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Lord Bach: I thank all noble Lords who have spoken in this important debate. I have to deal with 21 separate amendments in my speech; I will take as little time as possible. Government Amendment No. 318 introduces arrangements for dealing with existing outstanding claims for rights of way that may carry rights for mechanically propelled vehicles and byways open to all traffic, called BOATs. At Second Reading I explained how the Government intend to deal fairly and appropriately with these outstanding claims. Amendment No. 318 does that. It provides that Clause 62 does not apply to any claim for BOATs made before the Bill was introduced on 19 May 2005. This means that such claims will be processed under the terms of existing legislation. Therefore, any rights they seek to establish for mechanically propelled vehicles will not be extinguished, provided the claim proves successful.
Clause 62 will apply to any claims made after 19 May 2005, and therefore these will be dealt with under the terms of the new legislation, subject to two limited exemptions, which I will come on to shortly. This will render ineffective any byway claims made after 19 May 2005. It will, therefore, deal with claims that are intended to defeat the legislation and it will be a deterrent to further such claims.
I mentioned two exceptions. First, we think it reasonable to provide for byway claims made after 19 May to be preserved in cases where the local authority has already reached the stage of determining the claim and has either made a definitive map modification order (DMMO), or declined to do so. We believe that this will affect a very small number of claims because few, if any, claims made after 19 May 2005 will have reached this stage.
Secondly, not forgetting that the concern about the use of mechanically propelled vehicles on rights of way is about non-essential or recreational use, there is a strong argument for preserving claims where they are made by property owners seeking to establish a public right to their property because, for one reason or another, they have failed to establish a private right. The Bill provides for private rights where public rights once existed. But we are aware that there are some residents living on rights of way currently classified as RUPPs (roads used as public paths), who have put a
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lot of effort into putting together byway claims and, therefore, we intend to make provision for property owners in this predicament to enable them to make a byway claim before the window closes at commencement. There would be a very small number of such claims.
Amendment No. 318 also amends the provisions for a private right of access for property owners. This is necessary to ensure that there are no human rights issues created by commencement of the rights of way provisions at Royal Assent, without a period of statutory notice.
Amendment No. 321 is a procedural and technical amendment that refers to certain transitional provisions set out in the Countryside and Rights of Way Act 2000. These provisions provide that, where a local authority has made a definitive map modification order under Section 53 or Section 54 of the Wildlife and Countryside Act 1981 reclassifying a road used as a public path as a footpath, bridleway or byway open to all traffic, this order must be processed to its conclusion. However, the amendment will ensure that these transitional arrangements are subject to Part 6 of this Bill in the normal way, so that unless they fulfil the criteria for any of the exemptions set out in Amendment No. 318, any vehicular rights in such claims will be extinguished.
Government Amendment No. 323 is, again, a technical amendment. It is intended to clarify that a DMMO application is, of itself, capable of bringing a route into question for the purposes of Section 31 of the Highways Act 1980. Section 31 of that Act ensures that, where there has been a continuous period of 20 years' use of a route, a public right of way may be recognised. However, in order for a right of way to be considered by a local authority for addition to the definitive mapwhere the rights are claimed by virtue of user evidenceit must first be "brought into question".
The bringing into question of a right might, for example, occur by virtue of a landowner erecting an obstruction on an unrecorded path or by putting up a notice as provided by subsection (3) of Section 31 of the Highways Act 1980. However, where a right of way is claimed solely on the basis of 20 years' user evidence, it is currently unclear whether the act of making an application to record the right of way on the definitive map is in itself sufficient to bring it into question. This amendment will remove any such doubt.
Amendment No. 326 is in two parts. The first amends an existing government provision, which provides that a restricted byway may be created through an application for a definitive map modification order. This amendment clarifies that a restricted byway can be created on the basis of both user and historic evidence. I believe that the second part is relevant to what the noble Viscount, Lord Goschen, said. It will ensure that anyone driving on a restricted byway, which was a road used as a public path prior to reclassification, to access their property would not be committing a criminal offence under Section 34 of the Road Traffic Act 1988.
