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‘(4)Under sections 1, 9, 14, 22, 65, 68, 69, 71 and 92 of the Road Traffic Regulation Act 1984 (c. 27), the relevant National Parks Authority may exercise the functions of the local traffic authority for the purposes of controlling traffic by way of a traffic regulation order on any unsealed road including those classed as footpath, bridleway, restricted byway, byway open to all traffic or unclassified county road within the relevant National Park.
(5)In subsection (4), “unsealed” means any route which has an earth, gravel or cobbled surface and is not made up of tarmac, concrete or asphalt along its course.’.
I am comforted by a fact that may reassure the hon. Member for Sheffield, Hillsborough (Ms Smith)—the amendment has the support of the Council for National Parks. As the Minister said that he has some sympathy with the amendment, I am persuaded to pursue it.
Many will know that national parks have the duty to conserve both the natural environment and the built environment. Some of our most ancient rights of way bring those two issues together. An example in the Brecon Beacons national park is known as the Gap road. Sadly, the hon. Member for Bassetlaw has left the debate. Some of the Romans heading for Scotland, obviously deterred by the river Trent, must have turned left and sought to enter Wales. To cross the Brecon Beacons, those Romans built a road that is now known as the Gap road. As the Romans were a little more canny than modern road builders, they built the road on the side of the Brecon Beacons that is less affected by snow. So, while the A470 is sometimes completely blocked by snow, the Gap road is left open.
The Gap road started to be used by motor cyclists and 4x4 drivers. It is not just a right of way but an ancient monument, because it has retained some of the structures that the Romans put there. Although we can restore rights of way, we cannot replace ancient monuments. So it seemed to us that it was important that we conserve it. That is an example of how rights of way that are important, and other rights of way, can be conserved by traffic regulation orders.
It seems appropriate that national parks be given the powers of highways authorities to conserve rights of way. The amendment would limit those powers to unsealed rights of way that are not covered by concrete, asphalt or tarmac. So there is a limit. It would give national parks the right to make TROs not on roads that are used for general transport purposes but, mainly, on roads that are used for recreation.
I was chairman of the Brecon Beacons national park when we put forward the TRO for the Gap road. Everybody whom I consulted opposed that order. The police said that they could not enforce it. Motorcyclists and 4x4 drivers said that it was a huge restriction of their rights and freedoms. Conservationists said that the road, use of which the order would have limited to periods when vehicular use would not do it damage, should be closed altogether. The county council said that the order was a waste of money. Everyone opposed it, but eventually we drove it through—I am sorry to use that phrase—and it has proved to be successful. Not only does it provide the opportunity for people to enjoy that right of way when conditions are appropriate but it conserves the right of way, which is important.
I believe that the national parks would use the measure responsibly and the example of the Gap road proves that. After the then Minister of State at the Department for Environment, Food and Rural Affairs, the right hon. Member for Cardiff, South and Penarth (Alun Michael), put the matter out to consultation, I was surprised to receive a letter saying that we should not proceed in that way but should use TROs. It referred to an outstandingly successful example on the Gap road going through the Beacons. I wrote back to the person who wrote the letter saying that if they had supported me at the time it would have given me great comfort.
I believe that this power would enhance national parks and that it would be used responsibly. I support it.
I recognise that traffic regulation orders can play an important role in the management of vehicles in national parks and the achievement of national park purposes. Authorities need tools to achieve those purposes and to manage vehicles in parks. Statutory provision exists for local highway authorities to delegate their functions to national parks by agreement, and I understand that Dartmoor national park authority already has delegated traffic regulation order-making powers over public rights of way.
I consider that the amendment would not define clearly enough the scope of the regulation-making power. For example, I know from experience that some tracks are for the most part unsealed but for short stretches of 5 m or so may have more robust surfacing. It would be difficult to ascertain whether such a route fell within the amendment’s definition of unsealed when it clearly should.
An alternative way forward would be a consensual one in which national park authorities agreed delegation arrangements with local highways authorities. However, I recognise the clarity and certainty that might be afforded by providing statutory order powers direct to national park authorities and, with that in mind, I am prepared to consider the matter further and to consult with colleagues in other Departments. On that basis, I hope that the hon. Gentleman will withdraw his amendment.
