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The Solent And District Land Rover Club

New Proposed Natural Environment & Rural Communities Act 2006

With effect from 30th March 2006

The NERC ACT – PART 6 – What it says and what it means for recreational and sporting motorists

Introduction

First, a few pointers:

The quotes from the Act itself are inset, and italic.

Comments on the Act are roman as this, and follow the text to which they apply.

A couple of comments are made within the quotes and in square brackets – these are for clarification, and not part of the wording of the Act.

This part of the Act will become effective on ‘commencement’ – which will be decided in England by the Minister, and in Wales by the Welsh Assembly Government. It is likely to be soon, but not before the long-awaited RUPP to RB change. The text is written as it will apply after commencement – until then, nothing has changed.

 PART 6

66 Restriction on creation of new public rights of way

(1) No public right of way for mechanically propelled vehicles is created after commencement unless it is—

(a) created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for such vehicles, or

(b) created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles.

(2) For the purposes of the creation after commencement of any other public right of way, use (whenever occurring) of a way by mechanically propelled vehicles is to be disregarded. 

This means that from now on, anyone who creates or dedicates a new motor road (in a housing estate, or a bypass) must be sure to include a reference to motor vehicles. It also means that a new motor road cannot be created under any circumstances based on use with motors. This clause, especially ss(2), is likely to cause confusion, as others will hope that it excludes motoring evidence from existing claims, or when defending existing rights. It does no such thing – the relevant words are ‘for the purposes of creation after commencement’ – any existing claim will be trying to confirm a right which already exists, not a completely new one, so current motoring use still counts as good evidence.

The process of ‘deemed dedication’ whereby a highway is created by long user is widely misunderstood to mean that after 20 years, the highway comes into existence. In law, though, the highway created in this way exists from the very first user – the following years of use serve to confirm the right, not to create it. 

67 Ending of certain existing unrecorded public rights of way

(1) An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement—

(a) was not shown in a definitive map and statement, or

(b) was shown in a definitive map and statement only as a footpath, bridleway or restricted byway.

But this is subject to subsections (2) to (8).

 This starts the clause by saying that everything not recorded as a BOAT has its motoring rights taken away. Everything, motorways included. Then, there are safeguards (2) to (8) which stop the removal from applying in specific cases – referred to in our explanation as ‘exceptions’. Remember, that in every case, it is only the motoring rights that are likely to be removed, all other rights (foot, horse, bicycle, carriage) are not affected, even if the route is not shown on any official records.

 (2) Subsection (1) does not apply to an existing public right of way if—

(a) it is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use for mechanically propelled vehicles,

 If the road has been mainly used by motors, it is safe. But – the use, and the balance of use, of most highways is not recorded at all, and it is likely that this exception clause will lead to confusion. This confusion is only going to be resolved when the courts decide how to interpret it. Remember the confusion caused by the Nettlecombe case, only resolved years later by the final Masters judgement – all of them trying to work out what the ‘balance of user’ test in the definition of BOAT was all about. This is not the same test, but it will still cause the same confusion.

 (b) immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (c. 66) (list of highways maintainable at public expense),

 This is what saves most ‘ordinary roads’ from extinguishment. Most roads are not shown on the Definitive Map & Statement, and most are recorded on the List of Streets. But – the List is not the reliable record that parliament clearly expects it to be. It is, after all, a list, generally in alphabetical order, of what the authorities call ‘adopted roads’ – those roads which they recognise as needing regular attention by their tarmac department. Many of the significant roads for sporting motoring are not named, or if they are, various names are used. How, then, to find them in the List? Others are recorded as eg ‘Abbots Road (part)’ – with no indication of which part, or how much. Some Authorities keep a Map rather than a List (although the rules specify a list) – does this count as a safeguard even though it does not match the Highways Act? Other problems which are going to arise with this clause include:

- the existence of ‘ordinary roads’ which although they are all-purpose roads are not required to be shown on the List – perhaps because they are maintainable privately or not at all, including some railway and canal bridges, as well as some housing estates and industrial estates;

- the failure of some authorities to keep their list properly – they may have ‘lost’ routes (just rubbed them out or used Tippex) without any proper process, or they may have simply got behind with the necessary up-dating processes;

- some routes on the List will include routes also shown on the Definitive Map, but not to the full width. A housing estate road may be thirty feet wide, and run on the same line as a footpath six feet wide. The implication of the Act seems to be that the strip which is the footpath has motoring rights removed, but not the rest of the route – with confusion as a result. The Definitive records rarely show the line of a route with sufficient accuracy to know where a route is (or was) when the surrounding landscape has been built over;

- while the rules say that a footpath ‘running alongside’ a carriageway should not be shown on the Definitive Map, some authorities have ignored this, resulting in footpaths being shown which should not be shown. The new Hadrian’s Wall footpath is a recent example. How this will affect the motoring rights on the carriageway is not clear – further confusion.

