A note by GLPG
Revised June 2009
Note: Practical notes are in Q & A form in section C. “[Qx]” symbols in the following text indicate where points are discussed in section C. The paper is written by Graham Plumbe FRICS FCIArb, Vice Chairman GLPG, based on working knowledge. It is not to be relied on as qualified legal advice. Contact with GLPG for further help can be made through GLEAM.
Commencement: Commencement of Part 6 was 2 May 2006 in England, 16 Nov 2006 in Wales. For commencement of Restricted Byways see Principle 3 below.
A. General Principles (expanded in Section B)
Principle 2. To prevent the extension of the byway system by extinguishing unrecorded mpv rights. Thus there will be no further byways open to all traffic (BOATs) generated by claims based on horse and cart origins, or on other historic factors such as enclosure awards. This is subject to a number of specific exemptions, including provision for access. The criminal offence of driving on ways without recorded public vehicular rights (pvrs) became comprehensive.
Principle 3. To dovetail the new regime with the delayed provisions of the Countryside and Rights of Way Act 2000 (CROW) whereby all Roads Used as Public Paths (RUPPs) were converted to Restricted Byways (RBs), subject to access provisions.
Principle 4. To provide (i) that presumed dedication as RBs under the Highways Act 1980 can arise from bicycle use, and (ii) that the making of a claim for any rights will “bring [those rights] into question” and thus stop the clock on the 20 years’ use which gives rise to presumed dedication.
Principle 5. To give National Parks the power to make Traffic Regulation Orders (TROs).
Presumed dedication under statute based on 20 years’ use, and inferred dedication under common law, no longer apply for the creation of new rights for mpvs after commencement. Such new rights can only be created now by legal instrument or when roads are constructed for the purpose. Subject to one exception, mpv use at any time is no longer to be taken into account when any new rights are in question.
Principle 2 (s67 – extinguishment of unrecorded vehicular rights)
With effect from commencement (see introduction) unrecorded mpv rights were extinguished (subject to the exceptions and exemptions below) in cases where the way in question is
- not shown on the Definitive Map (DM) as a public right of way, or
- is shown on the DM but only as a footpath, bridleway or restricted byway (s67(1)).
Note – BOATs already recorded on the DM are not affected by NERCA.
Exceptions There are five exceptions to the general extinguishment rule:
- 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 mpvs (s67(2)(a)). [Q2]
- If at commencement the way is on the List of Streets (the statutory list held by highway authorities recording a liability for maintenance at public expense) but is not shown on the Definitive Map, it is not affected by NERCA and its status (whatever that might be) is unchanged (s67(2)(b)). [Q3]
- The right was created by legal instrument.
- The right was created by the construction of a road under any enactment.
- The right was created by long use prior to 1 Dec 1930. [Q4]
Exemptions Where extinguishment would normally happen as above, there are three further exemptions. If a claim for public mpv rights has been made [Q5] in the required manner under the Wildlife & Countryside Act 1981 (WCA) strictly construed [Q6], it will be processed under the old law in three cases:
- where the claim was made before the cut-off date for application of the old rules (20 Jan 2005 in England, 19 May 2005 in Wales) (s67(3)(a));
- where the claim was made on or after the cut-off date, and the highway authority before commencement has determined [Q7] to make a Definitive Map Modification Order (DMMO) or not to make an order (s67(3)(b)), or
- where the claim was made on or after the cut-off date and before commencement by a person with an interest in land and the way was reasonably necessary for access (s67(3)(c)).
Where a claim gives rise to any exception or exemption, it remains necessary to prove (i) the prior existence of vehicular rights, and (ii) that the rights have been exempted from extinguishment. Either can be defeated on a number of grounds, including non-compliance with statutory requirements [Q6] and public nuisance [Q8]. Until that position is reached (normally as a defence to prosecution), it remains an offence to drive on ways other than BOATs [Q9].
Claims made after the cut-off date will still have to be processed [Q10] but can only result in restricted byways at most, assuming the 5 year test (Exception (i)) has not been proved.
Existing access to private property is protected, without a claim having been made, by creating a private easement [Q11] in place of an extinguished public right for mpvs if such access is reasonably necessary (s67(5)). This is in addition to Exemption (iii) above.
