By Graham Plumbe FRICS FCIArb, Vice Chairman GLPG (note 1) and Honorary Adviser to GLEAM
Updated August 2012 and (in part) 2016
The NERC Act connections
1. Part 6 of the Natural Environment and Rural Communities Act 2006 (NERCA) commenced on 2 May 2006 in England; 16 November 2006 in Wales. It had two main objectives – to stop the creation of new public rights for mechanically propelled vehicles (mpvs) based on historic horse and cart use (s66) and to extinguish public vehicular rights where not already recorded (s67(1)) subject to a number of exceptions. This paper examines the role of motor vehicular user evidence in the context of NERCA.
2. Dedication – Under the Highways Act 1980 (s31(1)), rights are deemed to exist after 20 years’ qualifying continuous use, unless there is sufficient evidence of the landowner’s intention not to dedicate. The 20 year period is counted back from the date when the existence of rights is “brought into question”. Rights can also be established at common law with no set period but with strict tests of awareness and capacity on the part of the landowner amounting to an inference of intent.
3. Dedication through long use can arise where such use is without lawful authority but where the landowner has the capacity to grant such authority. That does not extend to cases where the use amounts to a public nuisance (note 2), as landowners cannot authorise criminal offences.
4. “Brought into question” – NERCA s69 clarifies that the making of an application for determination of rights serves to bring the rights into question (note 10). It is believed that a map modification order does not serve this purpose but an objection to such an order does so.
5. Applications – Claims for BOAT status are made under s53(5) of the Wildlife and Countryside Act 1981 (WCA). To be valid, they must comply with paragraph 1 of Schedule 14 as to their form and copy evidence, but the map scale is not essential – see note 3. Compliance with paragraph 2 as to service of notice on landowners is not essential as authorities can waive those requirements for general determination purposes.
6. Restricted Byways – These were created under the Countryside and Rights of Way Act 2000 by conversion of RUPPs to RBs on 2 May 2006 and can also arise in other ways. They carry rights of use as a footpath, as a bridleway, by bicycles and by horse drawn vehicles, but not by motor vehicles.
7. New rights – NERCA s66 stops any new mpv rights being “created” (taken to mean “established”) after commencement, in reliance on motor vehicle use at any time, past or future.
8. Unrecorded rights – NERCA s67(1) extinguished existing mpv rights where not recorded on the Definitive Map and Statement (DMS) at commencement. There are exceptions to this, of which the following are those where evidence of motor vehicular use may be relevant:
- where the main lawful use over the five years ending at commencement was by the public in motor vehicles (the 5-year test) (s67(2)(a));
- where at commencement the way was on the List of Streets (LoS) but not on the DMS (s67(2)(b));
- where the right of way was created by vehicular use before December 1930 (s67(2)(e));
- where BOAT applications under s53(5) WCA were made (s67(3))
- before the cut-off date (20 Jan 2005 in England; 19 May 2005 in Wales);
- after cut-off and determined before commencement; or
- before commencement by a person with an interest in land, for necessary access.
All BOAT applications made under s67(3) must be strictly compliant with paragraph 1 Sch 14 WCA (s67(6)) to qualify for exemption from extinguishment (note 3).
The relevance of motor vehicular use
9. Relating the provisions to each other, how relevant is evidence of motor vehicle use? Taking the exceptions in turn:
(i) The 5-year test
The purpose of this exception is to protect the “ordinary road network” which would have been destroyed, other than for classified and trunk roads, but for this provision. That purpose was made clear by the Minister and is echoed by Defra in its guidance. It is therefore necessary to look at how the balance should be measured. Attempts have been and are being made to exploit a possible loophole by manipulating the arguments, or even the evidence, to persuade authorities or inspectors that the balance of “main lawful use” on green lanes in the five year period ending at commencement lay within the parameters of what was intended by the Act. That objective is pursued by compilation of user evidence forms which may over a period of time gain status, whereas evidence of other types of use in the relevant period will become increasingly hard to identify historically from a widespread community who had no cause at the time to keep records. For that reason it is important for other users to gather such evidence now, in anticipation of claims being made in the future. See paras 33-34 of the Derby decision at note 2.
