Sections 47 to 52: Definitive Maps and Statements and Restricted Byways
82.Currently, surveying authorities (normally the unitary authority, or the county council where there are two tiers of local government) are required to prepare and keep under review their definitive map and statement(s). These form the legal record of public rights of way in their area. The existing classes of public rights of way covered by these maps and statements are:
Footpaths: highways over which there is a public right of way on foot only.
Bridleways: highways over which pedestrians, horse riders and bicyclists (who must give way to people on foot or on horseback) have public rights of way. A bridleway may also carry a public right to drive animals.
Byways open to all traffic (BOATs): highways over which the public right of way is for vehicles and all other kinds of traffic, but which are used mainly for the purposes for which footpaths and bridleways are used.
Roads Used as Public Paths (RUPPs): an earlier classification used for various kinds of highway. Section 54 of the Wildlife and Countryside Act 1981 requires surveying authorities to review all RUPPs appearing on their definitive maps and reclassify them according to the rights which are found to exist. If vehicular rights are shown to exist over a RUPP then it should be reclassified as a byway open to all traffic. If no vehicular rights are shown to exist, a RUPP should be reclassified as a bridleway, unless bridleway rights are shown not to exist, in which case it should be reclassified as a footpath.
83.Sections 47 and 48 provide for a general redesignation of RUPPs, which are instead to be treated as shown in definitive maps and statements as restricted byways. All RUPPs will become restricted byways (defined in section 48) unless they already carry full vehicular rights of way and surveying authorities will be relieved of their current duty to reclassify RUPPs. Anyone with evidence of full vehicular rights over a particular way will still be entitled to apply for an order for its reclassification in the map and statement as a BOAT.
84.Section 47 repeals section 54 of the Wildlife and Countryside Act 1981 and provides that every road used as a public path which is shown in a definitive map and statement is to be treated as shown as a restricted byway.
85.Section 48 specifies that the public is to have restricted byway rights over ways shown in a definitive map and statement as RUPPs. It sets out what those rights are and stipulates that the existence of those rights is without prejudice to other rights, including public rights of way for mechanically propelled vehicles. It also requires that the relevant commencement orders made under section 103 preserve pre-commencement orders, and applications for orders, modifying the status of a RUPP so that they will be processed to a final determination.
86.Section 49 provides for the RUPPs affected by provisions in section 48 to be highways maintainable at the public expense. Private liabilities to maintain RUPPs over which restricted byway rights are created and which do not carry full vehicular rights are extinguished. Section 49 also provides for those RUPPs reclassified under section 54 of the 1981 Act, and earlier legislation, to remain maintainable at the public expense. It also sets out that highway authorities are not to be obliged to provide metalled or similar surfaces on former RUPPs merely because they have been re-designated as restricted byways or BOATs.
87.Section 50 ensures that the conditions or limitations to which a RUPP was dedicated, such as a right to erect a gate on it or plough its surface, shall continue to be exercisable. It also provides a vehicular right of access to certain owners of property adjoining or adjacent to former RUPPs.
88.Section 51 introduces Schedule 5, which contains amendments relating to definitive maps and statements and restricted byways. Paragraph 1 makes consequential amendments to section 53 of the Wildlife and Countryside Act 1981. It also allows for evidence of full vehicular rights over a way shown as a restricted byway which has already been considered by a surveying authority to constitute the basis of an application to have such a way shown as a byway open to all traffic. Paragraph 2 makes an amendment of a procedural nature relating to the circumstances in which the definitive map and statement can be modified when a legal event has occurred. The new section 53A inserted in the 1981 Act makes it possible for surveying authorities to include in those orders which are prescribed by regulation provision to modify the definitive map and statement. Regulation making powers are provided, for example, to set out how the relevant date is to be determined in the case of such orders and to regulate the procedure governing the new power.
89.Paragraph 2 also inserts a new section 53B into the 1981 Act requiring surveying authorities to keep a register of applications made under section 53(5) of that Act. Paragraph 3 provides for transitional arrangements for modifying the definitive map between enactment and the commencement of section 47 of the Countryside and Rights of Way Act 2000.
90.Paragraph 4 of Schedule 5 inserts a new section 54A into the Wildlife and Countryside Act 1981. The new section prevents any order being made after the cut-off date (1 January 2026) to record a BOAT on a definitive map except in the place of any other way already recorded in the definitive map. The new section also empowers the Secretary of State or the National Assembly for Wales to make regulations containing transitional provisions and for extending the cut-off date.
91.Paragraph 5 amends section 55 of the Wildlife and Countryside Act 1981 to provide that certain roads used as public paths that had been reclassified under the provisions of the National Parks and Access to the Countryside Act 1949 become maintainable at the public expense.
92.Paragraph 7 widens the power of the Secretary of State or the National Assembly for Wales to make regulations prescribing the scale of definitive maps to cover all maps made under Part III of the Wildlife and Countryside 1981. In addition, paragraph 7 amends section 57 of the 1981 Act to empower the Secretary of State or the National Assembly for Wales to make regulations requiring surveying authorities to keep, and make available to the public and other local authorities, documents relating to the status of rights of way.
93.Paragraph 8 empowers surveying authorities to consolidate their definitive maps, incorporating any parts of maps inherited from other authorities following local government boundary changes. Maps may not be consolidated if any orders required to record changes made to an authority’s rights of way are outstanding. Surveying authorities are required to keep, and make available to the public, copies of all maps which are superseded by a consolidated map.
94.Paragraph 10 of Schedule 5 amends Schedule 14 to the Wildlife and Countryside Act 1981 to enable the Secretary of State or the National Assembly for Wales, when directing an authority to make an order on appeal, to set a deadline by which the order should be made.
95.Paragraph 11 of Schedule 5 amends Schedule 15 to the Wildlife and Countryside Act 1981. It inserts a new paragraph 7(2A) into the Schedule to give the Secretary of State or the National Assembly for Wales discretion as to whether to hold an inquiry or hearing into a definitive map modification order if the only objection(s) relate to an issue which would not be relevant in determining whether or not to confirm an order. A new paragraph 10A applies to hearings into disputed orders certain provisions in section 250 of the Local Government Act 1972 relating to the summonsing of witnesses and the award of costs which currently apply only to public inquiries under Schedule 15. It also enables the Inspector holding a hearing or inquiry to award costs and enables costs to be awarded when a hearing or inquiry does not take place.
96.Schedule 5 also contains, in Part II, amendments relating to the provisions in sections 47 to 50 creating the new category of public right of way, "restricted byway", in place of ways presently recorded on definitive maps as RUPPs. The amendments mainly provide for legislation which applies to RUPPs to apply instead to restricted byways.
97.Section 52 enables the Secretary of State to make regulations providing for any existing legislation applying to highways, or to highways of a particular kind (such as footpaths or bridleways) to apply, or to be excluded from applying, to restricted byways or ways shown in a definitive map and statement as restricted byways. This power could, for example, be used to enable new restricted byways to be created. There is also power to make consequential amendments. When making these regulations, the Secretary of State is required to consult the National Assembly for Wales before making provision which affects Wales and to obtain the Assembly’s consent before expressly amending or revoking secondary legislation made by the Assembly. Section 52 also empowers the National Assembly for Wales to make regulations amending certain classes of legislation relating to Wales to take account of restricted byways. These classes are: any local or private Act passed before or in the same session as this Act and relating only to Wales; and, any secondary legislation made before enactment of this Act which the Assembly has the power to amend or revoke as respects Wales. The Assembly may also submit to the Secretary of State proposals for amendments or repeals to be made by him using his own regulation-making powers.