8. Recording of highways
8.2: Wildlife and Countryside Act 1981 continued
George Laurence Q.C.
The legal implications of use by the public of carriageways on foot, horse or
with vehicles is analysed. The author concludes that the only such carriageways which may
be shown on the definitive map as byways open to all traffic (BOATs) are those
(i) which are used on foot, on horse and with
vehicles; and
(ii) where the vehicular use is exceeded by
the combined pedestrian and equestrian use.
David Braham Q.C.
A different analysis of the byway status of the carriageways described in the
preceding article by George Laurence Q.C. (RWLR s.8.2 p.87) as categories 6, 7, 8, 10 and
11, leads the author to conclude that, while some public use must be shown, and that use
must not be mainly use by motorists, the definition of byway open to all traffic covers
George Laurence Q.C.
The events which trigger a council's duty to make an order are those set forth
in subsection (3) of s.53 of the Wildlife and Countryside Act 1981. These are the events
whose occurrence causes the council to have to consider what modification it is requisite
to make to the map. Where these events justify modifying the map, the council has no
choice whether to make an order changing the map, merely some discretion as to the precise
form the change should take.
Louise Davies, B.A., B.C.L. Barrister
A case note
In the case of Buckland and others v. Secretary of State for the Environment,
Transport and the Regions, Kay J. considered the definition of a byway open to all traffic
in s.66(1) of the Wildlife and Countryside Act 1981 and concluded that the definition
required (1) current user and (2) that user by pedestrians and/or equestrians should
outweigh user by vehicles. He also decided that where an Inclosure Act empowered
Commissioners to set out public carriage roads forty feet in width, a provision in the
Inclosure Award made under that Act which (on one interpretation) awarded a public
carriage road of less than forty feet in width would (if that interpretation was correct)
be ultra vires.
David Braham Q.C.
A case note
Masters v. Secretary of State for the Environment,
Transport and the
Regions
S.66(1) of the Wildlife and Countryside Act 1981 defines a "byway open to all
traffic" as "a highway over which the public have a right of way for vehicular
and all other kinds of traffic but which is used by the public mainly for the purpose for
which footpaths and bridleways are so used".
The Court of Appeal held that in this context "mainly" means "wholly or
mainly" and that the definition covers public carriage roads that have fallen into
disuse but whose character makes them more likely to be used by walkers and horseriders
than by vehicles.
Colin Braham, M.A., M.Sc., Barrister
A case note
Definitive maps: `conclusive' provision of s.56 of the Wildlife and Countryside Act
1981; proper approach to an application under s.53 for an order deleting or downgrading a
way; extent of inspector's power to confirm order subject to modification.
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