Restricted Byway

Merlinia

Just had our survey back and the property we were proposing to buy is off a restricted byway.  Under the Road Traffic Act 1988 it is illegal to drive a motorised vehicle over it.  The house is 20 years ago.  Has anyone any experience of this please?

user1977

Seems a slightly odd thing for a surveyor to pronounce upon. What does your solicitor think?

canaldumidi

It's certainly helpful for the suveyor to have highlighted this, but as user1977 says it's a legal issue. Ask your solicitor to check, and then to advise you.

Merlinia

My solicitor is of the opinion that it is illegal to drive over a restricted byway.  I have spoken to the local council and they have confirmed this.  She warns it will be difficult to resell the property if we need to.  Surveyor is suggesting a drop in valuation of about £30K

Section62

Merlinia said:

Just had our survey back and the property we were proposing to buy is off a restricted byway.  Under the Road Traffic Act 1988 it is illegal to drive a motorised vehicle over it.  The house is 20 years ago.  Has anyone any experience of this please?

Restricted Byways are a classification of highway which was created in 2006 when highways which where previously known as Roads Used as Public Paths (RUPP) were statutorily converted to Restricted Byways. (Local Authorities were supposed to be sorting out the historic mess of RUPPs, but in 2000 the Government got fed up and just changed the law)

There are also some cases where other highways have been reclassified as RUPPs by order, and a further complication with highways known as Byways Open to All Traffic (BOATs).  As with a lot of legislation from that era, the practice does vary quite a lot from the theory, and there has been subsequent tidying up legislation.

TBH you will be very fortunate if your solicitor understands the significance of and restrictions applying to a Restricted Byway - your surveyor has done you a massive favour flagging this issue up - as even some of the more knowledgeable highways department staff don't really understand the law in this area. Typically this is a niche subject only understood by LA Rights of Way officers (I don't claim to understand it myself).

One of the more comprehensible guides was published by DEFRA in 2008.  It is out of date and archived on the TNA site, but really is the essential starting point in trying to understand what happened in 2006 and the legal implications -
https://webarchive.nationalarchives.gov.uk/ukgwa/20130402151656/http://archive.defra.gov.uk/rural/documents/countryside/prow/nercactv5.pdf

From your point of view you need to find out whether the property has a mechanically propelled vehicle access right.  Rights can either be 'Public' or 'Private', which further confuses things. There are various exemptions/immunities from prosecution for different cases of land ownership/interests applying to different highway classifications (i.e. the system is still a mess).

The safest thing to do would be to get your solicitor to get the Highway Authority's Rights of Way officer to confirm (in writing) that the occupier of that property (and importantly, also their visitors) are permitted to drive a mechanically propelled vehicle over such length of the Restricted Byway as necessary to access the property from the nearest road open to all traffic.

It might be the current owner already has such confirmation.  You should also be aware that making the enquiry to the HA might result in them finding the current owner is using the Restricted Byway unlawfully - which they obviously wouldn't be happy about - but you've got to weigh up the risks of upsetting the vendor vs buying a property with no vehicular access.

Section62

Merlinia said:

My solicitor is of the opinion that it is illegal to drive over a restricted byway.  I have spoken to the local council and they have confirmed this.  She warns it will be difficult to resell the property if we need to.  Surveyor is suggesting a drop in valuation of about £30K

Crossposted - responses as I suspected!

Who did you speak to at the council, are they someone who would fully understand the law?

The generic answer to the question is that it is unlawful to drive a mechanically propelled vehicle on a Restricted Byway - but there are multiple ways in which it can be lawful for specific individuals to do so in specific circumstances.

The question needs to be put to the Highway Authority in the form I suggested, and if the answer is still 'no', you need to ask them to explain why no exemption/immunity applies in this case.

peterhjohnson

A Restricted Byway is one of the several kinds of public right of way. There are many private roads that are also public footpaths, etc.

JohnCox25

I don't kow if this thread is still going, but at the last minute our buyers lender fused them a second mortgage offer (first one ran out of time) (which does not make sense as the first offer was okay). The was because we had a restricted byway leading to our property. After consulting back and forth with the LA byways, I was informed that there IS private vehicular rights for owners of properties who relied on these paths to access their properties, so, private vehicular rights are retained under the NERC Act (The Natural Environment and Rural Communities Act 2006). (This is for Wales, but I'm not sure if it is the same for the rest of the UK)

Quote: "the path around your property was formerly a Cart Road Bridleway (CRB).  These types of paths were problematic in that the use by the public in vehicles was not certain.  The Government therefore introduced the Natural Environment and Communities Act (NERC Act) which came into force in Wales on 20th May 2005.  This had the effect of introducing a new status of path called Restricted Byways.  All CRB’s were automatically changed at this time to Restricted Byways.  The public can therefore use Restricted Byway (xx Area name) on foot, leading or riding a horse, on bicycle and with a horse and cart.

Section 6 of the NERC act retained private vehicular rights for owners of properties who relied on these paths to access their properties.  You advised that your property was in use prior to the commencement of the act and therefore any private vehicular rights you might have are retained. Now I' don't know what it would be for properties built after 20th May 2005 ( and I've not viewed the act just the section concerning my RB),but there maybe something in the NERC Act that accounts for new build on a RB