Clause 61 - Restriction on creation of new public rights of way

Natural Environment and Rural Communities Bill – in a Public Bill Committee am ar 30 Mehefin 2005.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

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.

Photo of John Mann John Mann Llafur, Bassetlaw

It sounds as though the rest of the Committee wants to concentrate on clause 62, but I see the main problems as being in clause 61. Is it not the case that if the Bill is passed unamended, trail riders or any other group who feel that they have lost any ability to create a new right, even when it is non-contentious, will be able to mount a legal challenge to the legislation? Through the legislation, someone must be able to say, “We think that this particular route is highly applicable for trail bikes and other motorised vehicles.” They must be able to do so in a way that means that the rest of the community can take a view on the matter, so that it can be appropriately determined.

My opposition to trail bikes, which arises from the problems in my constituency, is not an attempt to remove the right to ride them when there is agreement. I should like to see somewhere of an appropriate size designated for people properly to practise their sport, so that walkers, horse riders and others know that it would be particularly stupid to go there. I should like to see such balance and sense, but my fear is that the balance needed to allow all groups to have appropriate access is not provided for. That is why I question the Minister again about whether provision will be possible under clause 61.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

If one were to create a motor vehicular right of way, one would be creating a road. It might be untarmacked and it might be unadopted, but it would still be a road. We are talking about future rights, rather than rights in the past. The procedure that we would go through in any other circumstances in respect of creating a road would apply. The question of a legal challenge applies if we retrospectively remove rights. I am sure that we will discuss that, perhaps even in some detail, when we come to clause 62.

One other point was raised by my hon. Friend the Member for Bassetlaw and repeated articulately by my hon. Friend the Member for Bridgend (Mrs. Moon), who said that she was concerned about the ability to protect biodiversity and habitats, as the whole Committee has been throughout its discussions. Again, if we apply new criteria to people who apply to assert rights—even if we were talking about the future, they would still be applying to assert historic rights—we will be into the whole business of retrospectively changing people’s rights, which, as I have said, I will discuss in much more detail in the context of clause 62. I hope that that is helpful.

The hon. Member for Banbury understandably and rightly raised issues relating to the Ridgeway. The Ridgeway national trail extends from near Avebury in Wiltshire to Ivinghoe beacon in Buckinghamshire. Roughly a quarter of it is a byway open to all traffic, a   quarter is roads used as public paths and the rest is either bridleways, footpaths or quiet roads. It is widely agreed by all parties that there are long-established motor vehicular rights over roughly half of the Ridgeway so removing the historic rights, as we will be debating in relation to clause 62, does not solve many of the problems.

As with other national trails, the Ridgeway is managed by a group made up of the Countryside Agency and the local highway authorities through whose counties the trail runs. The previous Minister, my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael), convened and chaired a series of meetings in the Palace of Westminster over a period of 18 months or so at which he encouraged the Ridgeway management group, led by the Countryside Agency, to develop a management plan to address the problems created by the use of vehicles on the Ridgeway. The plan comprised a mixture of traffic regulation orders and maintenance measures. The management plan is well under way and seems, so I am told, to be largely successful, since much of the controversy over the Ridgeway has subsided.

The hon. Member for Banbury has apologised that he is unable to be present this afternoon; he has to attend the Africa debate on the Floor of the House. I promised him that I would address his points so that he could read my reply later in Hansard. He has raised some concerns, so although some of the controversy that my Department was hearing about seems to have subsided, it clearly still exists in his constituency.

The use of traffic regulation orders will become important in resolving some of the problems on the Ridgeway and elsewhere where rights are asserted successfully and there remain problems in respect of damage to the environment by the use of mechanically-propelled vehicles.

Photo of John Mann John Mann Llafur, Bassetlaw

As I understand the Minister, he is saying that, if it was deemed appropriate, it would be highly appropriate for a local authority to use a traffic regulation order to prohibit motorised vehicles where their presence was regarded as unwelcome and that that kind of initiative, if it was felt locally appropriate, would have the endorsement—I do not mean specifically, but in terms of a methodology—of his Department.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

Obviously, the highways authorities would have to go through the necessary process, but subject to that, that would seem to be the effective local action. Indeed, in the example that we are using, the five local authorities that span the Ridgeway, or the Secretary of State, could make a traffic regulation order covering the entire length of the Ridgeway if that became necessary. However, they have in place a management plan that uses traffic regulation orders selectively on the most vulnerable sections. As I said, so far that seems to be having a good effect.

Photo of John Mann John Mann Llafur, Bassetlaw 1:15, 30 Mehefin 2005

Has the Minister had any discussions with the Home Office about whether it would be appropriate on the basis of countering crime and   disorder to use a traffic regulation order to prohibit the use of motor bikes—for example, unlicensed motor bikes—that are acting illegally ?

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

I have not had any discussions with the Home Office about that but it is a point that I will reflect on, particularly in the context of the guidance that we intend to publish soon for local authorities and the police on the enforcement of vehicular offences on rights of way. We hope that, by publishing that guidance, we will assist the police and local authorities to take robust action. Local highway authorities need to have clear and agreed policies in place on the use of traffic regulation orders. That will enable them to be more decisive when deciding to make individual orders. The traffic regulation orders in place on the Ridgeway have demonstrated how quickly orders can be put in place provided that a firm decision is made that is backed by a prompt but robust assessment of the relative need to hold a public inquiry. That is an issue that we are considering and on which we will issue guidance.

I think that that answers the comments that were made in the debate on the clause.

Question put and agreed to.

Clause 61 ordered to stand part of the Bill.