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Basic Guide to Claim Fighting – a GLPG Paper

Revised April 2009

Introduction

1. Green Lanes Protection Group is an umbrella group, of which GLEAM is the founder member, which achieved major changes in Part 6 of the Natural Environment and Rural Communities Act 2006 (NERCA) as it went through Parliament and is now seeking proper implementation of the Act on a national basis. As such the Group’s main objectives are policy and interpretation matters. It cannot become involved in evidential matters in individual cases for which it has no resources but will try to help on matters of law and procedure. It must be made clear that help given is a matter of opinion based on working knowledge, and no reliance may be placed on such help as being qualified legal advice.

2. It may be possible to assist in identifying appropriate advisers or advocates.


General

3. There are now several thousand outstanding BOAT claims. On most of these, unrecorded public vehicular rights have been extinguished by Part 6 NERCA 2006. More than 800 were however potentially excepted or exempt (see para 13 below), mostly because they were lodged before the cut-off date 20 Jan 2005 (19 May in Wales). Exempt claims are decided under the old law, so the first step is to find out whether exemption is claimed. Non-exempt claims will result at most in Restricted Byway (RB) status, but challenge may still be important. This note therefore addresses both cases, looking first at procedures and claim fighting generally, and then at the NERCA changes.


Procedures

4. A right of way claim for any status is made under s53(5) Wildlife and Countryside Act 1981 (WCA). The claimant asks the highway authority to make a Definitive Map Modification Order (DMMO) under its general duty to keep the Definitive Map (DM) under review. The authorities are normally county councils, but may be metropolitan borough councils, unitary councils or national park authorities. In their capacity to make orders they become known as order making authorities, and are usually referred to as OMAs (more correctly, but less well known, as Surveying Authorities or SAs). The text of the relevant parts of WCA is available by e-mail on request from Graham Plumbe – please telephone 01256 225128.

Step 1. The claim (strictly speaking “application”) is made.

Step 2. The OMA consults all concerned, and then a formal Report is made to the Rights of Way Committee (this may have a different name in some authorities). In some cases, the Committee function is delegated to officers.

Step 3. The Committee (or officer) determines whether or not to make a DMMO. If the determination is ‘no order’, the claimant has a right of appeal to the Secretary of State within 28 days.

Step 4. If the answer is yes, a DMMO is made (but not necessarily the status applied for). This is provisional and is subject to objections. If there are no objections, the order will in due course be formally confirmed by the OMA (see Step 6).

Step 5. If there are objections, the matter will be referred to the Planning Inspectorate (PINS) and a lengthy public inquiry process follows. Procedures are governed by regulations which can be viewed at www.opsi.gov.uk/si/si2007/pdf/uksi_20072008_en.pdf . Simpler guidance can be found at http://www.planningportal.gov.uk/uploads/pins/row/row_booklet2.pdf .

At the end of this process, the DMMO will either be not confirmed or will be provisionally confirmed with or without changes. In the latter case the change is publicised and a further public inquiry follows if necessary.

Step 6. The DMMO (modified if so decided) is formally confirmed by the OMA. There is a period of 42 days from publication for appeal to the High Court, but only on a point of law.

NB 1. Delegating powers to officers to make determinations or even DMMOs is normally restricted to the general duty to review the DM (as distinct from determining a claim) or to non-contested claims. If there is any objection therefore, it is important that the matter is referred to Committee and that attention is drawn to any challenge to a claim of exemption from the extinguishment provisions of NERCA (see below). Elected members normally have an overriding right to require that decisions be referred to Committee.

NB2. Although time limits are normally set at these stages, these are not mandatory except at Steps 3 and 6, and it is open to anyone at any other stage to ask for the matter to be reviewed, particularly for legal reasons. There is however a limit of three months at most for an application for judicial review of the OMA’s determination if there is a refusal to review, and that can only happen before the DMMO is actually made. Judicial review is an expensive and limited remedy however, and most arguments are resolved by the inquiry process.


Claim fighting generally

5. In challenging rights of way claims, arguments regarding environment, need, and suitability are wholly irrelevant. Rights of way depend on historic evidence, on express dedication or (in cases not caught by NERCA) on long term modern use. Maintaining objections on spurious grounds can eventually give rise to an adverse claim for costs.

