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The use of Traffic Regulation Orders to restrict motor vehicle use of green lanes
By Diana Mallinson

Updated May 2016

Introduction

1. This note provides some information about the history of traffic regulation legislation as it applies to green lanes in England and Wales, considers some recent relevant case law and summarises changes which have been requested.

History

2. Powers to control motor vehicle use of green lanes have been included in legislation since the Road Traffic Act of 1930.  Section 46 of this Act allowed the Minister to prohibit or restrict the driving of vehicles on specified roads where he was satisfied that “vehicles cannot be used…without endangering the safety of the vehicles or the persons therein, or of other persons using the road, or that the road is unsuitable … for unrestricted use by .. vehicles.”  This act and the subsequent legislation define road as any “highway [or] any other road to which the public has access” i.e. traffic regulation orders (TROs) can be made for any highway, whether or not it has proven public motor vehicle rights. Subsequent legislation has extended the power to make TROs to county councils and unitary authorities (traffic authorities) and expanded the range of reasons for making them.  In 2006/7 the power to make TROs was extended to National Park authorities for roads shown in the definitive map and statement as a byway open to all traffic, a restricted byway, a bridleway or a footpath, and for unsealed or predominantly unsealed carriageways [1].

3. The TRO is a versatile tool which may prohibit, restrict or regulate the use of any type, section, length, width or part of the width of a highway; by any type, weight, width, speed or direction of vehicle; for any period of time, as specified in the order.  The power for traffic authorities to make TROs is thus not limited to green lanes but is the power under which e.g. parking restrictions, speed limits and one-way streets are authorised [2].  This means that traffic authorities should be experienced in making traffic regulation orders.

4. As far as is known, the first time this power was used on green lanes was in 1938, when Cheshire County Council made two orders (which remain in force today), prohibiting recreational motor vehicle use of Bank Lane, Rainow, and Oven Lane, Macclesfield Forest [3].   Bank Lane was popular as a hill climb (known as the Corkscrew) with motor vehicle manufacturers and drivers who wanted to test their vehicles in the 1930s, and the order for Bank Lane has an exemption for trials organised under permit from the Royal Automobile Club or the Auto Cycle Union.

Reasons for TROs

5. Under current legislation, the Road Traffic Regulation Act 1984 (RTRA 1984), authorities can make permanent TROs for one or more of the following purposes:

  • for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of such danger arising
  • for preventing damage to the road or to any building on or near the road
  • for facilitating the passage on the road…. of any class of traffic (including pedestrians)
  • for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property
  • for preserving the character of the road in a case where it is specially suitable for use by persons on horseback or on foot
  • for preserving or improving the amenities of the area through which the road runs
  • for any of the purposes specified in paragraphs (a) to (c) of subsection (1) of section 87 of the Environment Act 1995 (air quality) [4]
  • for conserving or enhancing the natural beauty of the area [5]

For roads in or adjacent to “special areas in the countryside”, the list of purposes is expanded to include:

  • for affording better opportunities for the public to enjoy the amenities of the area, or recreation or the study of nature in the area

“Special areas in the countryside” include:

  • National Parks
  • Areas of outstanding natural beauty (AoNBs)
  • Country parks
  • Nature reserves
  • Long distance routes
  • Land held by the National Trust inalienably
  • Sites of special scientific interest (SSSIs)

The Secretary of State can make a TRO for a road in a special area in the countryside, following a request from Natural England or the Countryside Council for Wales (now Natural Resources Wales), if the traffic authority refuses to do so [6].

Contravention of a TRO is an offence which renders the offender liable to a fine currently of up to £1,000.

Section 122 RTRA 1984 lists various factors which authorities must consider, when using their TRO powers:

1. It shall be the duty of every local authority…. so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway…

2. The matters referred to in subsection (1) above … are-

  • (a) the desirability of securing and maintaining reasonable access to premises;
  • (b) the effect on the amenities of any locality affected….
  • (c) the importance of facilitating the passage of public service vehicles…
  • (d) any other matters appearing to the local authority to be relevant.

It will be obvious that most of these factors relate to TROs imposing speed limits, parking restrictions etc, not to TROs on green lanes.  However authorities must show, when proposing a TRO on a green lane, that they have considered these factors (see below).

