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Rights Of Way (Amendment) Bill


 

     THESE NOTES REFER TO THE RIGHTS OF WAY (AMENDMENT) BILL      AS INTRODUCED IN THE HOUSE OF COMMONS ON 10 MARCH 2004 (BILL 70)      

RIGHTS OF WAY (AMENDMENT) BILL

     


     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Rights of Way (Amendment) Bill as introduced in the House of Commons on 10 March 2004. They have been prepared by the Department for Environment, Food and Rural Affairs with the consent of Janet Anderson, the Member in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

     3.     The purpose of the Bill is to clarify those vehicular rights that can be recorded on local authorities' definitive maps of public rights of way in England and Wales by preventing future use by any vehicle giving rise to a public right of way for all vehicles. It also prevents unrecorded vehicular rights i.e. rights already in existence but not recorded on the definitive map and statement, giving rise to a right of way for all vehicles.

4.     Under current law, evidence of non mechanically propelled vehicle use of a route (or a dedication for such use) for a 20 year period will give rise to a public right of way for all vehicles. This is recorded on the definitive map and statement as a byway open to all traffic. A public right of way for all vehicles may also arise where mechanically propelled vehicles have used a route for the 20 year period, even where that use is illegal. Most use of routes by mechanically propelled vehicles has occurred after 1930, when it first became an offence to drive a motor vehicle on a footpath, bridleway or any land not comprising a road without lawful authority. The Bill will prevent any further byway open to all traffic claims arising from use by both mechanically and non- mechanically propelled vehicle use. The Bill limits the rights arising from such evidence to restricted byway rights - i.e. rights on foot, on horse back or for non-mechanically propelled vehicles.

[Bill 70—EN]     53/3

5.     The Department recognises that there are property owners and occupiers who rely on unrecorded public vehicular rights of way for vehicular access to their land. The Bill ensures that those adversely affected by curtailing the recording of unrecorded mechanically propelled vehicular rights have those unrecorded rights retained in so far as they are exercised by them to access their land.

COMMENTARY

Clause 1: Restriction of rights of way for vehicles

6.     Subsection (1) limits the creation of any new public rights of way for mechanically propelled vehicles. This prevents future use over a period of 20 years by any vehicle giving rise to mechanically propelled vehicular rights. The exceptions in (a) and (b) exclude this limitation where mechanically propelled vehicular rights are expressly provided for under an enactment or instrument, or the rights relate to a road intended to be used by mechanically propelled vehicles and constructed for that purpose under an enactment.

7.     Subsection (2) extinguishes any unrecorded rights of way for mechanically propelled vehicles. This means that no further byways open to all traffic can be added to the definitive map. The exceptions in Subsection (1) apply. In addition, provision is made to retain an unrecorded public right of way for mechanically propelled vehicles where that right is relied upon to gain access to land or for the purposes of a business, trade or profession.

8.     Subsection (3) defines an unrecorded right of way for the purposes of Subsection (2) as an unrecorded right mainly used by the public for purposes for which footpaths and bridleways are used.

9.      Subsection (4) provides that the right of access exercised by virtue of Subsection (2)(b) is only to be exercised by a person with a legal interest in the land, such as an owner or lessee, or a person who is accessing the land as a lawful visitor.

10.      Subsection (5) amends section 53(3)(c)(i) of the Wildlife and Countryside Act 1981. The purpose of this provision is to allow the recording of a newly discovered right of way which is a restricted byway.

11.     Subsection (6) defines the definitions used in clause 1. Definition of a mechanically propelled vehicle excludes electrically assisted pedal cycles.

12.      Subsection (7) ensures that where the mechanically propelled vehicular rights are over a way already recorded on the definitive map and statement as a footpath, bridleway or restricted byway, the extinguishment in subsection (2) will apply to the unrecorded higher rights.

Clause 2: Supplementary provisions

13.     Subsections (1)-(5) provide for the commencement, for transitional provisions and for territorial extent of the Act.

ESTIMATE OF PUBLIC SECTOR FINANCIAL EFFECTS AND PUBLIC SECTOR MANPOWER ASPECTS

14.     The Bill does not entail any additional public expenditure or changes to public service manpower. Local authorities may experience a surge of applications to record byways open to all traffic on their definitive maps before the legislation is commenced but their longer-term workload will be reduced.

REGULATORY IMPACT ASSESSMENT

15.     A copy of the full Regulatory Impact Assessment of the costs and benefits that this bill would have is available to the public by contacting William Propert-Lewis, Zone 1/01, Temple Quay House, 2 The Square, Temple Quay, BRISTOL BS1 6EB, email: William.Propert-Lewis@defra.gsi.gov.uk, telephone 0117 372 8379.

16.     In general, the changes will not adversely affect charities, voluntary organisations or business. The benefit of the bill will be to clarify the vehicular rights that exist over public rights of way in England and Wales. The bill will also reduce the risk of environmental damage if fewer ways are used by mechanically propelled vehicles.

17.      Mechanically propelled vehicle users of public rights of way will be adversely affected as their ability to apply to local highway authorities to have byways open to all traffic recorded on the definitive map and statement will be curtailed. However, the Department considers that this is justified in the interests of sustainability and certainty. No impact on small business has been identified.

TERRITORIAL EXTENT AND APPLICATION

18.     The Bill extends to England and Wales only. Different days may be appointed for the coming into force of the Act in England and Wales and different transitional provisions or savings may be made by the Secretary of State or the National Assembly for Wales. It contains no provisions which relate exclusively to Wales, or affect the National Assembly for Wales.

 
 
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Prepared: 18 May 2004