- correlation of the List with the Definitive Map, to work out what is caught and what is safe, is complicated. Matching up an alphabetical List with a Map is not easy – especially where (as usual) the List refers only to roads by name, and the Map shows no road names at all.

- The Definitive Map is generally on a 1950s or earlier base map, while the ‘List’ Map is likely to show all modern construction and development. This further complicates the task in areas where the matching of a map with a map might seem to promise an easier task. 

(c) it was created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles,

(d) it was created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles, or 

These two exceptions will provide a safeguard for recent bypasses, and similar routes, as long as the necessary express terms or ‘intention’ are clearly set out, and as long as none of it pre-existed the ‘new’ route. No-one is likely to challenge the use of such routes by motorists, so perhaps these are the least contentious of the exceptions. One complication is that many Inclosure Awards use terms such as ‘for all purposes whatsoever’ – and it is not clear whether this is going to count as ‘express’ provision for motors. Perhaps not, for documents predating the first use of motors on the roads, but after Mr Trevithick’s famous journey in 1801, and the steam carriages of the 1820s, who can say?

 (e) it was created by virtue of use by such vehicles during a period ending before 1st December 1930.

 Another source of confusion, I suspect. The word ‘created’ should refer to the first use of the route by motors (as explained above) so as long as this first use was before 1930, and there is enough use after that to meet one or other of the legal tests (20 years before a challenge for Statute, a significant period where the landowner clearly wasn’t bothered for Common law). In areas where there was a record of early motoring (such as early trials records, and tourist photos) this may provide a relevant safeguard – especially for areas such as Cumbria and Staffordshire where vehicular routes were recorded as bridleways under the 1968 Countryside Act (with its test of suitability for motors), and in Derbyshire with its history of reliability trials going back well before WW1.  

(3) Subsection (1) does not apply to an existing public right of way over a way if—

(a) before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 (c. 69) for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic,

 This allows for BOAT claims which were properly made before the ‘relevant date’ (20 January 2005 in England, or 19 May 2005 in Wales, see (4) below), to go through without extinguishment under the existing (pre NERC) rules. Properly made means that the claim must have met the threefold test in WCA81 Sch14 (1) – the form properly completed, a map showing the route claimed, and copies of the documentary evidence (see paragraph 6 of the Act, below). Some authorities are confused by these rules – they have been insisting on landowner notification before accepting the claim. This is a misinterpretation, as Sch14 (2) is where the certificate of notification is required, and this cannot be done before the claim is duly made. Anyone affected by this, having made a valid claim in good time, only to have it rejected on spurious grounds, may need to take vigorous action to save the route from being caught by the NERC Act. One check which should be easy is to look at the Register of Applications – which should show the date on which the claim was received (and not any later date after the authority had considered the matter, or the landowner certificate had arrived, etc).

NB 1: Not all BOAT claims made after the relevant date are caught by the NERC extinguishment – only those where the motoring rights are removed (ie where no other exception applies). This might include a claim made to confirm motoring rights on a route shown on the List of Streets, for instance where the Highway Authority has been unable to confirm whether vehicle rights exist on it. It may be that other ‘late’ claims are ‘saved’ because of express dedication, majority use by motors, or creation by motoring use starting before 1930.

NB 2: Nothing in the Act allows any claims already in the system to be rejected – whether or not the motoring rights are caught – although the Authority must consider whether the Act removed rights when dealing with the application. One difficulty likely to arise is that some Authorities have a significant backlog of claims. If a claim is dealt with many years later (and this is likely in some areas) it will then be necessary to form a view on the balance of user during the 5 years before commencement of Part 6 of NERC – ie a period which, by then, ended perhaps ten or more years in the past.

