Wiltshire and Swindon Local Access Forum

Response to DEFRA Document – ‘Use of Mechanically Propelled Vehicles on Rights of Way’

 

 

Proposal One.

 

We will develop a strategy to disseminate and better inform the Police, Local Authorities, the Courts and others about the extensive powers and penalties already available for dealing with vehicles using rights of way illegally, anti –socially, or in sensitive areas, harmfully.

 

Proposal one confirms that sufficient powers already exist. However, it was emphasized that there would have to be a commitment from all parties, including the Police and CPA, to make the proposal successful and that resources are made available to enforce the measures set out. It was also emphasized that there is a need for education, co-operation and agreement.

 

 

 

Proposal Two.

 

(i) We invite views on the revision of the advice and guidance on managing the different sorts of traffic on vehicular rights of way in the publication ‘Making the Best of Byways’. (1997)

 

(ii) We will also publish the results of the research project on the use of byways open to all traffic, which will be used to inform the revision of Making the Best of Byways.

 

 

(i)                  Making the Best of Byways is a sound document which had the approval of all parties. The only revision necessary is to note new Legislation.

 

(ii)                The results of the research project need to be seen before commenting further. However, it was disappointing that DEFRA’s Consultation Document was published before the results of the research document.

 

Proposal 3.

 

We propose to introduce legislation to provide that any future use of a footpath or bridleway that would (immediately before the commencement of the relevant new legislation) have given rise to a public right of way for vehicles shall be treated as giving rise to restricted byway rights, but no other public rights of way.

 

This will prevent any future usage giving rise to claims for public rights of way for mechanically propelled vehicles.

 

 

This would enable future use of Footpaths and Bridleways by cyclists and carriage drivers to established restricted byway rights. Inappropriate use can be prevented by byelaws or TRO’s. The group agreed that this proposal raised no real problems and was agreed.

 

 

Proposal 4.

 

We propose to introduce legislation, which will make it no longer possible to establish the existence of a byway open to all traffic by reference to historic (pre-commencement) use by, or other evidence relating to, non-mechanically propelled vehicles.

 

We propose to do this by introducing a cut off date after which (subject to certain exceptions) any unrecorded rights of way for vehicles shall be recorded as restricted byways in the Definitive Map and Statement.

 

We propose the cut off date should be one year from the commencement of the new legislation.

 

Exceptions

 

We consider it should be possible to show that the public have a right of way for vehicles where the right arose

 

  1. by virtue of an express dedication for mechanically propelled vehicles;
  2. by virtue of any enactment authorizing use by mechanically propelled vehicles; or
  3. by virtue of any qualifying use by mechanically propelled vehicles*.

 

This means that applications to record byways open to all traffic can continue to be made until the end of 2025 where they are supported by evidence of lawful use by mechanically propelled vehicles.

* By ‘qualifying Use’ we mean any use that would be sufficient to give rise to a right of way for vehicles by prescription at common law or under section 31 of the Highways Act 1980.

 

 

Taking the points individually:

 

Historic evidence rarely if ever referred to ‘non – mechanically propelled vehicles’. The terms used in the Statutes and by the Courts were ‘carriage’ and ‘carriage road’. Section 191 of the Road Traffic Act 1988 (derivation of section 31 of the Road Traffic Act 1930) states;

 

191. Interpretation of Statutory references to carriages.

A motor vehicle or trailer-

(a) is to be deemed to be a carriage within the meaning of any Act of Parliament, whether a public general Act or a local Act, and of any rule, regulation or byelaw made under any Act of Parliament, and

 

(b) if used as a carriage of any particular class shall for the purpose of any enactment relating to carriages of any particular class be deemed to be a carriage of that class.

 

The existence of mechanically propelled vehicles was known from the late 18th Century, but the legislators and Courts did not distinguish between different kinds of carriages. The 1801 Inclosure (consolidation) Act was introduced in the same year as Trevithicks steam carriage and by the 1820s such carriages were becoming common. Some Members of the Forum felt that this part of the document is fatally flawed and does not support the statement made.

 

Legislation is needed to control the current and increasing use the network currently receives which is already causing damage due to overuse in many areas.

 

The criteria of environmental risk and local and wider need should be considered in addition to historic evidence in the investigation of applications for DMMO’s.

 

The Forum agreed that the cut off date should be 1 year from commencement of the new legislation.

 

Exceptions.

 

1. Proposal 1 would not be supported

2. Some members of the group felt that section 191 provides the necessary authorization others felt that section 191 needed amending.

3. This exception implies that a right of way currently used by mechanically propelled vehicles can still be used as long as byway claim is made before the end of 2025.  

 

 

Proposal 5.

 

We propose that applications for Definitive Map Modification Orders (DMMOs) to recognize vehicular rights submitted before the end of the one year cut off date will be processed to final determination.

 

We propose to introduce the register of applications * for DMMOs prior to commencing the relevant new legislation.

 

We do not intend to review or amend the rights attached to ways already shown in the Definitive Map and Statement as byways open to all traffic.

 

* Schedule 5, paragraph 2 of the 2000 Act inserts new section 53B into the Wildlife and Countryside Act 1981, providing for a register of applications made under section 53.

 

The comments are given in three parts

 

(i)                  Agreed.

(ii)                Agreed, it was felt a register could be potentially useful

(iii)               Agreed.

 

 

Proposal 6.

 

We propose that an easement conferring a private right of way for vehicles for the benefit of an owner or occupier should be recognized where (before the commencement of new legislation) a public right of way has arisen, which would before the one year cut off date have been treated as a right of way for vehicles, and is now being treated as giving rise to restricted byway rights.

 

The Forum agreed that the proposal was reasonable but pointed out that it was not within their remit to express views on private rights.

 

Proposal 7.

 

We invite views on bringing forward the 2026 cut off date under section 56 of the 2000 Act and section 54A of the Wildlife and Countryside Act 1981 for the purposes of recording byways open to all traffic based on evidence of mechanically propelled vehicular use.

 

It was agreed to leave the date at 2026.

 

 

 

General comments made.

 

Only 2% of the National network is available for vehicular use.

The Highway Authority has a duty to assert and protect the rights of all users including vehicular use.

The revised document from ‘Making the Best of Byways’ needed to be looked at in the light of the above proposals.

Vehicular users with no (or few) byways such as Dorset will seek byways elsewhere e.g. Wiltshire leading to increased use and damage.