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I am responding on the topic of the consultation relating to "Use of
mechanically propelled vehicles on Rights of Way", only.

GENERAL OBSERVATION

"Motor vehicles on byways can cause considerable localised damage. There may
be a need for better management of byways at local level...... However, we
have found no compelling evidence of widespread problems being caused by
recreational use of motor vehicles on byways and have concluded that there
is no case for a general ban." (my emphasis - rjh). So said Michael Meacher
on 5 February 1998 when launching the DETR publication, "Making the Best of
Byways"


In his Foreword, Alun Michael talks of "many individuals and
organisations.......deeply concerned about problems caused by the use of
mechanically propelled vehicles on rights of way.....". He talks of sharing
these concerns, "having seen .....examples of damage to fragile tracks and
other aspects of our ......heritage..." This is a distinctly different
approach from that of his predecessor in title, Michael Meacher.

So, just six years and a couple of days on from that statement, what has
happened to change the position, so drastically? My view is that there can
be only one of two conclusions drawn from this:-
either there has been a large increase year on year in the damage caused by
recreational vehicles - in which case there will undoubtedly be an increase
in the numbers of Highways Act 1980 S56 notices lodged with County Councils
relating to lengths of Rights of Way out of repair, or
he has allowed himself to be unduly influenced by a very vocal minority of
user groups, or organisations, whose main interests are to achieve the exact
opposite intentions of those embodied in the Countryside and Rights of Way
Act 2000.
In the case of the former option, the county council, as Highway Authority,
will obviously have the records of S56 notices - almost certainly stretching
back over the six years concerned - and will be able to provide the LAF with
the statistical data ready for 10 March meeting. (Secretariat to provide on
10 March, please, but only so far as they relate to Def Map & Statement
roads) This data should be readily expressed in terms of length affected as
a ratio of the length of the overall RoW network, and should relate only to
the instances where it is recreational vehicles which have caused the
damage. This will show the true extent of the problem perceived by Mr
Michael.

In the case of the latter, it should be borne in mind that the overall logic
behind the Countryside and Rights of Way Act 2000 was to extend even more
widely the benefits of ever more access to even greater portions of the
public, e.g. the "right to roam", whereas the output of some organisations
seeks only more denial of access to the countryside to certain groups of
user, and neither do they espouse any aims to increase the public's access.

Similarly, in the case of the final paragraph of his Foreword, his hope that
"responsible users of mechanically propelled vehicles will welcome the
intention to promote better enforcement against uncaring motorists who
tarnish their reputation." should be backed up by data. This should be
available from the police authority, I would have thought, in the form of x
number of prosecutions for riding or driving a motor vehicle on a footpath
or bridleway in contravention of section 34 of the Road Traffic Act 1988
(Secretariat to seek to provide, please, but only so far as they relate to
Def Map & Statement roads)

I make this plain, the group of motorcyclists to which I belong (Trail
Riders Fellowship); the Land Access and Recreation Association; Green Lane
Association; and other 4x4 wheel drive organisations, all have very strong
views against such uncaring motorists. They are the bane of our lives. I am
certain that we have no reservations about calls for strong and proper
enforcement of existing laws.

I doubt that we have any need for even further laws, though. Especially
before the authorities have exhausted their efforts in enforcing the
existing laws!

The foremost aim of any LAF ought to be to get the Definitive Map and
Statement correct, and that has usually been the objective right from 1949.

However, this consultation document, by seeking to do away with categories
of user, is trying to fix the reality to match the official record, rather
than make the record truly reflect the reality on the ground.

