1. All public rights of way are highways in law. On a footpath, the right of way is on foot only. On a bridleway, the right of way is on foot and on horseback. But beyond these well-known types of highway, there are others over which vehicular rights subsist, or where the classification of a right of way is unknown. This advice note aims to provide clarification. It will also outline the evolution of law respecting vehicular rights of way.
2. The Ramblers' Association has for some time been concerned about the impact of some vehicles (i.e. those which are mechanically propelled, like quad bikes and 4x4s) using unsuitable tracks for recreational off-roading. Find out about what we've been doing on this issue, and what action you can take here.
Byways, restricted byways and other tracks 3. Byways open to all traffic (BOATs) On a BOAT there's a right of way on foot, on horseback, on a pedal cycle and in or on a vehicle. Although legally open to all vehicles (including mechanically-propelled vehicles), BOATs are defined by parliament as routes used mainly on foot or on horseback, and it is this definition which distinguishes BOATs from unclassified roads. BOATs fall to be recorded on the definitive map.
4. Restricted Byways On a restricted byway there is a right of way on foot, on horseback, on a pedal cycle or any other non-mechanically propelled vehicle (such as a horse-drawn carriage). There is no public right of way for mechanically-propelled vehicles. Restricted byways fall to be recorded on the definitive map.
5. Green lanes The term 'green lane' has no legal meaning, but is symbolic of the often ancient, unsurfaced tracks that form part of the rights of way network. In law many green lanes are classed and recorded on the definitive map as BOATs, but some may be footpaths, bridleways or restricted byways.
6. White roads and Other routes with public access 'ORPAs' An examination of any Ordnance Survey (OS) map will show lots of uncoloured tracks, commonly referred to as "white roads". Because the OS map does not provide conclusive evidence about the existence of public rights (only the definitive map does this), it is not always possible to tell whether white roads carry public rights.
7. Some white roads will be public and some will be private. Those of them which are public (i.e. they have been 'adopted' by the relevant highway authority - the county council or unitary authority for the area) are commonly depicted on OS maps as white roads with green or red dots, and referred to in the key as ORPAs (other routes with public access). You can't tell what public rights subsist over an ORPA (i.e. whether there's a right of way on foot only, or whether 'higher' rights - such as a right of way on horseback, or in a vehicle - subsist), only that there must at least be a public right of way on foot.
8. ORPAs do not fall to be recorded on the definitive map, but it may be possible to claim an ORPA as a class of highway that does fall to be recorded (i.e. a footpath, bridleway, restricted byway or BOAT - depending on the available evidence). Because of the approaching cut-off date for the recording of historic rights of way, which the Ramblers' Association is campaigning against, it is advisable in the interest of protecting public rights to put a claim in as soon as possible.
9. The National Parks and Access to the Countryside Act 1949 charged surveying authorities (i.e. county councils and unitary authorities) with mapping all rights of way in their areas and reclassifying them as footpaths, bridleways or Roads Used As Public Paths (RUPPs). The idea was to protect rights of way for posterity by formally recording them on the definitive map.
10. But the definition of RUPPs in the 1949 Act was flawed; it was never clear what rights subsisted over RUPPs - some carried vehicular rights and others didn't. Decades of confusion followed with Parliament making several attempts to clarify the situation. In 1981 new legislation required surveying authorities to reclassify RUPPs as either footpaths, bridleways, restricted byways or BOATs, depending on what the user or documentary evidence suggested. But the reclassification process was slow, prompting the enactment of legislation in 2000 which automatically reclassified all RUPPs as restricted byways.
11. The Natural Environment and Rural Communities Act 2006 dramatically reduced scope for claiming mechanically-propelled vehicular (MPV) rights over rights of way. The law was a response to mounting concerns about the environmental and safety implications of recreational off-road driving on unsurfaced country tracks.
12. The 2006 Act changed the law by distinguishing mechanically-propelled vehicles (MPVs) from non-mechanically propelled vehicles for the first time. Before, a right of way for horse-drawn carriages was automatically a right of way for motor cars, quad bikes or any other type of vehicle, regardless of whether the route was suitable. Now, subject to the exceptions outlined below, long use by horse and carriage cannot bring MPV rights into existence, and, unless the exceptions are satisfied, a horse and carriage way may only be recorded as a restricted byway, over which there are no MPV rights.
13. All MPV rights were extinguished on the commencement date of the 2006 Act (2nd May 2006 (England) or 11th May 2006 (Wales)), unless:
- Use by MPVs was the main lawful use of the way during the five years before the commencement date. (This exception is designed to protect the ordinary road network.)
The way in question was, immediately prior to the commencement date, shown on the ‘list of streets’ (a document held by the highway authority that shows publicly maintainable highways in an area) but not on the definitive map and statement. The way is the subject of an application for the addition of MPV rights that was duly made before 20 January 2005 (England) or 19 May 2005 (Wales). The way is the subject of an application for the addition of MPV rights that was duly made after 20 January 2005 (England) or 19 May 2005 (Wales) and where the application had been determined by the commencement date. The way is the subject of an application made by a property owner before the commencement date, where the way is the sole means of access to his or her property and where they have failed to establish a private right of way. 14. The Act does not extinguish MPV rights over ways which are already recorded on definitive maps as BOATs. Where unsustainable MPV use causes damage to rights of way, or constitutes a danger to other users, the relevant highway authority (i.e. the county council, unitary authority) or - if applicable - the national park authority should be urged to take action.
15. This might mean discussing voluntary restraint procedures and other management measures with user groups. An authority also has the option of preventing MPV access by imposing traffic regulation orders (TROs) under the provisions of the Road Traffic Regulation Act 1984. Other means of approaching the issue are outlined in Vehicles in the Countryside.
Further information A host of information and guidance can be found on the Department for Environment, Food and Rural Affairs (Defra) website.
Rights of Way: a guide to law and practice 4th Edition, John Riddall and John Trevelyan, The Ramblers Association and Open Spaces Society, 2007.
