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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
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.
Lord Renton: 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.
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.
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.
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.
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.
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