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Clause 62

Ending of certain existing unrecorded public rights of way

Lords amendment: No. 20.

Jim Knight: I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker: With this we may discuss Lords   amendments Nos. 21 to 26, Lords amendment No. 27 and amendments (a) and (b) thereto.

Jim Knight: Amendment No. 20 removes—

Mr. Deputy Speaker: Order. Conversations are breaking out in the House. Hon. Members should listen to the Minister.

Jim Knight: Thank you, Mr. Deputy Speaker.

Amendment No. 20 removes clause 62(1)(b), the aim of which is to ensure that public motor vehicular rights are only extinguished over routes that, immediately before commencement, are used less by motor vehicles than by other users, which relates to the burden of proof on those who want to prove their vehicular rights.

Amendment No. 21 replaces clause 62(1)(b) with a similar provision under clause 62(2), which will exempt from extinguishment any route where it can be shown
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that, for five years before commencement, the public use had been mainly by motor vehicles. That will ensure that, in such cases, the burden of proof is placed on those using a motor vehicle to show that, because the route had been used mainly by motor vehicles for a significant period, the rights have not been extinguished. The effect of the two amendments is to reverse where the burden of proof will lie.

Amendment No. 22 clarifies that those routes recorded on the list of streets and not recorded on the definitive map and statement are exempted from extinguishment only where they are recorded on the list of streets immediately before commencement.

Mr. David Drew (Stroud) (Lab/Co-op): Will the Minister clarify the issue of easements, particularly where it involves a public body such as the National Trust, which could be part of the problem? The problem is that when the National Trust attempts to clarify the ownership of common land, it causes individuals who require access over that common land considerable problems, which is the case in my area at least.

Jim Knight: Some of the amendments that we are making will enable people who need to access their property to continue to do so. The right hon. Member for Bracknell (Mr. Mackay) raised that anomaly on Report. I shall discuss that issue again later, but if I do not resolve my hon. Friend's point, perhaps he will write to me or even raise the matter on the Second Reading of the Commons Bill, which will take place shortly after the Easter recess.

Amendment No. 23 introduces arrangements to deal with existing, outstanding claims for rights of way that carry rights for mechanically propelled vehicles—byways open to all traffic or BOATs. It provides that what is now clause 67 does not apply to any claims for BOATs made before the Government made clear, on 20 January 2005, their intention to legislate following public consultation. The Welsh Assembly Government have chosen to make that date 19 May 2005, the date on which the Bill was published.

7 pm

Paddy Tipping (Sherwood) (Lab): May I take this opportunity to thank my hon. Friend for all the listening that he has done on this point during consideration of the Bill? Tremendous movement has been achieved and he has come to a good and sensible decision in choosing the date of 20 January 2005. I thank him and his officials for all the work that they have done.

Jim Knight: I am grateful for my hon. Friend's comments, especially those relating to my officials who have done an excellent job in dealing with what is a complicated issue and with much correspondence from many hon. Members and others.

The effect is that BOAT claims made before those two dates will be processed under the terms of the existing legislation, and therefore any rights for mechanically propelled vehicles that they seek to establish will not be extinguished, provided the claim proves successful. However, any BOAT claims made after those dates will be dealt with under the terms of the new legislation, subject to two limited exemptions. The first is when
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local   authorities have already reached the stage of determining the claim and the other is when they are made by property owners, as raised on Report by the right hon. Member for Bracknell.

Mr. Peter Atkinson (Hexham) (Con): If a claim was made for a BOAT before 20 January 2005 and it fails, can the Minister confirm that any future claims for the same right of way will be caught by the cut-off?

Jim Knight: That is certainly my understanding. If the situation is any different, I will write to the hon. Gentleman and copy the letter to Opposition Front Benchers and place a copy in the Library.

The transitional arrangements have been drafted in such a way as to ensure that only those definitive map modification order applications for BOATs made before 20 January 2005, or 19 May 2005 in Wales, that are made correctly and in accordance with the statutory requirements, will be preserved by the transitional arrangements in clause 62(3).

Amendment No. 23 also amends the provisions that provide for private rights of access for property owners. That is necessary to ensure that there are no human rights issues created by commencement of the rights of way provisions shortly after Royal Assent without a period of statutory notice. Amendment No. 24 is a procedural amendment that refers to certain transitional provisions set out in the Countryside and Rights of Way Act 2000. The provisions provide that, where a local authority has made a definitive map modification order under section 53 or 54 of the Wildlife and Countryside Act 1981 reclassifying a road used as a public path, or RUPP, as a footpath, bridleway or byway open to all traffic, that order must be processed to its conclusion. However, the amendment will ensure that those 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 the Bill's transitional arrangements, any vehicular rights in such claims will be extinguished.

Amendment No. 25 addresses cyclists' concerns about whether a qualifying period of past, or future, cycle use may give rise to a restricted byway. The view of the Department for Environment, Food and Rural Affairs is that a normal pedal-powered cycle is a non-mechanically propelled vehicle and therefore may give rise to restricted byway rights. This amendment introduces a clause that will make that clear on the face of the Bill.

Amendment No. 26 clarifies that a definitive map modification order or DMMO application is, of itself, capable of bringing a route into question for the purposes of section 31 of the 1980 Act.

Amendment No. 27 is in two parts. The first amends an existing 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. The second part 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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Amendments (a) and (b), tabled by the hon. Member for South-East Cambridgeshire (Mr. Paice), would amend Lords amendment No. 27. They concern subsection (7) of what is now clause 70. This subsection closes a possible loophole, which may have enabled those driving illegally over former RUPPs, to visit land that is designated for public access, to claim immunity from prosecution under section 34 of the Road Traffic Act 1988. Subsection (7) specifically excludes such people from the exemption from prosecution, so that it is only available to those accessing their own property over former RUPPs, and their lawful visitors. The amendments seek to further close the possible loophole, by extending the categories of land specified in subsection (7) to include

so that it would include any rights of way and town or village greens.

We considered similar amendments very carefully when they were tabled in the other place. We have concluded that the exemption from prosecution works properly without the amendments. We are satisfied that the Government amendment that has been incorporated into clause 70 closed any potential loophole and that no further amendments to the clause are necessary. Amendments (a) and (b) as drafted cannot be accepted because they would introduce uncertainties into the definition of visitor. For example, if they were accepted, they would not mention section 15(1) of the Countryside and Rights of Way Act 2000. We recognise that there is some concern that people using a right of way could be regarded as a "visitor to the land". However, we do not share that concern. We have considered this issue very carefully and have concluded that those using a right of way could not be regarded as a visitor to one of the parts of land which the right of way may cross. The right of way may cross several fields in the ownership of several different landowners. The user of the right of way is not visiting those fields, he is using the right of way. I appreciate that this is a complex area of the law. We intend to issue guidance to the police, local authorities and others about the rights of way provisions in this Bill. That will include guidance to assist with the understanding and enforcement of this new legislation on rights of way. I hope that in light of that the hon. Gentleman will withdraw his amendments and that the House will accept the Lords amendments.

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