NB 3: If an Authority decides, in this process of considering a claim, that motoring rights have been lost, anyone doubting this may object following the advert of the decision, and have the extra evidence (about any exception which may apply) considered by an Inspector at a Public Inquiry. This might be difficult if an Authority decides that a RUPP with a BOAT claim had, but has lost, motoring rights, and therefore should be recorded as a Restricted Byway. They may well, in those circumstances, be inclined to regard the DMMO process as a waste of time and effort, as the RUPP would become a Restricted Byway in any case. It does not seem to be the intention of the Act that such claims should be abandoned, as it is silent on the matter – and such action by the Authority would remove the opportunity for the applicant or anyone else to show that an exception really did apply. It may be that this will need to be clarified in the courts.

 (b) before commencement, the surveying authority has made a determination under paragraph 3 of Schedule 14 to the 1981 Act in respect of such an application, or 

This allows for claims which may otherwise have missed the deadline, or which would not be ‘saved’ by other exceptions, to retain any motoring rights, as long as the authority has got as far as making a formal decision on the outcome. It does not apply to other decisions by the Authority – such as reclassifications of RUPPs which have not yet completed the process of advertisement, Inquiry, etc. As these routes will not be recorded as BOATs on the date of commencement, even though they are sitting in the pile waiting for an officer to do the final change, they may indeed be caught by the Act. Only time combined with a rigorous attention to detail will tell. Experience tells us that authorities have plenty of time but may need help with the rigour. 

(c) before commencement, a person with an interest in land has made such an application and, immediately before commencement, use of the way for mechanically propelled vehicles—

(i) was reasonably necessary to enable that person to obtain access to the land, or

(ii) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only. 

This is the first clause (of three) which is promised as a safeguard for farming access and for rural properties, where the access routes are not in the same ownership, and are recorded as footpath, bridleway, or RUPP, or are not on the Definitive Map or the List of Streets. It means that a BOAT claim from such a property owner is not caught by the Act as any other claim might be, as long as the ‘need for access’ condition is met. It does not guarantee that the claim will be dealt with soon, or out of sequence, or that it will succeed. Anyone may object, when such a claim comes to the top of the pile and is advertised, on grounds that the safeguard does not apply. The difficulty of proving, in several years time, what was or was not necessary before commencement, does not seem to have been in the minds of those designing the Act. The problem is most likely to surface when a property is changing hands, and the question of access is still in doubt. If the sale goes ahead before the claim is resolved, neither the new owner nor the authority may have access to those who needed the access (ie the witnesses of the need), so the sale is likely to be in jeopardy until the rights are proven. 

(4) “The relevant date” means—

(a) in relation to England, 20th January 2005;

(b) in relation to Wales, 19th May 2005.

 This is the date before which a BOAT claim must have been made to be certain of avoiding the effects of the Act; later claims might not retain their motoring rights – see the discussion under (3) above.

 (5) Where, immediately before commencement, the exercise of an existing public right of way to which subsection (1) applies [ie a route which loses motoring rights]—

(a) was reasonably necessary to enable a person with an interest in land to obtain access to the land, or

(b) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only, the right becomes a private right of way for mechanically propelled vehicles for the benefit of the land or (as the case may be) the part of the land.

 This is the second property rights safeguard. Here the relevant words are ‘the exercise of an existing public right of way’ – in other words the safeguard only applies where there really was a public right which the property owner was entitled to use. Unless the route was a BOAT (and so beyond the grasp of NERC) the motoring rights are going to be in doubt, so the Act says, in effect, ‘if you can prove that there was a motoring right for everyone, you can still use it for your access to land’. Proving the right is no easier, or quicker, or cheaper, for the property owner than it is for you and me.

(6) For the purposes of subsection (3), an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act.

(7) For the purposes of subsections (3)(c)(i) and (5)(a), it is irrelevant whether the person was, immediately before commencement, in fact—

(a) exercising the existing public right of way, or

(b) able to exercise it.

(8) Nothing in this section applies in relation to an area in London to which Part 3 of the Wildlife and Countryside Act 1981 (c. 69) does not apply.

(9) Any provision made by virtue of section 48(9) of the Countryside and Rights of Way Act 2000 (c. 37) [ie transitional powers regarding CRoW Act changes, including the RUPP to RB change] has effect subject to this section. 

