BOAT claims in Somerset - guidance by the Green Lanes Protection Group 11 Dec 2011
What’s happening
A new series of Somerset BOAT claims (byway open to all traffic, ie licence for off-roaders) started in June 2011 (including two in Broomfield) These have been referred by SCC to Parish Councils and to some landowners. This note explains the implications.
Unrecorded rights for motor vehicles were extinguished by the Natural Environment & Rural Communities Act 2006 (NERCA), but there were eight exceptions. One of these exempted claims made before 25 Jan 2005 but, following the Winchester case in the Court of Appeal in April 2008, exemption only applied if the requirements for making claims had been strictly complied with. Pre-2006 the Trail Riders Fellowship (TRF – off-road motorcyclists), had been cutting corners in trying to beat the clock before commencement of the Act. 102 claims made before the cut-off date were thrown out by SCC in 2008 as being non-compliant. The present series of claims appears to be an attempt to win back lost ground.
Another of the exceptions to NERCA was that the Act didn’t apply at all to ways “whose main lawful use by the public during the period of 5 years ending with commencement (2 May 2006) was use for mechanically propelled vehicles”. The purpose of that was to protect the ‘ordinary road network’. Otherwise the Act would have annihilated the majority of minor roads, given the system of recording rights of way in this country. It was not the purpose of the provision to offer exemption on green lanes where the predominant use has not been in motor vehicles.
Measuring the balance of use presents an obvious difficulty for highway authorities. Leading Counsel’s advice has been that such a decision should be ‘pragmatic’, and that the character of the way may be taken into account. It all comes down to evidence, and this comes most easily from landowners or those who regularly use the way in question. The TRF claimant has supplied a number of user evidence forms (UEFs) seeking to prove that motor vehicle use was the predominant use in that 5-year period. In cases elsewhere in the country to date, the decisions by inquiry inspectors have rightly been that predominant use can only be established by independent survey, and that one-sided evidence from interest groups on either side is not the best determinant. That said, the weight of evidence from landowners or anyone living nearby, or from regular users, clearly carries weight in the absence of a survey. In some areas (such as Exmoor) traffic counters had been installed for rather different reasons. These are almost useless as they cannot cover the entire length of a way, do not record traffic other than vehicular, and do not distinguish between public vehicular use as distinct from private use (ie with authority from the landowner).
Most if not all the claims are plainly untenable. There is an ulterior motive however. The law is that it is a criminal offence to drive on a restricted byway (RB) unless and until it is proved that unrecorded vehicular rights exist (Road Traffic Act 1988, s34). If prosecuted, an off-roader may plead the existence of such rights as a defence and, if successful, rebut the presumption of an offence. That possibility should not however prevent the bringing of a prosecution, particularly where, as in these cases, it is highly likely to succeed. It is a sad fact that SCC does not understand the law in this area and is not providing the police with the leadership they need. It has been decided to stop the poster coverage in certain areas previously informing users that they commit an offence if they drive on RBs. SCC justifies this by a mis-statement of the law. In doing so, SCC is failing in its statutory duty to “assert and protect the rights of the public to the use and enjoyment” of the ways by those who do have authority to use them (Highways Act 1980, s130). The police and the Crown Prosecution Service (CPS) do not understand this technical area of law and are nervous about putting it to the test given the ambivalent attitude of SCC. Against that background, off-roaders, supported by the stated policy of the TRF, have been riding illegally on RBs in the belief that they will get away with it, and this use is increasing. On occasions, off-roaders have even indulged in physical assault to assert their position.
