Natural Environment and Rural Communities Bill

moved Amendment No. 137:"Page 27, line 3, leave out from ““byway”” to end of line 6." The noble Lord said: My Lords, we see this group of amendments as consisting either of government amendments tabled after consideration of opposition amendments, or as minor and/or technical amendments to those government amendments, which we are happy to take away and look at. If the House will forgive me, I will be as brief as possible. Government Amendments Nos. 137 and 138 were tabled after consideration of Amendments Nos. 311 and 312, tabled by the noble Lord, Lord Bradshaw, in Committee. Existing Clause 65(1)(b) ensures that public motor vehicular rights are extinguished only over routes that, immediately before commencement, are used less by motor vehicles than by other users, such as walkers and cyclists, to ensure that extinguishment affects only routes that are mostly used as ““rights of way”” as opposed to the ““ordinary roads network””. We agree that under Clause 65(1)(b) as it stands it would be difficult for a person to establish the level of use prior to commencement, in a situation where they were attempting to challenge motor vehicular use of a route over which they believed the public motor vehicular rights to have been extinguished, and that this will get more difficult as time goes on. We accept that there is a case for arguing that the burden of proof should be on the users of mechanically propelled vehicles to show that there was sufficient use before commencement to justify retention of the route as one with public motor vehicular rights. Therefore, Amendment No. 137 removes existing Clause 65(1)(b) and Amendment No. 138 replaces it with a new subsection, which will instead exempt from extinguishment any route where it can be shown that, for five years before commencement the public use had been mainly by motor vehicles. This will ensure that, where there are no motor vehicular rights recorded on the map and statement and the route is not recorded on the list of streets, the burden of proof is placed on those using a motor vehicle to show that, because the route had been used mainly by motor vehicles for a significant period, the rights have not been extinguished. Opposition Amendment No. 138A would ensure that in determining the balance of use prior to commencement, only lawful use by mechanically propelled vehicles is taken into account. Although we think that this is already implicit, we see no problem with making it explicit and will consider introducing an amendment to that effect. Government Amendment No. 139 follows consideration of Amendment No. 314, again tabled by the noble Lord, Lord Bradshaw. It clarifies that those routes recorded on the list of streets and not recorded on the map and statement are exempted from extinguishment only where they are recorded on the list of streets immediately before commencement. This clarifies that there will be no possibility of motor vehicular rights being preserved by adding routes to the list of streets after commencement of the Bill’s rights of way provisions. Government Amendments Nos. 145 and 148 were tabled after consideration of Amendment No. 324 in Committee. Amendment No. 145 will ensure that only those definitive map modification order applications for BOATs made before 19 May 2005, which are made correctly and in accordance with the statutory requirements, will be preserved by the transitional arrangements in Clause 65(3). Similarly, Amendment No. 148 will ensure that applications under Section 53(5) of the Wildlife and Countryside Act 1981 bring into question the right of the public to use the way only if they are made correctly and in accordance with Schedule 14 to that Act and that therefore the map modification order process will not be triggered by an incomplete or spurious application. Amendments Nos. 146 and 150 seek to amend government Amendments Nos. 145 and 148 so that, in order to be made ““correctly””, applications for definitive map modification orders must comply with both paragraphs 1 and 2 of Schedule 14 to the 1981 Act. That would ensure that the applicant had performed all the stages required to be completed prior to the determination of the application by the local authority before the application could be regarded as having been made ““correctly”” for the purposes of our Amendments Nos. 145 and 148. We agree that that would be sensible, in order to ensure that only complete applications are saved under Clause 65(3). We therefore undertake to consider this further with a view to coming up with government amendments with the effect intended by these amendments. Government Amendment No. 151 is simply a technical change. It does not in any way change the effect of this legislation. Government Amendments Nos. 152, 153 and 154 are in response to Amendment No. 327 tabled by the noble Lord, Lord Bradshaw, in Committee. They close a potential loophole in Clause 68 which may have enabled those driving illegally over former RUPPs to visit land designated for public access to claim immunity from prosecution under Section 34 of the Road Traffic Act 1988. This amendment specifically excludes such people from the exemption from prosecution, so that it is available only to those accessing their own property over former RUPPs, and their visitors. Amendments Nos. 154ZA and 154ZB would further close the possible loophole by extending the categories of land which might be considered to have public rights of access and therefore present further opportunity for those driving illegally over former RUPPs to visit land that has some form of public access to claim immunity from prosecution. We agree that it would be sensible to close this loophole as tightly as possible and therefore we will also consider these amendments. I beg to move.