Sections 21 to 33: Exclusion or restriction of access
37. Section 21 defines exclusions or restrictions of access
for the purposes of Chapter II, and gives examples of the forms which
restrictions of access might take. Subsection (5) explains that,
for the purposes of the Chapter, the "relevant authority" is the
countryside body, or, where the land falls within a National Park, the
National Park authority. However, subsection (6) enables the
Forestry Commissioners to give notice that the Commissioners will act as
the relevant authority for any land dedicated under section 16 which
appears to the Commissioners to consist wholly or predominantly of
woodland. Subsection (7) enables the notice to be revoked where
land ceases to be woodland. (Where the Commissioners have given such
notice, the Commissioners are the relevant authority from the date
specified in the notice.)
38. Section 22 explains how landowners (or, where the land
is subject to a farm tenancy, the tenant) will have a discretion to
exclude or restrict access on up to 28 days each calendar year. However,
no more than four of the 28 days may comprise a Saturday or Sunday, and
the discretion may not be exercised at all in respect of Saturdays between
1 June and 11 August in each year, nor on Sundays between 1 June and 30
September, nor any bank holiday. The Secretary of State (or the National
Assembly for Wales) will be able, by regulations, to vest the
discretionary right to exclude or restrict access in any combination of
persons with an interest in the land (such as the tenant and those with
sporting rights), but only so that, taken together, their rights do not
exceed 28 days in any year. The person exercising the discretion will be
required to inform the relevant authority of the exclusion or restriction.
Subsection (8) will enable the Secretary of State (or the National
Assembly for Wales) to make regulations requiring the exercise of
discretion under section 22 to relate to land the boundaries of which are
determined in accordance with regulations. The regulations could, for
example, seek to ensure that land subject to discretionary restrictions is
identifiable in practice — by requiring it to be bounded by, for example,
a stream, ditch or fence.
39. Section 23 provides that landowners will also, in
certain circumstances, have a discretion to restrict access so as to
exclude the taking of dogs. The restriction may apply at any time in
respect of land which is managed for the breeding and shooting of grouse;
and for a period of no more than six weeks, in respect of any field of 15
hectares in size or less, in connection with lambing. Subsection (5)
provides that any exclusion of dogs under this provision does not apply to
trained guide or hearing dogs.
40. Sections 24 to 26 and section 28 set out the circumstances
in which exclusions or restrictions may be directed by the relevant
authority or, in the case of defence or national security, by the
Secretary of State. In every case, the authority (or the Secretary of
State) may impose only the minimum restriction consistent with the purpose
for which it is sought. Exclusions or restrictions for the purposes of
land management, the prevention of fire, the prevention of danger to the
public, nature conservation, heritage, defence or national security may be
for a fixed period or may take place at a time to be determined by a
person specified for that purpose in the direction. Where a direction
would exclude or restrict access to land indefinitely, or for a period of
at least six months, the relevant authority must first consult any local
access forum for the area (see the notes on sections 94 and 95 relating to
the provision for local access forums in Part V of the Act).
41. An application may be made for a direction in respect of land
which is not (at the time of the application) access land, but sections
24(4) and 25(5) provide that the relevant authority may not give such a
direction unless they are satisfied that the land is likely to become
access land during the period of the proposed direction. Such directions
might be given in anticipation of land being shown as access land on the
publication of a conclusive map by the countryside body, or in
anticipation of the termination of an access agreement over land to which
the new statutory right would apply but for the effect of section
15(1)(c).
42. Section 24 allows the relevant authority to exclude or
restrict access for the purposes of land management. Any person with an
interest in the land may apply. In deciding whether to approve such
applications, the authority must take into consideration the use made or
intended to be made by the applicant of the discretionary power to exclude
or restrict access for up to 28 days each year.
43. Section 25 enables the relevant authority to exclude or
restrict access where there is particular risk of fire, or to protect the
public from any danger by reason of anything done or intended to be done
on the land. Any person with an interest in the land may apply, or the
relevant authority may initiate such an exclusion or restriction itself.
In deciding whether to approve an application, the authority must take
into consideration the use made or intended to be made by the applicant of
the discretionary power under section 22.
44. Section 26 sets out provisions for excluding or
restricting access to land in the interests of wildlife and habitat
conservation, or to protect sites of historic or archaeological
importance. The relevant authority will be responsible for directing such
exclusions or restrictions of access, but in England, they must have
regard to any advice given by English Nature or the Historic Buildings and
Monuments Commission (English Heritage), as appropriate. In Wales, a
National Park authority and the Forestry Commissioners must have regard to
any advice given by the Countryside Council for Wales (for proposals with
respect to wildlife and nature conservation) or the National Assembly for
Wales (Cadw — for proposals with respect to the preservation of sites of
heritage or archaeological importance). The Countryside Council for Wales
must have regard to any advice given by the Assembly (Cadw) on exclusions
or restrictions for the preservation of sites of historic or
archaeological importance. The body to whose advice the relevant authority
must have regard are known as "the relevant advisory body".
45. Section 27 provides for directions which exclude or
restrict access on grounds of nature conservation, heritage, land
management, fire or danger, to be revoked or modified by the relevant
authority, after consulting (where reasonably practicable) the person who
initially applied for the exclusion or restriction or his successor in
title (or, in the case of nature conservation or heritage closures,
consulting with the relevant advisory body). It also requires long-term or
annual exclusions or restrictions which last for more than five years to
be reviewed at least every five years.
46. Section 28 provides for the Secretary of State to
exclude or restrict access for the purposes of defence or national
security. Where such exclusions or restrictions last for more than five
years, the Secretary of State must review them at least every five years.
The Secretary of State must also prepare a report on any review of a
direction given for the purposes of defence undertaken in a year, and lay
a copy of his report before Parliament. The Secretary of State may revoke
or modify a direction given under this section.
47. Section 29 outlines the provisions for a reference by a
relevant advisory body in relation to exclusions or restrictions proposed
under section 26. Where the advisory body has given advice and the
relevant authority has decided not to direct the exclusion or restriction
(or otherwise not to act in accordance with the advice), the advisory body
may make a reference to the appropriate Minister (or to the National
Assembly for Wales), who may require the authority to make such exclusions
or restrictions as he (or it) thinks fit. The appropriate Minister will be
the Secretary of State, except in relation to referrals arising from a
decision of the Forestry Commissioners (in England), where the appropriate
Minister will be the Minister of Agriculture, Fisheries and Food. This
provision does not apply to proposals with respect to the preservation of
sites of historic or archaeological importance in Wales, because Cadw are
themselves an executive agency of the National Assembly for Wales.
