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Enforcement of Driving on Public Rights of Way – post the NERC Act 2006

April 2009

Note: This paper is a summary of views by the Green Lanes Protection Group . It is based on Leading Counsel’s opinion (available on request); also Defra’s Guidance V5 to be found at http://webarchive.nationalarchives.gov.uk/20130822084033/http://www.defra.gov.uk/wildlife-countryside/pdf/access/prow/nercactv5.pdf which readers are strongly recommended to study. Guidance on the NERC Act is at paras 1-74; Restricted byways at paras 75-100; Enforcement at paras 101-129

Road Traffic Act 1988 as amended (RTA) makes it an offence to drive off-road.
Countryside and Rights of Way Act 2000 (CROWA) introduced Restricted Byways (RBs) which replaced Roads Used as Public Paths (RUPPs) in 2006. RTA was amended where relevant.
Police Reform Act 2002 as amended (PRA) introduced informal measures to curtail illegal driving.
Natural Environment and Rural Communities Act 2006 (NERCA) made sweeping changes to the acquisition of rights and the effect of RTA. It commenced on 2 May 2006 (16 Nov 2006 in Wales).

1. In respect of driving on footpaths, bridleways or RBs, the following measures apply:

2. RTA 1988 s34 which reads in part [Full text of s34 is at Appendix 1] :

“(1) Subject to the provisions of this section, if without lawful authority a person drives a mechanically propelled vehicle -
  • onto or upon any common land, moorland or land of any other description, not being land forming part of a road, or
  • on any road being a footpath, bridleway or restricted byway,

he is guilty of an offence.

(2) For the purposes of subsection (1)(b) above, a way shown in a definitive map and statement as a footpath, bridleway or restricted byway is, without prejudice to section 56(1) of the Wildlife and Countryside Act 1981[WCA], to be taken to be a way of the kind shown, unless the contrary is proved.”

3. There is thus a presumption that an offence has been committed if anyone is caught driving on a bridleway or RB unless and until he proves otherwise.

4. S56(1) WCA specifies the rights that exist in each category but leaves the door open to proof of higher rights by following the detailed provisions of the Act. For RTA purposes however, bridleways may be used only by those on foot, bicycle or horseback. RBs may be used by horsedrawn vehicles as well. Neither may be used by motor vehicles except (i) where lawful authority is given (eg with the permission of the landowner), (ii) in vehicles modified for use by the disabled, or (iii) in certain circumstances detailed in NERCA (see below). Anyone caught driving on a bridleway or RB is presumed to have committed a criminal offence unless and until lawful authority, or proof of full vehicular status, is provided. The commission of the act itself needs to be proved to the court beyond reasonable doubt but proof of motor vehicular rights needs only to be shown on the balance of probability. Although magistrates do not determine the existence of rights, in order to be satisfied that an offence has not been committed they must look for the same quality of evidence as would be required by a planning inspector making such a determination, and must pay due regard to the detailed provisions of WCA and associated case law. If such information is not available to the magistrates, then the rights have not been proved.

5. CROWA 2000 replaced all RUPPs with RBs. As noted above, that status carries rights only for walkers, horseriders, cyclists and horsedrawn vehicles.

6. NERCA 2006 extinguished public motor vehicular rights that were not already recorded on the Definitive Map. There are eight exceptions. To rely on NERCA as a defence to a prosecution it is necessary for the defendant -

A. to prove that vehicular rights existed before commencement of the Act, and

B. to prove that one of the exceptions applied.

7. The onus of proof is on the defendant.

8. As to test A, the rights may either have been historic or may have arisen by presumed dedication.

9. Historic rights may be proved in a variety of ways. Enforcement agencies need to have a working knowledge of what is involved, simply to ensure that defendants provide sufficient evidence to magistrates to prove that vehicular rights exist on the balance of probabilities. Guidance is available from Defra, or from the Planning Inspectorate at www.planning-inspectorate.gov.uk/pins/appeals/rights_of_way/rights_way.htm#advice (Consistency Guidelines or the Advice Notes). A much simpler approach is to refer to the “Basic Guide to Claim Fighting” by reference to the same paper on the GLEAM website gleam-uk.org under the “Guidance” tab.