10. Passing the 5 year test does not establish rights – it merely provides for exemption outside the provisions in s67(3). It is still necessary to prove the existence of pvrs. Indeed, if the existence of public vehicular rights prior to the commencement of the relevant period cannot be proved, then the use (if without authority) was unlawful and the 5 year test is not met.
11. The question of how to measure the balance was put late in 2006 to George Laurence QC who, in a Joint Opinion with Ross Crail in January 2007 (note 4), said this:
“Pragmatically. The Defra Guidance … is in our view correct insofar as it says that the authority’s judgment as to what was the main use of the way by the public between May 2001 and May 2006 must be arrived at by assessing the available evidence as to the relative volumes of different categories of use during that period – how to give effect to it is the problem. This is particularly so because the use may have been distorted by deliberately-engineered extra vehicular use, in some cases, in the period since first publication of the Government’s proposals. In such cases, an evaluation of how a particular way is currently being used is unlikely to be a safe or reliable guide to the extent of use over the relevant 5 year period. If current evaluation is not a guide, how, in practice, the authority is to determine the matter is difficult to say. There is unlikely to be any scientific basis for the assessment; unless traffic surveys have been undertaken in respect of the route, there will be no statistical record of use, and the persons in the best position to give witness evidence from personal observation (affected landowners and occupiers, and users of the route) are self-interested – although they obviously should be invited to contribute to the evidential picture before any view is formed. Ultimately the authority (or the Secretary of State’s inspector, or the court, depending on the forum in which the matter arises for decision) will just have to do the best that can be done on the basis of all relevant available evidence against the background of the character and condition of the way, where it leads, the surrounding highway network, and the inherent probabilities of the situation.”
12. Defra’s current guidance (V5) (note 5) echoes those views at paragraph 27. Five matters stand out in particular:
- In the context of BOAT applications, the onus of proof is on the person relying on the exception (George Laurence at paragraph 35 and Defra paragraph 27) so that evidence which is limited to vehicle use, and which does not serve the making of an assessment of the “relative volumes of different categories of use during that period” cannot as a matter of commonsense satisfy the burden of proof if taken alone.
- The weight attached to evidence should reflect the fact that “the persons in the best position to give witness evidence from personal observation (affected landowners and occupiers, and users of the route) are self-interested” – from either camp. This principle was applied in one case (note 6) by an inspector who preferred to rely on traffic surveys even though they were out of date. In a number of cases user evidence forms (UEFs) from off-roaders have been proved on testing to have been enhanced by imagination and it is therefore very important that these be questioned as to their validity and the authors required to make themselves available for questioning. Inspectors may otherwise feel obliged to take the evidence at face value.
- Where evidence is not reliable or conclusive, or does not serve a true assessment of balance, it is legitimate to take into account “the character and condition of the way, where it leads, the surrounding highway network, and the inherent probabilities of the situation” (George Laurence – above). That approach is particularly important where other users have been driven away by the hazards or damage caused by vehicular use. That would be artificially influencing the balance by means of a use which is almost certainly a public nuisance or other criminal offence ( see note 2) and which would therefore be unlawful. The “character” approach is also important when evidence of vehicular use alone is produced by off-roaders without reliable information as to other users.
- Attempts to prove main vehicular use may be self defeating. The definition of BOAT under WCA is of a way “… which is used by the public mainly for the purpose for which footpaths and bridleways are so used.” The Court of Appeal has held (note 7) that, in applying this definition, regard should be paid to “the concept or character of such a way”. Thus, although there are differences between WCA and NERCA regarding the actuality of use and the period involved, satisfaction of the 5 year test is incompatible with BOAT status – as Defra rightly points out at paragraph 26. In most cases therefore, the best that the motorists can hope for is a finding by the inspector that the degree of vehicular use precludes BOAT status. That in itself will be relevant evidence, albeit not conclusive by any means, that vehicular rights exist. If the inspector is not able to find vehicular use to that extent, then the application for BOAT status should in most cases fail the 5 year test.