48. Section 30 makes provision for an applicant for a
direction under section 24 or 25 (exclusions or restrictions in interests
of land management, fire or danger), to appeal to the appropriate Minister
(or the National Assembly for Wales) where the relevant authority decides
not to act in accordance with the application. The appropriate Minister is
defined as in section 29. On hearing the appeal, the appropriate Minister
(or the National Assembly for Wales) may require the authority to make
such exclusion or restriction as he (or it) thinks fit. Subsection (5)
provides for sections 7 and 8 (and Schedule 3) to apply to the procedure
on appeal as they apply to the procedure on appeals against provisional
maps.
49. It may be necessary to exclude or restrict access to land in an
emergency. Section 31 provides that the Secretary of State (or the
National Assembly for Wales) may make regulations to enable the relevant
authority to exclude or restrict access in such circumstances for up to
three months. Subsection (2) allows the regulations to apply any of
the other provisions in Chapter II, with modifications, to a direction
given under this section — for example, to allow for consultation
(possibly after the direction has been made) with advisory bodies where
the restriction or exclusion is made in the interests of the urgent
protection of wildlife.
50. Section 32 enables the Secretary of State to make
regulations providing for the procedures relating to the exclusion or
restriction of access under Chapter II, including the requirements for the
giving of notice, the undertaking of consultation, the giving of
directions, and the procedure on an appeal. These regulations may also
restrict applications for directions under section 24 or 25 from
commoners: regulations might, for example, require applications to
represent a majority of the commoners interested in the land, or to show
that the applicants have the power to implement any direction given (by
excluding or restricting public access to the common).
51. The Countryside Agency, and the Countryside Council for Wales,
are generally responsible for administering the provisions for exclusions
and restrictions under Chapter II outside the National Parks. Section
33 provides powers for those two bodies to issue guidance to National
Park authorities on their role in administering these provisions within
National Parks, and to the Forestry Commissioners where the Commissioners
are the relevant authority for woodlands dedicated under section 16. The
countryside bodies' guidance will need approval from the Secretary of
State or the National Assembly for Wales, and must be published.
Sections 34 to 39: Means of Access
52. Chapter III sets out the arrangements for access to be secured
or improved to access land. It allows the access authority (which is
defined in section 1 as the highway authority or, in National Parks, the
National Park authority) to seek agreement with landowners for the
creation or safeguarding of means of access, or in default of such
agreement, to secure the means of access by carrying out any necessary
works themselves.
53. Section 34 defines a means of access for the purposes of
this Chapter. It includes an opening in a fence, wall, hedge or gate on
the land, or a construction (such as a stile or bridge) which allows the
public to cross such a feature or any watercourse.
54. Section 35 sets out the circumstances in which an access
authority may make an agreement with an owner or occupier in relation to
means of access on their land. These are where the authority consider that
an existing means of access needs to be opened up, improved, repaired or
maintained, or a new means of access needs to be constructed. The
authority may also make an agreement with a landowner to impose
restrictions on any change to an existing means of access. Subsection
(2) allows the authority to agree to carry out the works themselves,
or to pay for the owner or occupier to do so. The authority may also make
payments in consideration of the owner or occupier's agreement to
restrictions.
55. Section 36 sets out the action the authority may take if
the owner or occupier fails to carry out his obligations under the
agreement. Where the agreement was for the owner or occupier to carry out
work to an agreed timetable (or in reasonable time, if no timetable is
stipulated in the agreement), the authority may, after giving at least 21
days' notice, carry out the work themselves. The authority may recover any
costs incurred less any contribution which they were themselves to make
under the agreement.
56. Where the agreement was for the owner or occupier to observe a
restriction, and he fails to abide by that agreement, the authority may
serve a notice requiring him to carry out work to remedy the breach of the
restriction, within not fewer than 21 days. If the landowner fails to
comply with the notice, the authority may carry out any work specified in
the notice. Any costs incurred by the authority in carrying out the work
may be recovered from the owner or occupier who entered into the
agreement.
57. Section 37 sets out procedures which an access authority
may follow if it considers that it cannot enter into an agreement on
reasonable terms with a landowner to secure a means of access to the land.
It may serve on the owner or occupier a notice stating its intention,
after a period of at least 21 days, to carry out work to provide the means
of access. The authority must serve a copy of the notice on any other
owner or occupier of the land.
58. Section 38 allows for an appeal to the Secretary of
State (or the National Assembly for Wales) against a notice from an access
authority alleging the breach of an agreement imposing restrictions (under
section 36(3)) or requiring the creation or safeguarding of a means of
access (under section 37(1)). The appeal may be made on the grounds that
any of the work specified in a notice under section 36(3) is not necessary
to remedy the breach of the agreement or has been carried out or requires
more time. An appeal against a notice under section 37(1) may be made on
the grounds that any of the work specified in the notice is not necessary
to secure reasonable public access to the land, has been carried out, that
the means of access should be provided elsewhere (for example, because it
would be detrimental to the effective management of the land), or that a
different means of access should be provided (for example, a gate instead
of a stile). The Secretary of State (or the National Assembly for Wales)
may confirm the notice with any modifications, or cancel it. The access
authority will not be able to carry out any works while they remain the
subject of an appeal.
59. The Secretary of State (or the National Assembly for Wales) may
make regulations as to the making of appeals. Sections 7 and 8 (and
Schedule 3) apply to the procedure on appeal as they apply to the
procedure on appeals against provisional maps.
60. Where an owner or occupier repeatedly fails to comply with
notices served by the access authority, section 39 enables the
authority to seek an order from the courts. The section applies where two
or more notices under section 36(3) or 37(1) have been served on the owner
or occupier within a period of three years, and the period for compliance
with those notices has expired. In these circumstances, a magistrates'
court may grant an order requiring the owner or occupier to remove any
obstruction and to keep the means of access clear. Failure to comply with
the order is an offence, attracting a fine on conviction of up to level 3
on the standard scale (currently £1,000). The access authority may also
remove any such obstruction at the expense of the offender.
Sections 40 to 46: General
61. Section 40 concerns powers of entry to land. It may be
necessary for the bodies charged with functions under Chapters I to III of
Part I of the Act to enter land in order to carry out their functions. The
section sets out the circumstances and manner in which the countryside
bodies, the highway authorities, the Forestry Commissioners and the
National Park authorities may enter land. Any person authorised by these
bodies for the purposes of entering land which is not access land must
give the occupier 24 hours' notice, unless it is not reasonably
practicable to do so, or the entry is in relation to a possible offence
under section 14 or 39. He must also produce evidence of his authority at
any time. It will be an offence to obstruct access for authorised persons,
attracting a fine on conviction of up to level 2 on the standard scale
(currently £500). The power of entry does not extend to dwellings.
62. Section 41 requires a body exercising a power of entry
under section 40 to compensate any person who has sustained damage in
consequence. Any dispute as to entitlement to compensation is to be
determined by an arbitrator appointed by the Secretary of State or the
National Assembly for Wales, as appropriate.