6. Most cases turn on interpretation of documentary evidence and the weight attaching thereto. Apart from the need for research, use of an advocate is recommended – someone who can spend time reading the relevant papers and talking to the highway authority – and then present a case for the objectors at committee stage and if necessary at public inquiry stage. Instructing counsel at that point is worthwhile if funds permit; counsel offer advocacy skills which few others (including solicitors) possess. It is however necessary for a professional to instruct counsel. This can be (eg) a surveyor or planner if there is such a person locally who has sufficient knowledge of the subject to instruct counsel. This could save costs, particularly in the costs of attendance at an inquiry. If such a person is not available however it will be necessary to use a solicitor, and the important thing is the effectiveness of the advocacy team. Do however enquire as to whether such a solicitor has expert knowledge in this very specialised field.

7. The level of knowledge held by the objectors in any individual case will vary. The general advice therefore is that reference should be made to:

(i) “Rights of Way – A guide to law and practice” by Riddall and Trevelyan (the “Blue Book”), which is the RoW bible used by all, including inspectors. The 4th edition (published June 2007) is available from The Ramblers Association as publishers. Details from: www.ramblers.co.uk/rightsofwaybook

(ii) Consistency Guidelines and associated individual Advice Notes published by the Planning Inspectorate (PINS) and viewable through the Rights of Way page at http://www.planningportal.gov.uk/planning/countryside/rightsofway/rightsofway .



Historic evidence

8. In objecting to a claim based on history, there is no substitute for research. Information is readily obtainable at county record offices, and also at the Public Record Office at Kew – link www.nationalarchives.gov.uk/ – if a particular record is not held locally. Knowing what is wanted is the main difficulty, which is why it is important to read the Consistency Guidelines referred to above.

9. A useful paper is ‘Correcting the Camber’ written by GLEAM member Mrs Tricia Newby. The historical meaning of the word ‘road’ is often the subject of debate, and probably a paper by Alec Fry (BDS/BHS supporter of BOATs for his individual purpose of carriage driving) will be produced because the latter is recommended reading material by PINS. It has been countered by Mrs Newby, and she needs to be asked if she will agree to use of her paper, mentioning this note. Both papers are long. Contact can be made with her through GLEAM (see Contact Us)

10. The principal types of evidence relating to historic status can be summarised as follows, but these are considered more fully in the PINS Consistency Guidelines and Advice Notes.

Old maps – these are regularly produced in large quantities by off-roaders. They identify where ways existed but have very limited weight as to status unless they specify rights.

Inclosure Awards – A complex subject but very strong evidence.

Tithe Maps and Awards – Often overstated as to weight (if without express wording) because they recorded crop producing land; strong evidence of the physical existence of a way but not of rights.

Legal records – eg Quarter Sessions records of legal events such as obstruction, stopping up and diversion.

Highway records – showing public maintenance by Parishes, Highway Boards, Rural Sanitary Authorities, District Councils and County Councils – in that historical order.

Finance Act 1910 map and associated papers – relatively strong evidence based on inclusion or otherwise of ways in assessments on land subject to incremental tax.

Estate records – Erratic on status, but useful on maintenance and ownership.

The decision is made on the balance of probabilities taking all the evidence in the round. A chronology of the main historical dates is available by e-mail on request.


User evidence

11. Long public use can give rise either (a) to proof of actual dedication by the landowner under common law, or (b) to presumed dedication under statute (Highways Act 1980) where there has been 20 years’ use without challenge, ending on the date when existence of rights is “brought into question”. The presumption can be rebutted by showing non-intent to dedicate. This is a complex area of law but, where claims are not exempt, new vehicular rights based on user have been terminated by NERCA. The latest law on “non-intent” is in R v. Secretary of State for the Environment, Food and Rural Affairs, ex parte Godmanchester Town Council, (20 June 2007); link www.bailii.org/uk/cases/UKHL/2007/28.html


Exception or exemption from NERCA 2006

12. Part 6 NERCA 2006 extinguishes unrecorded public vehicular rights subject to five exceptions and three exemptions. The onus is on the claimant to prove that any of these apply. Briefly, they are as follows:

(i) The way has been used predominantly by the public lawfully in motor vehicles for five years ending on commencement (2 May 2006 in England, 16 Nov 2006 in Wales). This test needs evidence of all users (not just motor vehicles) to establish main use. In the absence of proof of vehicular rights, such use by motor vehicles could not have been lawful on a bridleway (or footpath) without express authority from the landowner (s67(2)(a)) and would not therefore count. Defra’s and legal opinion is that access where a private right exists is not public use.

(ii) At commencement the way is on the List of Streets (the statutory list of ways maintained at public expense, kept by highway authorities) but not on the Definitive Map s(67(2)(b)).

(iii) – (v) The way was specifically made for motor vehicles by legal instrument or physical construction, or a public vehicular right was created pre 1930 (ss(67(2)(c-e)).