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There are many people living on RUPPs who have until now relied on the uncertainty as to whether RUPPs carry vehicular rights for motor vehicle access to their property. Under the combined effect of this part of the Bill and the restricted byway provisions in the CROW Act 2000, these routes will become restricted byways and any motor vehicular rights will be extinguished. It would, therefore, become an offence to drive a mechanically propelled vehicle over them.
In strict legal terms, anyone relying solely on the uncertain status of a RUPP for access to their property may have been ill advised. None the less, we recognise that there is a problem here that needs to be addressed. With this in mind, we have introduced this amendment to ensure that anyone in these circumstances is not left at risk of prosecution for driving over a restricted byway to gain access to their property. The noble Viscount sought reassurance on the position of those seeking to access their land by motor vehicles. The Bill will exempt from prosecution any person who needs motor vehicle access to his property along a RUPP, soon to become a restricted byway, without the need to prove a public right. Care has been taken in drafting the Bill to ensure that such persons are not penalised by this legislation. That is Amendment No. 326, subsection (2B).
In addition, for those who need to access their property, the Bill provides for a private right of way for mechanically propelled vehicles in all cases where a public right of way for mechanically propelled vehicles is extinguished. I refer the Committee to government Amendment No. 318, subsection (3A).
Government Amendment No. 368 provides that, as far as Part 6 of the Bill is concerned, only Clause 65 will require a commencement order to bring it into force. Therefore, the remaining rights of way provisions will commence automatically on Royal Assent. That is our intention. However, I should draw the Committee's attention to the fact that we may wish to fine tune the wording of the commencement provision at Report stage for purely technical reasons. Before Part 6 may be commenced, the restricted byways provisions in Sections 47 to 50 of the CROW Act will need to be in force. In order for those provisions to work properly, amendments to other legislation are also necessary.
We have laid an affirmative resolution statutory instrument before Parliament which achieves this, but because of the time taken to finalise that instrument, it cannot be guaranteed that the restricted byways provisions will be in force in time for Royal Assent of this Bill. For the Committee's information, I am referring to the Draft Restricted Byways (Application and Consequential Amendment of Provisions) Regulations which were laid before Parliament on 16 February this year.
We will have a clearer picture of the timetable by Report stage and it may be necessary to table a further amendment at that stage enabling us to commence Part 6 as soon as the restricted byways provisions are in force. This is a purely technical matter of
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timetabling, rather than any lack of intention on our part to bring these provisions into force at the earliest opportunity.
That is enough about the government amendments. I now turn to the other amendments helpfully proposed today. Amendments Nos. 310ZA and 328A, spoken to by the noble Lord, Lord Bradshaw, aim to provide that, where a traffic regulation order prohibits the use of motor vehicles over a route where public motor vehicular rights exist, on revocation of the order, the public motor vehicular rights would be extinguished in cases where the route is no longer suitable for use by such vehicles. Why do we not agree with that? The noble Lord will soon hear that we will gladly take away a number of his amendments, but this is not one of them. Why not? First, in our view, such a provision would serve no practical purpose. If the local authority considers that the route is unsuitable for use by motor vehicles, it can simply not revoke the traffic regulation order.
Secondly, we must not lose sight of the fact that traffic regulation orders are primarily formulated for, and for the most part employed on, the ordinary roads network. There is a danger that amending the legislation relating to traffic regulation orders to deal with rights of way issues might have unforeseen and adverse consequences for the rest of the highway network. For example, the proposed amendment might encourage local authorities to neglect to maintain certain highways, using this provision as a back-door method of extinguishing rights rather than going through the proper process for statutory extinguishment.
