update January 2012
Two major fell passes – Walna Scar Road and Garburn Pass – were bridleways but have been in contention since BOAT claims were made by the TRF in 2005. Their argument was that public vehicular rights based on historic cart use did not pre-exist and that motor vehicular rights were created by motorbikes hill climbing before Dec 1930. If correct, it would engage exemption from extinguishment of motor vehicular rights under the NERC Act; but for this argument to succeed, it was necessary to show that historic horse-drawn vehicular rights did NOT exist, and that the degree of motor vehicle use DID establish rights under common law.
The Lake District National Park Authority (LDNPA), having looked at the law and the evidence, decided in both cases that they were caught by the NERC Act and so should be restricted byways (RB) – ie still open to horse-drawn vehicles but closed to motor vehicles. In both cases the TRF objected and won decisions from planning inspectors that BOAT status was correct. The resultant proposed modifications were challenged by GLPG, on the footing that the vehicular rights were created historically by horse and cart and so motoring rights are now extinguished, a matter of law confirmed by Defra if factually correct. Furthermore, the degree of use by motorbikes did not in any case meet the common law tests.
For the story on Garburn Pass go to that item. Walna was decided finally (at the time) by the same inspector as before, who seemed hell bent on confirming his first decision irrespective of the mass of evidence and legal argument to the contrary. His decision was one of the most perverse and legally misguided on record, and was compounded by a major procedural error on the part of PINS for which they graciously apologized. An appeal made personally to the High Court (GLPG as an alliance has no standing to initiate legal proceedings) was lodged by GLPG’s solicitors on nine grounds. Of those, seven were straightforward errors of law, one was debatable and one was a procedural nonsense. Defra, on behalf of PINS, decided to concede the appeal, using the procedural error as being the easiest way forward. It was confirmed that the other grounds had not been addressed at all, simply to keep costs down. By consent, the High Court issued an order which quashed the inspector’s confirmation, with costs payable by Defra.
When an order is quashed, the position reverts to the authority’s decision process which it can either repeat or reconsider. A new order must then be made. LDNPA, having reviewed the evidence fully, renewed the original RB order in January 2011. Given that the evidence was overwhelmingly in favour of historic cartway rights, and against achievement of vehicular rights by hill climbing in the 1920s, any commonsense view based on an informed understanding of the law would be that the Park Authority was right in the first place. The TRF nonetheless objected without giving any reason at all. The matter was therefore referred again to PINS and the TRF were threatened with a costs claim. Happily, the TRF saw the light and withdrew their objection. It then became a formality for the inspector to decide in GLPG’s favour and confirm RB status, which he did on 23 Jan 2012. It is now a criminal offence to drive motors on Walna Scar.