The Act Part 6: Rights of way
31.Under current law, evidence of use by non-mechanically propelled vehicles of a route for a 20 year period or a dedication for such use gives rise to a public right of way for all vehicles and this public right of way can be recorded on the definitive map and statement as a byway open to all traffic. (The “definitive map and statement” is a document kept by a local authority which shows footpaths, bridleways, restricted byways and byways open to all traffic.).
32.In Bakewell Management Ltd v Brandwood [2004] UKHL 14, [2004] 2 AC 519, the House of Lords decided that a right of way may arise where mechanically propelled vehicles have used a route for the 20-year period, even where that use was illegal. Use of footpaths or bridleways by mechanically propelled vehicles has been illegal since the 1930’s. Part 6 halts the implied creation of new public rights of way for mechanically propelled vehicles, preventing post-1930 use of a way by a mechanically propelled vehicle from giving rise to any future public right of way.
33.Part 6 also extinguishes existing public rights of way for mechanically propelled vehicles, where those rights are not already recorded on the definitive map and statement, although this is subject to certain exceptions.
34.Property owners and others with an interest in land may have been relying on unrecorded public vehicular rights of way for access to that land. Part 6 ensures that, if the public right of way for mechanically propelled rights is extinguished, these people are provided with a private right of way to access the land by mechanically propelled vehicle.
35.All claims made under Part 3 of the Wildlife and Countryside Act 1981 to establish new rights for mechanically propelled vehicles which were lodged before 20 January 2005 (in England) or 19 May 2005 (in Wales) will be preserved and dealt with under the old law. So also will applications that were lodged after the relevant date but have reached the stage of being determined by the surveying authority. So too will applications lodged by landowners who want to maintain access to their property by mechanically propelled vehicle.
36.Part 6 also amends provisions of the Highways Act 1980 that deal with the creation of public rights by a period of use. One purpose of the amendments is to make clear that use by non-mechanically propelled vehicles (such as pedal cycles) can still give rise to a new public right of way for non-mechanically propelled vehicles. Another is to clarify the date on which a public right to use a way is to be regarded as brought into question (for the purpose of calculating the length of the period of use, and thus whether or not a new public right of way has been created) in a case where the public right has been brought into question by an application to modify the definitive map and statement.
37.Finally, Part 6 includes provision to enable National Park authorities to make traffic regulation orders and other orders regulating traffic, in relation to recorded byways, footpaths and bridleways and unsealed carriageways in National Parks.