No particular comment arises from these ‘tidying-up’ clauses, except perhaps to note that highways which cross the boundary between Inner and Outer London will be affected differently (and perhaps in odd ways). The words ‘this section’ refer to the whole of section 67.

Much of what follows is of interest to non-motorists only, and is included for completeness of Part 6. Those sections which are relevant are followed by comments as before.

 68 Presumed dedication of restricted byways and use by pedal cycles etc.

(1) Amend section 31 of the Highways Act 1980 (c. 66) (dedication of highway presumed after public use for 20 years) as follows.

(2) After subsection (1) insert—

“(1A) Subsection (1)—

(a) is subject to section 66 of the Natural Environment and Rural Communities Act 2006 (dedication by virtue of use for mechanically propelled vehicles no longer possible), but

(b) applies in relation to the dedication of a restricted byway by virtue of use for non-mechanically propelled vehicles as it applies in relation to the dedication of any other description of highway which does not include a public right of way for mechanically propelled vehicles.”

(3) After subsection (10) insert—

“(10A) Nothing in subsection (1A) affects the obligations of the highway authority, or of any other person, as respects the maintenance of a way.”

(4) After subsection (11) insert—

“(12) For the purposes of subsection (1A) “mechanically propelled vehicle” does not include a vehicle falling within section 189(1)(c) of the Road Traffic Act 1988 (electrically assisted pedal cycle).”

 69 Presumed dedication and applications under section 53(5) of the 1981 Act

(1) In section 31 of the 1980 Act, after subsection (7) insert—

“(7A) Subsection (7B) applies where the matter bringing the right of the public to use a way into question is an application under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications so as to show the right on the definitive map and statement.

(7B) The date mentioned in subsection (2) is to be treated as being the date on which the application is made in accordance with paragraph 1 of Schedule 14 to the 1981 Act.”

(2) The applications in relation to which the amendments made by subsection (1) apply include any application under section 53(5) of the Wildlife and Countryside Act 1981 (c. 69) which falls within section 67(3)(a), (b) or (c).

 This meets the long-standing need to know when the 20 years of use for deemed dedication is ‘brought into question’, and it applies to all claims based on 20 years use. In effect, it says that if there is no other challenge then making a claim counts for this purpose. Subsection (2) applies the new rule (retrospectively?) to existing claims for BOATs based on any of the exceptions in the listed parts of section 67. 

70 Supplementary

(1) In section 53(3) of the Wildlife and Countryside Act 1981 (modification of definitive map and statement in consequence of certain events)—

(a) in paragraph (b) (expiration of period raising a presumption of dedication), after “public path” insert “or restricted byway”, and

(b) in paragraph (c)(i) (discovery of evidence of right of way), after “public path” insert “, a restricted byway”.

(2) Amend section 34 of the Road Traffic Act 1988 (c. 52) (prohibition of driving mechanically propelled vehicles elsewhere than on roads) as follows.

(3) In subsection (2), omit “(subject to section 34A of this Act)”.

 At last – the offensive s34A goes out of the window.

 (4) After subsection (2) insert—

“(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—

(a) shown in a definitive map and statement as a road used as a public path, and

(b) 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.” 

This is the third safeguard for property rights. It takes the driving of a motor, for access to property, on a route which was a RUPP, outside the scope of RTA88 s34 – even if the RUPP had no vehicular rights at all. It does not apply to those (future) Restricted Byways which were not previously RUPPs, and it does not prevent such driving from being a trespass on the land, or from being subject to challenge, obstruction, and injunction by the owner of the land being driven on. Whether it is a sufficient safeguard in this litigious age is open to doubt. So, do not throw away your old OS maps – they will be needed to know where the old RUPPs were.

 (5) In subsection (6), for “and section 34A of this Act do” substitute “does”.

(6) In subsection (7), insert at the appropriate place in the alphabetical order—

““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;”.

(7) After subsection (7) insert—

“(8) A person—

(a) entering any land in exercise of rights conferred by virtue of section 2(1) of the Countryside and Rights of Way Act 2000, or (b) 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.”

(8) In Schedule 7 to the Countryside and Rights of Way Act 2000 (c. 37), omit paragraphs 6 and 7.

 CRoW Sch7 paragraphs 6 and 7, removed by this clause, applied to the offensive s34A of RTA 88. 

