Recreational Motorcycling Faces Its Biggest Ever Threat

Published on 28 February 2004 by Gill

Issued on behalf of:-

The British Motorcyclists Federation (BMF), the Land Access and Recreation Association (TRF) and the Trail Riders Fellowship (TRF).

After 100 years, during which time the highways and byways of England and Wales have been explored and enjoyed by generations of motorcyclists and to a lesser extent, motorists, a proposal, ‘Use of mechanically propelled vehicles on Rights of Way', just put out to consultation by the Department for Environment, Food and Rural Affairs [1] (DEFRA) looks set to change the face of recreational motorcycling for ever.

This change is part of the fallout from the Countryside and Rights of Way Act 2000 – the Act that introduced the ‘right to roam' for hikers across thousands of square miles of private land – and is largely driven by a vocal and influential minority that wants motorcycles and cars out of ‘their' countryside – full stop. But motorcyclists are not entirely innocent victims.

Over recent years there has been a noticeable upsurge in the levels of illegal use of the countryside – particularly by some motorcycle and 4wd urban cowboys – and the use of some green roads [2] in the countryside is exceeding sustainable levels. This illegal, or legal but questionable, motorcycling is a very real problem in places – but in seeking to combat it effectively, the Countryside Minister Rt Hon Alun Michael MP appears to be conflating the bad activities with responsible use of the countryside, and is proposing changes that will hit the law-abiding, while probably doing little against the cowboy. This is reminiscent of post-Dunblane gun controls – target shooters had their sport destroyed, whilst the rise in gun crime continues at an ever-higher rate.

To understand the proposals you need to understand a little of the arcane and confusing law that regulates our highways. In English law (and this covers Wales too) there are three types of highway: carriageways, bridleways and footpaths. Vehicles have a right of way on carriageways. Apart from roads made in modern times – such as motorways, bypasses and new estate roads – most of our roads originated ‘time out of mind': their origin is simply lost in history. Old carriage roads originated in the time of horse-drawn vehicles, but as new types of vehicle emerged – steam cars, then pedal cycles, then petrol cars and motorcycles – these were accepted as ‘carriages' by Parliament which made legislation regulating their use on the highway.

In 1930 the first proper Road Traffic Act introduced a specific offence of driving a motor on a footpath or bridleway, or on open land, ‘without lawful authority' [3] . In 1949 [4] a new record was introduced called the ‘definitive map' designed solely to record public footpaths and bridleways, and also by an extension of the process a curious type called a ‘road used as a public path', or RUPP. Most people thought a RUPP was intended to be a minor vehicular road mainly used by walkers and riders, but the legislation was so poorly drafted that, in 1968 [5] , a new Act introduced a system to ‘reclassify' all RUPPs as either footpaths, bridleways or ‘byways open to all traffic' (BOAT); this did not work very well, either.

In 1981 yet another Act [6] changed the system for reclassifying RUPPs, and also for correcting the status of the many footpaths and bridleways shown on the definitive map that are, in truth, really old vehicular roads. This new process was better, but infernally slow and cumbersome. Few statutory orders were made to get the definitive map correct, and in many instances motorists relied on ‘common law rights' [7] to drive lawfully on mis-recorded footpaths and bridleways. The picture remained confused and uncertain.

The Countryside and Rights of Way Act 2000 was mainly intended to introduce the statutory ‘right to roam' for hikers. One of the ‘deals' the government did with the landowners to stop this Act hitting trouble in the House of Lords was to agree to a ‘cap' of the definitive map – on New Year's Day 2026, what you see on the definitive map is what legally exists – any ‘slumbering rights' are extinguished.

The notion of the 25-year period was to allow the establishment of a funded project called Discovering Lost Ways , which is intended to research the lost routes and get them properly recorded. Another provision – forced on the government by hiker-friendly peers at the very last moment – was known as ‘Section 34A' – a modification to the Road Traffic Act 1988 that would deny motorcyclists the fundamental human right of defending themselves in court if accused of driving on a footpath or bridleway. The motorcycling organisations responded to the consultation on section 34A saying that it almost certainly breached Human Rights legislation – and it turns out that the government lawyers think it would, too.

This is where the new consultation comes in. Because s.34A has been shown to be rushed and defective legislation, the government must be seen to be doing something about the ‘vehicle problem'. What they essentially propose is that the ‘window' to 2026 will not be available to claim BOATs. They say that it is unreasonable to claim rights for mechanically propelled vehicles based on evidence that a road came into being in the age of horses and carts. This is fallacious – almost all motor roads came into being in those days, including the Great North Road , The Mall, and Parliament Square . And footpaths were, of course, originally to allow the peasantry to walk to work and to church – not for recreational walking. The time period to allow claiming BOATs based on historic evidence is proposed to be one year from when the ‘register of applications [8] ' system starts. This might give a total breathing space of two years, but, equally, the minister might yield to pressure and introduce a shorter, or even immediate, cut-off.

Once substantive applications to add BOATs to the definitive map are properly made and lodged with highway authorities, that would (again, unless the ‘antis' prevail) stop the cut-off clock on that particular lane. But it will be down to motor and motorcycling organisations and individuals to do all the research and considerable administrative work in making these applications.

