Regulating Recreational Motorised Use of Byways

Published on 14 January 2005 by Gill

Proposals of the Department for Environment Food and Rural Affairs (DEFRA) Time Limited Motoring Advisory Group to achieve the Government's aim through sustainability criteria and rules for riders and drivers.

The Group comprised:

  • LARA - the motoring organisations' Land Access & Recreation Association, representing in particular the interests of these LARA members:
    • AMCA - Amateur Motorcycle Association
    • ARC - Association of Rover Clubs
    • AWDC - All Wheel Drive Club
    • CSMA - Civil Service Motoring Association
    • MSA - Royal Automobile Club Motor Sports Association
    • ACU - Auto-Cycle Union
    • BMF - British Motorcyclists Federation
    • GLASS - Green Lane Association
    • MCC - Motor Cycling Club
    • MCIA - Motor Cycle Industry Association
    • TRF - Trail Riders Fellowship

Members of the Group would welcome the opportunity to discuss proposals in detail with any other organisation. For this purpose, LARA has agreed to act as contact point: LARA, PO Box 20, Market Drayton TF9 1WR – 01630 657627 – LARAhq@aol.com

Introduction: The Group accepts the Government's view that the current system of researching, recording and consequential use and management of minor highways by mechanically propelled vehicles requires an overhaul to align with 21st century needs. The seven proposals in the consultation paper can be developed in three principal areas to deliver fair and effective management of byways, so reinforcing the aim of the Government. These areas are:

Sustainability : Ground impact – sufficient maintenance – volunteer involvement – conservation issues – ‘byway rules' – ‘flexible TROs' – seasonal / weather – vehicle type – weight.

‘Discovering Lost Ways': where true status is the target, with consequent motor vehicular use attenuated by these management proposals.

Activity Regulation and Management: Group size – frequency of visits to areas – appearance – demeanour – enforcement against and engagement with illegal users – user education – point-of-sale materials – speed – choice of tyres – interface with other users – recognition of joint use of routes.

These developments will be delivered via:

  • Improved guidance, Making the Best of Byways (200x) and web-based information.
  • Introduction of Sustainability Assessment Procedures .
  • Introduction of Byway Rules .
  • Culture change through manufacturer, retailer and user group initiatives.

Two further important issues cannot be separated from the overall approach to the management of mechanically propelled vehicles in the countryside, but are not expressly part of the Government's consultation paper. The Group urges the Government to include action on these matters in the package that issues from this consultation.

Alternative Sites: LARA will reinvigorate its work with councils and individuals to provide ‘off-road riding and driving areas' to accommodate the excessive uses seen on byways and illegal use elsewhere. The initiatives proposed on noise (below) should lessen the difficulties experienced by such ventures in the planning processes, but to get some impetus into this will require Government-approved good practice guidance for planning authorities. See Appendix 1.

Noise: The Group recognises that while noise is not a primary factor in the Minister's concerns, it remains a major influence standing in the way of alternative provision; the Group seeks government help to address this. See Appendix 2.

The Group's proposals for merging its suggested improvements and delivery into the Government's seven MPV on RoW proposals follow:

This paper has been prepared by LARA on behalf of the Defra Time-limited Motoring Advisory Group, called to finalise proposals in response to the Defra consultation paper ‘ Mechanically Propelled Vehicles on Rights of Way '. The Group met in Bristol on 20 September and 15 October 2004, in the company of Defra officers.

Defra Proposal 1:

We will develop a strategy to disseminate and better inform the police, local authorities, the courts and others about the extensive powers and penalties already available for dealing with vehicles using rights of way illegally, anti-socially, or, in sensitive areas, harmfully. As a first step, we will be issuing a Departmental Circular shortly covering the use of the powers in paragraphs 6.1-7.5 below [in the original proposal], with particular reference to encouraging the better understanding and appropriate use of traffic regulation orders.

The Group firmly supports Proposal 1, agrees that sufficient legislation exists to target these issues, and that police forces will benefit from improved interpretation of the legislation. However, the Group's experience is that even in a climate of better interpretation limited reliance should be placed on the police authorities to sustain a regime of high priority on this matter, while traffic regulation orders have limited effect and can be misused.

On the sanctioning of offenders , the Group's experience is that because of finite resources the police's approach, both between forces, and within a force, is inconsistent and frequently ineffective. We do not believe, based on experience, that the police will regard unlawful and anti-social driving as a priority issue, at least not on any consistent basis. The success of anti-social behaviour orders (ASBO) in urban nuisance situations could readily be extended to the illegal use of motors, bolstered by the confiscation powers proposed in the forthcoming Traffic Bill. Whatever sanctions are used, these are far less effective without a national reporting process for offenders, particularly where the initial approach is by warning/caution, rather than by prosecution. The Group believes that infrequent high profile ‘raids' and prosecutions can be an effective deterrent to unlawful activity, so focussing and maximising police resources. The Group also advocates the appointment in each police authority area of one or more specialist ‘police access officer', akin to the established police wildlife officers (see Appendix P-1B).