Where the 5 year test is satisfied, such vehicular use may count towards dedication because the extinguishment provision does not apply. If the 5 year use is taken together with earlier use, the totality can amount to implied dedication, and if the rights have been brought into question before commencement, either by a BOAT application (NERCA s69(2) see note 10) or by another qualifying event, then it may be possible to establish vehicular rights. Any such use after commencement is irrelevant (s66).
Public or private?
13. It has been argued by interest groups that use of ways for private access, where unrecorded public rights previously existed (normally on RUPPs, now restricted byways), counts under the 5 year test towards main lawful use by the public. That view is not shared by Defra at paragraph 21 which says “the intention here is to except highways that are part of the ‘ordinary roads network’” -nor at paragraph 28 – which excludes landowners and visitors. Nor is it shared by George Laurence and Ross Crail who said:
“We think the phrase “main lawful use by the public” was intended to exclude use by those who used the way for access. This would therefore include frontagers and those who, but for the public right of way, would have had a right to use the way in any event by virtue (i) of their ownership; or (ii) of having been granted an easement or licence; or (iii) of being the invitees (express or implied) of such owners or grantees of an easement or licence. (So the postman, fire service and milkman would be amongst those excluded.) The idea underlying the section, in our view, was to save from extinguishment those ways vehicular use of which (other than for access) outweighed use on foot or horseback (other than for access). Those who used ways for access without having an independent right to do so were separately protected by sub-sections 67(3)(c) and (5), so they would not be prejudiced by not being counted among “the public” for the purposes of section 67(2)(a).”
14. Another good reason is that the words “by the public” would be superfluous if private use was to be included, and it is a basic legal principle that words used shall be given a meaning.
15. It is recognised that the Act is otherwise open ended on the point, and a useful guide to legal interpretation is “Learning Legal Rules” by Holland and Webb. Where a literal approach is ambiguous, the proper approach is to look for the purpose of the legislation by reading it in the round, a process which cannot sensibly include private use, as recognised by George Laurence. The purposive approach can include identifying the “mischief” being corrected. That in this case was the anomaly of establishing rights for recreational use in motor vehicles based on utilitarian horse and cart travel in a bygone age.
16. As a longstop in the event of real ambiguity it is permissible to refer to Hansard under Pepper v Hart. The Minister Jim Knight told Parliament that:
17. “Amendment No. 21 replaces clause 62(1)(b) with a similar provision under [s67(2)(a)], which will exempt from extinguishment any route where it can be shown that, for five years before commencement, the public use had been mainly by motor vehicles.
18. The emphasis is on motor vehicles. Specific reference to “the public use” makes a clear distinction from private use.
19. Any use which is unlawful cannot count towards satisfying the test. If the use is with lawful authority, such as driving on a bridleway at the invitation of the landowner, then the use is lawful but is not normally public. Driving on a bridleway or restricted byway without authority is an offence under s34 Road Traffic Act 1988 and so is not lawful. It might however be possible to show retrospectively that vehicular rights existed so that the use is rebranded as lawful. In that case, it could count towards satisfying the 5 year test and therefore exemption. It is probable however that very few bridleways will have been used to the extent required to satisfy the test, particularly taking into account “the character and condition of the way, where it leads, the surrounding highway network, and the inherent probabilities of the situation”. That view from George Laurence has not yet been tested in law, but the courts are very likely to follow the pragmatic approach adopted in the Masters case (see note 7).
20. It is a criminal offence to cause or intend damage to the surface of the highway, or to use it recklessly, without lawful excuse. It is also a criminal offence without lawful authority or excuse to cause damage to the extent that use by others is rendered inconvenient (note 8). Furthermore, driving which amounts to a public nuisance is unlawful (note 9).
