Commentary on Sections Part 3 – Repeals of Welsh Legislation Part 15 – Unrecorded public rights of way
187.The Countryside and Rights of Way Act 2000 (‘the 2000 Act’) was enacted, in part, to improve public access to the open countryside and registered common land while recognising the legitimate interests of those who own and manage the land concerned, including by amending the law relating to rights of way.
188.Sections 53 to 56 of the 2000 Act have never been commenced by the Welsh Ministers and are therefore not in force in relation to Wales. They prescribe a cut-off date (1 January 2026) for the recording on definitive maps(21) of footpaths and bridleways created before 1949 (with certain exceptions). The provisions provide that public rights of way over such footpaths and bridleways that have not been recorded by the cut-off date would be extinguished. Section 56 of the 2000 Act provides that the cut-off date can be extended in relation to Wales by regulations made by the Welsh Ministers. No such regulations have been made by the Welsh Ministers as sections 53 to 56 have never been brought into force.
189.The Wildlife and Countryside Act 1981 (‘the 1981 Act’) requires, among other things, that definitive maps and statements be kept under review. The surveying authority for an area may make, by order, such modifications to a definitive map and statement as it considers are required. If paragraph 4 of Schedule 5 to the 2000 Act were in force it would insert a new section 54A into the 1981 Act, and that section would prevent a surveying authority making an order after the cut-off date (1 January 2026) that modified a definitive map and statement for the purpose of recording a byway open to all traffic (known as a “BOAT”), except where the BOAT is recorded in the place of any other way already recorded in the map and statement. As paragraph 4 of Schedule 5 to the 2000 Act has not been brought into force in relation to Wales, new section 54A of the 1981 Act is also not in force. As such there is no cut-off date for surveying authorities to make orders for the inclusion of BOATs on definitive maps and statements.
190.Since 2001 the Welsh Government has been implementing provisions under the 2000 Act, but certain provisions have yet to be implemented, particularly those that are no longer pertinent or considered in keeping with the Welsh Government’s priorities for access. These include provisions that are no longer necessary or are resource intensive for local authorities.
191.Paragraph 54 of this Schedule therefore amends sections 53, 54, 55 and 56 of the 2000 Act, so those provisions apply to land in England only. Therefore there will not be a cut-off date by which historic footpaths and bridleways in Wales must be included on definitive maps, nor for the extinguishment of certain rights of way in Wales that have not been claimed by the cut-off date. This is the current position in law (as the 2000 Act provisions have not been commenced) and the change made by this Act removes the prospect of the current position changing without new legislative provision being made.
192.Paragraph 55 of this Schedule amends paragraph 4 of Schedule 5 to the 2000 Act, so that new section 54A of the 1981 Act (if brought into force) would apply to land in England only. Therefore, there will not be a cut-off date by which BOATs in Wales must be included on definitive maps and statements.