Amendment No. 328B in the name of the noble Baroness, Lady Byford, relates to the powers granted to national park authorities in Clause 65 to make traffic regulation orders. It is intended to ensure that no traffic regulation order made under these powers would limit access to land by persons with an interest in that land. We understand the concerns behind the amendment. However, the Road Traffic Regulation Act 1984 provides several safeguards for those accessing premises. The Road Traffic Regulation Act is applied by subsection (3) of our amendment to orders made by the national park authorities. We believe that these safeguards are adequate for landowners without the need for an amendment to the Bill.
Let me come to the heart of the amendments that have been spoken to. Amendments Nos. 318A, 319, 325 and 369 are intended to change our transitional arrangements for dealing with existing outstanding claims for byways open to all traffic. Amendments Nos. 319 and 325 would remove in their entirety the transitional arrangements introduced by government Amendment No. 318, making consequential amendments to the provisions for private motor vehicular rights. This would have the effect that any vehicular rights that are the subject of outstanding BOAT claims would be extinguished under the terms of the new legislation. That would render virtually all
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outstanding BOAT claims ineffective, no matter on what basis they were made or how long they have been outstanding.
Of course, many would like to see motor vehicular rights removed from as many rights of way as possible and by any means. Yet government research into the use of motor vehicles on existing BOATs found that many byways are used by motor vehiclesapparently for recreationwithout any detriment to the character of the way or the enjoyment and safety of other users. Obviously there are clearly problems with the use of motor vehicles on rights of way that need to be addressed, and the Bill does that. But the Government have a duty to be fair, reasonable and balanced in the way that they deal with users of rights of way. We have already, for very good reasons, departed from an earlier commitment to allow a period for claims to be made prior to commencement. We have now provided for claims made up until the date that the Bill was publishedon 19 May 2005to be seen through to their conclusion under the terms of the existing legislation. That date is a logical one to use because it is the date on which the Government made public the terms of the proposed legislation. Using a cut-off date of 19 May 2005 has a clear and reasonable purpose in that it will act as a deterrent to claims submitted simply to thwart the aims of the legislation, which arise from that day because that was the day the Bill was published, and to protect local authorities from being inundated with such claims.
To remove those transitional arrangements altogether does not have much logic and ignores the fact that many of the outstanding claims were made in good faithbefore the Government made clear their intention to change the way in which claims would be determined in futureand are outstanding only because local authorities have not dealt with them as promptly as they are required to do by statute. Such a measure would be punitive rather than practical.
Amendment No. 318A in the name of the noble Baroness and others would replace the May cut-off date for processing claims under the terms of the existing legislation with the date of 9 December 2003. That is the date on which the Government first published the consultation proposals that gave rise to the rights of way provisions in this Bill. We understand clearly the reason for choosing this date, which is that users of mechanically propelled vehicles may at this time have started to lodge applications to have routes recorded on the definitive map and statement as byways open to all traffic in anticipation of possible legislation to restrict such applications. It would not be fair or appropriate to apply a cut-off date that was at a time before the Government had formed a view on whether to legislate.
On the other hand Amendment No. 369 would postpone the commencement of Clause 62 by at least 12 months from the date of Royal Assent. That would mean that claims could be lodged to register a
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byway open to all traffic under Section 53 of the Wildlife and Countryside Act 1981 for at least 12 months. We have made it clear that we cannot tolerate the possibility of local authorities being inundated with applications in an attempt to thwart the aims of the Bill. To abandon the currently proposed transitional arrangements now would expose local authorities to a flood of claims, and we believe that the overwhelming view in both Houses and across all parties is that that would not be acceptable. Therefore, we intend to implement the sections dealing with extinguishment of vehicular rights on Royal Assent, or as soon as possible after it, when the timetabling of the commencement of the restricted byways provision allows.
The aim of Amendment No. 310ZB, again in the name of the noble Viscount, Lord Falkland, is to prevent any public rights of way being extinguished at all. Under this amendment they would instead be suspended. That would undermine the whole purpose of this part of the Bill, which is to extinguish certain public rights of way for mechanically propelled vehicles once and for all, so that they cannot subsequently be recorded on the definitive map and statement as byways open to all traffic or be used by drivers of mechanically propelled vehicles in the interim. It would also introduce a huge element of uncertainty.
