The Government's policy on byways open to all traffic (BOATs) is set out in a document entitled ‘Use of mechanically propelled vehicles on rights of way—the Government's framework for action’, which was published in January 2005. In this document we made clear our intention to legislate to curtail claims for vehicular rights of way, where those claims derive from historic use and dedication for use by non-mechanically propelled vehicles. These proposals now form the basis of Part 6 of the Natural Environment and Rural Communities Act 2006.
The case of ‘R on the Application of the Warden and Fellows of Winchester College and Humphrey Feeds Ltd v. Hampshire county council and the Secretary of State’ was essentially about what is meant by an: “application made in accordance with paragraph 1 of Schedule 14 to Wildlife and Countryside Act 1981”, within the meaning of section 67(6) of the 2006 Act and whether such an application, made for a byway open to all traffic, would have engaged the exceptions in section 67(3) of the Natural Environment and Rural Communities Act 2006 and thereby have preserved public rights of way for mechanically propelled vehicles that were the subject of such an application.
The Court of Appeal ruled that, for the purposes of section 67(6) of the 2006 Act, an application must be accompanied by copies of all the documentary evidence that the applicant wished to adduce or rely upon and a copy of a map drawn to the prescribed scale.
It seems likely that there are many cases pending where, in light of this judgment, the conclusion will be that, even where there was an application for a BOAT made before the relevant date (as set out in section 67(4) of the 2006 Act), the requirements of paragraph 1 of schedule 14 will have not been complied with, within the strict terms emphasised by the judgment, and therefore the public rights of way for mechanically propelled vehicles will have been extinguished.
Version 5 of DEFRA's online guidance on Part 6 of the Natural Environment and Rural Communities Act 2006, which will be published shortly, will include revised guidance on this aspect of the legislation. We have also issued revised guidance to rights of way inspectors to enable them to deal accordingly with any cases before them.