THE PROPOSALS - in overview

Happy to endorse the better dissemination of information to the law
enforcement agency
Welcome the updating of Making the Best of Byways, but would urge more
strongly that all Highways Authorities make positive statements that endorse
their use of the document in the performance of their role as highway
authority. This is embarrasingly shown as a shortcoming of highways
authorities at many public inquiries or Magistrates' Courts, when the
Highway Authority (typically applying for an order to be made), admits a
lack of knowledge of the relevant advice contained in this document.
I am not certain what proposal 3 intends, but my initial reading is that
after the proposed changes have been introduced, the government intends that
there shall be no future opportunity to gain a motor vehicular right of way
over a footpath or bridleway on the basis of 20 year user. If that is a
correct understanding of the point, then I believe it is, de facto, the
position that currently prevails, anyway. Therefore, whilst I do not approve
of further curtailing a user's rights, I am not of the opinion that a fight
on it is worthwhile.
This is totally inequitable, and probably unworkable. It has to be borne in
mind that 100 years ago, or even less, almost all highways were in the same
state as the byways/RUPPs of today. Their rights were established in exactly
the same way, and under the same laws.
The fact that local government in its early years chose to seal the surface
of one road rather than another was not a "legal event" in the modern day
terminology, and it gave neither one road precedence over another in terms
of user rights pertaining. The basis of the decision to lay tarmacadam on
today's route from Astwood Bank to Feckenham, Worcestershire, rather than
Poplars Lane (formerly Thickwithies Lane) does not affect the status of the
right to continue to use Poplars Lane with a vehicle. It was not stopped up,
it was not diverted, it was not subjected to any "legal event". It was
presumably a decision taken bearing in mind the local conditions of
passability at the time, one being blessed with reasonable drainage most of
the year, the other being frequently flooded. The fact that the route chosen
for tarmacadam has this week been rendered impassable by flooding, while
that of Poplars Lane has not been so badly afflicted, lends a certain irony
to the situation.
In other words, most of all history is a tale of happenstance, and this is
exactly the parallel with many main roads. If this proposed measure were to
have been put forward a hundred years ago, then most of the arterial routes
from London to the major cities would have fallen foul of it!
The "pedigree" of the major roads is no different from that of the lesser,
unsurfaced, roads. It is merely seeking to disadvantage a minority
recreational interest for no real reason.
The second item listed under exceptions would appear to allow for the use of
mechanically powered vehicles, on the basis that all these roads stem from
the same historical origins as those presently covered with tarmacadam, and
any enactment applying to macadamised roads also apply to currently
unsurfaced roads, because there has never been any other distinction at law
between them.
History has not been kind, on this subject! Worcestershire County Council
has sat upon over 50 claims submitted by vehicular user groups some 30+
years ago. Still there is no sign of advancement.
Now the council will have to set up yet another register to record the
unresolved applications.
More work, no more staff to do it (probably), more bureaucracy to grind the
users down, and less effective measures towards getting the Definitive Map
and Statement correct!
Private rights of way on public highways - maintainable by whom?
Bringing forward the 2026 cut off date when the past history of most
highways authorities shows a record of decades of non achievement in getting
the Definitive Map finished! Sounds so very pie in the sky, to me.
CASE STUDIES

It appears the emphasis of the Killingbeck example is on the matter of what
amounts to common vandalism in mainly urban areas, and the vandalism
involves the (largely illegal) use of motor vehicles, many of them having
been stolen. This is distinctly separate from the legitimate user driving or
riding quietly, carefully and respectfully in the countryside for
recreational purposes.

The prospect that such vandals will be deterred from their activities by
simply legislating the conscientious user out of existence is naivety in the
extreme. If someone is already disregarding the law, then these proposals
will have absolutely no effect upon them.

The Derbyshire example does more to illustrate the confusion caused for all
user groups which arises out of changes in the application of
responsibilities and duties as carried out by Highways Authorities. For
decades it is known that the council had unclassified county roads which
were purported to have vehicular rights, and they were openly reported as
such by that council. More recently however, the council has back tracked
from that position, and now has some of them with dual status (i.e. showing
as bridleway on the Definitive Map), and where previously vehicular users
had been considered to be within their rights, they are now deemed to be
outside those rights - quite arbitrarily. This gives rise to the existence
of reasonable doubt leading to unsuccessful prosecutions.

The aim of the policy statement to ensure routes are correctly identified is
welcomed, and is perhaps long overdue, and the rest of the bullet points
listed are welcomed.