Processing claims
SCC has a backlog of well over 200 claims for modification of the Definitive Map, most of which are genuine claims from a bridleway association for bridleways or RBs. The TRF claims are at the end of that list. Given that a mere handful of claims are processed each year, a new policy of prioritisation was adopted by SCC in October 2011. This was based on the value of the way to the Rights of Way Improvement Plan (RoWIP). Regrettably, a proposal to extend this policy to cover the TRF problem fell on deaf ears. Reliance was placed by SCC on making exceptions where there are “significant exceptional problems”, but the meaning of this has not been tested and it will in any case be self defeating if applied to a large number of such cases. Furthermore, second applications on the same route (which applies to these claims) will not be decided until all the first applications have been dealt with. If the ‘exceptional’ test is not agreed therefore, there is no prospect of these claims being decided in the measurable future. Meanwhile, land values are seriously affected, illegal use is unchecked and damage to the routes in question increases. SCC has been legally advised that the decision on ‘main public use’ can be decided without processing the relevant claim in the normal way, a view promoted by Defra, but that too fell on deaf ears. Attempts are being made to educate SCC, the CPS and the police, but meanwhile the BOAT claims must be countered.
Evidence
The copies of claims circulated by SCC attach UEFs from the TRF expressly referring to NERCA and designed to record motorised use over the period May 2001 – May 2006. It is a deplorable fact that SCC does not have an equivalent parish/landowner form. The blank “Landowner Evidence Form” sent to landowners for completion is irrelevant as it focuses on matters concerned with dedication which is a wholly different legal concept. The only remotely relevant question in the present context is Q5: ”5. Have you seen, or been aware of, members of the public using this way? YES / NO* If yes please state the period, regularity and nature of such use.”
The form is grossly misleading because it makes no mention of NERCA whatsoever and does not ask the right question. It is addressed solely to owners and not to others who are in a position to provide information. It is essential that owners and other users address the 5 year period ending in May 2006. To complete the balance of use as claimed by the TRF, it is vital that as much information as possible as to use on foot, horse or bicycle over this period is recorded as soon as possible. That will remain on file until SCC can be persuaded to deal with the claims. If the form has already been completed by owners, then it is necessary to send a corrective letter to SCC answering the question that wasn’t asked. If the form has not been completed, it is advisable to give full information on Q5 by way of a letter attached. Given that time is passing, that memories fade and that people with local knowledge may disappear from the scene, this should done at a very early date. Bear in mind that the character of the way is relevant (as advised by Leading Counsel) so that if for instance part is completely unsuitable for motors (except as a challenge to motorbikes), then say so.
Illegal use
Given that motoring on RBs is a crime, offences need to be reported to:
1. The police. This can be to the local bobby, or to the Somerset Pathwatch scheme. The link to this is http://www.avonandsomerset.police.uk/community_safety/pathwatch/index.aspx
2. SCC. Send to Laurence Smith, Senior Rights of Way Officer (Definitive Map), PPC601c Rights of Way, Environment Directorate, Somerset County Council, County Hall, Taunton, Somerset, TA1 4DY
Tel: 01823 356241 Email: LSmith3@somerset.gov.uk
3. GLPG (see below). The evidence will be used in continuing efforts to educate SCC and the police/CPS.
For record purposes it is not necessary to provide more than the vehicles used, location and date. If it is possible to get photographic evidence and/or registration numbers (many ride non ‘road legal’ bikes without plates or with plates unreadable) then a prosecution should be requested, or at the very least (provided a member of the public has been alarmed, distressed or annoyed by the offence) a warning notice under s59 Police Reform Act 2002 (PRA). Riding illegally on a RB or a bridleway and/or damaging its surface can be causes for annoyance, and s59 notices can lead to crushing of the vehicle if the offence is repeated. It would be helpful to all three bodies named above to receive a report on illegal activity since Nov 2008 which is when the original BOAT claims were finally rejected.
If any of the motor UEFs are silly enough to state that the author has driven on the way since May 2006, the form should be sent immediately to the police as being admission of a criminal offence. Copies please to SCC and GLPG.
Further information/action
Guidance on NERCA and on the use of s59 PRA is on the website shared with GLEAM, the founder member of GLPG – see http://www.gleam-uk.org/ >Guidance.
Crime reports should be copied to info@gleam-uk.org or by post to GLEAM, P O Box 5206, Reading RG7 6YT – Ref ‘Somerset RBs’. On request from identified individuals with contact details, direct personal contact may be made and help given.
Those affected should also enlist support of County or District Councillors, as well as Parish Councils