Traffic regulation orders: Generalised application of TROs is not an effective control against some types of illegal users, whilst having a disproportionately negative impact on lawful, careful users. New Government advice on the use of TROs should make these just one option in a ‘toolkit' of available measures, so that any TRO is proportionate to and targeted at the problem, and is appropriate in each set of circumstances. In particular, highway authorities must not be seen to be prohibiting driving as an ‘overall attack' against lawful motorists: this simply raises resistance to otherwise effective management.

For further detail see Appendix P-1A.

Defra Proposal 2:

We invite views on the revision of the advice and guidance on managing the different sorts of traffic on vehicular rights of way in the publication Making the Best of Byways (1997). We will also publish the results of the research project on the use of byways open to all traffic, which will be used to inform the revision of Making the Best of Byways.

The Group has a number of ideas for improving the presentation and value of Making the Best of Byways and will welcome the opportunity to present these to the revision team.

The Group strongly supports the introduction and development of a sophisticated or advanced management approach to motorised recreation in the countryside, and we believe that the revised edition of Making the Best of Byways is the key medium for delivery of 21 st century management of the activity.

The Group's major concern is that edition 1 of the guidance was not widely adopted and consequently many authorities have not taken the many opportunities that Making the Best of Byways (1997) identifies. Making the Best of Byways (200x) will be even more valuable … if authorities can be encouraged to adopt the guidance.

Making the Best of Byways is an important part of the solution but can, we believe, be extended and improved without great cost or difficulty of implementation. It should draw on recent good practice and successful new management approaches, as exemplified by the Lake District Hierarchy of Trails Project , and the T-MAG (trail management) group now implementing the Hierarchy , should be featured and recommended as a paradigm.

Making the Best of Byways (1997) has not been particularly widely implemented. The way to achieve implementation without additional cost is to make its adoption as policy a Best Value Performance Indicator for councils. This will assist in consistency of implementation, which would also benefit from a Government Circular or advice notes.

Making the Best of Byways (200x)

  • should be published on a dedicated web site (along with up-to-the-minute information on RoW exclusions and restrictions), and Local Access Forums should be encouraged to adopt it as the basis of their approach to byway issues. C entralised RoW exclusion and restriction information needs to be available on the web in the same way that CROW Act 2000 Open Country exclusions and restrictions will be available to all enquirers. This will be an important feature of establishing trust in future management regimes.
  • should clarify and guide the procedures for local authorities to follow in applying TROs, thus removing inconsistency and eliminating abuse by some authorities, restoring respect from the people regulated by these orders.
  • should set out clearly what is lawful in the imaginative and flexible use of barriers at strategic points on byways, both within TROs and without. This is an area where a statutory change to allow more flexible use of barriers (rather than gates) should be explored.
  • should be restructured so that chapters are individually intended for the bodies that have a role in enforcement and management – police, landowners, land-managers, public authorities, motor users, non-motor users.

Defra Proposal 3:

We propose to introduce legislation to provide that any future use of a footpath or bridleway that would (immediately before the commencement of the relevant new legislation) have given rise to a public right of way for vehicles shall be treated as giving rise to restricted byway rights, but no other public rights of way.

This will prevent any future usage giving rise to claims for public rights of way for mechanically propelled vehicles.

The Group's member organisations have never sought to establish general vehicular rights ‘on the back' of recent pedal cycle, or horse and cart, use. If Proposal 3 is intended only to address this (the Bakewell case notwithstanding) then the Group has no difficulty with it.

Defra Proposal 4:

We propose to introduce legislation, which will make it no longer possible to establish the existence of a byway open to all traffic by reference to historic (pre-commencement) use by, or other evidence relating to, non-mechanically propelled vehicles.

We propose to do this by introducing a cut-off date after which (subject to certain exceptions) any unrecorded rights of way for vehicles shall be recorded as restricted byways in the definitive map and statement.

We propose the cut-off date should be one year from the commencement of the new legislation.

Exceptions

We consider it should be possible to show that the public have a right of way for vehicles where the right arose

(1) by virtue of an express dedication for mechanically propelled vehicles;

(2) by virtue of any enactment authorising use by mechanically propelled vehicles; or

(3) by virtue of any qualifying use by mechanically propelled vehicles. This means that applications to record byways open to all traffic can continue to be made until the end of 2025 where they are supported by evidence of lawful use by mechanically propelled vehicles.

The Group agrees that there needs to be a change to the system such that the value and integrity of historical research is preserved, yet the discovery of evidence that a route is historically a carriage road does not, of itself and inevitably, release that route to mechanically propelled vehicles. The Group proposes that traditional research is encouraged by the introduction of a Sustainability Assessment Procedure (SAP) and a code of Byway Rules , which will deliver a disconnection between the product of that research and future use by mechanically propelled vehicles. Both the Sustainability Assessment Procedure and Byway Rules will operate to increase and improve vehicle user information and education systems, with the purpose of positively influencing the mindset of drivers towards their activity and its impact on the environment and other people.