The proposals do not affect existing properly recorded BOATs and seem to exclude from the cut-off ‘unclassified county roads' [9] , but the wording is such that there is no guarantee for unclassified roads; this looks like yet more defective legislation in the making.

The recreational motorcycling organisations have long pursued a policy of careful, responsible and sustainable use of minor highways and private land sites in the countryside. Innovative and successful schemes like the Lake District ‘Hierarchy of Trails' [10] programme, and the issue of ‘codes of conduct [11] ' advising on how to enjoy riding without causing damage or alarm, have been well received by land managers and other types of reasonable countryside users.

The government publication Making the Best of Byways does not identify major or widespread problems caused by responsible riders, but confirms that problems tend to be local, mobile, and intermittent. More worryingly, DEFRA has commissioned independent research from Faber Maunsell to identify if there is a problem because currently DEFRA admits that it has no reliable data on motorcycle use of unsealed roads from which to work – but irrespective of this the department is pushing ahead with the consultation document to solve a ‘problem' that has not yet even been identified or quantified.

In truth, the motorcycling organisations are in complete agreement with the government that we should achieve a high degree of certainty as to which routes have vehicular rights, and then set about managing these fairly and effectively. There are some vehicular rights of way that cannot take a lot of motor use.

The policy of the motorcycle organisations is that a fair and proportionate management regime should be applied to these – perhaps a season access restriction; in some cases a total motor access restriction. But the fact that some green lanes are not robust does not mean that all are likely to be spoiled by the passage of vehicles – far from it. Most ‘green lanes' in the sense that people use the term, actually have stoned surfaces (even if now concealed by natural sinking into the sub-strata) and are very resilient if given just a little periodic rough maintenance.

This has been proved by the repair programmes carried out by motor enthusiasts on ancient highways across the country – such as ‘Dead Man's Hill' in the Yorkshire Dales [12] .

The effects of these proposals if put into law as drafted – or made worse by pressure from the anti-vehicular lobby – will extend beyond just the traditional responsible trail rider, ambling along a public road that just happens never to have been tarmaced. There will be a subtle and inexorable shift towards ‘privatisation' of whole networks of minor roads – even roughly tarmaced ones – and classic trials, road rallies, observation trials using roads to link sections, and even recreational drives out into the countryside are in danger.

The motorcycling organisations do not condone irresponsible and aggressive behaviour in the countryside. Our ancient highways are not motocross practice tracks, nor a battleground to be conquered. If people want to go fast, or drive into situations where a winch is a necessity, then they should enter competitions held on appropriate terrain. Unfortunately, our current planning rules are biased against the provision of off road sites whose existence would help obviate inappropriate highway use.

The motorcycling organisations, on behalf of responsible riders, say it is grossly unfair to propose an ill-thought change in legislation that damages our centuries-old highway law, places a massive work burden on a relatively few ordinary individuals, takes away the rights of ordinary people enjoying an arcane, but historic, pastime, does little to tackle the root causes of the problems: cowboy riders and inefficient local councils, and gives yet more exclusive territory to ramblers, who already enjoy more access than they can ever possibly want.

Remember: in England and Wales there are around 120,000 miles of footpaths and bridleways where motorcyclists cannot go. On the other hand, there are around 6,000 miles of minor, unsealed vehicular road and, of course, walkers, cyclists and riders also enjoy much this. Also, walkers now have – or will soon have – thousands of square miles of open access countryside as well, plus they can wander at will on urban commons and through Forestry Commission plantations. If a rambler or cyclist does not want to share a minor road with motorcycles (most horse riders are far more tolerant – maybe because they are aware that sensible vehicular use helps to keep the route open too) then they can very easily choose to go somewhere where they will not meet a lawful vehicle. They already have exclusive rights to most of the British countryside: now they want the rest too.

Issued on behalf of: -

The British Motorcyclists Federation, Land Access and Recreation Association, Trail Riders Fellowship.

E-mail contacts:

The British Motorcyclists Federation: mailto:campaigns@bmf.co.uk

LARA Motor Recreation Development Officer: mrdo@laragb.org

Trail Riders Fellowship RoW Co-ordinator: dave.tilbury@lineone.net

[1] Use of mechanically propelled vehicles on Rights of Way – a Consultation document . Defra ref: PB 8923, issued on 9 December 2003 .

[2] ‘Green road' is a generic term for an unsealed road. Most a public vehicular roads, but some are only bridleways, or footpaths, or have no public status at all.

[3] Lawful authority is usually taken to mean permission from the owner or occupier, but emergency vehicles have statutory lawful authority in most cases.

[4] The National Parks and Access to the Countryside Act 1949.

[5] The Countryside Act 1968.

[6] The Wildlife and Countryside Act 1981.

[7] The principle of ‘once a highway, always a highway' – a cornerstone of the law for hikers as much as bikers.

[8] The ‘register of applications' is created by provisions in CROWA2000. All highway authorities must make a register of applications for orders to modify the definitive map.

[9] Public roads that are not on the definitive map, but are, or should be, on the councils' ‘list of streets'.

[10] Further details on the LARA web site: www.laragb.org.

[11] Follow links from the LARA website to member organisations' web sites to view their own policies.

[12] See details of individual cases, and the national ‘Green Lane Day', on LARA and LARA member web sites.

Alan Kind

Last reviewed/updated 30/09/04