Topical Issues
August 2008
The following matters are under debate. Representations are being made where appropriate.
Inspector powers
Defra advised in February that, other than exceptionally, inspectors cannot question Definitive Map Modification Orders on procedural grounds. That included compliance giving rise to exemption from the NERC Act. This was challenged by GLPG, and Defra helpfully changed its advice, agreeing that by virtue of the Winchester case, exemption is a matter of fact to be determined on the evidence, and it is the duty of inspectors to decide this issue. This was notified to PINS on 2 June.
Copies of documentary evidence
Hampshire County Council has commented that the Winchester judgment does not specify what constitutes a “copy” for exemption purposes. Tracings? Extracts? Quotes? We think that commonsense must prevail, and that the best practicable means of producing a likeness of the original is what is required. If a document is lengthy, all relevant passages must be copied and the original must be made available. The judgment deals with cases where copying is impossible. The bottom line is - if a document was challenged legally as not being a copy, would a court allow the challenge in the particular circumstances?
Applications with no identified evidence
One cannot copy a void. In this case, we believe the application is nothing more than a request for the authority to exercise its duty to review the Definitive Map, to which the authority does not need to respond in the absence of new evidence.
Authority’s application to itself
Two counties have been known to make BOAT applications to themselves, and then assert exemption because the applications were in time. This method is unlawful - confirmed by both Defra and Counsel last year. One county accepted this and reversed a BOAT determination. The other - Nottinghamshire County Council - proceeded with a BOAT order. This was provisionally modified in Oct 2007 to Restricted Byway on the basis of the advice. In Feb 2008, Defra advised that, in spite of unlawful procedure, the applications had to be regarded as valid, thus denying exemption and reverting to BOAT. GLPG challenged this and Defra has now helpfully reversed its advice (2 June) so that hopefully the inspector will finally decide on RB status. Four other pending cases in Notts depend on getting this right. If this situation is encountered elsewhere, refer to GLEAM for advice.
The 5-year main lawful user test
If a way has been used mainly by the public lawfully in mechanically propelled vehicles for five years ending on 2 May 2006, it is outside the provisions of the NERC Act which extinguish vehicular rights. The burden of proof of main lawful use is on the motorist. Defra, Counsel and GLEAM all say that assessment of “mainly” means producing evidence of all sorts of use - not just records of vehicle movements. Hampshire is one example of asserting the latter interpretation.
Go back to News Page to read about a Public Inquiry in the Yorkshire Dales where our interpretation of the 5-year main lawful user test was upheld.
The question also arises as to whether private use where private access rights exist can be counted towards public use. Defra, Counsel and GLEAM think not. The TRF try to argue otherwise.
Challenges to proposed BOAT orders
Challenges can be made at any of these stages: consultation, determination, order made and final confirmation. The scope for challenge varies considerably. Further information on this is available in a GLPG paper called Basic Guide to Claim Fighting. This is available on request, and is updated periodically.
Other NERC Act exceptions
Apart from pre cut-off claims and 5-year user, there are four other cases where the NERC Act doesn’t bite. These are where a route:
(i) is a publicly maintainable road and not on the Definitive Map, or
(ii) was created under express terms for use as a road, or
(iii) was constructed under an enactment with the intent of it being used as a road, or
(iv) is subject to vehicular rights established before 1930.
These exceptions will only apply rarely in cases of applications to upgrade existing rights. Again, more details can be found in the Basic Guide referred to above.
Enforcement
Counties have been very reticent in supporting prosecutions (encouraged by Defra) where BOAT applications have been made and where off-roaders have been driving illegally in the belief that they can defend a prosecution. Councils are not prosecuting agencies, and the police need to be encouraged at least to issue a warning notice under s59 Police Reform Act 2002 (details on request), or in appropriate cases to seize and impound the vehicle or to issue a summons. The Winchester case has made a large number of ways safe from defence by off-roaders and some counties are already changing their attitude to enforcement as a result of the Winchester case. As Defra rightly advises, to have a valid defence the burden of proof is on the motorist to prove both the existence of rights and that exemption applies.
Other local authorities are now being pressed to put up similar signs in their own areas.
August 2008
The following matters are under debate. Representations are being made where appropriate.
Inspector powers
Defra advised in February that, other than exceptionally, inspectors cannot question Definitive Map Modification Orders on procedural grounds. That included compliance giving rise to exemption from the NERC Act. This was challenged by GLPG, and Defra helpfully changed its advice, agreeing that by virtue of the Winchester case, exemption is a matter of fact to be determined on the evidence, and it is the duty of inspectors to decide this issue. This was notified to PINS on 2 June.
