to the amendment. The noble Lord certainly represents, as he put it, a "new cast" on the Bill. But it is nice that a representative of the cast of Part I is also still here to add weight, I hope, to the arguments of the noble Lord on this amendment. There is no question of doubt. This is a serious issue and I can assure the Committee that it is just as serious in England as it is in Wales. I should therefore like to put my points in a slightly different way.

The Government's proposals in Clause 44 make an important advance in government policy. For the first time in the law relating to the definition of rights of way a clear distinction has been drawn between horse-drawn vehicles and other vehicles (or "mechanically propelled vehicles" as Clause 44 terms them). However, the value of that distinction is sorely limited by subsection (5) of Clause 44, as the noble Lord, Lord Williams, suggested, which provides for the reclassification of roads used as "RUPPs" as "restricted byways", without prejudice to any question of whether or not rights of way for mechanically propelled vehicles exist on them.

The failure to exclude vehicular rights over restricted byways means that there will continue to be uncertainty as to their exact status. The Government have continually expressed their desire to improve certainty about public rights of access, but fall short of their aspirations in this Bill. Moreover, the possibility that restricted byways could at any time in the future be upgraded to byways open to all traffic--that is, BOATs--thereby confirming that they can be used by four-wheel drive vehicles or any other vehicle is a cause for real concern.

It is true that for many years landowners, conservationists and parish councillors have expressed concern at attempts to establish vehicular rights of way over routes recorded on definitive maps as bridleways or as roads used as public paths. The claims have often involved arguing that the routes should be reclassified as BOATs on the basis that at some dim and distant time in the past they may have been used by horsedrawn vehicles--a somewhat spurious argument, I suggest.

The concern arises not so much as regards the reclassifications but the possibility that, once reclassified, increasing use will be made of BOATs by motor vehicles, especially four-wheel drive vehicles and motor cycles. Those concerned fear the consequent loss of amenity to wildlife on these ways and there is clear evidence that that is happening in many parts of Great Britain. Of course, those ways become most unsightly, too. The people concerned know only too well that some irresponsible motor vehicle users like nothing better than to get vehicles bogged down in ruts so that they can winch themselves out. I am sure that it is a sport of great amusement! I have been in that position on a number of occasions--not deliberately--and know that it is a messy business.

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It requires winching out using trees and gateposts, which are then damaged. The arguments speak for themselves.

The end result of such abuse of public right--and it is just that--may be a BOAT which is impassable to all other legitimate users of the way, including walkers, cyclists, those in horsedrawn vehicles and land managers who use such ways to access their fields. Abuse of rights of access by a minority will have led to the complete loss of rights for everyone. Highway authorities may incur huge bills in repairing such ways to make them passable to all classes of user.

It is important that the creation of restricted byways under the Bill is reviewed in that wider context. By failing to exclude the possibility that the restricted byways could at some time in the future be upgraded to BOATs, the Government are keeping open the possibility that tens of thousands of miles of footpath could be subjected to abuse by vehicle users. I hope I have shown that the consequences include damage to the ways and denial of rights to others.

All those negative consequences could be avoided if the Bill were to make clear that any public rights for vehicles over restricted byways, over and above rights for horsedrawn carriages, were extinguished when the reclassification came into effect. Deleting subsection (5), as proposed in the amendment, would help but I suggest that it might be necessary to go even further to make it clear beyond doubt that restricted byways do not carry public rights of way for vehicles other than horsedrawn carriages.

I appreciate that some will argue that excluding the possibility of upgrading restricted byways to BOATs will mean that public rights of vehicular access will be lost on some of the ways. However, I believe that that loss needs to be balanced against the potential damage and costs arising from such ways if irresponsible vehicle users are able to gain rights of access to them.

There is also the fundamental argument, which I believe, that it is crazy to assert on the basis of historical evidence of use by horsedrawn carts and carriages that a right of way should be open to all vehicles without distinction. Now that the Government have taken the bold step--and it is a bold step--of distinguishing between horsedrawn vehicles and mechanically propelled vehicles, they should allow the change by denying mechanically propelled vehicles the right to use ways which when created can only ever have been intended for horsedrawn vehicles. That is the main part of my argument.

I hope that the Government will look seriously at the proposal. It is a serious problem which is likely to become worse. It will need tough action if we are to ensure that many bridleways are not further destroyed.


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