6. Of the 10 TROs made by the Yorkshire Dales National Park Authority (YDNPA) which currently prevent recreational motor vehicle use of green lanes, all are for the purpose of conserving the natural beauty of the area, nine are also for preserving its amenity and one is also for the purpose of preventing damage to the road.  Of the 4 TROs made and one resolved to be made by the Peak District National Park Authority (PDNPA), all are for the purposes of conserving or enhancing the natural beauty of the area and preserving or improving its amenities, and one is also for preventing unsuitable use and preserving the character of the road as specially suitable for use on horseback or on foot. A TRO recently made by North Yorkshire County Council for a green lane in North York Moors National Park is for the purposes of improving the amenities of the area and for preventing unsuitable use of the road.

7. Authorities can also make experimental (time-limited) traffic orders under RTRA 1984, for the purpose of “carrying out an experimental scheme of traffic control” [7]. These have been used in the Yorkshire Dales and Peak District National Parks to assess the effects of restricting recreational motor vehicles, before deciding to make permanent TROs.

Recent case law relating to TROs

8. Recent judgments relating to TROs on green lanes include:

Wilson, Troughear and Motoring Organisations’ Land Access and Recreation Association v Yorkshire Dales National Park Authority [2009] EWHC 1425 (Admin)

9. In this case, four TROs made by YDNPA were quashed because the judge found that the authority had not explicitly balanced the factors in section 122 RTRA 1984 (see above) in making its decision, and that one of its reasons for making full rather than limited TROs was irrational, i.e. where it might have appeared that the authority was condoning illegal use.  After this quashing, the authority remade one of the orders in 2010, and decided that the other three were no longer needed, as public motor vehicular rights had by then been found not to exist over most or all of the three routes concerned.

Trail Riders Fellowship v Peak District National Park Authority [2012] EWHC 3359 (Admin)

10. In this case, an experimental TRO made by PDNPA was quashed because the judge found that the reason for the experiment given in the authority’s statement of reasons, i.e. to assess the effect of the order on the condition of the route, was not the same as that described by officers in their report to the authority i.e. to see if non-motorised users were attracted back to the route, thereby stopping damage to adjacent land.  However, because the experimental TRO had run for 15 months before being quashed and PDNPA had used that period to monitor many aspects of the amenity, condition and use of the route and the area, the data collected during the experimental TRO was of use when PDNPA subsequently decided to make a permanent TRO on the route.

Trail Riders Fellowship v Devon County Council [2013] EWHC 2104 (Admin)

11. In this case, the TRO was not quashed.  The Trail Riders Fellowship (TRF) had argued that a TRO made by Devon County Council should be quashed but the judge did not agree.  The TRO prohibited motor vehicles using a green lane, the junction of which with the A377 has poor alignment and visibility, “to promote road safety on the A377” i.e. for the purpose (a) above.  When the TRO was proposed it was supported by the parish council but opposed by the TRF.  One of the TRF’s arguments was that Devon County Council had failed to consider section 122 RTRA 1984 (see above).  The judge rejected this argument, finding that because the county council committee which made the TRO decision was a specialist (North Devon Highways and Traffic Orders) committee, it would have had knowledge of section 122.  He further found (following the judges in two earlier cases including the first described above) that the duty under section 122(1) to secure the expeditious, convenient and safe movement of vehicular traffic was not an absolute duty but one “that is to be applied so far as reasonably practicable having regard to the matters in section 122(2)”.

Trail Riders Fellowship and others v Powys County Council [2013] EWHC 3144 (Admin)

12. In this case, the TRF, the Green Lane Association Ltd (GLASS) and one of GLASS’s representatives, Christopher Marsden, challenged TROs made prohibiting motor and horse-drawn vehicle traffic on two BOATs in Powys.  Mr Marsden had in 2012 complained to the Magistrates’ Court against Powys County Council’s refusal to repair these BOATs, a complaint which the magistrates dismissed.  At the time when the County Council was deciding whether to make the TROs, Mr Marsden’s appeal against the magistrates’ decision was being decided by the Crown Court.   The TRF and GLASS challenged the TROs on several grounds, only one of which grounds was successful.  The judge quashed the TROs on the ground that the committee which made the TRO decisions could have been influenced by wording in the report they had received from their officers, which said that not making the TROs would jeopardise the County Council’s defence against Mr Marsden’s appeal on the repair issue in the Crown Court.   In rejecting some of the other grounds of challenge, the judge considered that the committee had had regard to its duty under s122 RTRA 1984 (see above), and rejected the TRF’s and GLASS’s  submission that s122 implied that a TRO banning vehicular traffic at all times should be an exceptional case, as being “without legal foundation in statute or authority.”  The judge also rejected the challenge that the County Council had been irrational in not adopting less restrictive TROs, e.g. winter closure, saying that the purposes for which the orders were made were not limited to preventing damage and that purposes such as safety “would not have been served by less restrictive orders.”

