Moved by
Lord Skelmersdale
14: After Clause 23, insert the following new Clause—
“Presumed extinguishment of intrusive byways open to all traffic in limited circumstances
In section 116 of the Highways Act 1980 (power of magistrates’ court to authorise stopping up or diversion of highway), after subsection (1) insert—
“(1A) Where a byway open to all traffic passes through the curtilage of a residential dwelling including the gardens and driveways of the premises it is presumed that diversion of the highway so that it does not so pass will make the path more commodious and that the highway is unnecessary unless the court is satisfied that—
(a) the privacy, safety or security of the premises are not adversely affected by the existence or use of the path; or
(b) the path or way provides access to a vital local service or amenity not otherwise reasonably accessible.
(1B) In exercising the powers under this section, the authority and the court shall have particular regard to the presumption that a byway open to all traffic should not pass through the curtilage of residential premises including the gardens and driveways of the premises.
(1C) A “byway open to all traffic” means a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used mainly for the purposes for which footpaths and bridleways are so used.””