63. Section 42 enables the Secretary of State or the
National Assembly for Wales to make regulations to provide that the fact
that land is subject to the right of access is to be disregarded in
deciding whether the land is or is not a 'public place' for the purposes
of a specified enactment. For example, regulations could provide that
access land would not be treated as a public place for the purposes of the
Firearms Act 1968 merely by virtue of the new statutory right applying to
the land, and that the landowner would therefore not need to show "lawful
authority or reasonable excuse" to use or carry a firearm on the land.
64. Section 43 explains that the access legislation binds
the Crown as it does any other landowner.
65. Section 44 provides that orders and regulations made
under this Part of the Act are to be made by statutory instrument and as
respects England are to be subject to annulment by either House (except
that any order made under section 3 extending the right of access in
England to coastal land, or under paragraph 3 of Schedule 2 amending the
restrictions in paragraphs 1 and 2 of that Schedule, will require to be
approved in draft by a resolution of both Houses).
66. Section 45 comprises definitions of a number of terms
used in this Part of the Act.
67. Section 46 and Part I of Schedule 16
effect repeals consequent on the provisions of Part I. Paragraph (a) of
subsection (1) provides for the repeal of section 193(2) of the Law of
Property Act 1925. Section 193(2) allows the owners of common land to
execute a deed of dedication so that the common will become subject to the
right of access for air and exercise provided for in section 193(1). This
power will be rendered obsolete in view of the new powers to dedicate
access over land contained in section 16. Any commencement order bringing
this repeal into force is expected to contain a saving for existing deeds.
68. Paragraph (b) of subsection (1) provides for the repeal
of sections 61 to 63 of Part V of the National Parks and Access to the
Countryside Act 1949. These sections imposed an obligation on local
planning authorities to survey the extent of open country within their
areas, and to consider the need for increasing access to such open country
by means of access agreements and orders. By virtue of subsection (2),
local planning authorities will continue to be able to make access
agreements and orders using their powers under Part V of the 1949 Act (as
amended by the Countryside Act 1968), other than over land which is open
country or registered common land for the purposes of the Act (the powers
will continue to apply to open country which comprises woodland, land
including or adjacent to rivers or canals, and, pending any order made
under section 3, the foreshore).
69. Subsection (3) of section 46 introduces Schedule 4,
which includes an amendment of section 193(1) of the Law of Property Act
1925 so that limitations or conditions qualifying the right of access to
urban and other commons under the 1925 Act may also be imposed by the
Secretary of State (or National Assembly for Wales) for the purpose of
nature conservation. Paragraph 4 of Schedule 4 amends section 2(6)
of the Countryside Act 1968, so that the duties of the countryside bodies,
which include giving advice to local authorities about the use of their
byelaw-making powers under the National Parks and Access to the
Countryside Act 1949 and the Countryside Act 1968, extend equally to the
giving of advice to access authorities about the use of their powers in
section 17.
PART II: PUBLIC RIGHTS OF WAY AND ROAD TRAFFIC
Summary
70. Part II of the Act contains provisions designed to reform and
improve rights of way in England and Wales.
71. The Act introduces measures for the strategic review, planning and
reporting of improvements to rights of way, and the promotion of increased
access for people with mobility problems. A new category of right of way -
restricted byway - having rights for walkers, cyclists, horse riders and
horse drawn vehicles, replaces the current category of Roads Used as
Public Paths.
72. Local authorities are required to have regard to nature
conservation when performing some of their rights of way functions. Other
environmental safeguards include extended powers to regulate traffic for
conservation purposes and new powers to divert rights of way to protect
Sites of Special Scientific Interest (SSSIs).
73. The Act provides for a cut-off date for the recording of
certain rights of way on definitive maps and the extinguishment of those
not so recorded by that date. There are provisions for excepting rights of
way from extinguishment; for extending the cut-off date; and for making
savings for cases where modification orders have been made but not
confirmed before the cut-off date, where applications for such orders have
been submitted before the cut-off date, and where such orders have been
quashed because of a legal error.
74. The Act gives a new right to certain landowners and occupiers
to apply to a local authority for an order to divert or extinguish a
footpath or bridleway over their land, and to appeal against refusal. Any
resulting order would proceed in accordance with existing legislation
which provides for objections to be heard and for a public inquiry or
hearing to be held. Proprietors of schools are given similar rights, and
local authorities will be able to make orders closing or diverting rights
of way for school security reasons and to assist in the prevention of
crime in certain areas.
75. There is provision for occupiers of any land to temporarily
divert a footpath or bridleway which passes over that land where works (to
be prescribed in regulations made by the Secretary of State or the
National Assembly for Wales) are likely to cause danger to users of the
right of way.
76. Stronger measures will be available for dealing with
obstructions. Magistrates convicting a person of wilfully obstructing a
highway will be able to order the removal of the obstruction. Magistrates
will also be able to impose daily fines where the obstruction continues
after a person has been convicted of failing to comply with such an order.
In addition, any person will be able to serve notice on a local highway
authority to secure the removal of certain obstructions, and if necessary
to seek a magistrates' court order requiring the authority to comply with
the notice.
77. Local authorities will be required to have regard to the needs of
disabled people when authorising the erection of gates and other barriers
across rights of way to control livestock. In addition, the Act gives
authorities power to enter into agreements with owners, lessees or
occupiers of land to improve or replace such existing barriers to make
them safer or more convenient for disabled people.
78. Local highway authorities' existing powers to provide barriers in
footpaths to safeguard the public are widened to allow authorities to
erect posts and are extended to apply to bridleways which are maintainable
at the public expense.
79. The unauthorised driving off-road of mechanically propelled
vehicles becomes an offence and the existing offence of driving on a
footpath or bridleway is extended to apply to restricted byways. For the
purposes of the new offence there is provision to the effect that where a
way is shown on a definitive map as a footpath, bridleway or restricted
byway, it is presumed not to carry full vehicular rights unless the
contrary is proved.
80. Part II also contains provisions relating to the grant of
statutory easements for vehicular access over land (including common land)
on which it is an offence to drive a vehicle.
Background
81. The Government's intention to legislate on rights of way was
announced on 8 March 1999 in The Government's Framework for Action:
Access to the Countryside in England & Wales. The Government's
consultation paper on rights of way, Improving Rights of Way in England
and Wales 9, was published in July 1999. The responses are
summarised in a report: Improving Rights of Way in England and Wales:
Analysis of Responses 10.
9 Published by the DETR, September 1998. Available free of charge
from: DETR Free Literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870
1226236, Fax. 0870 1226237
10 Published by DETR March 2000 (Full Report): Price £12 product code
99WACD1034. Available from DETR Publication Sale Centre, Goldthorpe
Industrial Estate, Goldthorpe, Rotherham, S63 9DL. Tel. 01709 891318,
Fax. 01709 881673. A summary document is available free of charge from:
DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236,
Fax. 0870 1226237.