Again, the example of the Cornwall County Council is a welcome initiative
towards deterring vandalism involving the use of motor vehicles, and must be
encouraged further. It is dealing with teaching responsible attitudes
towards the countryside.

Once that lesson is learned, there then needs to be the countryside for that
responsible attitude to be taken out to, i.e. there must be vehicular rights
of way where those attitudes can be demonstrated. It is not enough to say
that "potential provision" of off road facilities will be identified,
walkers would not be satisfied with confinement to walking in a yard, as if
in prison;
horse riders would not be thankful for being dedicated just a field or two
to explore;
neither must the vehicular user have to put up with confinement to a
predefined circuit.

There is no reason for there to be undue limitations upon any users' rights,
so long as those rights are exercised responsibly, and where they are not,
then they should be dealt with in a measured and appropriate manner, under
the due processes.

ANNEXE 2 - IMPACT ASSESSMENT

The answer is that more effort should be put into getting the record
(Definitive Map and Statement) correct, rather than slanting the effort to
reducing the use of the countryside just to fit the record as it stands
today.
The measures to deal with real abuse of the countryside by vehicular users
are not controversial as far as I am concerned.
They are already in place, they just need to be properly exercised.
I am not aware that any new rights of way are being claimed for mechanically
propelled vehicles - just that the records need to be adjusted to show the
existing rights, which are, as yet, unrecorded.
However, the concept of trying to remove a class of user just so that the
record becomes right by default, cannot be equitable in law.
Between 1835 and 1930, there was no distinction in law preventing mechanical
vehicular right of use over these public highways/carriageways, and thus a
choice could be made to use surfaced or unsurfaced highway.
More and more surfaced highways became available over the years, and less
and less use was made of the unsurfaced, but never before has there been a
move to outlaw that use.
The choice has always remained open for the user.
The internal combustion engine was not invented when the Great North Road
first joined Edinburgh with London, but nobody advocates removal of vehicles
from that road.
The concept of there being dedication anywhere in England and Wales
specifically for vehicular use is probably confined to just the Motorways
and Special Roads categories, and would almost certainly exclude anything
less than trunk roads.
The use of the word "though" is probably not what the author intended when
writing of proposal 3, but my reading is that the de facto position
continues.
Relating to proposal 6 - again, I ask "maintainable by whom?" - it surely
can't be that a highway authority is now going to be required to maintain at
public expense a private right of way with a vehicle, or can it?

a) is only to be achieved by removing the public's rights from using a
vehicle;
b) will make them unique in all classes of road bearing in mind how far
removed from their history are the present major roads;
c) the vehicular rights of way constitute 12410km out of a network of
241500km (i.e. just over 5% of the whole) and I don't think anyone claims
that all 5% is out of repair;
d) I have no understanding of what the author is trying to get at;
e) I presume the author means to use the word "through" - but, even so,
rights of non mechanically propelled vehicles can have their rights recorded
on the Definitive Map now;
f) private rights should be not just preserved (although I don't really see
what pointed is being made) they should be totally outside the ambit of
public rights, i.e. unaffected.
It is a recognition that vehicular users are being legislated out of
existence, here.
It is a recognition that the treatment proposed is different - and thus
unequal - to that for other users.
It is a recognition that most research into rights of way stems mainly from
this category of user (because walkers have the use of 100% of the network
they have more than enough resource open to their use, and have less
incentive to seek out further routes).
It is a recognition that there will be very little draw on the funds from
Discovering Lost Ways, as a result.

a) will be watched with amazement if there is any speeding up of the dealing
with these applications. Worcestershire is not alone in having delays
stretching over three decades, I am sure! Birmingham City doesn't even have
a Definitive Map, last time I looked, but it certainly has unsurfaced roads!
b) most certainly there will CONTINUE to be a loss of recorded byways open
to all traffic - nothing has changed in that respect since 1949!
As for illegal use, I am sure that new laws will continue to be ignored by
those who already ignore the existing laws, and I am sure that there will be
more incentive for illegal riding by the "cowboy element" than there already
is. Not desirable.

