Brook Lane is currently classified as a bridleway. To upgrade a bridleway to a BOAT (bye way open to all traffic) can only be done under the auspices of Section 53 of the Wildlife and Countryside Act, 1981. To do this an application would have to be made, which would need to include evidence to support the application. The County Council have advised that there are several reasons why such an application would not be accepted, which are as follows.
The right to make an application to upgrade a route to a BOAT was extinguished by the provisions of the Natural Environment and Rural Communities Act 2006, except in certain circumstances.
- The first exception was where the route was shown on the Definitive Map and Statement and also included on the list of publicly maintainable highways kept under S36 of the Highways Act, 1980. In the case of Brook Lane, whilst the route is on the Definitive Map and Statement it is not on the list of streets, therefore, the exemption would not apply.
- The second exception that might apply would be where the route was presumed to have been dedicated before 1 April 1930. In effect, it would be necessary to prove that there was evidence of use from persons in mechanically propelled vehicles, whose use predated 1930, that the use was for 20 years and whose use continued after that date. Any use that related to access to any of the properties that are located along the line of the route would be excluded as that would be regarded as stemming from a private right. That would include all lawful visitors, such as refuse collection, postal deliveries, milk delivery and so forth. Any person living along the line of the route would be deemed to have a private right of access and so their usage would be discounted. Any use by a person in a motor vehicle that dated after 1949, when the route became a bridleway, would have to have a private right attached to it, otherwise the use might be considered a criminal offence. In light of the dates quoted the County Council have suggested that this is likely to be a mathematical improbability.
Finally, the definition of a BOAT has been considered by the Courts and they have said that such a classification is not to reflect a way that is used mainly by vehicles but one that is used predominately by walkers and riders. In effect the exercise of the latter two public rights should outweigh that of the motorist. It would also mean that landowners may not necessarily be able to rely on that classification to gain access to their properties for to do so would not be in pursuit of a public right but a private one.
Therefore, the conclusion of the County Council is that as the exceptions set out above do not apply an application to reclassify the bridleway to a BOAT could not be made.