Sections 47 to 52: Definitive Maps and Statements and Restricted
Byways
82. Currently, surveying authorities (normally the unitary
authority, or the county council where there are two tiers of local
government) are required to prepare and keep under review their definitive
map and statement(s). These form the legal record of public rights of way
in their area. The existing classes of public rights of way covered by
these maps and statements are:
- Footpaths: highways over which there is a public right of way on foot
only.
- Bridleways: highways over which pedestrians, horse riders and
bicyclists (who must give way to people on foot or on horseback) have
public rights of way. A bridleway may also carry a public right to drive
animals.
- Byways open to all traffic (BOATs): highways over which the public
right of way is for vehicles and all other kinds of traffic, but which
are used mainly for the purposes for which footpaths and bridleways are
used.
- Roads Used as Public Paths (RUPPs): an earlier classification used
for various kinds of highway. Section 54 of the Wildlife and Countryside
Act 1981 requires surveying authorities to review all RUPPs appearing on
their definitive maps and reclassify them according to the rights which
are found to exist. If vehicular rights are shown to exist over a RUPP
then it should be reclassified as a byway open to all traffic. If no
vehicular rights are shown to exist, a RUPP should be reclassified as a
bridleway, unless bridleway rights are shown not to exist, in which case
it should be reclassified as a footpath.
83. Sections 47 and 48 provide for a general redesignation of RUPPs,
which are instead to be treated as shown in definitive maps and statements
as restricted byways. All RUPPs will become restricted byways (defined in
section 48) unless they already carry full vehicular rights of way and
surveying authorities will be relieved of their current duty to reclassify
RUPPs. Anyone with evidence of full vehicular rights over a particular way
will still be entitled to apply for an order for its reclassification in
the map and statement as a BOAT.
84. Section 47 repeals section 54 of the Wildlife and
Countryside Act 1981 and provides that every road used as a public
path which is shown in a definitive map and statement is to be treated as
shown as a restricted byway.
85. Section 48 specifies that the public is to have restricted
byway rights over ways shown in a definitive map and statement as RUPPs.
It sets out what those rights are and stipulates that the existence of
those rights is without prejudice to other rights, including public rights
of way for mechanically propelled vehicles. It also requires that the
relevant commencement orders made under section 103 preserve
pre-commencement orders, and applications for orders, modifying the status
of a RUPP so that they will be processed to a final determination.
86. Section 49 provides for the RUPPs affected by provisions in
section 48 to be highways maintainable at the public expense.
Private liabilities to maintain RUPPs over which restricted byway rights
are created and which do not carry full vehicular rights are extinguished.
Section 49 also provides for those RUPPs reclassified under section 54 of
the 1981 Act, and earlier legislation, to remain maintainable at
the public expense. It also sets out that highway authorities are not to
be obliged to provide metalled or similar surfaces on former RUPPs merely
because they have been re-designated as restricted byways or BOATs.
87. Section 50 ensures that the conditions or limitations to
which a RUPP was dedicated, such as a right to erect a gate on it or
plough its surface, shall continue to be exercisable. It also provides a
vehicular right of access to certain owners of property adjoining or
adjacent to former RUPPs.
88. Section 51 introduces Schedule 5, which contains
amendments relating to definitive maps and statements and restricted
byways. Paragraph 1 makes consequential amendments to section 53 of
the Wildlife and Countryside Act 1981. It also allows for evidence of full
vehicular rights over a way shown as a restricted byway which has already
been considered by a surveying authority to constitute the basis of an
application to have such a way shown as a byway open to all traffic.
Paragraph 2 makes an amendment of a procedural nature relating to the
circumstances in which the definitive map and statement can be modified
when a legal event has occurred. The new section 53A inserted in the 1981
Act makes it possible for surveying authorities to include in those orders
which are prescribed by regulation provision to modify the definitive map
and statement. Regulation making powers are provided, for example, to set
out how the relevant date is to be determined in the case of such orders
and to regulate the procedure governing the new power.
89. Paragraph 2 also inserts a new section 53B into the 1981 Act
requiring surveying authorities to keep a register of applications made
under section 53(5) of that Act. Paragraph 3 provides for
transitional arrangements for modifying the definitive map between
enactment and the commencement of section 47 of the Countryside and Rights
of Way Act 2000.
90. Paragraph 4 of Schedule 5 inserts a new section 54A into the
Wildlife and Countryside Act 1981. The new section prevents any order
being made after the cut-off date (1 January 2026) to record a BOAT on a
definitive map except in the place of any other way already recorded in
the definitive map. The new section also empowers the Secretary of State
or the National Assembly for Wales to make regulations containing
transitional provisions and for extending the cut-off date.
91. Paragraph 5 amends section 55 of the Wildlife and
Countryside Act 1981 to provide that certain roads used as public paths
that had been reclassified under the provisions of the National Parks and
Access to the Countryside Act 1949 become maintainable at the public
expense.
92. Paragraph 7 widens the power of the Secretary of State or
the National Assembly for Wales to make regulations prescribing the scale
of definitive maps to cover all maps made under Part III of the Wildlife
and Countryside 1981. In addition, paragraph 7 amends section 57 of
the 1981 Act to empower the Secretary of State or the National Assembly
for Wales to make regulations requiring surveying authorities to keep, and
make available to the public and other local authorities, documents
relating to the status of rights of way.
93. Paragraph 8 empowers surveying authorities to consolidate
their definitive maps, incorporating any parts of maps inherited from
other authorities following local government boundary changes. Maps may
not be consolidated if any orders required to record changes made to an
authority's rights of way are outstanding. Surveying authorities are
required to keep, and make available to the public, copies of all maps
which are superseded by a consolidated map.
94. Paragraph 10 of Schedule 5 amends Schedule 14 to the
Wildlife and Countryside Act 1981 to enable the Secretary of State or the
National Assembly for Wales, when directing an authority to make an order
on appeal, to set a deadline by which the order should be made.
95. Paragraph 11 of Schedule 5 amends Schedule 15 to the
Wildlife and Countryside Act 1981. It inserts a new paragraph 7(2A) into
the Schedule to give the Secretary of State or the National Assembly for
Wales discretion as to whether to hold an inquiry or hearing into a
definitive map modification order if the only objection(s) relate to an
issue which would not be relevant in determining whether or not to confirm
an order. A new paragraph 10A applies to hearings into disputed orders
certain provisions in section 250 of the Local Government Act 1972
relating to the summonsing of witnesses and the award of costs which
currently apply only to public inquiries under Schedule 15. It also
enables the Inspector holding a hearing or inquiry to award costs and
enables costs to be awarded when a hearing or inquiry does not take place.
96. Schedule 5 also contains, in Part II, amendments relating to
the provisions in sections 47 to 50 creating the new category of
public right of way, "restricted byway", in place of ways presently
recorded on definitive maps as RUPPs. The amendments mainly provide for
legislation which applies to RUPPs to apply instead to restricted byways.
