Extinguishment of  unrecorded public vehicular rights under the NERC Act is subject to exceptions. One of these is where on 2 May 2006 there was no entry on the Definitive Map but the way was listed as being subject to maintenance at public expense.  The keeping of such a list (LoS) is required under s36(6) Highways Act 1980 which specifies that it should embrace all highways – defined as including footpaths and bridleways – and that it is “corrected up to date”.

These lists by highway authorities are erratic, there being no statutory procedure for compiling them, or for public consultation or correction.  They carry no authority as to public rights.  Most depend on incomplete records transferred under changes of responsibility between authorities.  Many are confined to perceived public carriageways.  Ways listed are commonly known by the term “UCR” (unclassified county road) which is obsolete, and practices differ as to what the term includes.  Many authorities keep the list in the form of a map or maps, not lists, and increasingly these are held electronically.

More than one BOAT claim objection has already been  referred to an inspector on the ground that a map is not a list, but that argument did not succeed.  Another objection was on the footing that the list was not corrected up to date.  A decision on the point was parked, given that the objection succeeded on other grounds.  Meanwhile, George Laurence QC, one of the leading rights of way lawyers in the country, suggested to a Rights of Way Review Committee conference in September 2009 that a list that does not embrace footpaths and bridleways is not a valid list for exemption purposes.  The issue then arose as one aspect of a long and complicated case – Fortune (etc) v Wiltshire CC and Taylor Wimpey (12 October 2010 – see http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2010/B33.html&query=fortune+v+wiltshire+cc&method=all ). A range of issues arose, but essentially Mr Laurence for the Claimant argued that a LoS that does not strictly comply with the specified requirements under s36 Highways Act 1980 is not a qualifying list for the purpose of exemption under the NERC Act. The judge disagreed, and found that a purposive and more flexible purpose should apply. He did however set a very useful set of criteria.  Making use of that case, an objection by GLPG in Leicestershire succeeded on the ground that, although the way was listed, it was expressly a private way which is outside the LoS definition.

Leave to appeal the Fortune judgment was initially refused, but the Court of Appeal overrode that and granted leave. The case was heard over 5 days in March 2012, judgment being handed down on 20 March – available at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/334.html&query=fortune+v+Wiltshire+CC&method=all . The NERCA issue is at the end of the judgment, from para 120 onwards.  The lower court judgment was not disturbed, and the only material new matter is clarification that computer held maps will suffice, provided they are available to the public.  A summary of the two cases (NERCA aspects only) is available to members on request.

The issue affects a number of otherwise straightforward rights of way cases. The judgments leave a number of questions unanswered and are fertile ground for circumstances not specifically covered. It remains to be seen how inspectors will react to arguments. Watch this space.