10. Dedication depends on long unchallenged use (where not express), but such use in motor vehicles has been disqualified by NERCA from counting other than in exceptional circumstances. A guide to the effect and consideration of user evidence is available on the GLEAM website gleam-uk.org/guidance/evidence-of-motor-vehicular-use-under-the-nerc-act-2006/.

11. If and when pre-existing rights have been proved, the defendant then has to prove that that they have not been extinguished as a result of exemption under NERCA.

12. A guide to NERCA is available on request (in shorter form than the Defra website guidance), but the exceptions likely to be claimed are these:

13. Extinguishment does NOT apply if it can be shown that

  • the main lawful use by the public for 5 years ending on commencement date was in motor vehicles (s67(2)(a)), or
  • A claim for BOAT status (byway open to all traffic) was made before the cut-off date (20 Jan 2005 in England, 19 May 2005 in Wales) (s67(3)(a));

14. Establishing either exception is a matter for the court. As to pre cut-off claims, the Court of Appeal held that, when lodged with the authority, these must have complied strictly with statutory requirements in order to qualify for exemption. The onus is on the defendant to prove that the requirements have been met. Many have failed.

15. As to the 5 year balance of use, assessment depends on an in-depth review of evidence from all known sources. It is NOT sufficient for the defendant simply to offer evidence of one type of use, as assessment of a balance necessarily requires evidence of ALL types of use. Although it is open to a highway authority in some circumstances to decide this issue independently, a highway authority is not a court of law and so cannot condone a driving offence unless and until the vehicular rights have been proved, either to the satisfaction of a court or through normal WCA processes. Certainly it cannot permit driving on such a way simply on the basis of a lodged and untested BOAT application, whether or not the authority believes that the 5 year test is satisfied.

16. PRA 2002 ss59-60 offer a simple way of curbing illegal off-roading without normally involving the courts. The process is intended to be a deterrent, not a penalty. The text and Regulations (as amended) are at Appendix 2.

17. Essentially, a constable in uniform has certain powers if someone is (i) contravening s34 RTA (above) OR (ii) is driving on a road without due care and attention, or without reasonable consideration for other users, and is causing, or is likely to cause, alarm, distress or annoyance to members of the public. The powers are also available if the constable has reasonable grounds for believing that a motor vehicle has been used on any occasion in a manner just described. That means he can act following a report by a member of the public.

18. The scheme of the provisions is that the policeman will simply give a warning to the offender that if the offence is repeated the vehicle may be seized. Some authorities believe that a publicly posted notice will suffice as a warning but that is debatable. Subsequent seizure is usually but not necessarily dependent on such a warning having been given. The regulations say nothing about the form of the initial warning but it seems that a written notice is used by some authorities.

19. After a vehicle has been seized, written notice must be served as prescribed in regulation 4 stating where it is, the date by which it must be recovered and what it will cost. In default of recovery, the “the authority may, in such manner as they think fit,” dispose of the vehicle. That includes crushing.

20. The advantage of this system is that it is simple and does not involve the courts. Although there is no appeal process, the offender cannot be penalised until commission of a second offence. Furthermore, there are escape provisions if the owner of the vehicle can show that he was not responsible at the time.


Offences other than s34 RTA covered by PRA

21. See www.defra.gov.uk/wildlife-countryside/pdf/access/crow/regulating-motorvehicles.pdf at page 19 for a useful list of existing powers generally. Examples which can be the basis of PRA warnings and seizing are:

  • Careless and inconsiderate driving – s3 Road Traffic Act 1988
  • Damaging the surface of the highway – s1(1) Criminal Damage Act 1971
  • Disturbance of the surface of a highway, without lawful authority or excuse, rendering it inconvenient for other users – s131A Highways Act 1980

22. Section 3 RTA 88 applies to a “road or other public place” and therefore includes highways that are not roads, which embraces RBs and bridleways. All three examples above potentially fall within at least one the PRA prescribed grounds – ie driving on a road without due care and attention, OR without reasonable consideration for other users, OR causing or likely to cause annoyance to members of the public.

23. s130 HA 1980 provides an additional way of tackling off-roading. It says:

“It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.” If the exercise of rights by off-roaders prevents the use and enjoyment by other users (which often happens), then the highway authority may be required to take steps to prevent such minority use. Such steps include asking the police to issue warnings under s59 PRA.