71 Interpretation

(1) In sections 66 and 67—

“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 section 189(1)(c) of the Road Traffic Act 1988 (c. 52) (electrically assisted pedal cycle), and expressions defined for the purposes of Part 3 of the Wildlife and Countryside Act 1981 (c. 69) by section 66(1) of that Act have the same meaning as in that Part.

(2) In each of sections 66 and 67 “commencement” means the commencement of that section; and in section 67 “existing” means in existence immediately before commencement.

 The definition of ‘interest’ seems to cover the use of land by permission for motorsport events, so that access with motors to a rally section, or a motocross venue, is able to rely on the property safeguards. This does not mean, of course, that they are automatically ‘safe’ but that the event organiser gets whatever rights the landowner is able to prove. A prudent organiser will take steps to assure himself that such rights exist, remembering that the route may not be in the same ownership as the land where the event proper takes place. The exception also applies only to motors which are completely street-legal (although other motors may be using the permissive land, they do not gain a right to drive to it). 

Traffic regulation in National Parks

72 Traffic regulation on byways etc. in National Parks

After section 22B of the Road Traffic Regulation Act 1984 (c. 27) insert—

“22BB Traffic regulation on byways etc. in National Parks in England and Wales

(1) This section applies to a road—

(a) which is in a National Park in England or Wales,

(b) which is—

(i) shown in a definitive map and statement as a byway open to all traffic, a restricted byway, a bridleway or a footpath, or

(ii) a carriageway whose surface, or most of whose surface, does not consist of concrete, tarmacadam, coated roadstone or other prescribed material, [No other material has been prescribed, yet. This is included to cover new inventions] and

(c) in respect of which no relevant order is in force.

(2) The National Park authority may—

(a) for a purpose mentioned in section 1(1)(a) to (g) or 22(2), by order make in respect of the road any such provision as is mentioned in section 2(1), (2) or (3) or 4(1);

(b) for the purpose of carrying out an experimental scheme of traffic control, by order make in respect of the road any such provision as is mentioned in section 2(1), (2) or (3) or 4(1);

(c) for a reason given in section 14(1)(a) or (b) or for a purpose mentioned in section 14(1)(c) or 22(2), by order make in respect of the road—

(i) any such provision as is mentioned in section 2(1), (2) or (3) or 4(1), or

(ii) any provision restricting the speed of vehicles.

(3) This Act has effect, subject to subsection (4) and any prescribed modifications, in relation to an order by a National Park authority under subsection (2)(a), (b) or (c) as it has effect in relation to an order by a local traffic authority under section 1, 9 or 14(1).

(4) Before making any order under subsection (2), the National Park authority must consult any authority which is a highway authority for the road.

22BC Section 22BB: supplementary

(1) Expressions used in section 22BB(1)(b) that are defined for the purposes of Part 3 of the Wildlife and Countryside Act 1981 by section 66(1) of that Act have the same meaning as in that Part.

(2) In section 22BB(1)(c) “relevant order” means—

(a) a traffic regulation order,

(b) an experimental traffic order,

(c) an order under section 14(1),

(d) an order under section 22(4), or

(e) an order under section 22B,

but does not include an order made under section 22BB(2).

(3) In section 22BB “prescribed” means prescribed by regulations made—

(a) in relation to England, by the Secretary of State;

(b) in relation to Wales, by the National Assembly for Wales.

(4) Any functions exercisable by the National Assembly for Wales by virtue of this section are to be treated for the purposes of section 44 of the Government of Wales Act 1998 (parliamentary procedures for subordinate legislation) as if made exercisable by the Assembly by an Order in Council under section 22 of that Act.” 

Appendix

What should and what could be done with existing BOAT claims 

These claims fall into three main categories – those not affected by NERC, those on RUPPs which may be affected by NERC, and those on Definitive Map footpaths or bridleways which may be affected by NERC. The first job is to consider which of the claims in your area fall into each of these categories. Reading the Act and the comments above may help with this – it is certainly not a matter of those claimed before, and those after, a date in 2005. In some cases, further research may be needed, into the balance of user, for example, and the exact wording of relevant documents.

 To be continued …

Text prepared by Tim Stevens – 10 April 2005

Forwarded to SADLRC by Dave Tilbury, dave.tilbury@larab.org LARA Respondent
 

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