21. Nuisance driving can only be proved by evidence of individual events, although evidence of repeated complaints about such use may carry some weight in assessing the balance of use. Damage to the highway however is more straightforward. Although prosecution of an individual for damage would only succeed if the actual offence could be proved beyond reasonable doubt, the fact that a type of use over a period has caused the damage would only need to be proved on the balance of probabilities for NERCA purposes. If a way is deeply rutted and off-roaders claim that they have been using the way extensively over the relevant period, then it is very difficult to argue that such use has not in itself caused or contributed to the damage and has not therefore been unlawful ( see note 2 ). It is often argued that farm vehicles gaining access have caused the damage (see “public v private” above). Apart from the fact that ruts in central zones are inevitably caused by motorbikes, not 4-wheeled farm vehicles, it is just as unlawful (as with the public) for an owner, or anyone with a right to use a track, to damage the surface of a highway if without lawful authority or excuse. Such use is caught not only by the Highways Act but also by the Criminal Damage Act because ownership of the surface of the highway is vested in the highway authority. It follows that where off-roaders submit numerous user evidence forms in an attempt to win the 5 year test, and where there is significant damage plainly caused by such use, then the applicants may have shot themselves in the foot.
(ii) On the LoS (alias UCRs), not on the DMS
22. Highway authorities (HAs) have a statutory duty under s36 Highways Act 1980 to keep a list of highways maintainable by the HA at public expense. This includes footpaths, bridleways, restricted byways, and carriageways. They are usually called Unclassified Roads (UCRs) which is an out of date term, and are often shown as Other Routes with Public Access (ORPAs) on modern OS maps. The listing of a way on the LoS does not necessarily mean that the way carries vehicular rights. There are many situations where it remains desirable to clarify, by way of s53 application, what rights exist in the absence of record on the DMS. This situation is outside the extinguishment provision in s67 and therefore is unaffected by the exceptions to s67. It is however caught by s66 whereby vehicular use at any time will not serve to establish rights after commencement. Although vehicular use may therefore count at any time up to commencement, the right must have been established before that date if it cannot be proved on an historic basis. To that end, and in the absence of any other form of legal event, the rights must therefore have been brought into question before that date. It is probably correct to say that rights become established at the date they are brought into question even if determined at a later date. If that is correct, the right would in theory have existed since the start of the dedication period. It cannot however be regarded as being on the DMS at NERCA commencement because there remains the need for an order specifying the operative date not more than 6 months before the order.
23. The making of an application will have stopped the 20 year clock because the relevant period ends on that date. If for instance an application was made in November 2005, vehicular use back to November 1985 (or to an unspecified date under common law) will count, but not after November 2005. The same principle applies to any other event serving to bring the rights into question before commencement.
24. Where ways are on the LoS but not the DMS, orders made before commencement under the free standing duty of authorities to review the DMS (ie without a s53 application) can take into account motor vehicular use at any time up to the date of the order. However, BOAT status will apply only if the order was finally confirmed before commencement (see s67(9) NERCA) so that the way was by then effectively on the DMS and was not unrecorded.
(iii) rights created pre-1930
25. The essential point to recognise is that rights “created” must – as advised by Defra at paragraph 35 – have been “established” by 1 December 1930 after which it became an offence to drive off-road. In context, that can mean only that the evidence of use now available is sufficient to prove that implied dedication could have been shown at that date under common law. User evidence after 1 December 1930 cannot count because it then became unlawful. Although in some circumstances the use has been legitimised by the the Bakewell case (note 9), it has been rendered valueless by s66. Records of vehicular use before that date have to meet the common law tests, ie positive evidence that would have been sufficient to justify the inference of dedication without statutory presumption. These tests are that it was as of right, that it took place continuously over an appropriate period of time, that the owner was aware of the use, that he did not challenge, that he had not given permission, that he had the capacity to dedicate, and so on. Records of occasional or even regular use taken by themselves cannot satisfy this exception without meeting these tests. Satisfaction of the tests outlined may be presumed as a matter of inference based on contemporary evidence. As Defra points out at para 36, if the way enjoyed vehicular rights historically before motor vehicles started to use it, then the right was already created and s67(2)(e) does not apply. It is also arguable that if pre 1930 dedication arises by virtue of use by a mixture of vehicles, then the right cannot be said to have arisen “by virtue of use by such [mechanically propelled] vehicles”.