24. Traffic Regulation Orders are a common way of preventing damaging off-roading but are outside the scope of this paper. They are well covered in the Defra guidance noted above.

This note is written by Graham Plumbe FRICS FCIArb, Vice Chairman, Green Lanes Protection Group.

Contact regarding this note can be made through Graham Plumbe (as above) on 01256 225128. The note is written on the basis of working knowledge and is not to be taken as qualified legal advice.


34. Prohibition of driving mechanically propelled vehicles elsewhere than on roads (as amended)

(1) Subject to the provisions of this section, if without lawful authority a person drives a mechanically propelled vehicle—

  • on to or upon any common land, moorland or land of any other description, not being land forming part of a road, or
  • on any road being a footpath, bridleway or restricted byway,

he is guilty of an offence.

(2) For the purposes of subsection (1)(b) above, a way shown in a definitive map and statement as a footpath, bridleway or restricted byway is, without prejudice to section 56(1) of the Wildlife and Countryside Act 1981, to be taken to be a way of the kind shown, unless the contrary is proved.

(2A) It is not an offence under this section for a person with an interest in land, or a visitor to any land, to drive a mechanically propelled vehicle on a road if, immediately before the commencement of section 47(2) of the Countryside and Rights of Way Act 2000, the road was—

  • shown in a definitive map and statement as a road used as a public path, and
  • in use for obtaining access to the land by the driving of mechanically propelled vehicles by a person with an interest in the land or by visitors to the land.

(3) It is not an offence under this section to drive a mechanically propelled vehicle on any land within fifteen yards of a road, being a road on which a motor vehicle may lawfully be driven, for the purpose only of parking the vehicle on that land.

(4) A person shall not be convicted of an offence under this section with respect to a vehicle if he proves to the satisfaction of the court that it was driven in contravention of this section for the purpose of saving life or extinguishing fire or meeting any other like emergency.

(5) It is hereby declared that nothing in this section prejudices the operation of—

  • section 193 of the Law of Property Act 1925 (rights of the public over commons and waste lands), or
  • any byelaws applying to any land,

or affects the law of trespass to land or any right or remedy to which a person may by law be entitled in respect of any such trespass or in particular confers a right to park a vehicle on any land.

(6) Subsection (2) above does not extend to Scotland.

(7) In this section—

“definitive map and statement” has the same meaning as in Part III of the Wildlife and Countryside Act 1981;

“interest”, in relation to land, includes any estate in land and any right over land (whether exercisable by virtue of the ownership of an estate or interest in the land or by virtue of a licence or agreement) and, in particular, includes rights of common and sporting rights;

“mechanically propelled vehicle” does not include a vehicle falling within paragraph (a), (b) or (c) of section 189(1) of this Act; and

“restricted byway” means a way over which the public have restricted byway rights within the meaning of Part II of the Countryside and Rights of Way Act 2000, with or without a right to drive animals of any description along the way, but no other rights of way.

(8) A person—

  • entering any land in exercise of rights conferred by virtue of section 2(1) of the Countryside and Rights of Way Act 2000, or
  • entering any land which is treated by section 15(1) of that Act as being accessible to the public apart from that Act,

is not for the purposes of subsection (2A) a visitor to the land.



Police Reform Act 2002 ss59-60

Seizure of motor vehicles

59 Vehicles used in manner causing alarm, distress or annoyance

(1) Where a constable in uniform has reasonable grounds for believing that a motor vehicle is being used on any occasion in a manner which—

  • contravenes section 3 or 34 of the Road Traffic Act 1988 (c. 52) (careless and inconsiderate driving and prohibition of off-road driving), and
  • is causing, or is likely to cause, alarm, distress or annoyance to members of the public,

he shall have the powers set out in subsection (3).

(2) A constable in uniform shall also have the powers set out in subsection (3) where he has reasonable grounds for believing that a motor vehicle has been used on any occasion in a manner falling within subsection (1).