Principle 3 (CROW Act s47-52 – introduction of restricted byways)
Commencement orders were made (simultaneous with NERCA in England; 11 May in Wales) to bring CROW Act ss47-51 into effect in England. RBs replaced RUPPs and it became an offence to drive mpvs on RBs unless:
- it can be proved, in the event of prosecution, that unrecorded vehicular rights exist (Road Traffic Act 1988 s34), which can only happen if it is also proved that the rights are exempt from extinguishment (see Principle 2 above), or
- the way is used for access to private property [Q12] and was so used immediately before commencement (s70(4)).
Principle 4 (s68-69 – changes to presumed dedication)
Presumed dedication of a restricted byway can now be brought about under s31 Highways Act 1980 by 20 years’ use on bicycles (s68).
A claim for any rights under the Wildlife and Countryside Act s53(5) now serves to “bring [the rights] into question” and thus end the 20 years’ use giving rise to presumed dedication (s69).
Principle 5 (s72 – TRO powers to National Park authorities)
National Parks are now the traffic authorities for the imposition of Traffic Regulation Orders (TROs) on unsurfaced ways.
C. Questions arising
A number of questions have already arisen and this section attempts answers. Defra has published extensive guidance on its website http://archive.defra.gov.uk/rural/documents/countryside/prow/nercactv5.pdf (V5 May 2008 ). GLPG has obtained Leading Counsel’s opinion on some matters. The answers that follow reflect these sources but the jury is still out in some respects.
Q1. Does past motor vehicle use count?
Where a claim has been made before commencement, the making of the claim will now be taken as “bringing into question” for Highways Act purposes, so that mpv use may still count towards presumed dedication, but only if the claim is exempt. If the claim was made on or after 20 Jan 2005 (19 May 2005 in Wales) such use will no longer count unless the 5-year test is first satisfied. Note that the provision in s66 which precludes new mpv rights being created on the back of vehicular use is in addition to extinguishment of existing rights under s67.
Q2. How is the 5-year user test in s67(2)(a) to be implemented?
Extinguishment of unrecorded vehicular rights does not apply if it can be shown that the main lawful use by the public for 5 years ending on commencement was in mpvs. The purpose of this section is to preserve vehicular rights over the metalled “ordinary (or white) road network”, commonly in the form of unclassified county roads (UCRs) – see Q3. No criteria are specified as to how “main use” is assessed. Counsel and Defra advise that the test must be judged pragmatically, but the courts may have to decide in due course just how it is to be applied. The Act imposes a presumption of extinguishment. As the Minister said on 29 March 2006 (Hansard Col. 957): “The burden of proof is placed on those using a motor vehicle to show that, because the route had been used mainly by motor vehicles for a significant period, the rights have not been extinguished.” There are a number of situations where authorities may have to decide for themselves whether the 5-year use exception applies, but that would not extend to replacing the courts where rights are in question under a prosecution.
The main use has to be (a) motor vehicular, (b) by the public, (c) lawful and (d) over the full period of 5 years ending on commencement. It is difficult to see how in most cases the motorists will be able to prove main use if there are no records available of the use by others. Inspectors’ decisions already exist (eg in Yorkshire and Derbyshire) where unilateral evidence by motorists has been rejected as not being objective.
It is debatable whether use for access counts as public use, but Defra and Counsel share the view that the purpose of the Act is not to include such use where the user would have a private right irrespective of the public use.
The use has to be lawful, and unlawfulness not only includes driving where rights are less than byway rights, but also public nuisance (see Q8) and criminal damage to the highway. There is in fact a very wide range of offences which would make the use unlawful, many of which are detailed in the Defra enforcement booklet “Regulating the use of motor vehicles on public rights of way and off road”, available on their website. Other offences are listed in the GLEAM website Police Reform Act 2002 appendix. “Unlawful” would not extend to civil wrongs such as trespass, nor would it embrace breach of s34 RTA where “lawful authority” has been given.
There are various ways in which the dominant use can be resolved if disputed.
First, presumptions can be rebutted in a court of law, so one option is to test the matter by way of a prosecution. Another legal option is process by the landowner for an injunction to prevent trespass, or for a declaratory judgment as to rights.