(iv) pre-commencement s53(5) BOAT applications
26. Where a compliant application has been made (or other appropriate event has taken place) before cut-off, the rights (if they exist) will not have been extinguished. It remains open to prove their existence, and this will include dedication from long vehicular use finishing on the date of the application or other prior event serving to bring into question.
Between cut-off and commencement
27. Where the rights are brought into question by an application or any other event after the cut-off date, they cannot normally have been established in time in the absence of one of the exceptions referred to below or earlier. It is theoretically possible, albeit almost inconceivable, for rights to have been brought into question after the cut-off date and to have been recorded on the Definitive Map before commencement. Vehicular use in this period will be taken into account under the 5 year test, and may also serve to support restricted byway rights where rights were brought into question in this period. Such use will also be taken into account in the rare cases of pre-commencement determination of post cut-off applications, and of pre-commencement access applications. Although such cases require compliance with para 1 Sch 14, they do not need to have been made by the cut-off date.
28. By virtue of s66, vehicular use after commencement cannot serve to establish vehicular rights.
Note: Although checked by an experienced lawyer, this paper has been written on the basis of working knowledge. It is not to be taken as qualified legal advice.
1 GLPG is the Green Lanes Protection Group, an alliance formed by GLEAM to assist the Government in the drafting and implementation of NERCA. The Group procured a number of amendments to NERCA during enactment and initiated the Winchester case (see note 3). It currently represents the following organisations: Allen Valleys Action Group (Northumberland), Battle for Bridleways Group (Herefordshire), Brecon Beacons Park Society, British Driving Society, Cambrian Mountains Society, Campaign to Protect Rural England, Campaign for the Protection of Rural Wales, Campaign for National Parks, Country Land & Business Association, Cyclists Touring Club, Exmoor Society, Friends of the Lake District, Friends of The Ridgeway, GLEAM, Long Bostle Downland Preservation Society (West Sussex), North Wales Alliance to Influence the Management of Off-Roading (NWAIMOR), Peak District Green Lanes Alliance, Peak & Northern Footpaths Society, South Downs Society (Sussex), West Somerset and Exmoor Bridleways Association, Yorkshire Dales Green Lanes Alliance
2 Bakewell Management Ltd v Brandwood, House of Lords  UKHL 14, paras 41/42 see also Derby (Great Hucklow + Foolow) FPS/U1050/7/44M – June 2009.
3 The need for strict compliance was confirmed on appeal in R (oao Warden and Fellows of Winchester College and Humphrey Feeds Ltd) v Hampshire County Council  EWCA Civ 431. The main principles of compliance were confirmed by the Supreme Court in (R (TRF) v Dorset CC  UKSC 18) although an exception was made in respect of map scales.
4 Available in full from GLEAM on request ( contact at http://www.gleam-uk.org/contact )
5 Available at http://webarchive.nationalarchives.gov.uk/20130822084033/http:/www.defra.gov.uk/rural/documents/countryside/prow/nercactv5.pdf
6 Moor Head Lane, Yorkshire Dales NPA, ref FPS/C9499/7/7 dated 29 July 2008
7 Masters v Secretary of State for the Environment, Transport and the Regions, CA 31 July 2000 – para 41
8 s131A Highways Act 1980; see also s1 Criminal Damage Act 1971
9 Bakewell Management Ltd v Roland Brandwood 2 All ER 305; s3 Road Traffic Act 1988; and s59 Police Reform Act 2002
10 The question of whether the application needs to be strictly compliant with para 1, Sch 14, in order to qualify is considered under “Contentious Issues”.