(3) Those powers are—

  • power, if the motor vehicle is moving, to order the person driving it to stop the vehicle;
  • power to seize and remove the motor vehicle;
  • power, for the purposes of exercising a power falling within paragraph (a) or (b), to enter any premises on which he has reasonable grounds for believing the motor vehicle to be;
  • power to use reasonable force, if necessary, in the exercise of any power conferred by any of paragraphs to (a) to (c).

(4) A constable shall not seize a motor vehicle in the exercise of the powers conferred on him by this section unless—

  • he has warned the person appearing to him to be the person whose use falls within subsection (1) that he will seize it, if that use continues or is repeated; and
  • it appears to him that the use has continued or been repeated after the the warning.

(5) Subsection (4) does not require a warning to be given by a constable on any occasion on which he would otherwise have the power to seize a motor vehicle under this section if—

  • the circumstances make it impracticable for him to give the warning;
  • the constable has already on that occasion given a warning under that subsection in respect of any use of that motor vehicle or of another motor vehicle by that person or any other person;
  • the constable has reasonable grounds for believing that such a warning has been given on that occasion otherwise than by him; or
  • the constable has reasonable grounds for believing that the person whose use of that motor vehicle on that occasion would justify the seizure is a person to whom a warning under that subsection has been given (whether or not by that constable or in respect the same vehicle or the same or a similar use) on a previous occasion in the previous twelve months.

(6) A person who fails to comply with an order under subsection (3)(a) is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(7) Subsection (3)(c) does not authorise entry into a private dwelling house.

(8) The powers conferred on a constable by this section shall be exercisable only at a time when regulations under section 60 are in force.

(9) In this section—

  • “driving” has the same meaning as in the Road Traffic Act 1988 (c. 52);
  • “motor vehicle” means any mechanically propelled vehicle, whether or not it is intended or adapted for use on roads; and
  • “private dwelling house” does not include any garage or other structure occupied with the dwelling house, or any land appurtenant to the dwelling house.

60 Retention etc. of vehicles seized under section 59

(1) The Secretary of State may by regulations make provision as to—

  • the removal and retention of motor vehicles seized under section 59; and
  • the release or disposal of such motor vehicles.

(2) Regulations under subsection (1) may, in particular, make provision—

  • for the giving of notice of the seizure of a motor vehicle under section 59 to a person who is the owner of that vehicle or who, in accordance with the regulations, appears to be its owner;
  • for the procedure by which a person who claims to be the owner of a motor vehicle seized under section 59 may seek to have it released;
  • for requiring the payment of fees, charges or costs in relation to the removal and retention of such a motor vehicle and to any application for its release;
  • as to the circumstances in which a motor vehicle seized under section 59 may be disposed of;
  • as to the destination—
    • of any fees or charges payable in accordance with the regulations; and
    • of the proceeds (if any) arising from the disposal of a motor vehicle seized under section 59;
  • for the delivery to a local authority, in circumstances prescribed by or determined in accordance with the regulations, of any motor vehicle seized under section 59.

(3) Regulations under subsection (1) must provide that a person who would otherwise be liable to pay any fee or charge under the regulations shall not be liable to pay it if—

  • the use by reference to which the motor vehicle in question was seized was not a use by him; and
  • he did not know of the use of the vehicle in the manner which led to its seizure, had not consented to its use in that manner and could not, by the taking of reasonable steps, have prevented its use in that manner.

(4) In this section—

  • “local authority”—
    • in relation to England, means the council of a county, metropolitan district or London borough, the Common Council of the City of London or Transport for London; and
    • in relation to Wales, means the council of a county or county borough;
  • “motor vehicle” has the same meaning as in section 59.


2002 No. 3049

POLICE, ENGLAND AND WALES

The Police (Retention and Disposal of Motor Vehicles) Regulations 2002
as amended by The Police (Retention and Disposal of Motor Vehicles) (Amendment) Regulations 2005 (SI 2005/2702) effective 1.11.05
and The Police (Retention and Disposal of Motor Vehicles)(Amendment) Regulations 2008 (SI 2008/2096) effective 1.10.08

The Secretary of State, in exercise of the powers conferred on him by sections 60 and 105(4) of the Police Reform Act 2002, hereby makes the following Regulations:

Citation and commencement

1. These Regulations may be cited as the Police (Retention and Disposal of Motor Vehicles) Regulations 2002 and shall come into force on 1st January 2003 [see above for amendments.]