As an aside, how is it that a government can reclassify a drug from class b,
down to class c, and thus remove the likelihood of some prosecutions for
offences, and yet can propose more draconian measures against law abiding
users and seek to prevent them from going outdoors into the countryside?
Haven't we got enough health issues in this country through lack of
activity, without bringing in more measures to make more couch potatoes?
This set of proposals will also devastate such historic and innocent
pastimes as motor and motorcycle trials and endurance, and similar outdoor
activity. Why is this so necessary?

BACKGROUND AND DEFINITIONS

The section which gives the figures for the rights of way network
illustrates most clearly that we are talking of a sledghammer to crack the
proverbial nut! Just 5% of the network available to a minority user group
and someone comes up with the inference that all 100% is spoiled for the
enjoyment of the majority! It is beyond belief that even a significant
proportion of the 5% is damaged - figures to bear out that claim have to be
produced, or else that claim should be dismissed.

The section under historical background, item 4, is contrary to all that I
have been led to believe about the current situation. Particularly the DEFRA
and Planning Inspectorate advice that the non mechanical vehicular rights
cannot give rise to claim for mechanical vehicular rights - that surely is
contrary to what is acknowledged to be the truth in the fourth paragraph of
Mr Michael's Foreword. This seems to be prejudging the outcome of these
consultations.

PROPOSAL 3

The section (6) looks to me as though there could be a question of the
legality of the public highway being made available for a private right of
way, especially if it is in any way maintained at the expense of the public
purse. Ultra vires? On this question, section (12) appears to me to be
untenable - the legislation, if introduced, must surely have to state the
position, one way or the other, and use of the word "may" will have to be
replaced with "will", or else "will not".

Incidentally, I notice that Hampshire County Council have a similar disquiet
about the issue - (taken from their website under the LAF agenda)

"Consideration needs to be given as to whether the Highway Authority has, or
should have, any locus standii in any action between landowners to determine
whether the public vehicular rights giving rise to the easement do, in fact,
exist. We do not consider that it should be up to the highway authority to
determine whether or not, in such cases, public vehicular rights would have
existed had it not been for the legislation proposed by this consultation
paper, as these are essentially private disputes, but we would wish to have
the opportunity to be heard on the matter, as there are knock on
consequences for Highway Authorities.


We are concerned at the implications of the easement on the liability for
maintenance, both as between the owner and private user(s) of the way in
question and between users and the highway authority. Any statutory easement
should be expressly subject to the responsibility of the owner of the
dominant tenement to pay a fair proportion of the cost of repair of the
route in question. This needs to be enforceable as between the different
landowners, but perhaps also by the highway authority should the private
vehicular user damage the highway to the detriment of the public. "


Then, section (16) will need to reflect these costs, saying that they will
fall on the local authority to provide for the benefit of the private user,
or that they fall on the private user. This is hidden from this document at
the moment, and yet it is likely to be of some considerable sum to
somebody's purse.

Section (13) states that there are no issues of equity and fairness - this
is far different treatment from that proposed for the current vehicular
users of such ways! Such inequity.

PROPOSAL 4

This proposal is totally unacceptable with a short cut-off date. I think it
is totally an unfair concept in its outright bias against a legitimate and
conscientious class of responsible user, the excuse for its proposed
introduction being based on flawed thinking, and specious argument.

Given the government's figures as a true reflection of the RoW network,
there is only about 5% where this "damage" can have taken place, and even
the government has not claimed that all 5% is out of repair due to
recreational motor vehicle damage! In terms of overall percentages, I would
be very surprised if there is anything approaching a single 1% of the length
of national network damaged by recreational motor vehicles on RoW.

In the very limited areas where damage has arisen, there has invariably been
the question of whether it is recreational vehicles or agricultural/forestry
vehicles, and it is a common complaint in those cases that the results are
ruts about 2 feet deep. People do surely realise that ruts so deep are only
likely to arise from vehicles with wheels of twice that diameter, because of
the construction of the vehicle and its axle height in relation to
grounding. There are not many (if any) recreational vehicles on general sale
which have wheels of 48" diameter!