A further avenue is by way of s53 claims under WCA 81, initiated by the vehicular user. There are already many such claims in being not qualifying for exemption and others are likely to follow. They have to be processed. In such cases the authority will have to reach a view as to whether the 5 year test has been satisfied. Only then can a decision be reached as to whether any underlying rights can be proved and therefore whether any form of order (subject to objection procedures) is required. This option is however very limited because the definition of BOAT assumes mainly “public path” use (ie used as footpath or bridleway), and proof of predominant vehicular use over the relevant five years will in most cases prevent BOAT classification. Furthermore, there is no provision in WCA to remove lower rights where mpv rights can be shown but a BOAT order is precluded by definition. That leaves an untidy situation. Vehicle users would have to rely on an inspector’s findings (that BOAT status is exceeded) together with an entry on the LoS if the latter exists. The options open under s53 applications seem to be as follows:
|User test satisfied||Mpv rights provable||BOAT order not confirmed as definition not met; order to remove lower rights impossible|
|“||Mpv rights not provable||Bridleway or footpath order, or no order; RB order not available as rights not proved|
|User test not satisfied||Mpv rights provable||RB order as mpv rights extinguished|
|“||Mpv rights not provable||Bridleway or footpath order, or no order; RB order not available as mpv rights not proved|
Q3. How are ways affected if they are on the List of Streets (LoS) or are on the Ordnance Survey (OS) maps as Other Routes with Public Access (ORPAs)?
The LoS is only about public liability for maintenance and carries no authority as to the level of rights. Many such ways are (wrongly) known as Unclassified County Roads (UCRs). Some highway authorities have been advising that UCRs carry vehicular rights. Defra has advised for a long time that such advice is wrong; no presumption can be made and each case must be assessed on its own merits. Lord Bach told the House of Lords on 28 Feb 2006 “We will be issuing guidance to local authorities and rights of way inspectors to clarify that”, and it is now confirmed in Defra’s guidance. It is also pointed out that in the absence of statutory processes for inclusion or removal of entries, and in the absence of any appeal system, the LoS is in any case of uncertain authority.
ORPAs are an invention of the OS and are no more than a reflection of the LoS. They have no official status and this is confirmed in the Defra guidance.
If at commencement a way was on the LoS and was not shown on the Definitive Map (DM) then it is unaffected by NERCA. Most of the LoS roads are not on the DM – so are outside the Act. It therefore remains possible in such cases to add a BOAT to the DM if the predominant use of the way is that of a public path (ie used as footpath or bridleway) and existing vehicular rights can be proved.
The doubtful ones are those that are also on the DM (and therefore caught by NERCA) and so have dual status – ie RB+UCR, or even (in some areas such as the Lake District) footpath or bridleway+UCR where previous mpv use will have been unlawful unless and until proved otherwise. In such cases, together with those that are added to the LoS after commencement but excluding those with exempted claims, it will be necessary to satisfy the 5 year user test before considering the existence of rights. In some cases motorised use does not present a problem and there will be de facto acceptance of the use without challenge.
Q4. What is meant by rights created by mpvs prior to 1 Dec 1930 (s67(2)(e))?
This was the start of the law whereby it became an offence to drive off-road under RTA 1930. Vehicular rights which can be shown to have matured under common law prior to 1930 by virtue of mpv use (which does not need to have been for 20 years) can still be claimed, but common law tests are stringent and this situation must be rare. Claims have however arisen (for example) where hill climbing on motorbikes in the Lake District could have amounted to dedication, provided non-motor vehicular rights did not previously exist. In respect of rights which matured since 1930, these are now extinct unless they escape NERCA.
It is made clear by Defra that “creation” of rights as referred to in NERCA means the date when the rights are crystallised, notwithstanding the fact that in strict law a right that arises from a period of use is deemed to have been dedicated at the beginning of the qualifying period.
Q5. Does exemption under s67(3) depend on the existence of a qualifying BOAT claim?
Yes. It cannot arise as a result of the authority’s own initiative in deciding to make a Definitive Map order under the general duty to review, nor can it arise following a claim for any other level of rights. The claim must also be strictly compliant with statutory requirements as to form, documentary evidence and map in order to qualify for exemption (see Q6).
Q6. What constitutes a claim qualifying for exemption? (s67(3)(a) and 67(6))
The Act requires the claim to have been made under s53(5) of WCA 81 and “in accordance with paragraph 1 of Schedule 14 to that Act” which in turn must be read with the 1993 Regulations. Sch 14 requires the claim to be “made in the prescribed form” and to be accompanied by “(a) a map drawn to the prescribed scale and showing the way or ways to which the application relates, and (b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application.” The Regulations prescribe the terms of the application form, and specify a map drawn to a scale of not less than (ie not smaller than) 1:25,000.