Copies of documentary evidence
Hampshire County Council has commented that the Winchester judgment does not specify what constitutes a “copy” for exemption purposes. Tracings? Extracts? Quotes? We think that commonsense must prevail, and that the best practicable means of producing a likeness of the original is what is required. If a document is lengthy, all relevant passages must be copied and the original must be made available. The judgment deals with cases where copying is impossible. The bottom line is - if a document was challenged legally as not being a copy, would a court allow the challenge in the particular circumstances?
Applications with no identified evidence
One cannot copy a void. In this case, we believe the application is nothing more than a request for the authority to exercise its duty to review the Definitive Map, to which the authority does not need to respond in the absence of new evidence.
Authority’s application to itself
Two counties have been known to make BOAT applications to themselves, and then assert exemption because the applications were in time. This method is unlawful - confirmed by both Defra and Counsel last year. One county accepted this and reversed a BOAT determination. The other - Nottinghamshire County Council - proceeded with a BOAT order. This was provisionally modified in Oct 2007 to Restricted Byway on the basis of the advice. In Feb 2008, Defra advised that, in spite of unlawful procedure, the applications had to be regarded as valid, thus denying exemption and reverting to BOAT. GLPG challenged this and Defra has now helpfully reversed its advice (2 June) so that hopefully the inspector will finally decide on RB status. Four other pending cases in Notts depend on getting this right. If this situation is encountered elsewhere, refer to GLEAM for advice.
The 5-year main lawful user test
If a way has been used mainly by the public lawfully in mechanically propelled vehicles for five years ending on 2 May 2006, it is outside the provisions of the NERC Act which extinguish vehicular rights. The burden of proof of main lawful use is on the motorist. Defra, Counsel and GLEAM all say that assessment of “mainly” means producing evidence of all sorts of use - not just records of vehicle movements. Hampshire is one example of asserting the latter interpretation.
Go back to News Page to read about a Public Inquiry in the Yorkshire Dales where our interpretation of the 5-year main lawful user test was upheld.
The question also arises as to whether private use where private access rights exist can be counted towards public use. Defra, Counsel and GLEAM think not. The TRF try to argue otherwise.
Challenges to proposed BOAT orders
Challenges can be made at any of these stages: consultation, determination, order made and final confirmation. The scope for challenge varies considerably. Further information on this is available in a GLPG paper called Basic Guide to Claim Fighting. This is available on request, and is updated periodically.
Other NERC Act exceptions
Apart from pre cut-off claims and 5-year user, there are four other cases where the NERC Act doesn’t bite. These are where a route:
(i) is a publicly maintainable road and not on the Definitive Map, or
(ii) was created under express terms for use as a road, or
(iii) was constructed under an enactment with the intent of it being used as a road, or
(iv) is subject to vehicular rights established before 1930.
These exceptions will only apply rarely in cases of applications to upgrade existing rights. Again, more details can be found in the Basic Guide referred to above.
Enforcement
Counties have been very reticent in supporting prosecutions (encouraged by Defra) where BOAT applications have been made and where off-roaders have been driving illegally in the belief that they can defend a prosecution. Councils are not prosecuting agencies, and the police need to be encouraged at least to issue a warning notice under s59 Police Reform Act 2002 (details on request), or in appropriate cases to seize and impound the vehicle or to issue a summons. The Winchester case has made a large number of ways safe from defence by off-roaders and some counties are already changing their attitude to enforcement as a result of the Winchester case. As Defra rightly advises, to have a valid defence the burden of proof is on the motorist to prove both the existence of rights and that exemption applies.
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BOAT Cul-de-Sacs All over the country there are many BOATs which end as cul-de-sacs for motor vehicles. These BOATs may start where they leave a normal tarmac road or another BOAT; but they become a cul-de-sac at the other end where they can only be exited onto a Restricted Byway or some lesser Right of Way. The number of these BOAT cul-de-sacs greatly increased following NERC Act, when all remaining RUPPs became Restricted Byways. In the Unitary Authority of West Berkshire alone, which is a small area compared with many counties, there are 13 such BOAT cul-de-sacs. Following requests from GLEAM, the West Berkshire Council has now put up signs at the start of all these BOATs which end as cul-de-sacs, saying that there is no through route for motor vehicles X miles ahead. A photograph of one of these signs is shown here. |
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Other local authorities are now being pressed to put up similar signs in their own areas.