Yet all of this is being presented as a reason requiring the overturning of
centuries of law. Law which has applied, and still applies, equally, to
those roads unsurfaced, and to those with tarmacadam. Facts and figures are
surely available from the Highway Authorities in the form of S56 notices and
from the police in the form of numbers of prosecution under S34 of the Road
Traffic Act 1988. If those figures were provided and shown to bear out the
claims of damage, then I shall have to think again, but until then, I am
unpersuaded.

Item (25) says "....As a consequence, many public rights of way have been
accorded byway open to all traffic status on the basis of user or
documentary evidence when, at the time dedication occurred, the kind of
mechanically propelled vehicles that would use them today did not
exist......" The same can probably be said of a certain Downing Street; of
Oxford Street; Regent Street; Pall Mall; as it can equally be said of
Poplars Lane, Feckenham, Worcestershire. All of these roads are quite
historic, share similarities of origin (possibly/probably), but only the
latter has been (thankfully) overlooked in the matter of tarmacadam during
the twentieth century.

Item (27) exemplifies an initiative which has the aim of ensuring  a record
with accuracy at its centre. The current proposals are more directed towards
making the user fit the existing record, rather than the record being
corrected to reflect the user.

I agree that there is a substantial amount of research involved in an
application to a highway authority, and that it is probably the vehicular
user, rather than any other, who will carry out that research. This will be
lost if the Proposal 4 is adopted, and it will be to the great detriment of
the Definitive Map and Statement. I, for one, will certainly wash my hands
of all involvement in RoW issues, if this gerrymandering is carried into
effect.

Item (28) brings to mind that some of the research will be impossible by the
due date where council records offices are closed for administrative
reasons - refurbishment/relocation programmes, involving considerable
"temporary" closures, seem to be happen with increasing frequency these last
few years, e.g. Worcestershire; Warwickshire.

Item (31) and (32) - commencement, inequitable as it is, must not commence
before reasonable time has expired, i.e. 2026 as envisaged by Countryside
and Rights of Way Act 2000. Why spoil an already vindictive piece of
legislation (which had some good parts , e.g. LAFs; Right to Roam; "stick
and carrot" approach towards getting research underway for correcting the
record) with some unecessarily harsh and unfair measures.

Item (33) is an old chestnut. Risk of injury to walkers can be checked out
by the records of reported accidents involving vehicles upon such roads - a
legal requirement where a motor vehicle has caused injury to a third party.
We are talking of legal highways requiring all vehicles to meet all the
usual requirements. They are very few accidental injuries on RoW, and if
there are any, one wonders what is the percentage where a curmudgeonly
walker has taken into the head to deliberately obstruct a legitimate user
(horse, mountain bike, or motor vehicle), regardless of who has, or has not,
whatever rights. It does happen, but thankfully, exceedingly rarely, in my
experience.

With regard to equestrians in danger - this is mainly confined to the roads
which have a tarmac surface. I, personally, have ridden my motorbikes at
horse trials (collecting the cross country score sheets), marshalling long
distance horse endurance rides, etc. every year since 1988. This last year,
alone, I spent well over 20 full days in the company of perhaps some 300
competition horses on each of those days, and all the while riding my
motorbike. There has never been any issue of accidents or near misses in
riding amidst 5-6000 horses in any year.

I have had letters of support at public inquiries and at Magistrates' Courts
from the organisers of such events, and even from the chief executive of the
British Horse Society. I have ridden my motorbike at their British Riding
Club's Championships every year since 1988.

Item (34) ought to recognise that it is only by vehicles using some of the
ways that they remain available today. Without such use, there would be many
more of these ways disappearing under a burden of bramble, bracken and
gorse, and totally impenetrable by anybody. Worcestershire County Council
exposed this fact for themselves when it carried out the "Review of Little
Used Unclassified Roads" by the Highways Department in 1996(ish) - about 200
of them across Hereford and Worcester County! This item, (34), is related
more nearly to the identification of those responsible for the most damage
in the countryside. I believe that there is a document which has been
commissioned (from Faber Maunsell?) which gives some clues on this, but I
have not seen it myself. It is gratifying to see some recognition of the
motoring lobby's Green Lane Day initiative for restoring some of the
resource annually.