Let me try to be a little more friendly in my response to Amendments Nos. 311 and 312, to which the noble Lord, Lord Bradshaw, spoke. Existing Clause 62(1)(b) ensures that public motor vehicular rights are extinguished only over routes that, immediately before commencement, are used less by motor vehicles than by other users, such as walkers, cyclists, or horse riders. That is to ensure that extinguishment affects only routes that are mostly used as rights of way as opposed to the ordinary roads network. Amendment No. 311 would remove this provision and Amendment No. 312 would replace it with another provision, which would exempt from extinguishment any route where it can be shown that, for a significant period before commencement, the public use had been mainly by motor vehicles. We recognise that there may be a better way of expressing the same view than we have been able to find so far. With the noble Lord's permission and, I hope, his support, we shall take it away and see whether a suitable government amendment can be drafted to achieve what he proposes.
Likewise with Amendment No. 314, which would amend Clause 62(2)(a), to ensure that those routes recorded on the list of streets and not recorded on the definitive map and statement are exempted from extinguishment only when they are recorded on the list of streets immediately before commencement. This is our intention and we think that the existing clause already achieves that. We also recognise that the Bill might benefit from clarification in this respect and, again we will consider that amendment, too.
While I am speaking about that clause, there is a particular assurance I wish to give to those who are concerned that the inclusion of this provision in statute
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will lend weight to the view, already held in some quarters, that there should be a presumption that routes recorded on the list of streets carry vehicular rights. Defra has always maintained that inclusion of a route on the list of streets is not conclusive evidence of what rights it carries, and there can be no presumption that these routes carry vehicular rights. Each case should be considered on its own merits. It follows that Defra takes the same view about routes shown on Ordnance Survey maps as other routes with public access. We will be issuing guidance to local authorities and rights of way inspectors to clarify that.
I turn briefly to Amendments Nos. 315A and 325B, in the name of my noble friend Lord Simon. Amendment No. 315A would provide that a route would not have its public motor vehicular rights extinguished by Clause 62 if it could be demonstrated that the route could sustain continued use by mechanically propelled vehicles. In other words, it seeks to apply a statutory, sustainable test to determine what rights should exist over a route. Similarly, Amendment No. 325B seems to provide that public rights for mechanically propelled vehicles may be added to the definitive map and statement only where it has been demonstrated that the route could sustain continued use by such vehicles. It would also provide that public rights for mechanically propelled vehicles may be added to the definitive map and statement where they enable motor vehicular access for persons with an interest in the land.
Putting aside that we believe that the two amendments are unworkable, I have reservations about a statutory sustainability test which I will come to. But it is unnecessary to provide a public motor vehicular right of access for persons with an interest in land, because Clause 62 already provides a private right for such persons.
Amendment No. 325C would apply a sort of sustainability test, to be applied by the Secretary of State, to all byway applications received between 9 December 2003 and the commencement of the legislation, while requiring a traffic regulation order to be imposed where the test found that motor vehicle use would be damaging or dangerous to other users. It also introduces a genuinely retrospective element into the provisions.
We have severe reservations about a statutory approach to assessing the suitability of established byways. A similar approach was taken in the Countryside Act 1968 and disputes about some of those reclassifications are still ongoing. Such a measure would be neither fair nor practicable. I appreciate that there is widespread concern about the byway claims submitted during the passage of the Bill; we have therefore introduced transitional arrangements to deal with them, but we have to be fair and reasonable in how we deal with users of rights of way.
Amendment No. 324, in the name of the noble Lord, Lord Bradshaw, aims to amend government Amendment No. 323. Again, we wish to look at that more closely and undertake to consider an amendment
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to that effect at a later stage. Likewise, with Amendment No. 327a reworded version of government Amendment No. 326we recognise that there may be a loophole in so far as people may be exempt from Section 34, and again we shall return to that.
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