The Government's proposal set out to achieve its purpose by significantly altering centuries of highway law, with the very likely unforeseen, expensive and damaging knock-on effects into areas other than recreational motoring – one example being the major loss of development potential of land, and consequent claims for compensation under human rights law. It will also affect non-motoring recreation and sports, such as canoeing, caving, angling, and the wide range of outdoor activities that rely on the public use of motors on byways.

The Group's proposals deliver a similar regulatory effect without complex and potentially expensive changes to statute, or disaffecting a valuable ‘human resource' of volunteer researchers. We offer two additional management solutions that will, we believe, achieve the Minister's aim to break the automatic link between ‘horse and cart era' evidence and modern-day motor use without radical alteration to established highway law, and with minimal alienation of recreational motorists:

Sustainability management : recording ‘lost ways' and managing the public rights established. Motor users have to be pragmatic. Not every current vehicular public right of way is objectively sustainable, but many are – and the Minister has been introduced to them. Not every potential vehicular public right of way is sustainable for unlimited use, but some will be, and others will be under varying degrees of management. Our target then should be a system and process that achieves all routes being properly recorded and then managed on objective sustainability criteria. We propose a use management system called the Sustainability Assessment Procedure (SAP) which is applied to every BOAT once it has passed through the definitive map modification process – and might also be applied to claimed BOATs during that process.

Control of public access to BOATs is just part of an effective management process. It is also vital to influence and regulate people driving on BOATs (and similar routes) to which they do have lawful access. We therefore propose Byway Rules , a code of behaviour for driving on unsealed vehicular public rights of way. This is simple to implement in law, will have the respect of lawful users, and can be put into effect without unsightly large signage in the countryside.

The process of a Sustainability Assessment Procedure is set out in Appendix P-4A Byway Rules are set out in Appendix P-4B, and P-4C deals further with Sustainability .

Defra Proposal 5:

We propose that applications for definitive map modification orders (DMMOs) to recognise vehicular rights submitted before the end of the one-year cut off date will be processed to their conclusion. Similarly orders already in progress will be processed to final determination. We propose to introduce the register of applications for DMMOs prior to commencing the relevant new legislation. We do not intend to review or amend the rights attached to ways already shown in the definitive map and statement as byways open to all traffic.

The Group agrees the need to have the register of applications up and running as part of any new management regime. If our proposals outlined under Proposal 4 above are accepted, Proposal 5, in respect of a cut-off date, becomes redundant, and risks of challenge to the process and resentment of the recreational mechanically propelled vehicle community are reduced.

Defra Proposal 6:

We propose that an easement conferring a private right of way for vehicles for the benefit of an owner or occupier should be recognised where (before the commencement of new legislation) a public right of way has arisen, which would before the one year cut off date have been treated as a right of way for vehicles, and is now being treated as giving rise to restricted byway rights.

The Group has set out under Proposal 4 the virtues of retaining current highway law basics so that ‘ancient evidence' still respects and records history and goes to show public carriageway rights, but the public may, after the SAP process, be prevented from exercising those rights. Where these statutory easements would arise, it is still incumbent on each owner first to prove public vehicular rights in each case. Many thousands of cottagers and small landholders would be put to a considerable financial burden.

The Group's proposal (under Proposal 4) operates such that the ability of owners and occupiers along any route can still enjoy access to their property founded on the public right – the ‘lawful authority' clause in s.34RTA88 would remain available to owners and occupiers for SAP-restricted routes, just as it is available now for bridleways and footpaths. This is a much simpler system than the proposed ‘statutory easement' and does not fetter, or complicate, issues of future highway improvement, development, or ownership of the soil of the highway.

Defra Proposal 7:

We invite views on bringing forward the 2026 cut off date under section 56 of the 2000 Act and section 54A of the Wildlife and Countryside Act 1981 for the purposes of recording byways open to all traffic based on evidence of mechanically propelled vehicular use.

The Group believes that if the core issue of documentary evidence under Proposal 4 is resolved, then the number of applications founded on modern motor user evidence will be few. Bakewell notwithstanding, having a short cut-off period for user-based claims may be counter-productive in triggering log jamming. The issue of unclassified roads, and whether these need to be claimed as BOATs enters here – and this could seriously add to a rush to claim inside any too-short cut-off period.

Appendices

A1 Alternative Sites Provision

‘Alternative Sites' for motor sport and recreation are usually known as ‘trail parks' (the original term, inferring a motorcycle-based provision), ‘wheels parks' (sometimes indicating car sport activity; sometimes BMX and skateboards), or ‘off-road driving areas' (this term more often used in connection with 4x4 driving).

These alternative sites differ from traditional site-based motor sport in that they are intended to cater for a wide range of interests and to provide recreational, rather than purely competitive, motoring opportunities. The conventional idea of an alternative site is of a facility provided by a local authority, or other public agency. This is how the first wave of such sites started. The first were more properly called ‘motor projects', were usually run by the Probation Service, or other agencies involved with young offenders or young people at risk of offending, and were mostly structured around banger or stock car racing on city sites.

