Countryside and Rights of Way Bill

LARA has identified six parts of the Bill that in its view urgently require amendment to safeguard and improve current levels of motor sport and recreation.

Contents:

  1. Closing Access Land at weekends – needed to retain sporting access
    including motorsports;
  2. Motorsport on Restricted Byways – needed to extend current provisions
    to new designation;
  3. Prescribed Bodies to be consulted about RoW Improvement Plans – needed
    to allow user groups (ie the customer of RoW) to take a full part in
    the process;
  4. Enforcing the duty to prevent Obstructions – change needed to allow
    the new provision to work effectively;
  5. “Reckless” disturbance of Wildlife – change needed to avoid
    potential problems arising from existing legitimate sporting uses;
  6. Statutory Advice on making TROs – needed to ensure fairness in the
    application of restrictions.

 

1. Closing “access land” to the public at weekends.

Section 21 sets out provisions by which the owner of land may exclude
the public for up to 28 days in any year, to allow for operations and
activities incompatible with the exercise of “right to roam”.
S.21(6) states that any of this allowance of days for exclusion or restriction
of access shall not be: a Saturday or Sunday, Christmas Day or Good Friday,
or any bank holiday. This has the potential to make things difficult for
some sporting events on land designated as access land. Although most
events can be run under the provisions that prevent “right to roamers”
disrupting lawful activities taking place on land, there will be a few
cases where, for safety and management reasons, it would be prudent to
exclude the public for a period – just as happens now.

Almost all sporting events run at weekends. Under the Bill as drafted,
the weekends are owned by ramblers, many of whom are able to enjoy their
recreation on weekdays. It seems reasonable that some of the 28 days of
available ‘exclusion’ should be at weekends to strike a fair
balance between the new rights of ramblers and the reasonable needs and
expectations of long-established sporting uses of land.

We propose: that the draft clause be amended such that 14 of the
28 days available for access exclusion or restriction should not be on
Saturdays or Sundays. Section 21(6)would now read:

 

  • more than 14 days that are a Saturdays or Sunday,

 

 

An additional clause would be added:

 

  • any weekend containing, or immediately preceded by, or immediately
    followed by, any holiday as prescribed in subsections (b) and (c)
    above.


2. Restricted Byways must be available to authorised motor sport events.

The Bill makes a fundamental change whereby the old classification of
minor highway RUPP (Road used as a Public Path) is statutorily converted
to ‘restricted byway’, where the conclusive right of way does
not include motor vehicle. Some restricted byways will have an underlying
public right of way with motors, some will not, having (historically)
no greater than bridleway rights. A great deal of motor sport depends
on authorised access to footpaths and bridleways and event organisers
are required by the provisions of the Road Traffic Act 1988 to obtain
both landowner’s permission and the authorisation of the highway
authority. It will cause a great deal of confusion and difficulty for
the organisers of authorised motor sport events (and for local authorities
and other highway users) if the regulations governing the use of restricted
byways is not brought into line with the current regulation for footpaths
and bridleways. There is no policy reason why such alignment should not
be made a consequence of this Bill becoming law.

We propose: that this change to the Road Traffic Act 1988 be effected
by adding in to s.45 of the Countryside and Rights of Way Bill the additional
clause (6):

 

(a) Section 33(1) of the Road Traffic Act 1988 is amended to read:

A person must not promote or take part in a trial of any description
between motor vehicles on a footpath, bridleway of restricted byway
unless the holding of the trial has been authorised under this section
by the local authority.

(b) Section 192(1) of the Road Traffic Act 1988 is amended to add:

“restricted byway”, in relation to England and Wales, means
a way over which the public have restricted byway rights, with or
without a right to drive animals of any description along the highway,
but no other rights of way.
3. Rights of way improvement plans: requirement to consult ‘Prescribed
Organisations’.

S.53 of the Bill introduces the concept of each highway authority being
required to produce and update a ‘Plan’ for the improvement
of the rights of way network. This is a good idea, but the requirements
for consultation in the drafting of the Plan are inadequate. S.54 sets
out a list of organisations to be consulted. There is no express requirement
for the makers of the Plans to consult the national rights of way organisations
acknowledged by the Government in the Wildlife and Countryside Act 1981
as ‘Prescribed Organisations’. This is not joined-up government.
It may well result in local authorities making Plans that, in turn, lead
to the making of path orders which must, by law, be sent to the Prescribed
Organisations, which may then object to the orders. The Prescribed Organisations
are expert in good practice in rights of way; to leave them out is defeating
the purpose of this provision.

We propose: that s.54(f) should be amended to read:

(f) Organisations prescribed by the Wildlife and Countryside Act
1981 to receive public path and definitive map orders;

A new s.54(g) is then added to renumber the existing s.54(f):

(g) Such other persons as they may consider appropriate.
 

