Clause 61 - Restriction on creation of new public rights of way
Natural Environment and Rural Communities Bill
Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)
It is a pleasure to see you back in the Chair, Ms Anderson, because we are discussing a subject that I know is of great concern to your constituents.
The clause is the first of four that deal with the recording of certain public rights of way for mechanically propelled vehicles. An extensive public consultation exercise was published in December 2003—it was referred to this morning—on the use of mechanically propelled vehicles over rights of way, which listed more than 14,000 responses. After careful, balanced consideration, we set out the intention to legislate in our framework for action document in January and clauses 61 to 64 deliver that commitment.
The whole Committee agrees that there is a significant problem with irresponsible drivers and riders of vehicles churning up our rights of way in the countryside, and that is must be addressed. We heard the hon. Member for Banbury (Tony Baldry) talking about the Ridgeway this morning. It is one of the most celebrated—if that is the right word—trails which has suffered damage. All parties agree that the actions of those irresponsible people need to be addressed, which is what the clauses will do.
Clause 61 reflects proposal 3 of the Government proposal paper, relating to the rights that might be acquired in the future by virtue of the use of mechanically propelled vehicles on certain routes. At first sight, it appears to be the key clause in part 6 of the Bill. I would argue that clause 62, which deals with the main issue of historic rights, is the key clause. Clause 61 deals solely with the future acquisition of mechanically propelled vehicle rights—for example, during the period 2010 to 2030.
There is considerable ambiguity about the extent to which mechanically propelled vehicular rights can be acquired. For example, it is not clear whether use of a way by someone on a bicycle could give rise to a right of way for all vehicles, including those that are mechanically propelled, and the law would benefit from clarification on this point. Clearly, evidence of bicycle use or use by other non-mechanically propelled vehicles should not give rise to rights for mechanically propelled vehicles in the future.
The Highways Act 1980 provides for the presumed dedication of a way as a highway after use by the public for a period of 20 years. Until a recent court judgment, it was always considered that the law would not countenance the creation of rights based on long use that was prohibited by statute. Since the offence of driving on a footpath or bridle way was introduced in the Road Traffic Act 1930, it has been considered that illegal use of a route by a mechanically propelled vehicle for a period of 20 years would not give rise to a vehicular right because the movements were illegal. However, since the judgment of the other place in Bakewell Management Limited v. Brandwood in April 2004, it now appears that use by mechanically propelled vehicles of a footpath or bridle way for 20 years, despite being illegal, may give rise to mechanically propelled vehicular rights in certain circumstances. That means that rights might be acquired in the future by deliberate illegal use of a footpath by a mechanically propelled vehicle, which is clearly unacceptable.
Of more concern are the wider implications of the Bakewell case in relation to historic public rights of way, which I shall come to when we consider the next clause. This clause will ensure that, post commencement, no new rights of way can be created by the use of mechanically propelled vehicles over any routes that were recorded or capable of being recorded as public rights of way on local authorities’ definitive maps.
I shall now try and address some of the points made in the debate on the clause, starting with the contribution made by my hon. Friend the Member for Bassetlaw (John Mann), who has been a robust champion of the need to resolve the matters in the clauses that we are discussing. He made a useful contribution this morning, and he yet again demonstrated his commitment to resolving those matters.
My interpretation of what my hon. Friend said suggests that most of the answer to his question will be in the debate about clause 62; however, it is worth responding to some of the questions that he raised about the process—assuming that we agree to clause 61—that is followed if riders want to set up a new trail. Given that thousands of trail bikes are being used, it is thought sensible to make provision for them to be ridden somewhere. Otherwise, we may inadvertently create an environment in which there is a great deal of illegal use of trail bikes. If people use their trail bikes illegally, they may go anywhere and destroy particularly sensitive environments, so there is a pragmatic argument for making some provision.
It is important to consider how provision might be made. The answer is through dedication by a landowner. The hon. Member for Brecon and Radnorshire (Mr. Williams), for example, may want to dedicate some of the land that he farms. However, it would be difficult, if not impossible, to establish a definitive map. I have just had a long and slightly tortuous discussion with my officials about that point, and they advise me that the provision would not apply, as creating a new byway open to all traffic would require an assessment by the authority that the right of way was principally for horse riders or for walkers, and not for mechanically propelled vehicles, because then it would be a road. I am sure that that is clear.