In the early 1980s the first trail parks were developed, mainly providing non-competitive, but supervised and disciplined, off-road motorcycling available to the general public, either on hired machines, or with people's own machines (where suitable). In the late 1980s and early 1990s many councils across England and Wales started and ran alternative sites of varying size and sophistication. One common feature was that almost all failed, at least in their original formats. For a number of reasons, council-owned sites have found it possible to make revenue and operate safely only by offering karting, ATVs, and 4x4 driving facilities; there is very little provision for people who wish to ride a motorcycle off-road ‘just for fun'.

As the multi-discipline, recreation oriented sites have faltered, so the demand for, and reactive provision of, moto-cross practice tracks has risen sharply. Almost all of these are commercially owned and operated, sometimes with dubious planning, environmental, and health-and-safety credentials, and they generally cater for the type of rider who is able, through skills, inclination and finance, able to compete in club-organised moto-cross races – although many choose not to. These sites plainly fill a real need.

There has also been a proliferation of 4x4 driving sites, often based on farm diversification, and karting centres, sometimes indoors, or even on ice rinks.

The land use planning system has seldom acknowledged the need for these sites and, where far-sighted councils have designated land in local plans for such activities, the sites have seldom been selected on rational criteria. It is something of a paradox that sites that could help in alleviating the local blight of noisy illegal motorcycling themselves face an uphill battle to get planning permission – because of the fear (sometimes real, sometimes imagined or exaggerated) of noise.

Alternative sites are not an alternative to sustainable, responsible, green road driving and riding, but they can be an alternative for the people who use byways, public paths and open land noisily, dangerously, illegally and damagingly. The existence of such sites allows and encourages the police and councils to tackle the problem with a stick-and-carrot approach.

Current experience and thinking indicates that in an area there is a need to have more than one site, offering between them a range of opportunities. There would be a developed site offering recreational karting and small all terrain vehicles (both generally suitable for youngsters), a 4x4 course for enthusiasts and the public, a proper moto-cross practice track, and a trials practice area.

To kickstart the provision of such sites demands new planning guidance and encouragement from central government, to trigger an attitude change in local government. Example: the lack of any reference to provision for motorsport in Local Plans – despite prompts from LARA – is a major stumbling block when planning permission is sought. LARA has a bank of experience and knowledge in this area and is happy to help – but cannot achieve much alone.

A2 Noise Control

The problem of excessive noise is identified by the Group as a key issue in the acceptance of motorcycling as a legitimate recreation, and in the provision of sites for motorsport. Addressing concerns about noise requires a range of actions from both Government and stakeholders. At point of sale for new machines, road legal motorcycles which are intended for highway use conform to the relevant European and UK regulations on noise emissions – and generally accepted as ‘quiet'. The problem therefore boils down to:

  • Machines intended for competition (and therefore not in conformity with the Road Traffic Act) being illegally used on RoW, causing nuisance through illegally loud exhausts.
  • Riders illegally modifying their motorcycles, or failing to maintain older models.
  • Lack of effective enforcement.

Industry

In relation to new motorcycles, it is already well known and accepted that unmodified motorcycles as supplied from factories do not give cause for noise complaints. However, the industry is involved with the continuing development of noise and emissions regulations, which are now controlled at a European level. However, there are some actions which can be taken by the UK industry which can be offered as part of a sensible and co-ordinated strategy on noise reduction. These revolve around point of sale initiatives:

1) Point of sale information to riders re their RoW responsibilities under existing law, highlighting that exhaust modifications are illegal for machines intended for RoW use, jast as they are on other highways.

2) Dealer procedures which draw customer attention to the noise issue and ensure that these are included in the established sales and service processes.

Riders

Illegal modifications are made at the request of, or by, the riders themselves. Motorcycle rider organisations need to accept that they have a key role to educate their members about the issues of noise and draw attention to the negative effect of illegally modified machines. This can be done by the motor sport and recreation organisations reviewing and reinforcing internal noise codes. Other actions by riders organisations in co-operation with the authorities can be considered, such as media campaigns, leafleting etc.

Media

Peer pressure though the media has a role to play here and the development of a noise strategy should include key media.

Government

Enforcement is a key issue. Noise complaints are at such a high level because irresponsible riders have a clear expectation that they will simply get away with it. It is accepted that this situation is unlikely to change in the short term. However effective management could provide enforcement/education opportunities.

Leaflets and information about rights of way can include a reminder that ‘The Road Traffic Act Applies'. Ignorance of the law can then no longer be a defence.

Other options can be discussed with industry and others re the sale of illegal exhaust systems, but is appreciated that trading standards laws which already apply are difficult to enforce because of current resources. It is also important to recognise that this issue is of concern on-tarmac as well as on unsurfaced roads. The need for clear linkage with DfT activity is indicated here.