In granting concessionary relief to claims made before the cut-off date, Parliament clearly intended that such relief would apply only to claims made correctly in respect of the above requirements. Many authorities had been allowing a bending of the rules, and Defra took the view that a loose interpretation of the Act would suffice. Arguments came to a head in the Winchester (Appeal Court) case ( www.bailii.org/ew/cases/EWCA/Civ/2008/431.html ) when it was held that the requirements must be strictly applied. The particular defect then was lack of copy documents, but lack of signature or date, no list of documents and maps drawn to the wrong scale have all been held, either in court or by inspectors, to cause claims to fail for qualification.
Q7. What does “determination” mean in the context of exemption under s67(3)(b)?
The purpose of the clause was explained by the Minister on 29 March 2006: “However, any BOAT claims made after those dates [cut-off dates] will be dealt with under the terms of the new legislation, subject to two limited exemptions. The first is when local authorities have already [by commencement] reached the stage of determining the claim …”
The words “such an application” in s67(3)(b) refer to BOAT claims generally (ie not to claims for other forms of right), but were not intended to cover claims made before the cut-off date which will in any case be exempt. “Determination” by an authority is the making of a decision in Committee (or by delegation). This is either to make a Definite Map Modification Order or to make no order. If that decision has been taken before commencement in respect of a BOAT claim made after cut-off (which will be very rare given an interval of only about 15 months in England) then the claim is exempted from NERCA, including when an order is subsequently made following an appeal against a “no order” decision. A determination based on a claim for rights other than a BOAT, or a determination arising from the authority’s own initiative in the absence of a claim, does not qualify for exemption. In such cases vehicular rights are extinguished if the right has not been recorded on the DM by commencement.
Q8. What does “public nuisance” consist of and does it affect BOAT claims?
Public nuisance is a crime. Any use which involves public nuisance is unlawful and cannot count either towards dedication or to satisfying the 5 year test. A recent inspector’s decision on a claim in Derbyshire, based on 20 years’ mpv use, failed as a BOAT entirely because of evidence of hazardous encounter in narrow places, serious rutting, prevention of use by horses, prevention of use by schoolchildren on nature walks, disturbance from noise, danger to driven stock, damage to walls, and complaints to the highway authority.
Q9. What is the position as to driving on rights of way where there is an outstanding BOAT claim?
Apart from private access (see Q12), it is now expressly an offence to drive on a restricted byway (it was previously unclear as to RUPPs) under s34 Road Traffic Act 1988 as varied by the CROW Act 2000. It continues to be an offence to drive on footpaths and bridleways. For an off-roader to defend against prosecution he must prove the existence of rights. If there is a claim in place, he will have to satisfy the court (a) that the claim will succeed as to prior rights, and (b) that either the claim qualifies for exemption (see Q6) or that another exception applies. Such exceptions may include proof that the 5 year test has been satisfied (see Q2).
The existence of a claim does not prove anything in itself but it may be a factor. Lord Bach said on 27 March 2006 (Hansard Col. 572): “This is a complex area of law and we intend to issue guidance to the police, local authorities and others about the rights of way provisions in this Bill. It will include guidance to assist with enforcement of the law over rights of way which are the subject of outstanding applications for BOATs at the time this part becomes law. When a claim has been submitted but not determined, the prosecuting authorities of course have a discretion whether to prosecute in each case, and the existence of a pending application may be a factor relevant to the exercise of that discretion.” It will undoubtedly be necessary in some cases to bring prosecutions in order to resolve uncertainty. Defra guidance, prompted by GLPG, is that the courts should seek guidance from the Planning Inspectorate as to the standard of evidence called for in this context. Advice is available from GLPG on this.
The alternative is to prove beforehand through normal claim processes that rights exist. In most cases that will take a long time to complete. Meanwhile, if off-roaders continue to use the way and take the risk, the question can be brought forward by prosecution. Note that, whereas an inspector’s decision as to the existence of rights will be authoritative (subject only to legal appeal), a magistrates’ decision will relate only to the case before them. Nonetheless, the latter will be persuasive as a precedent, and the public should encourage prosecution for illegal use wherever possible.