Interpretation

2. In these Regulations -

“the 2002 Act” means the Police Reform Act 2002;

“the authority” means a constable or such other person authorised by the chief officer under regulation 3(1);

“GB registration mark” means a registration mark issued in relation to a vehicle under the Vehicle Excise and Registration Act 1994;

“owner” includes -

  • the person by whom, according to the records maintained by the Secretary of State in connection with any functions exercisable by him by virtue of the Vehicle Excise and Registration Act 1994, the vehicle is kept and used;
  • in relation to a vehicle which is the subject of a hiring agreement or a hire-purchase agreement, the person entitled to possession of the vehicle under the agreement;

“laden” means that the vehicle is carrying a load;

“load” means anything other than—

  • the body and all parts of the vehicle which are necessary to or ordinarily used with the vehicle when working on a road;
  • any water, fuel or accumulators used for the purpose of the supply of power for the propulsion of the vehicle;
  • the driver, any passengers and their personal effects;
  • a crane, works truck as defined in regulation 3(2) of the Road Vehicles(Construction and Use) Regulations 1986(c), or other special appliance or

    apparatus which is a permanent or essentially permanent fixture of the vehicle; and

  • any containers or other equipment intended or adapted for the purpose of holding or carrying a load by the vehicle;

“MAM” means maximum authorised mass as defined in regulation 3(1) of the Motor Vehicles (Driving Licences) Regulations 1999;

“off road” means that no part of the vehicle is in contact with the road;

“on road” means that any part of the vehicle is in contact with the road;

“relevant motor vehicle” means a motor vehicle which has been seized and removed under section 59(3)(b) of the 2002 Act;

“road” means any length of highway or of any other road to which the public has

access, and includes bridges over which a road passes;

“seizure notice” means a notice complying with regulation 4;

“specified information”, in relation to a vehicle, means such of the following information as can be or could have been ascertained from an inspection of the vehicle, or has been ascertained from any other source, that is to say -

  • in the case of a vehicle which carries a GB registration mark, or a mark indicating registration in a place outside Great Britain, particulars of that mark; and
  • the make of the vehicle.

“substantially damaged” means such damage to a vehicle that in the reasonable opinion of a constable it cannot be driven safely on the road;

“two wheeled vehicle” means a mechanically propelled vehicle constructed or adapted to have two wheels or less and the MAM of which does not exceed 3.5 tonnes;

“unladen” means that the vehicle is not carrying a load;

“working days” shall be taken to exclude Saturdays, Sundays, Christmas Day, Good Friday and any day which, under the Banking and Financial Dealings Act 1971 is a bank holiday in England and Wales

Retention and safe keeping of motor vehicles

3. -

  • (1) A relevant motor vehicle shall be passed into and remain in the custody of a constable or other person authorised under this regulation by the chief officer of the police force for the area in which the vehicle was seized (“the authority”) until -
    • the authority permit it to be removed from their custody by a person appearing to them to be the owner of the vehicle; or
    • it has been disposed of under these Regulations.
  • (2) While the vehicle is in the custody of the authority, they shall be under a duty to take such steps as are reasonably necessary for its safe keeping.

Giving of seizure notice

4. -

  • (1) The authority shall, as soon as they are able after a relevant motor vehicle has been taken into their custody, take such steps as are reasonably practicable to give a seizure notice to the person who is or appears to be the owner of that vehicle, except where the vehicle has been released from their custody in accordance with these
  • (2) A seizure notice required to be given under these Regulations shall comply with, and be given in accordance with, the following provisions of this regulation.
  • (3) A seizure notice shall, in respect of the vehicle to which it relates, contain the specified information and shall state -
    • the place where the vehicle was seized;
    • the place where it is now being kept;
    • that the person to whom the notice is directed is required to claim the vehicle from the authority on or before the date specified in the notice, being a date not less than 7 days from the day when the notice is given to him;
    • that unless the vehicle is claimed on or before that date the authority intend to dispose of it;
    • that, subject to regulation 5(3), charges are payable under these Regulations by the owner of the vehicle in respect of the removal and retention of the vehicle, and that the vehicle may be retained until such charges are paid.
  • (4) The seizure notice shall be given -
    • by delivering it to the person to whom it is directed;
    • by leaving it at his usual or last known address;
    • by sending it in by the registered post service, addressed to him at his usual or last known address; or
    • if the person is a body corporate, by delivering it to the secretary or clerk of the body at its registered or principal office, or sending it by the registered post service, addressed to the secretary or clerk of the body at that office.