4. Enforcement of duty to prevent obstruction.

We welcome this new provision (and the additional new provision in s.57
to oblige the removal of obstructions by the courts) but believe that
s.56, as drafted, is seriously defective and will prove unusable and inadequate.
This new process is a replication of the provision under s.56 of the Highways
Act 1980 (do not confuse the two s.56s) whereby a member of the public
can serve a notice, and if necessary go to the courts, to oblige a highway
authority to repair a highway. In the Highways Act provision the complainant
must prove in court (unless the case is admitted by the highway authority)
two matters: (i) that the road is a publicly repairable highway; (ii)
that the road is out of repair. If the complainant satisfies these two
matters then he is safe as regards costs, and the discretion of the court
is limited to deciding how long to allow the highway authority to effect
the necessary repairs.

But in the new s.56 provision in the Bill, the complainant must satisfy
four tests before he is safe from an award of costs against. He must show
that: (i) the way is a right of way to which the provision applies; (ii)
it is obstructed by an obstruction to which the provision applies; (iii)
that the status of the way in question is not ‘seriously disputed’;
(iv) that the highway authority has not shown the court that the removal
will take place in a ‘reasonable time, having regard to the number
and seriousness of [other] obstructions’.

The first two are reasonably simple and objective requirements. The latter
two are an almost insurmountable hurdle for the complainant to satisfy
if the person responsible for the obstruction (almost always the occupier)
disputes the status of the right of way (commonplace), and if the highway
authority can show that it has a serious backlog (commonplace) and has
prioritised the instant case to a low priority (commonplace).

Unless the complainant can succeed on all four points, then he is liable
to an award of costs against him – that is the usual practice of the courts
and while there is some discretion available for the magistrates, the
complainant would be going to court totally blind as to the likely outcome.
This is not reasonable and will simply prevent anyone using this provision
to secure the removal of obstructions from rights of way.

The reasonable and positive way of making this provision work is to replicate
more closely s.56 of the Highways Act 1980. The new provision should provide
that the complainant need prove to the court only the first two elements
– that the way is a right of way of the appropriate type, and that it
is obstructed by a “qualifying” obstruction. If both tests are
satisfied then the court must make the order, but allow such a time period
as is reasonable to accommodate the other two issues (serious dispute
as to status, and the workload/backlog of the authority).

We propose: that s.56 be amended to read:

 

  • The court shall make an order under this section if it is satisfied

(a) that the obstruction is one to which section 130A above applies,

  1. that the highway authority has a duty under section 130(3) above to
    secure the removal of the obstruction,
  2. that the obstruction significantly interferes with the exercise of
    public rights of way over that way.
  1. The court shall take into account when imposing any time limit for
    compliance on an order granted under section 4 above –
  1. that the fact that the way obstructed is a highway within subsection
    (2) of section 130A is not seriously disputed, and
  2. that, under arrangements which have been made by the authority, its
    removal will be secured within a reasonable time, having regard to the
    number and seriousness of obstructions in respect of which they have
    such a duty.

5. Disturbance of wildlife.

S.67 and Schedule 11 contain new and wider provisions for the protection
of wildlife, including an offence of ‘recklessly disturbing’
wildlife. The need to preserve wildlife is obvious, but the regulations
must not be worded so as to catch legitimate sporting activities taking
place in a way that is currently lawful and accepted as good practice.

We propose: that the Minister when making Regulations under this
provision should be required to consult such sporting organisations as
might appear likely to be affected by the Regulations. At the least, this
requirement should be for the Minister to consult Sport England, the Sports
Council for Wales, and the Central Council of Physical Recreation, as
national representative organisations on behalf of sport and recreation.

6. Advice to be considered when making TROs

Currently, advice is issued by the Government, in DoE Circular 2/93
(in Wales, DoE Circular 5/93), and in the DETR booklet ‘Making
the Best of Byways
’. However, as this advice has no real force,
authorities are able to decide to ignore it. What we seek is to give this
advice teeth — technically to make it ‘Statutory Guidance’.
The DETR advise that current guidance would need to be modified to make
it entirely suitable as ‘statutory guidance’. That does not
prevent us from seeking to amend the Bill — the government can then
amend their guidance to make it work properly. It is likely that a new
Circular will be issued to follow when the Bill has become an Act —
there is therefore no reason why this should not meet our needs.

We propose: that at the end of s58 of the Bill, the following
clause is added


(5) After s122(2) of the Road Traffic Regulation Act 1984 there
shall be added –

(3) Before making a Traffic Regulation Order under this section,
the local authority shall take notice of the advice issued by the
Secretary of State for these purposes.

For further advice on the above proposals, and on any other matters concerning the new Bill and its effects on motor sport and recreation, please contact
LARA HQ – details below.

Tim Stevens

Tel: 01630 657 627

LARA mrdo

23 March 2000

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