Hampshire County Council

Executive Member - Recreation & Heritage Item 7

18 February 2004

Proposed response to DEFRA consultation paper "Use of mechanically propelled vehicles on Rights of Way"

Report of the Director of Recreation & Heritage

Contact: Alex Lewis, Ext 6044

1. Summary

The following decision is sought:

That the attached response to the consultation paper "Use of mechanically powered vehicles on Rights of Way" be submitted to the Secretary of State for Environment Food and Rural Affairs, subject to the response including reference to approval having been obtained from the Local Countryside and Access Forum.

2. Reason

To record the views of the County Council on proposals to changes in legislation relating to claimed vehicular rights of way.

3. Other options considered and rejected

Not applicable

4. Conflicts of interest declared by the decision maker or a member or officer consulted

Not applicable

5. Dispensation granted by the Standards Committee

Not applicable

6. Reason for the matter being dealt with if urgent

Responses are required to reach DEFRA by 19 March 2004.

Approved by: (signature) Date: (date of decision)

Councillor J Waddington

Hampshire County Council Item 7

Executive Member - Recreation & Heritage

18 February 2004

Proposed response to DEFRA consultation paper "Use of mechanically propelled vehicles on Rights of Way"

Report of the Director of Recreation & Heritage

Contact: Richard Jackson, Ext 6891

1. Summary

Approval is sought for the submission to the Secretary of State for Environment Food and Rural Affairs of the attached response to the consultation paper "Use of mechanically propelled vehicles on Rights of Way".

2. History and Background

2.1 In response to widespread public concern at the use of unsurfaced roads by motorised vehicles, and following advice that its proposals in the Countryside and Rights of Way Act 2000 to change to the law relating to unlawful use of non-vehicular highways contravene the provisions of the European Convention on Human Rights, the Government has produced a consultation paper that proposes different changes to the law relating to the recording of vehicular rights of way.

2.2 The main changes are contained in Proposals 3, 4, 5 and 6. These recognise that there is a fundamental difference between motorised and non-motorised vehicles (a distinction not made by the law as it currently stands) and to introduce the concept that rights acquired as a result of use by non-mechanically propelled vehicles will be limited in future to use by similarly non-mechanically propelled vehicles. Existing vehicular rights of way will remain on the map as Byways Open to All Traffic and can legitimately be used by motorised vehicles, but in cases where new vehicular rights of way are claimed as a result of historic use by non-motorised vehicles, only non-mechanically propelled rights will accrue to the public. Such rights will be recorded on the definitive map as restricted byways, unless there is other evidence, which shows that mechanically propelled vehicular rights were also dedicated. It is intended that any detrimental effect on the access enjoyed by adjoining properties is addressed by the changes introduced by Proposal 6.

2.3 Proposal 1 is a statement of the Government's intention to ensure that the appropriate authorities are better informed about the powers already available to prevent and punish unlawful use of rights of way by motorised vehicles. Proposal 2 asks for input into the revision of the publication `Making the Best of Byways' , a manual of best practice in the management and maintenance of Byways Open to All Traffic. Proposal 7 invites comments on a change to the 2026 cut-off date for claiming byways based on evidence of user by mechanically propelled vehicles.

3. Draft Proposal

3.1 The proposed response of the Countryside Service to the consultation paper is annexed. It reflects the Council's stated opposition to the use of green lanes by motorised vehicles, by endorsing the principle behind the main changes in legislation. Concerns are raised at the way in which some of the proposals are to be implemented, and clarity is sought on a number of issues raised by the paper. In particular, clarity is sought on the effect of twenty years use by bicycles (there is currently uncertainty as to whether or not this gives rise to a vehicular right of way) and the statutory right of access to be given to properties that are adversely affected by the proposal to recognise a limited, historic vehicular right.

3.2 The proposals, as originally drafted, were subject to discussion at the Local Access Forum that met on 11 February. The draft was approved following a vote, but there was, almost inevitably, disagreement about the extent to which vehicular use of unsurfaced highways was a real problem within the county. Quite rightly, a distinction was drawn between legitimate use on the one hand and, on the other, unlawful, anti-social use, that was unlikely to be prevented by any remedial legislation. There was concern about the use of some of the language in the draft response, which has been addressed by the minor amendments shown on the attached report. These do not affect the general purport of the response.

Recommendation

That approval be given to the adoption of the enclosed draft as the County Council's response to the consultation paper "Use of mechanically propelled vehicles on Rights of Way".