97. Section 52 enables the Secretary of State to make
regulations providing for any existing legislation applying to highways,
or to highways of a particular kind (such as footpaths or bridleways) to
apply, or to be excluded from applying, to restricted byways or ways shown
in a definitive map and statement as restricted byways. This power could,
for example, be used to enable new restricted byways to be created. There
is also power to make consequential amendments. When making these
regulations, the Secretary of State is required to consult the National
Assembly for Wales before making provision which affects Wales and to
obtain the Assembly's consent before expressly amending or revoking
secondary legislation made by the Assembly. Section 52 also empowers the
National Assembly for Wales to make regulations amending certain classes
of legislation relating to Wales to take account of restricted byways.
These classes are: any local or private Act passed before or in the same
session as this Act and relating only to Wales; and, any secondary
legislation made before enactment of this Act which the Assembly has the
power to amend or revoke as respects Wales. The Assembly may also submit
to the Secretary of State proposals for amendments or repeals to be made
by him using his own regulation-making powers.
Sections 53 to 56: Cut-off date for recording certain rights of way
on definitive maps and extinguishment of those not so recorded
98. These sections prescribe a cut-off date (1 January 2026) for the
recording on definitive maps of footpaths and bridleways created before
1949. The provisions also provide for the extinguishment of certain
rights of way which have not been claimed by the deadline. The cut-off
date may be extended by regulations made by the Secretary of State or
the National Assembly for Wales.
99. Section 53 provides that public rights of way over a
footpath or bridleway which was created before 1 January 1949, is still
a footpath or bridleway on the cut-off date and is not shown on a
definitive map on the cut-off date, are to be extinguished immediately
after the cut-off date. The section also provides that any unrecorded
higher rights of way created before 1 January 1949 over a highway shown
on a definitive map on the cut-off date as a footpath, bridleway or
restricted byway and which is eligible for recording on a definitive
map, will be extinguished immediately after the cut-off date.
100. Section 54 sets out exceptions to section 53. In respect
of pre-1949 footpaths and bridleways which are not shown on a
definitive map on the cut-off date, the following are not to be
extinguished:
- as much of a footpath or bridleway as, after 1 January 1949, has
been diverted, widened, extended or stopped up as respects only its
width, provided it connects with another highway directly or
indirectly. If it connects indirectly then as much of the rest of the
path as is necessary to connect with the other highway is also saved.
- a bridleway which became a footpath after 1949 following the
stopping up of bridleway rights, or a footpath which became a
bridleway after 1949 by the creation of bridleway rights over it,
provided in either case the way connects with another highway as
above.
- as much of a footpath or bridleway as passes over a bridge or
through a tunnel and connects with a highway as above.
- a footpath or bridleway any part of which is in inner London.
- a footpath or bridleway which runs at the side of a carriageway or
between two carriageways.
- a footpath or bridleway of any other description specified in
regulations made by the Secretary of State or the National Assembly
for Wales.
- a particular footpath or bridleway specified in regulations.
101. In respect of unrecorded higher rights over ways shown on a
definitive map on the cut-off date as footpaths, bridleways or
restricted byways the following are not to be extinguished:
- higher rights of way (eg bridleway rights over what is shown as a
footpath) created after 1 January 1949.
- rights of way over a highway any part of which is in inner London.
- rights of way specified or of such description as may be specified
in regulations made by the Secretary of State or the National Assembly
for Wales.
102. Section 55 provides that where a highway which was
immediately before 1949 a footpath or bridleway and is a footpath on
the cut-off date, but is wrongly recorded on a definitive map as a
bridleway on commencement of the provisions and remains so recorded at
the cut-off date, bridleway rights are created over it. It will not be
possible after the cut off date to apply for the bridleway to be
downgraded to a footpath but section 56 provides for the making of
savings, for example, for applications for modifications made before
the cut-off date.
103. Section 56 provides that the cut-off date for the
purposes of extinguishing rights of way is to be 1 January 2026. The
section empowers the Secretary of State or the National Assembly for
Wales to make regulations substituting as the cut-off date a date later
than 1 January 2026. Different dates may be specified for different
areas but, in relation to areas in which rights of way have been
recorded on definitive maps since the National Parks and Access to the
Countryside Act 1949 took effect, the date may not be postponed beyond
1 January 2031. There is no upper limit on the period for extending the
deadline in relation to other areas. These are the Isles of Scilly; the
areas of former county boroughs for which definitive maps were not
required until the Wildlife and Countryside Act 1981 took effect; and
built-up areas which county councils were able to exclude from the
requirements of the 1949 Act by resolution. Where a highway crosses the
boundary between two areas with different cut-off dates, then the later
date applies to that highway.
104. Regulations made under section 56 may also make
transitional provisions and savings, in particular for cases where (a)
definitive map modification orders have been made but not confirmed
before the cut-off date; (b) applications for definitive map orders
have been submitted before the cut-off date; or (c) orders have been
quashed because of a legal error.
Section 57 and Schedule 6: Creation, stopping up and diversion of
highways
105. Section 57 introduces Schedule 6. The
Schedule contains a number of amendments to the Highways Act 1980
relating to the creation, stopping up and diversion of footpaths,
bridleways and certain other highways. The main changes produced by the
Schedule include:
- the conferring on owners and occupiers of land used for
agriculture, forestry or the breeding or keeping of horses of a right
to apply to a local authority for the making of a public path
extinguishment order or a public path diversion order,
- a new power for local authorities to make orders stopping up or
diverting footpaths, bridleways (and certain other highways) for the
purpose of preventing crime,
- a similar power for local authorities to stop up or divert
footpaths, bridleways (and certain other highways) in cases where they
cross school premises for the purpose of protecting pupils and staff
at the school, and a right for the proprietor of a school to apply for
such an order.
- a new power for local authorities to make orders stopping up or
diverting footpaths, bridleways (and certain other highways) for the
purpose of protecting SSSIs, and
- a new power for the occupier of any land crossed by a footpath or
bridleway to divert it temporarily for up to fourteen days a year in a
case where dangerous works are being carried out.
106. Paragraphs 1, 6 and 9(5) of Schedule 6 relate to
orders made under sections 26, 118, and 119 of the Highways Act 1980
creating, extinguishing or diverting footpaths and bridleways. They
require:
(a) the Secretary of State or the National Assembly for Wales, when
deciding to confirm or make such an order; and
(b) a local authority, when deciding whether to confirm such an
order,
to have regard to any material provision of a rights of way
improvement plan for the area which includes land over which a footpath
or bridleway would be created or extinguished.
107. Paragraph 2 of Schedule 6 substitutes a new section
29 in the Highways Act 1980. Under the existing section 29, councils
are required to have due regard to the needs of agriculture and
forestry in the exercise of certain functions in respect of the
creation, stopping up and diversion of footpaths and bridleways. New
section 29 preserves that requirement but the definition of
"agriculture" is extended to encompass the breeding or keeping of
horses and an additional duty to have due regard to the desirability of
conserving flora, fauna and geological and physiographical features is
introduced.