Co-ordination

The need to co-ordinate and focus noise reduction efforts is apparent. The Group therefore suggests that a working group be established to formulate a strategy to reduce motorcycle noise. In particular this working group should consider:-

1) The need for a research program to examine motorcycle noise in the rural, inter-urban and urban environment i.e. is motorcycle noise a real or perceived problem.

2) In light of point 1) a medium term strategy for the reduction of noise involving Government and stakeholders.

3) A review of current UK legislation and enforcement pertaining to sales of after market exhaust systems.

4) Give consideration to EU Directive 2002/49/EC, in particular Article 8, to ensure that such action plans that are implemented in relation to 'quiet areas' are not prejudicial to motorised users.

P-1A Sale and Regulation of non-road MPVs

The Group asks the Government, in partnership with user and industry groups, to consider issues which arise from recent increases in widely available, inexpensive, non-road-legal recreational vehicles, such as motorised skateboards, go-peds, ATVs and mini-motorbikes, where these are being sold to the public full in the knowledge that most will be used on roads, public paths, parks and open spaces.

The Group's experience is that there are Government departments each dealing with just part of the ‘motoring issues' – Defra, DfT, DVLC, Home Office, ODPM, DTI, DCMS, and others. Getting advice from Government on motoring legalities and technicalities is difficult, and one result is a serious level of confusion about what is, and is not, lawful, militating against effective and consistent enforcement.

Recent legislative changes have provided new possibilities for hands-on enforcement against unlawful motoring in the countryside, including wardens under CRoW Act provisions, and Community Support Officers working with the police. The Group advocates the appointment in each police authority area of one or more specialist ‘police access officer', akin to the established police wildlife officers – see appendix P-1B.

P-1B: Police ‘Access Officers'?

[ This wording – as a LARA paper – was submitted in March 2003 to the RoWRC, CCPR, and NAFW, in the hope that it would facilitate better enforcement .]

For some time now, every police force has had one or more ‘Wildlife Officers' – constables with a special extra function. As a result, whenever a problem arises to do with snakes, or orchids, or bats, the Wildlife Officer is able to advise – he (or she, throughout) will either know the answer, know where to look, or know who to ask. This compares very favourably with the case several years ago, with no one in the force known to have a grasp of this complex subject.

Should a problem involve a right of way, or a minor highway, the response of the police is generally bafflement, and almost inevitably, confusion all round. This can be because they have too much to do elsewhere and don't really want to get involved, but for sure, another major factor is that they simply do not know enough about the subject. This causes frustration for landowner, rights of way manager, and lawful user alike, and can waste everyone's time. If officers do respond, they are unlikely to be able to say who might be right or wrong, or what offences may have been committed. This does nothing to promote respect for the law, and can lead to more ‘direct' action by others.

Of course, this has been the case for a long time, but recent changes mean things are likely to get more complex, or in other words, worse. One new factor is ‘open access', another is the change to Restricted Byways, a third is the new powers in the Police Reform Act, all due within months.

The suggestion is simple. Each force should identify one or more officers as ‘Access Officer' with a similar role to existing Police Wildlife Officers. Officers with an interest in cycling, or rambling, or a related country sport, would have a head start. Police Access Officers would be required to learn about access matters, to accumulate a reference library (which need not be huge) and to learn from whom to seek reliable advice and help in and around their areas. They would be expected to liaise with rights of way officers, rangers, user groups, landowner representatives, the relevant LAFs, etc.

Training would of course be needed, and there are relevant courses run by CoAg, CCW, IPRoW and CSS, user groups, and local authorities. LARA, for instance, would be prepared to run dedicated courses based around the complex relationships between rights of way law and the rules, needs, and expectations of the various disciplines of motor sport, as well the implications of rights of way legislation old and new.

P-4A: Sustainability Assessment Procedure (SAP).

In this proposal it is understood that the Minister favours the approach that, after a starting date, there will be a ‘window' period during which the current evidential definitive map processes will continue as at present. At the close of that window, all orders ‘in the pipeline' will be processed to completion, but from the closing date, in respect of all future DMMO applications, historical evidence can result only in a Restricted Byway. Such an approach has the merit of accelerating the benefit of ‘certainty' as to the status of any given way – and we agree that this is desirable – but we believe the following system delivers the Minister's aim and purpose, but without some of the underlying drawbacks we highlighted in our response to the consultation in March 2004.

For applications received after a starting date, historic documentary evidence of public vehicular rights, used for the purposes of a definitive map modification order to add a BOAT, will (if the order is confirmed) result in the recording of a restricted byway (RB), at least at first (subject to a Sustainability Assessment Procedure (SAP) – there will be no ‘automatic and inexorable' right to use a newly confirmed BOAT on the basis of ‘horse and cart era' evidence.

After the starting date it shall be an offence under s.34, RTA'88 to drive without lawful authority a mechanically propelled vehicle on any footpath, bridleway or restricted byway. It shall remain open to any person to adduce in defence evidence of public vehicular status, but only where there is a duly made application for a definitive map modification order for BOAT status. Landowners and residents along these routes will retain their vehicular access through ‘lawful authority' – just as at present.

