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Somerset TRF's hand smacked on misguided use of 5-year user test - attempt to regain lost ground results in criminal conduct and heavy fines imposed on off-roaders

Update October 2012

In 2008, a very large number of BOAT claims by the Somerset TRF (STRF) were thrown out as being invalid, after argument by GLPG was confirmed by the Winchester case.  Of those, 102 would have benefited from exemption from NERCA as being pre cut-off (January 2005) but for non-compliance with statutory requirements.  A misguided attempt to win back lost ground started in 2011 with a repeat of some of the claims on a different footing.  STRF members have been led to believe (i) that proof of the main lawful public use in 2001-2006 having been in motor vehicles (the ’5-year user test’) would gain NERCA exemption and thus allow BOAT orders, and (ii) that existence of claims gives protection against prosecution.

Aided by confused and ill-informed advice from Somerset CC (SCC), TRF members caught riding illegally on restricted byways (RBs) asserted aggressively that SCC and the police had given the OK to such use.  SCC and the police hotly denied that they had done so, but it has been put to SCC that, as a result of ambivalence, they are failing in their statutory duty (s130 Highways Act 1980) to assert and protect the use and enjoyment of rights of way by legal users.

It has also been pointed out to SCC that:

  • For technical reasons the claims are invalid.
  • Highway authorities cannot make BOAT orders where NERCA exemption relies solely on the user test, the reason for this being that the relevant provision was intended to protect the ‘ordinary roads network’, not green lanes. For that reason the claims should be rejected as being outside the competency of SCC.
  • The evidence of use is wholly inadequate as a basis for deciding the user test.
  • To avoid uncertainty, there is an immediate need to deal with these claims irrespective of the Priorities policy (compounded by the existence of a backlog of some 240 applications of various sorts), as the potential for gathering relevant evidence is fast disappearing.
  • The matter of the user test can in any case be taken as a separate preliminary issue without any need to research historical rights.  If the test fails, motor rights have been extinguished. Meanwhile, SCC has no method in place to obtain the relevant evidence.

These matters were discussed at a meeting with senior officers in April 2012.  As a result, SCC very helpfully wrote to the STRF and the police confirming clearly that motoring on RBs is an offence and that protection is not afforded simply by having an application in place.  It remains true that, as with any criminal offence, it is open to the defendant to prove that no offence has been committed, in this case because rights have been proved both to exist and not to have been extinguished.

SCC agreed to take legal advice as to the handling of the claims. Regrettably, the reference was subject to a faulty brief and the advice is defective. Reference was also made to Defra who gave an ill-informed reply, also due to faulty briefing. The decision was then taken to do nothing with the claims until they reach their turn in the distant future, thus totally ignoring the problems of getting user evidence that is topical. Meanwhile, a meeting with the police took place as to handling prosecutions. It took a month for the minutes to be ‘typed up’ and when revealed disclosed matters of concern. SCC then met the TRF and it appears that yet more misinformation is being wished upon the Council.

Meanwhile, TRF members were caught redhanded and reported.  Regrettably, the resultant prosecution had to be withdrawn simply because of an administrative error on the part of the police.  Subsequently, however, three other off-roaders (doubtless influenced by the misconceptions of the TRF) were caught driving on RBs and reported.  In September they were fined respectively £500, £155 and £130.