With this it will be convenient to discuss new clause 8—Dedication of way as highway presumed after public use for 20 years—
‘(1)Amend section 31 of the Highways Act 1980 (c. 66) (dedication of way as highway presumed after public use for 20 years) as follows.
(2)In subsection (2) leave out the words after “question”.
(3)After subsection (2) insert—
“(2A)For the purposes of subsection (2), the right of the public to use the way may be brought into question—
(a)by a notice such as is mentioned in subsection (3) below;
(b)by an application for a modification order under section 53(5) of the Wildlife and Countryside Act 1981 to add the way to the definitive map and statement; or
(2B)Where the right of the public to use the way is brought into question in the manner specified in subsection (2A)(b) above, the date on which the right shall be deemed to have been brought into question shall be the date of the certificate issued under paragraph 2(3) of Schedule 14 to the Wildlife and Countryside Act 1981.”.’.
I am surprised and delighted to be able to take part in this short debate on new clause 8. The hon. Member for Brecon and Radnorshire told us this morning that rights of way legislation needed modernising and, at the risk of running into trouble with some of my hon. Friends, I tend to agree with him. Rights of way improvement programmes may be a way of doing that.
The new clause is a clear example of difficulties with rights of way legislation that is not well codified and tends to be out of date. It relates specifically to the notion of bringing into question the public’s right to use a right of way. It is set against an application to modify the definitive map. The Minister has been good about giving examples to the Committee, and I shall give one also.
There are arguments in many parts of the country about whether a right of way exists. Put in simplistic terms, if a right of way has been used for 20 years and that can be established, a claim can be made and it is possible that the right of way will be acknowledged and put on the definitive map.
There are cases in which walkers using rights of way are suddenly confronted by the landowner saying that the right of way does not exist. Typically, the walkers will be confronted by a sign saying, “No right of way here”, or, as has happened to me on several occasions, a farmer with a shotgun. That is the point of interruption—the bringing into question of the right of way. One way of bringing into question a right of way is to put in a claim to the local authority. There is no confrontation with the landowner. The person desiring to use a path makes a claim to the local authority.
There has been extensive discussion involving people who use paths, such as the Ramblers Association, and the rights of way review committee about whether the notion of making a claim constitutes the concept of “brought into question”. The advice of the lawyers—they are certainly earning their money today—is that a claim by itself does not constitute bringing into question the right of way.
As I said, there has been a lot of discussion about the matter involving various organisations and the Department. The Minister’s predecessor wrote to the rights of way review committee on 22 June 2004, establishing that there were problems. He said:
“A court case may well provide clarity, but if and when this might happen is equally uncertain.”
I would like to draw this bit to the Minister’s attention:
“In the longer term it would be sensible to modify the legislation to make it clearer and more helpful. However, this would require primary legislation and so could take some time.”
The vehicle is here, and I invite the Minister to jump on it.
Clause 63 ensures that where there is historic evidence of use of a route by non-mechanically propelled vehicles, or a historic dedication of a carriageway at a time when horse and cart use was commonplace, that evidence may be used to record a restricted byway. A restricted byway carries a right of way on foot, a right of way on horseback or leading a horse, and a right of way for vehicles other than mechanically propelled vehicles. Thus, the type of vehicles using those routes will be very similar to those entitled to use routes dedicated for vehicular use before the era of motor vehicles. When I spoke at the AGM of the British Horse Society, it wanted an assurance on that matter, so I give it now.
The clause also deals with the repeal of section 34A of the Road Traffic Act 1988. The Government set out the rationale for not implementing section 34A in the 2003 consultation paper and in a parliamentary statement made to this House on 9 December 2003.
As for the new clause, it is important that routes that have ostensibly been used as part of the rights of way network for a long period should be reflected in local authorities’ definitive maps. Section 31 of the Highways Act 1980 ensures that where there has been a continuous period of use of 20 years, a public right of way may be recognised. However, I say to my hon. Friend the Member for Sherwood that I accept that there is some ambiguity in the way section 31 is drafted, which may benefit from clarification. I agree with my him that an application to record a right of way under section 53 of the Wildlife and Countryside Act 1981 on the basis of 20-year evidence of use may not constitute bringing the public right to use a path into question and where there is no dispute about the use of the way, that may present a problem.
The issue is technical, and I would like to consider it further with a view to returning to it in the other place. With that undertaking, I hope that my hon. Friend will withdraw his new clause.