Q10. What happens to the mass of claims lodged to beat the clock?
All claims will have to be processed if not rejected as invalid. Defra believes that these should be dealt with promptly, and ways are being looked at by which authorities might be encouraged and assisted to deal with them with as little delay as possible. A system of prioritising claims by authorities could be of help.
As part of the process, a decision will be needed as to whether the claim is exempt. If so, it will need to be processed in the traditional way. If it is not exempt, then the claimant must produce evidence as to the main use over the 5 years prior to commencement. It may well be that many claims will fall away at this stage. Claimants need to be asked at an early date whether they are making this assertion and on what basis. Counsel confirms that in all cases the burden of proof of exemption is on the claimant, although “proof” as such is permissible at any stage prior to final confirmation.
It is open to claimants to withdraw claims, but once evidence is “discovered”, the authorities may have a duty to review the map irrespective of the existence of a claim. Authorities have a discretion in this respect and may decide not to pursue such reviews if a claim is withdrawn and the “evidence” provided does not suggest that a change is merited. Alternatively, the review may be given low priority.
Authorities should be alert to the fact that claimants for BOAT status may well fail to pursue the claim at later stages if the highest status achievable is that of restricted byway. GLPG is arguing that claimants should be warned that costs can be awarded against them if they pursue an unreasonable case or fail to give evidence at a public inquiry if this results from the claim being maintained.
Q11. How does a statutory private right of way arise under s67(5)?
Automatically, although for title purposes it may be necessary to confirm by documentation. It does however depend on the existence of an unrecorded public right in the first place, so that if there is any disagreement with the landowner over whose land the access runs, it may require a declaratory judgment in a court of law. That will not only involve proving the existence of the extinguished public right, but also that it is reasonably necessary for access.
This process is an alternative to establishment of public rights by way of an exempt claim made before the cut-off date. Such claims would in many cases take years to resolve (unless prioritised by the authority) and would give a public right of use where least wanted by a landowner in normal cases. This option is extended temporarily up to commencement under s67(3)(c) whereby a compliant BOAT claim is exempted if it was made by a landowner where the access is reasonably necessary. It is thought that few if any such cases exist.
Q12. What constitutes access to private property giving relief from offence (s70(4)) ?
Where a person with an interest in land was using a RUPP as access prior to commencement, he and his visitors can continue to do so over the replacement RB without committing an offence. The Act clarifies that a person driving on a former RUPP to visit access land designated under CROW, or common land, or land subject to public access agreements is not a visitor for this purpose. No right of way is established by this process.
It is already apparent that off-roaders are intent on either finding ways round, or defying, the Act. GLPG needs to consider what action is required to counter this. Much will depend on the resolve by the Government to ensure that the Act works, and this will be done mainly by guidance to the highways authorities, the Crown Prosecution Service, the police, magistrates and the Planning Inspectorate. Monitoring websites and publications is a useful part of understanding what motorists are up to. The first step was taken by Defra in its published guidance, largely reflecting input from GLPG.
The second step is for members to urge individual authorities through both officers and councillors to continue rapid positive action as to signage indicating the change of status of ways within their area (as is happening in some areas). This applies particularly to ways that have become restricted byways. Yorkshire Dales NPA took the lead in respect of ways where vehicle use will no longer be condoned. Authorities should also be challenged if they appear to misunderstand the provisions of NERCA.
Third, highway authorities must be persuaded to make Traffic Regulation Orders where appropriate.
Fourth, members are urged to encourage the police to prosecute where appropriate, and to help by obtaining evidence and details. Members should be aware of the various offences that exist in law and are advised to procure and read Defra’s booklet (available on the website) “Regulating the use of motor vehicles on public rights of way and off road”. There may be opportunities to become involved in prosecutions such as discussing with the police the type of evidence needed to prove rights in a magistrates’ court. GLPG through the Chairman will be happy to advise in this respect. Members should also assist the police in making complaints which enable use of s59 Police Reform Act 2002 (see guidance on the GLEAM website). Details aimed at are time, date, direction of travel, details of the vehicle(s) (make, colour, reg. no., or if the vehicle(s) had no number plate); also details of any van or trailer used for transport of motorbikes. Photographic evidence is very useful.