108. Paragraph 3 relates to section 31 of the Highways
Act 1980. Under section 31 highways may be created through deemed
dedication on the basis that public use, as of right, of a way for 20
years and without interruption creates a presumption that the owner
dedicated the way as a highway. Section 31(6) provides a method for an
owner of land to negate, in advance, the presumption of dedication
which arises after 20 years' use. A landowner may deposit, with the
relevant local authority, a map and statement showing all the ways
which he admits are dedicated as highways on his land and thereafter
lodge a declaration within six years of that date that no additional
ways have been dedicated over his land. He may deposit further
declarations every six years or fewer years thereafter. The effect of
the deposit is, in the absence of evidence to the contrary, to negate
for the period between declarations being lodged the presumption to
dedicate new highways which may arise from long user under section 31.
Paragraph 3 of Schedule 6 extends the period for making declarations
from six years to ten years.
109. Paragraph 4 of Schedule 6 provides for a register of
deposited maps and statements and lodged declarations to be kept by
local authorities and made available for public inspection free of
charge.
110. Paragraph 5 of Schedule 6 amends the Highways Act 1980
to ensure that highways created in consequence of special diversion
orders and SSSI diversion orders become maintainable at the public
expense.
111. Paragraphs 7, 9(4) and 10 of Schedule 6 amend the
Highways Act 1980 to allow an owner, lessee, or occupier of
agricultural and other types of land to apply to a council for the
making of an order under section 118 or 119 of the 1980 Act closing or
diverting a footpath or bridleway which crosses their land. Land
managers currently wishing to secure the diversion or extinguishment of
a footpath or bridleway across their land may request a council to make
orders under section 118 or 119. If the authority declines, the
Secretary of State may be requested to use his reserve powers, but in
practice these powers are rarely used.
112. New sections 118ZA(2) and (3) and 119ZA(4) and (5) allow
for regulations to be made prescribing the form in which an application
should be made and what charges may be payable. Subsection (6) of
section 118ZA enables a council to require an applicant to enter
into an agreement to make a contribution towards any compensation that
may become payable as a result of a closure of a footpath or bridleway.
This parallels current provisions in section 119 of the 1980 Act.
Sections 118ZA(8) and 119ZA(9) require a council to give the
applicant notice of its decision in writing and set out its reasons.
There is provision (in sections 118ZA(7) and 119ZA (8) respectively)
to enable an applicant to request the Secretary of State or the
National Assembly for Wales to direct a council to decide an
application if the council has not done so within four months of
receiving it. Sections 118 and 119 (which confer power to make the
orders concerned) are not substantively altered and so the criteria for
the making and confirmation of the orders remain unchanged.
113. Paragraphs 8 and 12 of the Schedule insert new sections
118B, 118C, 119B, 119C, 119D and 119E into the Highways Act 1980.
114. New sections 118B, 118C, 119B and 119C empower local
highway authorities to make special extinguishment and special
diversion orders for closing or diverting footpaths, bridleways,
restricted byways and byways open to all traffic. In areas which have
been designated by the Secretary of State or the National Assembly for
Wales by order, the new powers may be exercised for the purpose of
preventing or reducing crime which would otherwise disrupt the life of
the community An extinguishment or diversion order may only be made for
this purpose if premises near a right of way are affected by high
levels of crime and the existence of the highway is facilitating the
persistent commission of offences. The special diversion and
extinguishment order powers are also available to protect staff and
pupils where rights of way cross school grounds. The local highway
authority is required to consult the police authority for the area
before making a special extinguishment order or special diversion order
for either purpose. These powers are not confined to areas designated
by the Secretary of State or the National Assembly for Wales.
115. Subsection (7) of section 119B prevents a diversion from
creating a cul-de-sac. Subsection (8) provides for the
extinguishment of the existing way, under a special diversion order, to
be delayed until the local highway authority certifies that any
necessary work to the new way has been carried out. Subsection (9)
allows conditions to be attached to a right of way created by a
diversion. Subsection (14) applies the provisions of section 27
of the Highways Act 1980, which relate to the making up of new rights
of way, to a diversion made under section 119B.
116. Sections 118B(9) and 119B(12) provide for the form of
orders to be prescribed by regulations. Sections 118B(10) and
119B(13) apply the provisions of Schedule 6 to the Highways Act
1980 which sets out the procedure to be followed for making and
confirming closure and diversion orders.
117. The confirming authority (that is, the local highway authority
in the case of unopposed orders, otherwise the Secretary of State or
the National Assembly for Wales) must be satisfied as to certain
matters, in particular whether a diversion or extinguishment order
would be expedient, and including, for proposed extinguishments, the
availability of an alternative route or the practicability of diverting
the existing way instead. In addition, the confirming authority is to
consider whether an order in respect of a designated area is consistent
with any statutory crime and disorder strategy for that area. In the
case of an order relating to a school, the authority is to consider
what other security measures have been or could be taken and whether it
is likely that the coming into operation of the order would result in a
substantial improvement in the security of the school in question.
Account is also to be taken of the effect which closure would have on
any land served by the right of way in question.
118. New sections 118C and 119C give a right to school
proprietors to apply to a local highway authority for orders to divert
or close footpaths, bridleways, restricted byways and byways open to
all traffic where these cross school grounds. (The term "proprietor",
in relation to a school, has the same meaning as in the Education Act
1996: see paragraph 15(b) of the Schedule.)
119. New sections 119D and 119E empower highway authorities,
following an application from English Nature (EN) or the Countryside
Council for Wales (CCW), to make SSSI diversion orders diverting
footpaths, bridleways, restricted byways and byways open to all traffic
for the protection of sites of special scientific interest (SSSIs)
designated under the Wildlife and Countryside Act 1981 if public use of
the highway is causing or is likely to cause significant damage to the
SSSI in question. EN or CCW must give fourteen days' advance notice of
their application to any owner, occupier or lessee of land where the
existing right of way or the diverted right of way is or would be
sited. The Secretary of State and the National Assembly for Wales are
given powers to make regulations prescribing the form of applications
and other requirements for notice. Before making an SSSI diversion
order, the highway authority must consider whether the damage could be
prevented by the making of a traffic regulation order and whether such
an order would cause less inconvenience to the public than a diversion.
Diversion orders under these new sections may not be confirmed until
the confirming authority has considered the effects of the diversion on
public enjoyment of the right of way and the effects on the land
affected by the diversion. Subsection (6) of 119D provides for
the extinguishment of the existing way to be delayed until the local
highway authority certifies that any necessary work to the new way has
been carried out. The Secretary of State is given powers to make
regulations prescribing the form of applications and requirements for
notice.