Item (35) - surely, the perverse effects must be inevitable, and
proportionate, especially if any cut-off date was set so short.

Item (37) - mechanically propelled vehicular users are definitely being
treated differently, and unfairly by these proposals, and it is most
certainly not accepted that theirs is an anomolous pursuit of perversity in
the present situation!

Item (39) - I know there are about 3 - 3500 members of the Trail Riders
Fellowship, nationally, but I have no idea of the other figures of
membership for motoring organisations. It would not surprise me if there are
about 15000, as mentioned.

So, are we really being asked to believe that 15000 (0.025% of a population
of 60 million) riding/driving on no more than 5% of the rights of way
network have damaged that resource so much as to make it unviable for the
other 95% of the network, and the other 99.975% of the population!

Let's get real!

Item (40) claims that there will be greater certainty on rights of way.
Historically, that had been a motivation for the National Parks and Access
to the Countryside Act 1949.
Then it was claimed for the Countryside Act 1968.
Later it was the basis for the Wildlife and Countryside Act 1981.
Of course, it was a clarion call for the Countrysde and Rights of Way Act
2000.
Now...............

Use of ways more consistent with their historic use - in the same way as
Oxford Street, London, perhaps?; or Poplars Lane, Feckenham, perhaps? - no
difference.

As for greater certainty about knowing the number of applications local
authorities will have to deal with - what was Milestones initiative about?

Item (41) - the proposals are definitely unfair to vehicular users! Plus,
everybody dips out if there is no Discovering Lost Ways framework

PROPOSAL 5  (N.B. NOT DEALT WITH SEPARATELY IN ANNEXE 2 OF THE CONSULTATION
PAPER)

There needs to borne in mind that local authorities will have to resource
the extra map/register of applications for DMMOs upon commencement of the
legislation, and it is welcomed that any cut off date will not foreshorten
the process of taking to their final conclusion. How will they do that?

PROPOSAL 6

This issue is not a primary concern of mine, but I can foresee that there
will be vast scope for uncertainty, and muddled thinking causing much upset
for the future.

For example, I'm sure the deputy Prime Minister will acknowledge this, an
agricultural field today may become the focus of the property developer's
eye in the future, and whereas the farmer today may be countenanced in
driving on a way, to or from the field, on his tractor, I doubt that the
future local community will welcome the necessary transformation into an
housing estate road, or an airport approach road, or an incinerator access
road.  This is  "NO" culture Britain, and Nimbyism is frequently the name of
the game.

So, item (49) is simply following in the true traditions of the legislative
path since 1949, and replacing one set of uncertainties with a newer and
wider, more super, duper, set of uncertainties! Just to make things clearer,
we understand!

Just so long as I, an individual council taxpayer, am not going to see a
penny of my council tax money squandered on giving another individual a
benefit which is especially denied to myself, then I won't mind. Too
much!!!!!!

In conclusion, while it is most desirable for the laws to be enforced with
all due thoroughness, that task must not cloud the issue so that the law
abiding individual, whose only "misdemeanour" is to follow a minority
activity, is also unjustly penalised.
We have seen target pistol shooters lose their legitimate rights, following
Dunblane - but gun crime soars inexorably
We have seen water sports take a hammering in the Lake District
We see hunting with dogs under serious threat
We see less physical activities being pursued in education
and now we see more countryside minority activities being threatened.
Are we all destined for couch potato existence?

I look forward to the meeting 10 March,

Richard Hawker

DEFRAs Consultation on RoWiP Dec2001 p19 says:

"It is important that proposal for improving rights of way should not unduly benefit one class of user at the expense of another. In particular, improvements that are intended to benefit cyclists, harness-horse drivers, horse riders or walkers should not restrict lawful motorised use of public vehicular rights of way."

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