Where an order for a definitive map modification to BOAT is made after new regulations come into force, this will trigger a sustainability assessment procedure (SAP) to be carried out under a statutory process – by the Local Access Forum, or equally by a T-MAG (trail management) group or similar, using standard criteria, possibly as part of the rights of way improvement plan (RoWIP) process. Sustainability issues would include (particularly) the character of the surface of the route, current levels and type of vehicular and other use, levels of repair, the effect of vehicular use (e.g. on vegetation), actual or probable adverse impact on designated conservation sites, and importance as part of a network. Sustainability criteria would not include ‘dislike' of motor vehicles, or other subjective matters, although it is acknowledged that such matters will be the motivation for some interests.

This sustainability assessment process could be carried out by the LAF or T-MAG group, in advance of any public inquiry into the DMMO in question (any BOAT order that is confirmed unopposed is unlikely to have serious sustainability issues) and the DMMO public inquiry would be extended to give an opportunity for consideration of the LAF's recommendation, but not a re-run of the SAP.

There would need to be some prescriptive standards in place to ensure that these SAPs are carried out properly, for example:

  • A specified timescale (Claim – Order – SAP) with default to full BOAT if not fulfilled.
  • Some independent audit process to reassure the public of the objective fairness and to avoid some authorities trying to misuse the process.
  • Some process to ensure the LAFs (and other bodies involved) are fully informed about all the issues, and that these bodies have an appropriate representative membership.

The result of a SAP would be any of:

  • BOAT (Byway Rules apply – see below),
  • BOAT with limited restrictions to be effected by TRO (e.g. weight limit, width limit, Byway Rules apply).
  • BOAT treated as, and only usable by the public as a Restricted Byway,

If the result of the SAP is ‘restricted byway' then that is the status recorded in the definitive map, but without prejudice to the existence of full public vehicular rights. The public cannot lawfully exercise those rights (there is then no extant DMMO application lodged) but the route is protected for the future for matters like development of land, access to adjoining properties, etc. If, for example, a local authority needed to ‘adopt' (i.e. surface for everyday motoring) a BOAT that had been recorded as RB following a SAP, that would be effected by an order to delete the RB from the definitive map because it had ‘become a highway of another description', i.e. an ‘adopted road' in the sense of a sealed motor road.

The SAP process would also be extended as a management process for existing BOATs. Where an existing BOAT is proven unsustainable on, say, the ground of the level of motor use and balance of use, the SAP could change the route's recording to RB, or recommend an appropriate TRO. Equally, where such a way is repaired, or otherwise made sustainable, a SAP could be used to change its recording back to full BOAT.

The benefits of this approach are: 

• It accepts the principle that historic vehicular evidence should not automatically, of itself, give rise to future unrestricted use of the way by motor vehicles, but,
• It does not fundamentally alter centuries of statute and common law in achieving that change.
• It introduces objective management of routes whilst the DMMO process is taking place.
• The use of the classification restricted byway in this process does not extinguish the underlying public rights (although these are effectively suspended) and therefore has the benefit of:
• No need for complex and legally uncertain ‘statutory easements', no loss of development potential for adjoining land, and no loss of upgradability of routes in the future, and,
• It will operate to stop ‘local bites' being taken out of the minor tarmac road network as RBs, heedless of the wider route network implications – the integrity of the route network would be a SAP consideration.
• By bolting on the SAP alongside the DMMO process this encourages wide user participation in getting the definitive map complete and accurate, closely connected to an objective and fair process of flexible and case-specific management for each route, and,
• The SAP process will work for existing as well as ‘new' BOATs, and is a two-way process, encouraging wider active participation in byway management by recreational motor organisations.
• Making the SAP process part of the LAF/RoWIP function strengthens the purpose and effect of all three.
• It establishes a level of ‘visible legality' that is enforceable and fair, yet acknowledges the length of time the definitive map process will take to deal with all applications and orders by managing a route where there is a DMMO application ‘pending' under the same regime and criteria for confirmed BOATs.
• It maintains and bolsters the valuable human resource of skilled voluntary researchers, who have a track record of working with, and for, non-motorised users.
• It keeps and reinforces the system of self-policing by responsible motor users – there is a value to responsible users to report, or influence by peer pressure, illegal or irresponsible motor use.
• Because this is a ‘bolt on' to existing WCA/RTRA legislation, the knock-on to other legislation and regulations is much less than for the current Defra ‘RB' proposals.

P-4B: ‘Byway Rules': a code of behaviour for driving on unsealed vehicular rights of way.

Defra/DfT should introduce a new standard road sign (akin to the ‘flying car/motorbike', but in the smallest permissible size), which single sign imposes a set of regulations on MPV users on the route. There is a parallel in motorway signage: the old ‘list of prohibited things' has been replaced by an icon that looks like a motorway bridge. This sign imposes the same list of prohibitions (e.g. motorcycles under 50cc) without the requirement to list each and all. The existence of Byway Rules would be explained in the Highway Code .