120. Paragraphs 9(1) and 11 of the Schedule amend the
Highways Act 1980 so that where a diversion order is made under section
119 or section 119A of that Act, the coming into force of that part of
the order which extinguishes a section of a public right of way can be
delayed until the local highway authority certifies that any necessary
work on the new way has been carried out.
121. Paragraph 13 of Schedule 6 amends section 120 of the
1980 Act inserting references to special extinguishment orders, special
diversion orders and SSSI diversion orders. It empowers the Secretary
of State or the National Assembly for Wales to make such orders and to
require applicants for orders to enter into agreements with the
relevant highway authority relating to compensation and expenses.
122. Paragraph 14 of Schedule 6 makes consequential
amendments to section 121 of the 1980 Act. It also makes a further
amendment enabling the "appropriate Minister" to appoint any person to
determine whether a statutory undertaker has unreasonably withheld
consent to the extinguishment of a right of way over land where their
apparatus is located or which is used by statutory undertakers for
their undertaking.
123. Paragraph 15 of Schedule 6 inserts new sections
121A, 121B, 121C, 121D and 121E into the Highways Act 1980.
These new sections relate to applications under the new sections 118ZA,
118C, 119ZA and 119C. Section 121A enables regulations to
be made, for example requiring the applicant to certify certain matters
and to give notice of their application. It creates offences relating
to false or misleading certificates. Section 121B relates to
councils keeping a register of the applications made under the new
sections 118ZA, 118C, 119ZA and 119C. It specifies that such registers
must be available for inspection by the public free of charge at all
reasonable hours, and allows for regulations to be made about the form
and content of registers and when information may be removed from them.
Section 121C allows councils to refuse to determine applications
when appeals regarding similar applications have been refused or where
the Secretary of State or the National Assembly for Wales has otherwise
refused to confirm a similar order. Section 121D sets out the
types of decisions which applicants may appeal to the Secretary of
State or the Assembly against and the circumstances where rights of
appeal do not apply. Section 121E sets out the powers and duties
of the Secretary of State and the Assembly in relation to appeals
against local authorities' decisions on applications under the
foregoing provisions. It ensures that diversion orders made on appeal
do not come into effect where any consents required have not been
obtained for works to make up the new way or to provide any necessary
facilities. It also gives the Secretary of State and the Assembly
powers to make regulations governing appeals procedures, compensation
and charges. The provisions of Schedule 6 to the 1980 Act relating to
objections, hearings and public inquiries apply in these appeal cases.
124. Paragraph 16 of Schedule 6 inserts two new sections,
135A and 135B, into the Highways Act 1980.
125. New section 135A enables the occupier of any land to
temporarily divert a footpath or bridleway which passes over that land
where works, which are to be prescribed in regulations made by the
Secretary of State or the National Assembly for Wales, are likely to
cause danger to users of the right of way. Subsection (1)
prevents a temporary diversion from affecting the line of a footpath or
bridleway on another's land, so that an occupier of other land does not
become landlocked by a diversion. Subsection (2) limits the
period during which an occupier may divert a right of way under this
new section to no more than 14 days in any one calendar year per
footpath or bridleway located on that person's land. Subsection
(3) requires the occupier to ensure that the diversion is
reasonably convenient for the exercise of the right of way and that the
line of the diversion is indicated on the ground to not less than the
path's or way's minimum width. These widths are to be ascertained in
accordance with Schedule 12A of the 1980 Act. Subsection (4)
prevents a person from being able to divert a right of way on to land
occupied by another person without that person's consent. It also
prevents the diversion of a footpath on to a highway other than a
footpath or bridleway and the diversion of a bridleway on to highway
other than a bridleway. Subsections (5) and (6) require the
occupier to give the local highway authority at least 14 days notice of
a diversion; to publish a notice of the diversion in a local newspaper
at least 7 days before it takes effect; and to display such notices at
such times and in such places as may be prescribed in regulations. If
the footpath or bridleway passes over or is contiguous with land to
which the public have access under Part I of the Bill, the occupier is
required to give 14 days notice to the Countryside Agency or the
Countryside Council for Wales, as the case may be. Subsection (7)
provides that notices under subsection (5) are to be in such form,
and contain such information, as may be prescribed in regulations made
by the Secretary of State or the National Assembly for Wales.
Subsection (8) creates offences of making a false statement in a
notice; of displaying a notice on or near a footpath or bridleway
falsely purporting that the diversion is authorised under section 135A;
or of diverting a right of way without complying with the requirements
in subsection (3).
126. New section 135B requires a person diverting a footpath
or bridleway to make good, before the diversion ceases to be
authorised, any damage caused by the prescribed works to the right of
way and also requires that person to remove any obstruction which may
have been caused by the works. Subsection (2) creates an offence
of failing to comply with these requirements. Subsection (3)
empowers the highway authority to make good any damage or remove any
obstruction, if the person concerned fails to do so. This subsection
also entitles the highway authority to recover, from that person, the
reasonable expenses they may have incurred in carrying out the works.
Subsection (4) applies paragraphs 7 and 8 of Schedule 12A to the
Highways Act 1980. These provide powers for a person duly authorised by
the highway authority to enter on to land for the purpose of carrying
out any works under subsection (3) and contain provisions in respect of
service of a notice on the occupier. Subsection (5) provides
that a person's liability for doing anything to a footpath or bridleway
other than for the purpose authorised by the new section 135A shall not
be affected. It also prohibits a person diverting a right of way under
section 135A from interfering with the apparatus or works of any
statutory undertakers. Subsection (6) places a duty on the
highway authority for the footpath or bridleway to enforce the
provisions of the two new sections. This is without prejudice to the
authority's general duty under section 130 of the Highways Act 1980 to
prevent, as far as possible, a highway from being obstructed.
127. Paragraphs 17 to 21 of Schedule 6 make amendments to the
Highways Act 1980 which are consequential on the new provisions about
special extinguishment orders, special diversion orders and SSSI
diversion orders.
128. Paragraph 22 amends section 344 of the Highways Act 1980
so as to prevent new sections 135A and 135B from taking effect in the
Isles of Scilly except by order made by the Secretary of State after
consultation with the Council of the Isles.
129. Paragraph 23 of Schedule 6 makes related amendments to
Schedule 6 to the Highways Act 1980. New paragraph 2A of that
Schedule requires the Secretary of State or the National Assembly for
Wales to arrange a public inquiry or hearing if requested to do so by
an authority or appellant before making or confirming an order on an
appeal. New paragraph 2ZA of that Schedule requires a council
which has made an order following an application under new section
118ZA or 119ZA to give the applicant written notice of their decision
to confirm the order (if unopposed) or submit it to the Secretary of
State or the Assembly for confirmation (if opposed). If the council has
not made a decision within 2 months of the end of the period for
representations on the order, the Secretary of State or the Assembly
may, on request from the applicant, direct them to do so.