Release of vehicles

5. -

  • (1) Subject to the provisions of these Regulations, if, before a relevant motor vehicle is disposed of by an authority, a person satisfies the authority that he is the owner of that vehicle and pays to the authority such a charge in respect of its removal and retention as is provided for in regulation 6, the authority shall permit him to remove the vehicle from their custody.
  • (2) In determining whether it is satisfied that a person who claims to be the owner of a relevant motor vehicle is in fact the owner, an authority may consider such documentary evidence as that person may supply to them.
  • (3) A person who would otherwise be liable to pay a charge under paragraph (1) shall not be liable to pay if -
    • the use by reference to which the vehicle was seized under section 59 of the 2002 Act was not a use by him; and
    • he did not know of the use of the vehicle in the manner which led to its seizure, had not consented to its use in that manner and could not, by the taking of reasonable steps, have prevented its use in that manner.

Charges in relation to the removal and retention of a motor vehicle

6. -

  • (1) The charge payable under regulation 5(1) shall be—
    • the amount payable for the removal of the vehicle as set out in paragraph (2); and
    • the amount payable for the retention of the vehicle as set out in paragraph (3).
  • (2) The amount payable for the removal of the vehicle shall depend upon the condition of the vehicle, the type of vehicle and whether it is on road or off road as set out in column 1 of Table 1 and shall be the charge specified in relation to that vehicle in columns 2 to 5 of that Table, the particular charge to be determined by reference to the MAM of the vehicle as described in row 1 of that Table and, for vehicles exceeding 7.5 tonnes MAM and not falling within row 2, whether the vehicle is laden or unladen. (Table omitted)
  • (3) The amount payable for the retention of the vehicle, for each period of 24 hours or a part thereof during which the vehicle is in the custody of the authority, with regards tovehicles set out in row 1 of Table 2, shall be the charge specified in relation to thosevehicles in row 2 of that Table. (Table omitted)
  • (4) For the purposes of this regulation, the MAM of a vehicle includes the MAM of any trailer attached to that vehicle.
  • (5) For the purposes of paragraph (2), a vehicle will only be considered upright if all parts of the vehicle are upright.
  • (6) For the purposes of paragraph (3), each period of 24 hours shall be reckoned from noon on the first day after removal during which the place at which the vehicle is stored is open for the claiming of vehicles before noon

Disposal of motor vehicles

7. -

  • (1) Subject to paragraph (2), the authority may, in such manner as they think fit, dispose of the vehicle at any time if—
    • the person appearing to be the owner of the vehicle to whom a seizure notice is given under regulation 4(1) fails to comply with any requirement in that seizure notice; or
    • the authority were not able, having taken such steps as were reasonably practicable, to give a seizure notice to the person appearing to be the owner of the vehicle.
  • (2) The authorised person may not dispose of the vehicle under this regulation—
    • during the period of 14 days starting with the date on which the vehicle was seized;
    • if the period in sub-paragraph (a) has expired, until after the date specified in the seizure notice in accordance with regulation 4(3)(c); or
    • if not otherwise covered by sub-paragraph (a) or (b), during the period of 7 working days starting with the date on which the vehicle is claimed under regulation 5.


Payment of proceeds of sale to owner of vehicle

8. -

  • (1) Where the authority dispose of a motor vehicle in pursuance of these Regulations by means of sale, they shall pay the net proceeds of sale to any person who, before the end of the period of one year beginning with the date on which the vehicle is sold, satisfies the authority that at the time of the sale he was the owner of the vehicle.
  • (2) If it appears to the authority that more than one person is the owner of a particular vehicle, such one of them as the authority think fit shall be treated as its owner for the purposes of paragraph (1).
  • (3) In this regulation, “the net proceeds of sale” means any sum by which the proceeds of sale exceed the aggregate of such sums as may be payable under these Regulations in respect of the removal and retention of the vehicle.