13. These judgments clarify what authorities must take into account when deciding to make experimental and permanent TROs and the importance of making a rational decision on the basis of evidence relevant to the purposes specified in RTRA 1984.  They do not support the argument commonly put forward by recreational motor vehicle users that TROs should always be the least restrictive possible.

14. In 2015 the TRF raised money through a crowd-funding appeal towards its legal costs in challenging a TRO made by Durham County Council prohibiting motor vehicles on a BOAT in the North Pennines AONB. The TRF said that a “win … for the TRF would…serve as a deterrent against further irrational closures.” [8] The TRF obtained an order quashing the TRO from the High Court in April 2016, because Durham County Council accepted one of the TRF’s grounds of challenge i.e. that background papers (mentioned in the committee report recommending the TRO as “Relevant documentation held in members’ library”) were not listed in the report nor made available to the public before the committee meeting, which resulted in procedural unfairness. This minor procedural error does not show that the TRO was irrational, as the TRF claimed, and it should not be a deterrent to Durham County Council or other authorities in making TROs. Authorities just need to ensure that all the documents they consider relevant to the TRO proposal are specified and available to authority members and the public before the decision on the proposal is made.

Possible changes to the TRO system

14. GLEAM has been campaigning for a change to legislation to provide an appeal mechanism (as exists in other areas of highway law, e.g. against an authority’s refusal to repair) when an authority repeatedly refuses to consider making a TRO [9].

15. In May 2013 the Peak District Green Lanes Alliance (PDGLA) asked the Department for Transport (DfT) and the Department of Environment, Food and Rural Affairs (Defra) to make the following changes to the regulations governing TROs: having just one stage of consultation rather than two; allowing authorities not to have to reply individually to each person who makes an objection during consultation; and giving discretion to authorities as to whether or not they will accept objections and representations by e-mail.  PDGLA also asked for improved guidance for authorities on the making of TROs and on the grounds for TROs, including how highway authorities should interpret “unsuitable having regard to the existing character of the road” (see ground (d) above).

16. In September 2013 Defra, in a letter to the Peak District National Park Authority, gave its view on some of the administrative requirements of the law relating to public consultation by National Park authorities on TROs.  It said that where there have been a considerable number of objections to a proposed TRO, the authority’s analysis of the grounds given in those objections may show that the grounds come down to a few main points.   If the authority decides, after consideration of these points, to reject them, it must clearly state its reasons for doing so, and may then prepare a single response to objectors giving its reasons for rejecting each point.

17. National Parks England, representing the ten National Park authorities (NPAs) in England, gave evidence to the Joint Parliamentary Committee on the Draft Deregulation Bill in September 2013 which included proposals relating to TRO procedures.  These proposals were to clarify the potential for an NPA to make a TRO on a route while one made by the traffic authority is in force;  to allow NPAs to make a TRO which provides for the issue and display of certificates identifying vehicles excluded from the TRO; for NPAs to be able to use whatever means are deemed appropriate for advertising proposals and orders; to be able to use a standard notice of decision when responding to objections (see above for Defra’s response); and to provide an expedient process for amendment or revocation of TROs [10].



Notes

[1] Road Traffic Regulation Act 1984, section 22BB (as amended)
[2] Rights of Way: A Guide to Law and Practice, John Riddall and John Trevelyan, 4th edition, 2007, 7.7.1
[3] PDGLA Newsletter May 2013, page 5 and The Raven, No.19 Summer 2012, page 7 http://www.rainow.com/
[4] Road Traffic Regulation Act 1984, section 1 (as amended)
[5] Road Traffic Regulation Act 1984, sections 22 and 22A (as amended)
[6] Road Traffic Regulation Act 1984, section 22 (as amended)
[7] Road Traffic Regulation Act 1984, section 9
[8] Northern Echo Article: Trail Riders launch £10k appeal to take court action over access to country lane
[9] GLEAM Newsletter Spring 2014 page 4
[10] National Parks England – Written evidence to Joint Committee on the Draft Deregulation Bill