(vi) A BOAT claim was made before the cut-off date (20 Jan 2005 in England, 19 May 2005 in Wales), and is compliant with para 1 Sch 14 WCA (details on request) . This gives rise to exemption (s67(3)(a) and (6) NERCA) .

(vii) The authority has made a determination before commencement in respect of a BOAT claim made after the cut-off date (s67(3)(b)). This gives rise to exemption but is very rare. If the claim is earlier, it is potentially exempt anyway.

(viii) A claim for a public vehicular right has been made by a landowner for necessary access purposes before commencement (s67(3)(c)). This gives rise to exemption but is again rare.

13. The text of NERCA can be found at www.opsi.gov.uk/acts/acts2006/ukpga_20060016_en.pdf . Defra guidance on all this can be seen at http://archive.defra.gov.uk/rural/documents/countryside/prow/nercactv5.pdf – Version 5, published 28 May 2008.

If any questions arise regarding exemption at the objection stage, or if any authority appears to be misinterpreting the Act, please refer back for guidance from Graham Plumbe, e-mail as above. A vital Court of Appeal judgment was given on 29 April 2008 in a case generated by GLPG – R (oao Winchester College and Humphrey Feeds Ltd) v Hampshire CC and Defra. This ensures that claims under (vi) above will ONLY qualify for exemption if they strictly satisfy para 1 Sch 14, ie they (i) were made in the prescribed form, (ii) were accompanied by a map showing the claimed route, drawn to a scale of not less than 1:25,000, and (iii) were accompanied by copies of all documentary evidence relied on. It now becomes imperative for OMAs to take account of these factors when considering exemption.


The differences arising from NERCA

14. The changes in determining claims where NERCA bites are these:

(i) User evidence in mechanically propelled vehicles is no longer relevant for any form of right, unless (a) it took place to such an extent before December 1930 that dedication of public rights under common law by that date can be proved, or (b) the claim is otherwise exempt.

(ii) The making of a BOAT claim now serves to “brings [the rights] into question” (see “User Evidence” above). If the claim was made some years ago, this may serve to shorten the period over which user evidence is relevant.

(iii) Where historic vehicular rights are proved, the way now becomes a Restricted Byway. All RUPPs were automatically converted to RBs under the Countryside and Rights of Way Act 2000, the relevant part of which commenced on the same day as NERCA (nine days later in Wales). The new status is conferred by law and lower rights can no longer apply. Conversion does not however prevent a BOAT claim succeeding if the claim is exempt.

(iv) Where exemption arises because the User Test is satisfied (see (i) under “Exception” above) the way cannot become a BOAT (other than in exceptional circumstances) because predominant vehicular use does not meet the definition of BOAT under WCA. If the way is already on the Definitive Map as a lower right, there is apparently no way of removing it, but proof of exception on this ground would probably serve as a defence against prosecution.

(v) Where at commencement a way is on the List of Streets and not on the Definitive Map, it is outside NERCA (see (ii) under “Exception” above). A BOAT claim can therefore succeed whenever made, and without proof of other exemption. This may be justified where vehicular rights are in question, because the LoS is not conclusive as to status.

(vi) Private use for access , either of former RUPPs or of other ways where public rights are extinguished, is protected by NERCA, but that does not affect a claim for public rights.

(vii) Where a RUPP is the subject of a reclassification order under s54 WCA (now repealed), the process is not overruled, but the inspector has no power to order RB status and can only decide on lower status or not to confirm the order. If he finds that vehicular rights would have been proven, the probability is that the way will then be entered on the LoS, but it cannot become a BOAT if it was not on the LoS at commencement.



Challenging exemption

15. A BOAT claim is not necessarily exempt simply because it was made before 20 Jan 05. Similarly, a determination or a DMMO for BOAT status may be invalid. The grounds are:

(i) The claim did not meet the requirements of para 1 Sch 14 WCA. See para 13 above.

(ii) Where a BOAT determination was made before commencement (see (vii) under “Exception or Exemption” above), it does not give rise to exemption if the original claim was for something other than a BOAT.

(iii) A BOAT order made at any time cannot be subject to exemption if it was made under the general duty on the OMA to review the map, and did not stem from the determination of a BOAT claim.



Traffic Regulation Orders, TROs

16. As an alternative, Traffic Regulation Orders may be applied, possibly pre-emptive http://archive.defra.gov.uk/rural/documents/countryside/crow/regulating-motorvehicles.pdf
http://www.legislation.gov.uk/ukpga/1984/27/contents