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Garburn Pass – Restricted Byway confirmed

update January 2012

Two major fell passes – Walna Scar Road and Garburn Pass – were bridleways but have been in contention since BOAT claims were made by the TRF in 2005. Their argument was that public vehicular rights based on historic cart use did not pre-exist and that motor vehicular rights were created by motorbikes hill climbing before Dec 1930. If correct, it would engage exemption from extinguishment of motor vehicular rights under the NERC Act; but for this argument to succeed, it was necessary to show that historic horse-drawn vehicular rights did NOT exist, and that the degree of motor vehicle use DID establish rights under common law.

The Lake District National Park Authority (LDNPA), having looked at the law and the evidence, decided in both cases that they were caught by the NERC Act and so should be restricted byways (RB) – ie still open to horse-drawn vehicles but closed to motor vehicles. In both cases the TRF objected and won decisions from planning inspectors that BOAT status was correct. The resultant proposed modifications were challenged by GLPG, on the footing that the vehicular rights were created historically by horse and cart and so motoring rights are now extinguished, a matter of law confirmed by Defra if factually correct. Furthermore, the degree of use by motorbikes did not in any case meet the common law tests.

For the story on Walna Scar go to that item. Following extensive submissions by GLPG with substantial help from locals, the Garburn decision was reversed and RB status reinstated, as originally ordered. The inspector found that vehicular rights existed well before the hill climbing use started. The order was however modified as to width. That corrected a mistake in the first decision when the inspector forgot to give effect to his conclusion on the point, an error which entailed re-publication and a further objection period before the status could be confirmed. Objections could only be as to width however, and none were made. On 19 Sept 2011 the status was finally confirmed as RB.

It is now illegal to drive motors on Garburn Pass.