This new sign – we might call it ‘byway rules apply' – imposes on the user a set of restrictions, and w hen considering what actions to take when dangerous, inconsiderate, etc driving is alleged, any failure to follow the Byway Rules shall be taken into consideration. That gives them the same teeth as the Highway Code. Byway Rules could include:

• A modest speed limit.
• The requirement to give way to non-MPV users.
• Vehicle weight. (Gross weight may be the simplest definition).
• Tyres that conform to Construction and Use Regulations.
• The requirement to travel in groups of no more than X (bikes) and Y (cars).
• Adherence to a code of conduct.

Commercial safari operators (CSOs) must have a special form of operator licence to which verifiable operational conditions may be attached. CSOs must register their operations with the highway authorities for the areas they use, and must submit schedules of routes used, when, and numbers, to the highway authorities. CSO's customers do not need their own byway permit, but are bound by similar terms within the CSO's permit.

Authorised motor competitions are already regulated, and the Byway Rules would be expressed such that they would be disapplied by the MSA's authorisation (under the Competitions & Trials Regs 1969) of a motor sport event on the highway. This is similar to the current statutory practice whereby ‘dangerous driving' and other provisions are disapplied from authorised motor sport events in public places.

P-4C: Sustainable Use Management in practice.

The Byway Rules sign does not supersede the traffic regulation order. Where TROs are genuinely necessary – e.g. seasonal condition issues, landslips, etc. – then small TRO signs [change in sign rules required], with appropriate limitation panels, will be displayed alongside the Byway Rules signs. The use of intelligent TROs is welcomed – perhaps a national ‘menu' of types available?

The philosophy behind the Byway Rules is to install a ‘user ethos' that is enshrined not quite in law as a ‘hard' sanction but, like the Highway Code , if you choose to ignore it, then you may fall foul of a number of offences – but with the statutory bolt-on that, for example, speeding on a byway is not a speeding offence (unless over 60mph) but could be a Byway Rules offence, and lead to a fine (penalty points?).

All of this regulation and enforcement is fine, but there must be a process by which to ‘decide' the sustainability of all byways, with a view to using TROs of an appropriate weight where needed. Should there be a system of access regulation ‘sub-TRO', or should it be ‘use intelligent TROs as appropriate, and let the byway rules look after the rest'? We think the latter is probably much easier to apply and simpler to understand.

When a DMMO ‘making' a BOAT is confirmed, the Sustainability Assessment Procedure (SAP) is carried out, and a BOAT is recorded, there would be an automatic three-month voluntary restraint period in which management issues are sorted out. This ‘cooling off period' should allow heated attitudes to dissipate and not unduly drive demands for unreasonable regulation.

Sustainability criteria . Making the Best of Byways (MBoB) bites here. Sustainability is not suitability. Suitability is the subjective assessment of whether a road is ‘suitable' to take all vehicular traffic. We need to start from the premise that modern vehicles can go along just about any road, ergo all roads are ‘suitable'. Sustainability reflects the impact – transitory or long-term – that MPV use will/may have, and can be assessed reasonably objectively. It can also admit that vehicle impact is a good thing – like keeping vegetation down – even encouraging the growth of some species.

How to decide? Use the LAFs/RoWIPs, using national assessment standards, but allowing for local variations and sophistications, but not patronage and self-interest – as outlined for SAPs, above.

User information . LARA could run a web site advising the public and highway authorities about all of this. Late-breaking restrictions would be flagged up. Local user information would be linked. Equally, this could be done by local authorities (being best-placed to know), or by a government run central unit, as for open access restriction and closure information.

Motor trade bodies will:

• Introduce point of sale advice to purchasers of recreational motor vehicles.
• Establish partnerships with commercial providers for the training of recreational MPV users.
• Work increasingly with motor and motorcycle sport bodies to attract competition-minded users into regulated sporting events.
• Take immediate and progressive further steps to reduce vehicle noise emissions through customer information and other methods which need to be developed.
The Group's proposal for imposing a ‘sustainability assessment procedure' on to the back of the discovery and confirmation of all ‘slumbering vehicular rights' achieves the Government's aim of breaking the inexorable link between horse-era evidence and modern motor use, whilst retaining the possibility of ‘discovered' routes being available to motorists where sustainability criteria are satisfied. In proposing this approach, the motoring organisations are accepting a ‘trade off' position in the future, which inherently restricts motoring to the more-resilient routes, on which Byway Rules would better regulate user behaviour.

This SAP-based approach has significant benefits to the Government in smoothing the whole research-claim-use process, and in getting the maximum benefit from Discovering Lost Ways . Because the discovery and claiming of a potential BOAT no longer automatically leads to future use by motors, there is little or no virtue in imposing a cut-off date, specific to BOATs, earlier than 2025.

