update July 2010
One of the welcome aspects of the NERC Act is the provision that gives National Park Authorities their own powers to make Traffic Regulation Orders (TROs). Hitherto, these powers were reserved to the local Highway Authority. The Yorkshire Dales National Park Authority is the first, so far as we know, to have made use of its new powers. In 2007, it drew up a list of all the green lanes in the national park that appeared to have escaped the clutches of the NERC Act, and which, as a consequence, either still have, or may have, vehicular rights. There are just over 100 such routes on the list. Next, officers of the Authority selected from the full list a group of about 20 that are particularly sensitive to use by motor vehicles, and which have especially high landscape and amenity value to the non-motorised public. A rigorous programme of surveys of these vulnerable routes was undertaken.
Then, an extensive series of consultations was conducted. An advisory group, including motorcycle and 4×4 users, was set up. The views of the Local Access Forum, the general public and interested organisations were sought. Opposition to the imposition of full TROs came, as might be expected, exclusively from vehicle users. But their opposition was countered, at a rate of more than three to one, by responses from a wide range of Dales opinion that wanted TROs to be imposed. Support for TROs came from parish councils, from farmers, from individual cyclists, and from many more citizens and organisations. The results of these consultations were presented at two successive meetings of the Authority’s Access Committee. At its meeting on 16 April 2008, the Access Committee resolved to make full, 24-hour, 7 days a week TROs on eight routes.
The Committee also resolved to push a further five green lanes forward to the next stage of public consultation. Responses to this consultation were 5 to 1 in favour of TROs. This consultation completed, TROs were made on these five routes on 3 August 2008.
The Park Authority followed the procedures laid down by the NERC Act with exemplary thoroughness. Disgruntled off-roaders scrutinised every stage in this long-drawn-out process in the hope of finding a loophole big enough to admit a legal challenge of some sort. LARA, the umbrella organisation for many off-roading organisations, took the Park Authority to court for judicial review of eight orders. Regrettably, the Park Authority lost on a technicality in respect of four of these, judgment being handed down on 19th June 2009. A report by the Yorkshire Dales Green Lanes Alliance, including a link to the full judgment, is at Appendix 1.
Commentators forecast that this would be a hollow victory and that the Park would continue to meet its responsibility to protect the environment and the amenity of non-motorised users. That is now happening. The Authority decided this month to reinstate the permanent ban on motor vehicles on Gorbeck Road (part of the Pennine Bridleway), perhaps the most important of the four TROs quashed last year. The Park Authority is not considering reinstating the other three TROs as these routes do not have end-to-end rights for motor vehicles, in part as a result of the Winchester judgment, whereas Gorbeck is BOAT throughout. Overall, LARA has gained nothing from the costly and time wasting exercise.
The reinstatement of the TRO on Gorbeck has taken 12 months to achieve because the Park Authority reassessed the need for, and options for, management of motor vehicles on Gorbeck, before starting the TRO consultation and decision-making process. Other National Park Authorities and Highway Authorities contemplating TROs may find a study of the Yorkshire Dales process useful, both as taking account of the requirements identified in the High Court judgment, and generally in its thoroughness.
It is interesting to note that NYTMAG, the local umbrella group for motorised users, accepted that some form of management was needed on Gorbeck, and proposed a seasonal, winter-only, TRO. The Yorkshire Dales Green Lanes Alliance is grateful for the support of fellow GLPG members, in providing evidence against such a seasonal TRO and for an all-year round ban, during the public consultation period.
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A Setback in the High Court.
Back in May 2008 the Yorkshire Dales National Park Authority made 8 traffic regulation orders, prohibiting recreational motor vehicles from some of the most beautiful and sensitive of the green lanes in the Dales.
These orders were challenged by the 4×4 and motorcycle users’ lobby group, LARA. The case eventually came to court and was heard in the High Court in Leeds on June 2nd and 3rd 2009. The judge issued his decision on June 19th (see www.bailii.org/ew/cases/EWHC/Admin/2009/1425.html ). He quashed 4 of the 8 orders. The four are: Arncliffe Cote, Harber Scar Lane, Stockdale Lane and Gorbeck Road.
The judge’s decision turned on a small, but decisive point of law. Section 122 of the Road Traffic Regulation Act lays on authorities an obligation to balance their duty to ‘secure the ….movement of vehicular and other traffic’, against their obligation to take into account matters that might override their duty to secure the movement of traffic (eg environmental matters, or matters of public safety – indeed any matters that appear to the authority to be relevant). The judge held that there was no documentary evidence that the authority had publicly and explicitly performed this balancing act. The Park Authority had argued that in declaring that the TROs were made ‘for the purposes of preserving amenity and conserving the natural beauty of the area’, it had implicitly fulfilled its duties under section 122. The judge was not persuaded. Visible, documentary evidence of the performance of the balancing act is what was required, and the Park Authority could not supply it.
Where does this judgment leave the four superb green lanes that are, seemingly, once again under threat from motor vehicle users? The news is not as bad as it seems. Away from the High Court there have been encouraging, concurrent developments that substantially moderate the impact of the judge’s ruling. * Of the four routes, only one, Gorbeck Road, has proven motor vehicular rights. To prohibit 4x4s and motorbikes once again from inflicting their unwelcome presence on Gorbeck Road, the Park Authority will have to remake a TRO, in ways that will accommodate the judge’s ruling. This is entirely feasible, and highly desirable, given the money that has been spent on repairing the route and bringing it up to the standard necessary for the Pennine Bridleway – money that will have been wasted if motor vehicles get back on to the route and ruin both its fabric and the sense of peace and tranquillity that has reigned there during the period of the TRO.
In the cases of the other three routes, none, it is now clear, had motor vehicular rights, throughout its length, in the first place. This means that although the TRO signs will have to come down, 4×4 or motorbike users will still be breaking the law if they go ahead and use the full length of the routes. If offenders are prosecuted, they will have the insuperable task of proving that the route they were using has motor vehicular rights.
Whether motorised users will venture on to these three lanes, and, if so, whether they will be prosecuted, remains to be seen.
* The ‘Winchester Case‘, which established that applications for motor vehicular rights must comply exactly with the requirements of the relevant legal provisions. The Winchester Case sent numbers of non-compliant Dales BOAT applications gurgling down the plughole. Winchester liberated three of the four green lanes in the High Court judgment from the threat of motor vehicular access.