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Lord McIntosh of Haringey moved Amendments Nos. 359 and 360:

    Page 31, line 32, leave out ("the whole or part of a way") and insert ("land").

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On Question, amendments agreed to.

Clause 50, as amended, agreed to.

Baroness Byford moved Amendment No. 360A:

    After Clause 50, insert the following new clause--


(" .--(1) Any public vehicular rights that exist over a way that--
(a) does not appear on the definitive map as a byway open to all traffic; or
(b) has not been used by the public at large with vehicles at any point between the commencement of this Part of this Act and the cut-off date,
shall be extinguished.
(2) Any owner or lessee of premises adjoining or adjacent to the way shall, so far as is necessary for the reasonable enjoyment and occupation of the premises, have a right of way for vehicular and all other kinds of traffic over the way.").

The noble Baroness said: The noble Lord, Lord Williams of Elvel, is not in his seat but he may have realised why, although this amendment is similar to one he moved earlier, I decided to take it separately.

There is a significant problem where historical routes, not used in living memory and possibly showing no physical trace on the ground, can be required to be opened to public vehicles. Someone can argue, for example, that an enclosure award shows that a carriageway was created 200 years ago--although all of us know that there were no motor vehicles 200 years ago. If it can be shown on the balance of probabilities that such a right exists the route can be added to the definitive map as a byway that is open to all traffic. That establishes that it is open as of right to vehicles, even if there has been no vehicular right in the past. That is the cause of much conflict between vehicle groups, other user groups and occupiers of the land.

It appears that the definitive map cut-off provisions in Clauses 49 to 52 of the Bill cannot easily be applied to tackle the problem because there is an element of user in the definition of a BOAT. A BOAT is a special type of carriageway in that it carries vehicle rights but is used mainly for the purposes for which footpaths and bridleways are used; for example, walking and horse riding. Because of that element of user in the definition there is a need for an alternative approach which is of equal application to BOATs and other minor carriageways--often unsurfaced and commonly termed "unclassified carriage roads"--that carry full vehicular rights but are not used mainly by walkers and horse riders.

One approach to the solution, while preserving all vehicular routes relied upon, is to extinguish public vehicular rights over routes which have not been used by the public at large with vehicles between the date that the legislation comes into force and the cut-off date and do not appear on the definitive map of byways. After the cut-off date, if the right of the public to use a way with vehicles was challenged, which would be unlikely on regularly used ways but impossible over ways recorded as byways, the users would have to provide evidence of both public vehicular rights and

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use by the public at large--in other words, more than one or two individuals--with vehicles between 2001 and 2006. Such an approach means that, come 2026, any rights would be extinguished only where that use could not be shown and a claim had not been successfully made to add the path to the map as a byway on the basis of any evidence. The rights extinguished would be historical rights only. Minor roads, UCRs, which continued to be used would be protected from extinguishment as any challenge to their status could be rebutted with evidence of use after 2001.

Subsection (2) acts to protect vehicular access to properties served by any public vehicular route subject to extinguishment. That preserves the status quo for all landowners, both the frontagers and the owners of the subsoil, as no new rights would be created, the rights of frontagers being merely preserved in the form of a private rather than public vehicular right of way. I beg to move.

Lord McIntosh of Haringey: I congratulate the noble Baroness, Lady Byford. This amendment is a brave attempt to deal with an intractable problem. The amendment would appear to operate to extinguish all public vehicular rights of way over any highway that is not recorded on a definitive map as a byway open to all traffic. It specifies that any public vehicular rights that exist over a way that does not appear on the definitive map as a byway open to all traffic or as not being used by the public at large between commencement and the cut-off date shall be extinguished.

The amendment appears to provide that, irrespective of whether vehicular rights are recordable on a definitive map as a BOAT, they ought to be extinguished. For example, the provision as drafted would cover cycle tracks which are not recordable on a definitive map and would operate to extinguish the public's right to ride pedal cycles over bridleways, as well as the new rights to drive non-mechanically propelled vehicles over restricted byways. Another problem is that it may well extend to trunk roads and motorways. We do not believe that it is intended to do that, but we believe that "or" should be replaced by "and".

The amendment seeks to find a way round the problem of how to deal with unrecorded vehicular rights of way after the cut-off date by limiting its operation to extinguishing only those vehicular rights that have not been used by the public at large between commencement and the cut-off date. That is the core of the proposal. However, it does not distinguish between pre-1949 rights of way and rights of way created after that date. It only extinguishes vehicular rights and leaves other rights of way whether or not they are recorded.

The core of the problem is that byways open to all traffic are not defined solely by the rights attached to them. That is where they differ from footpaths, bridleways and, under the Bill, restricted byways. The reason for that is a simple one: BOATs are full carriageways but definitive maps were never intended

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to record all carriageways, only those which are particularly suitable for walkers and horse riders. So the Wildlife and Countryside Act defines a BOAT in relation not only to the vehicular rights over it but also by reference to its character as a highway that is likely to be used more by horse riders or walkers.

So distinguishing between a BOAT and other unclassified roads--there are 113,000 miles of unclassified roads in this country--requires an investigation of each one on a case-by-case basis. That is the problem with a blanket extinguishment of unrecorded BOATs. How does one ensure that the unclassified roads which make up over half of all roads in England and Wales are not extinguished as well? I confess that we do not know the answer to that problem. I should not be saying that, should I? That is why there is no provision in the Bill for extinguishing public vehicular rights of way over any hitherto undiscovered byway open to all traffic which is not shown on a definitive map in any form at the cut-off date.

The Bill does provide for the extinguishment of any unrecorded pre-1949 higher rights over ways which are shown on definitive maps as footpaths, bridleways and restricted byways at the cut-off date. So it already goes some significant way in dealing with the aims behind the amendment, which only operates to extinguish public vehicular rights of way.

Amendment No. 360A is a brave attempt to find a solution to the problem. It seeks to provide for the extinguishment of all public vehicular rights of way over any highway, including motorways, if these are not recorded on a definitive map at the cut-off date. It then excludes from the provision any road which has not been used by the general public at any point between commencement of the cut-off date provisions and the cut-off date itself. Finally, it seeks to avoid problems analogous to those which some people have in gaining access to their properties over common land by giving all owners of premises along an extinguished way the right to drive on it.

We do not believe that the amendment provides a satisfactory solution because it would still require a case by case examination of every vehicular right of way which was likely to be caught by it. It would need to be decided whether a highway was extinguished or not.

We do not believe that a user test would, in practice, be a workable solution. Apart from generating a good deal of additional work for the courts, to decide disputes about whether use had been by the public at large or by too few individuals it would only be prudent to ensure that local highway authorities monitor use. But that would be an enormous task.

Baroness Scott of Needham Market: This is a worrying area for local authorities and local communities. Certainly when I chaired the rights of way committee in Suffolk, the issue of RUPPs being reclassified as byways open to all traffic was one which generated more anxiety among local people than any other. In the absence of any other provision, we tended

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to fall back on the use of traffic regulation orders. At the moment they appear to be the only ray of hope that one can offer. However, the process is very tedious, bureaucratic, long-winded and expensive. Perhaps the Government will consider streamlining and making the TRO procedure more user-friendly, so that if the amendment tabled by the noble Baroness is not possible, there is at least a practical way that we may begin to address this problem.

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