130. Paragraph 24 of Schedule 6 adds new Schedule
12ZA to the Highways Act 1980, which sets out the procedures
relating to the determination of disputes under section 121 on the
issue of whether a statutory undertaker has unreasonably withheld its
consent to an order.
131. Paragraphs 25 and 26 make consequential amendments to
legislation relating to the functions of the Broads Authority and
National Park authorities.
Sections 58 and 59: Effect of Part I of the Bill on powers to
create, stop up or divert highways
132. Section 58 gives the Countryside Agency and the
Countryside Council for Wales powers to apply to the Secretary of State
or National Assembly for Wales to make public path creation orders to
provide access to access land (such as "inaccessible islands" to which
there is no other practicable means of access). The countryside bodies
must have regard to any rights of way improvement plan prepared by the
local highway authority before applying for an order. The Secretary of
State or National Assembly for Wales will consider such applications in
deciding whether to exercise their powers under section 26 of the
Highways Act 1980 (and, by virtue of subsection (2) of that section,
must consult with local authorities before making an order).
133. Section 59 prevents an authority, when exercising powers
to stop up or divert highways, from regarding the existence of the new
right of access to open countryside as, for example, reducing the need
for the highway, the need for an alternative highway or the need to
reserve a public right of way.
Sections 60 to 62: Rights of way improvement plans
134. Section 60 requires every local highway authority
(except inner London boroughs and the Common Council of the City of
London) to prepare and publish a rights of way improvement plan within
5 years of the commencement of the section. It sets out what the plan
should cover and what matters the authority should consider. It also
provides for reviews of such plans at 10 yearly intervals.
Subsection (5) defines rights of way for the purposes of section 60
as including cycle tracks other than those at the side of, or in, a
made up carriageway. Subsection (6) provides for the
transitional period until the reclassification of RUPPs comes into
effect. It provides that the definition of local rights of way includes
RUPPs until they are re-designated as restricted byways under section
47.
135. Section 61 sets out who should be consulted by the local
highway authority in preparing the plans, the process of publishing and
consulting on a plan, how the plan should be made available to the
public, and that the authority should have regard to guidance produced
for the purpose. Finally, it enables local highway authorities to make
plans in conjunction with district councils or National Park
authorities in their area.
136. Section 62 relates to the application of sections 60 and
61 to Inner London. The section allows inner London boroughs and the
City of London to adopt the provisions. If they choose to adopt these
provisions, subsection (2)(b) provides for the due date of the
first review to be changed accordingly.
Sections 63 to 65: Interferences with Highways and the Provision of
Stiles
137. Section 63 inserts four new sections into the Highways
Act 1980 relating to the obstruction of rights of way. New section
130A enables any person to serve notice on a local highway
authority requesting it to secure the removal of certain types of
obstruction from a footpath, bridleway, restricted byway, or highway
recorded as a restricted byway or byway open to all traffic on a
definitive map, and for which it is the highway authority. The request
may lead to an order requiring the removal of the obstruction being
imposed by a magistrates' court (section 130B below).
138. Subsection (3) of 130A applies the new provisions to
obstructions which are structures, things deposited on the highway
which are a nuisance, and overhanging vegetation. It also gives a power
to prescribe by regulation other types of obstruction to which the
provisions should apply.
139. Subsection (4) of 130A excludes certain types of
obstructions from the provisions. These include those types of
obstructions for which an order under section 56 of the Highways Act
1980 can be obtained (in effect those obstructions that consist of
disrepair) and those obstructions that are buildings.
140. Subsection (5) of 130A requires a complainant, when
serving a notice of the obstruction on the highway authority, to
include the name and address of the person responsible for the
obstruction if they know who this is. Subsection (6) of 130A
requires a highway authority on which a notice has been served to
respond stating what action it intends to take over the obstruction. It
also contains provisions requiring the highway authority to inform all
persons who may be responsible for the obstruction that it has received
a complaint and to inform the complainant of the names and addresses of
such persons.
141. New section 130B allows the person who served the notice
on the highway authority to seek a magistrates' court order if they are
not satisfied that the obstruction has been removed. Subsection (4)
of 130B empowers a magistrates' court to make an order requiring
the highway authority to take action to secure removal of the
obstruction. Subsection (5) provides a defence for the authority
if the authority: (a) shows that the status of the way as a highway is
seriously disputed or that it falls outside the categories listed in
section 130A(2), or (b) shows that there is no duty to remove the
obstruction under section 130(3) of the Highways Act 1980, or (c) shows
that it has any necessary arrangements in hand to secure the removal of
the obstruction within a reasonable time.
142. Section 130B(6) requires a highway authority against
whom a magistrates' order has been made to display notice of the order,
and the right to appeal against it, on the highway concerned.
143. New section 130C makes provisions relating to a
complainant's right to seek an order from the magistrates' court. These
include an obligation on the complainant, when applying to the court
for an order, to supply the court with the details of the persons who
have been identified as possibly being responsible for the obstruction.
This is so that the court may notify them of the hearing. The
complainant must give the highway authority 5 days notice of their
intention to apply to the court, but may not serve such notice until at
least 2 months after serving the original notice under new section
130A. An application for an order must be made within six months of
serving that original notice.
144. New section 130D requires a court, when determining
whether to award costs against an applicant where an application is
dismissed, and where the highway authority has relied upon any of the
defences in subsection (5) of new section 130B, to have particular
regard to whether and the extent to which the highway authority had
disclosed their defence.
145. Section 63 also amends section 317 of the Highways Act
1980 to give a right of appeal to the Crown Court to any person who is
responsible for the obstruction or was such a person when the
application was heard by the court and was, or claimed to be, heard on
the application.
146. Section 64 inserts new section 137ZA into the
Highways Act 1980. The new section empowers a magistrates' court on
conviction of a person for the offence under section 137 of that Act
(wilful obstruction of a highway) to order that person to remove the
obstruction. This may be additional to, or instead of, a fine. Under
new section 137ZA(3), failure to comply with an order
(without reasonable excuse) is an offence punishable by a fine not
exceeding level 5 on the standard scale (currently £5000). Further
fines, not exceeding 1/20th of level 5, may be imposed for each day the
offence continues after conviction.
147. Section 137ZA(4) empowers a highway authority, when a
person has been convicted of failing to comply with an order under
section 137ZA, to recover from that person the costs of removing the
obstruction if the authority decides to use its powers to remove it.
148. A person who has been ordered to remove an obstruction may not
be prosecuted again under section 137 of the Highways Act 1980 in
respect of that obstruction during the period set by the court under
section 137ZA for removing it or during any period set under section
311(1) of the Highways Act 1980 for complying with directions of the
court.
149. Section 65 amends section 154 of the Highways Act 1980
so as to enable local authorities to require owners and occupiers of
land whose trees, shrubs or hedges overhang highways to the
inconvenience or danger of horse riders, to remove the offending
vegetation or cut it back to a suitable height for horse riders.
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