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Highways - 'restricted byways' |
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The government has long been concerned about how to tackle off-road vehicles
driving on country highways. The original idea was to extend the scope of s34
RTA 1988 (which makes it a criminal offence to drive off-road unless there is a
right of way). However, human rights concerns meant such changes would be
problematic and so the solution has been the introduction of ‘restricted
byways’, which give rights of way only for walkers, riders and vehicles (but not
to mechanically propelled vehicles – MPVs).
In particular, every existing ‘road
used as a public path’ is now to be treated as a ‘restricted byway’. Moreover,
it is no longer possible to create public rights of way for MPVs (unless under
statute, or unless there is an express dedication by the landowner – but an
implied or presumed dedication will no longer work).
These provisions are complex. But, in summary it will be far more difficult for
MPV drivers to prove the existence of a public right of way, and so they will
lose their main defence to criminal prosecution under the Highways Act. At
the same time, it has now been made clear that no new public rights of way
for MPVs can be created by implied or presumed dedication. But, there are
possible complications:
- if a public highway is designated only as a restricted byway, then it seems
that no public vehicle rights can attach (even if they did so previously as
it was a road used as a public path);
- if a vehicular route is used by the public, but is unrecorded, there could
well be no public rights for vehicles;
- a statutory declaration of public vehicular use of a route since before May
2001 may be useful in some circumstances.
The real concern is that these provisions take away public rights of way that
have existed. Whilst that may be desirable in targeting MPV drivers, the
concern is that there will be some existing property owners who lose their
rights of vehicular access. Having said that, there are provisions that are
designed to come into play in that situation. However, it is an extremely
complex piece of legislation. Those wanting a basic introduction should refer
to [2006] NLJ 1163; [2006] SJ 765.
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September 2006 |
