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Public Nuisance off-roading - Derbyshire and now the Lake District

February 2010

Public nuisance extends its tentacles.  The subject first arose in the Bakewell case when the court held that dedication could be based on unlawful use if the landowner had the capacity to make the use lawful, but did not do so.  That did not however extend to criminal activity such as public nuisance.  Thereafter, the argument in the context of BOAT claims was first used in Derbyshire in 2009 but now extends to the Lake District.

The County Council had made two orders for three limbs of a Y-shaped route (partly known as Silly Dale) to become bridleways as they were so designated in Inclosure Awards in 1812/1814. The inspector found however that vehicular rights had been potentially established by way of 20 year use. Both orders were made by DCC in response to BOAT claims made in 2003 which were therefore potentially exempt from the extinguishment provisions of the NERC Act , but the claims failed under the Winchester case (s67(3)(a) and 67(6)) because no copy documents had been supplied. On that basis one limb would be a Restricted Byway. The other two limbs were however on the List of Streets (and not already on the Definitive Map) and so were exempt from the NERC Act extinguishment under s67(2)(b). For that reason they were held to be BOATs, apart from the end section of the bottom limb which was tarmaced and found to be a normal vehicular road higher than the definition of BOAT.

Various objections to the proposed modifications led to a second inquiry. The primary objection was that vehicular rights cannot arise from long use (which generates presumed dedication) if that use has been a public nuisance, because public nuisance is a criminal offence. Extensive nuisance evidence involved hazardous encounter in narrow places, serious rutting, prevention of use by horses, prevention of use by schoolchildren on nature walks, disturbance from noise, danger to driven stock, damage to walls, and complaints to the highway authority. That argument was accepted by the inspector who therefore confirmed the original bridleway order over the entire route. See the decision.

The Lakes
In a new twist, the TRF have claimed that motor vehicles were solely responsible for establishing dedication  under common law rules (as distinct from the modern 20 year rule) by hill climbing on motorbikes in the 1920s on Walna Scar Pass which leads westwards from Coniston.  If that use was sufficient before 1930, exemption  from the extinguishment of vehicular rights under the NERC Act is achieved provided that horses and carts had not already established vehicular rights historically.  Given very short term motorised use, reliance has been placed on “notoriety”, which is one of the criteria for dedication under common law.  That notoriety is based on the fact that everyone in the neighbourhood would have been affected by the disturbance and so the landowners must have known about it.  It is very difficult to see how the inspector, who endorsed the claim of disturbance in his interim decision, can do other than find in the final decision that it amounted to public nuisance and therefore failed the dedication test.  The jury is out and the result will be faithfully reported.

For a detailed appreciation by GLPG of the law of public nuisance in this context, see the Guidance section.