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The 5-year mpv Main Lawful User Test

update February 2012

The NERC Act makes provision for a number of exemptions from the extinguishment of public mechanically propelled vehicular (mpv) rights. Section 67(2)(a) says that if the main lawful public use of a route during the five year period ending on 2 May 2006 was by mpvs, then mpv rights on that route are not extinguished. The onus of proving the balance of lawful use being mainly by mpvs lies with the mpv users.

Moor Head Lane damage

A group of trail riders attempted to use this section of NERC in order to change the status of a section of Moor Head Lane, in the Yorkshire Dales, from Restricted Byway to Byway Open to All Traffic. They presented their case at a Public Inquiry on 1 July 2008. The Inspector issued his decision on 29 July. The Inspector concluded that the trail riders had failed to show, on balance of probabilities, that the main use of Moor Head Lane was by mpvs ( see FPS/C9499/7/7 below).

The trail riders’ case rested chiefly on written testimony supplied by nearly 90 trail riders. This recorded their assertions that they had ridden the route at various times during the five year period. A supplementary part of the trail riders’ case was an assertion that the badly-damaged state of the route would have reduced its appeal to non-motorised users to such an extent that their numbers were vanishingly small.

The Inspector was not persuaded. He accepted evidence, supplied by the Yorkshire Dales National Park Authority and by the Yorkshire Dales Green Lanes Alliance, that there was plenty of non-motorised use of the route. But his decision rested on his view that simple evidence of use by one group or another may not be sufficiently wide to establish the crucial comparison between motorised and non-motorised use. What would be desirable to make a ‘5-year main lawful use’ case would be rigorous, impartial surveys of the balance of use during the 5-year period. No such surveys were undertaken on Moor Head Lane, but earlier surveys were sufficient, on the balance of probabilities, to demonstrate non-mpv predominance.

Off-roaders may produce evidence of their own use over these five years, probably based on their own personal subjective recollections. However, evidence of use by other users, on foot, on horseback, on pedal cycles and in horse-drawn vehicles, probably does not exist. This is because, at the time, there was no requirement or incentive to record it. In such cases it is simply not possible to prove any balance of main use, by mpvs or by anyone else.

The Moor Head Lane Inquiry has wide implications. 4×4 and motorcycle user groups all over the country are gathering testimony from their members of motorised use of many green lanes. This is in the belief that their testimony will be sufficient in itself to establish 5-year main lawful use. Defra, Counsel and GLEAM all say that assessment of “mainly” means producing evidence of all sorts of use – not just records of vehicle movements. Hampshire is one county asserting the correct interpretation.

On the strength of the Moor Head Lane Inquiry, the balance has to be proved. This Inspector’s decision will thus be a useful precedent for future inquiries based on the 5-year main lawful use test.  Two later Order Decisions also support this approach.  All three may be viewed on the PINS website as FPS/C9499/7/7 (Moor Head Lane -YDNPA 29.7.08 – entire); FPS/J1155/7/83 (Devon 16.12.10 – paras 16-19) and FPS/G1440/7/16 (East Sussex interim 15.2.11 – paras 23-28 – confirmed later). The matter was also considered in a Derbyshire case – FPS/U1050/7/40M+44M (Derby 2.6.09 – paras 33 and 34).

The question also arises as to whether private use where private access rights exist can be counted towards public use. Defra, Counsel and GLEAM think not. LARA has tried rather lamely to argue otherwise in the Rights of Way Review Committee, but a senior rights of way officer from Hampshire CC, representing the Institute of Public Rights of Way and Access Management (IPRoW), declines to agree.