October 2009
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 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 Ways listed are commonly known by the term “UCR” (unclassified county road) which is out of date, and practices differ as to what the term includes. Many authorities keep the list in the form of a map or maps, not lists.
More than one BOAT claim objection has already been referred to an inspector on the ground that a map is not a list, but the 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, advised 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. We understand that the matter is before the court with a decision likely in the near future. This is very fertile ground for challenge.