Archived decisions

Dear Mr Propert-Lewis,

Use of Mechanically propelled vehicles on Rights of Way

Thank you for consulting us on this matter.

As long ago as 1998 Hampshire County Council expressed its opposition to inappropriate use of green lanes by motorised vehicles and called for a change in legislation to address the problems perceived as being caused by recreational use of unsurfaced roads. The proposed changes are therefore broadly welcomed as a measure to recognise that green lanes are not always a suitable environment for modern mechanically propelled vehicles.

In particular, our specific responses are:

Proposal 1

The development of a strategy for the provision of better information about existing powers for dealing with vehicles using rights of way illegally

We have no specific comments on this proposal other than to support the provision of information and to encourage greater awareness of existing legislation for the prevention of unlawful and anti-social use. We would however, wish it to be noted that not all use of rights of way by mechanically propelled vehicles is necessarily illegal or destructive and that responsible vehicular use of Byways Open to All Traffic is a legitimate pursuit.

Proposal 2

Revision of the advice and guidance on managing vehicular rights of way

A revision of the advice and guidance would be of benefit. More research into how to project this guidance to motorised vehicle users who do not belong to a LARA affiliated club would be of benefit. This would mean that the use of Voluntary Restraint Agreements would have more of an effect in stopping use of particular routes by all, not just club members. This would mean a lesser reliance on more permanent measures such as TROs.

Proposal 3

The introduction of legislation to prevent future use by non-mechanically propelled vehicles giving rise to a right for all vehicles

This is to be welcomed. However, it is imperative that the opportunity is taken to clear up the uncertainty over whether use of a footpath by bicycles gives rise to a right of way for all vehicles. The wording of the proposal, ("...any future use of a footpath or bridleway that would (immediately before the commencement of the new legislation) have given rise to a public right of way with vehicles...") does not clarify this uncertainty, because there will still be debate whether or not use by a bicycle did indeed, prior to the legislation coming into force, give rise to a right of way for all vehicles.

Proposals 4 and 5

The introduction of legislation to recognise that the acquisition of rights as a result of ancient usage by non-mechanically propelled vehicles should not give rise to a right for all vehicles and that the cut off date for claims for Byways based on ancient vehicular use should be one year from commencement of the new legislation

Again this proposal is to be welcomed, to the extent that it recognises that mechanically propelled vehicles are generically different from horse drawn vehicles and are seen by many as unacceptable intrusions in the countryside . It is entirely logical and rational that, where the routes are not currently in common use by motorised vehicles, rights acquired as a result of use by horses and carts should not necessarily be extended to use by motorised vehicles. This is, however, an entirely separate issue from that of illegality, which is addressed in Proposal 1.

If, as a matter of policy, it is decided that historic vehicular use should not give rise to rights for mechanically propelled vehicles, we see no reason to allow a period of one year for claims for such rights to be made. If there is a problem with the use of rights of way by mechanically propelled vehicles, then that problem should be tackled immediately and effectively. There is no logic in allowing time for the continuation and expansion of the problem if it has been decided that there is, indeed, a problem, and that it needs to be addressed. We suggest that the provisions take effect immediately on the passing of the relevant legislation.

We anticipate that if time is given for claims to be made, there will be a significant increase in poorly researched, speculative claims which will take time, and cost money, to research. Any which give rise to the making of an order are likely to be defended fiercely at public inquiry, regardless of the merits of the claim. This process will place an unfair burden on Highway Authorities. There is no point in permitting such claims if Parliament has decided that, as a matter of principle, use of rights of way by mechanically propelled vehicles, where not already recognised at law, is undesirable.

We agree that this legislation should not act retrospectively on rights that are already recorded on the definitive map as Byways Open to All Traffic.

We would ask that legislation makes it clear what is intended by `unrecorded rights of way for vehicles". As far as we are aware, there is only one legal record of vehicular rights, namely the Definitive Map. (We do not consider that a List of Streets kept under s.36 Highways Act 1980 is a record of vehicular rights, because it records maintenance obligations, not rights; it does not provide conclusive evidence of the existence of vehicular rights and, in any event, it covers all types of highways without necessarily making a distinction between them). Would it not be easier to clarify exactly what records are being referred to?

Proposal 6

Private vehicular easements should be recognised over historic carriageways

We agree that landowners might be prejudiced by the removal of all-purpose vehicular rights and that some protection should be given to those that already enjoy vehicular rights over public vehicular highways not recorded as Byways.

We are not sure how the legislation proposed would work in practice. Is the easement automatically granted (i.e. it is up to the owner of the servient tenement to prove that the right does not exist, should he wish to challenge use) or is the easement only considered to exist if the owner of the (alleged) dominant tenement can prove that public vehicular rights exist(ed) over the route in question (in which event it is up to the owner of the dominant tenement to commence proceedings to protect his alleged right). In this case however, he would be prejudiced if there is no known owner of the servient tenement against whom an action can be brought.

Consideration needs to be given as to whether the Highway Authority has, or should have, any locus standii in any action between landowners to determine whether the public vehicular rights giving rise to the easement do, in fact, exist. We do not consider that it should be up to the highway authority to determine whether or not, in such cases, public vehicular rights would have existed had it not been for the legislation proposed by this consultation paper, as these are essentially private disputes, but we would wish to have the opportunity to be heard on the matter, as there are knock on consequences for Highway Authorities.

We are concerned at the implications of the easement on the liability for maintenance, both as between the owner and private user(s) of the way in question and between users and the highway authority. Any statutory easement should be expressly subject to the responsibility of the owner of the dominant tenement to pay a fair proportion of the cost of repair of the route in question. This needs to be enforceable as between the different landowners, but perhaps also by the highway authority should the private vehicular user damage the highway to the detriment of the public.

Proposal 7

Bringing forward the cut-off date for claiming Byways Open to All Traffic based on evidence of mechanically propelled vehicular use.

We have no strong feelings about this proposal. We agree that it is unlikely that there will be many claims based on user by mechanically propelled vehicles and that bringing forward the cut off date will bring certainty about such rights earlier than would otherwise be the case.

The Hampshire Countryside Access Forum approved this response at their meeting on 11 February 2004.

Yours sincerely