Under this ‘find-claim-SAP' approach, the wide network of researchers based in the various motoring organisations will not, at a stroke, be cut out of the process and seriously disaffected. These people also find bridleways and footpaths in the course of their investigations. Further, where there is no looming cut-off date, and potential BOATs are currently recorded as bridleways, but on objective assessment look likely to be thought unsustainable under the SAPs criteria, the researchers will be pragmatic and either ‘not bother' processing these, or give them a low priority – this again helps achieve the Government's aim of managing motor use. Discouraging research by denying the product of that research is to deny the history of these old roads.

Under our proposals there would not be a likely ‘log jam' of applications for BOATs to beat any cut-off deadline (human rights legislation suggests that an immediate cut-off is difficult) and applications when made would be of a higher quality as regards content and preparation – this will be of immense organisational and financial value to local authorities over many years.

The Group urges the Government to consider a change to the law such that BOATs can be ‘created', as can be public paths now, so that the need and achievement of a viable ‘byway network' can become a purpose of the Rights of Way Improvement Plans .

In summary, the Group believes that the Government's purpose in suggesting Proposal 4 is valid in the need properly to manage countryside access in the 21st century, but that the proposed means of achieving this would be significantly improved, with maximum cross-user benefit, and minimum disenfranchisement of current users/researchers, by the importation of our SAPs and Byway Rules ideas as the means to the required solution.

Appendix X – A Permit System in Operation (October 2004)

Permit System for Motorcycles and 4x4 Vehicles, Gatescarth Pass, Cumbria

From 4 November 2004 a permit system will apply for all motorcyclists and 4x4 drivers. The application procedure and operating details of the permit system are as follows:

1. Gatescarth Pass will be open for one day per month from November 2004. They will be a combination of weekend days and weekdays and will be the first Friday, Saturday or Sunday of each month. The dates are;

* Sunday 7 November 2004

* Friday 3 December 2004

* Saturday 8 January 2005

* Friday 4 February 2005

* Sunday 6 March 2005

* Friday 1 April 2005

* Saturday 7 May 2005

* Friday 3 June 2005

* Sunday 3 July 2005

* Friday 5 August 2005

* Saturday 3 September 2005

* Friday 7 October 2005

In the event of bad weather the open days will be postponed. The alternative day will be exactly two weeks after the original date i.e. if Sunday 7 November is postponed the new date will be Sunday 21 November. If the weather is also poor on the alternative day, then that month's open day will be lost.

The decision to postpone the open day will be based on the series of monthly inspections on route condition, previous weather conditions and weather forecasts for the day itself. Information will be posted on the NPA's website, via an e-mail circulation message, on the Trails Adviser's voice mail (see contact details below) and by letter 48 hours before the open day. It is important to stress however that the ultimate responsibility to check if the permit is valid lies with the permit holder.

2. 4x4 vehicles will not be allowed to use the route from December through to March each year. This is to safeguard the most vulnerable sections of the Pass from disturbance and is based on detailed monitoring of route condition before and after permit days during the 18-month Experimental Traffic Regulation Order.

3. A maximum of 12 4x4s (i.e. in groups of two, three or four vehicles) and 18 motorcycles (i.e. in groups of two, three four, five or six vehicles) will be allowed to use the route on each open day.

4. The permit will allow one pass of the route in one direction only. The gates will be unlocked from 09:00 am to 16:00 pm. There will be no staggered start times but 4x4 users should be aware that the latest a vehicle can start the drive of the Pass will be one hour before the gate is due to be locked. NPA staff will be on hand to unlock and lock gates and to monitor how the permit system is operating.

5. One permit will cover all the vehicles in a club or organisations' application, subject to the limits of four 4x4s and six motorcycles. The minimum number of vehicles in any application is two because of problems of self-recovery. This also applies to motorcycles.

6. Each club, organisation, company or individual will be allowed two permits over the 12 months. If demand is low and not all permits or numbers are filled, this could be increased.

7. The application form below can be e-mailed directly to Dave Robinson or printed and sent by post. It should also be available at the following Tourist Information Centres:

* Brockhole

* Ambleside

* Waterhead

* Windermere

* Bowness Bay

* Kendal

* Pooley Bridge

* Glenridding

* Grasmere

* Keswick

All application forms, wherever they are obtained, should be sent to Dave Robinson at the address below. All details requested should be filled in. If they are not, your permit may not be sent. A permit will be sent to you with the relevant open day date and other supporting information.

8. This system has been developed and agreed by the Gatescarth Pass Working Group. It consists of NPA officers and representatives from motorcycle and 4x4 groups, Cumbria Bridleways Society and Friends of the Lake District. Any changes to this system will be recommended by the Group and will go to the Authority's implementation Committee for approval.

9. Contact Dave Robinson at LDNPA, Murley Moss, Oxenholme Road, Kendal, Cumbria, LA9 7RL; telephone 01539 792649; email dave.robinson@lake-district.gov.uk

ENDS

Last reviewed upsdated 14/01/04