TRAIL RIDERS FELLOWSHIP & GREEN LANE ASSOCIATION LIMITED & Anor v THE SECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRS & Anor

Section 67(2)(a) of the Natural Environment and Rural Communities Act 2006 requires a factual assessment of the chief or predominant lawful use of a way during the specified five-year period. The provision should not be construed restrictively, but its natural and ordinary meaning applies; it does not require a generous interpretation favouring the preservation of motor-vehicle rights.

The character of the way may be relevant, but is not ordinarily a mandatory consideration. A decision-maker must determine the statutory issue on the evidence available and may decide it where the evidence is imperfect. For an order recording a restricted byway, the legislation permits discretion as to the particulars included in the definitive statement, provided sufficient information is given about the route’s width.

The claimants challenged the Secretary of State’s confirmation of a modification order adding a restricted byway to the definitive map and statement. The route was accepted to be a longstanding vehicular public highway.

The Inspector concluded that public rights for mechanically propelled vehicles had been extinguished by section 67(1) of the Natural Environment and Rural Communities Act 2006, and that the exception in section 67(2)(a) did not apply because the main use during the relevant five-year period was not for mechanically propelled vehicles. She also declined to include in Part II of the definitive statement a reference to the 1908 Ordnance Survey map as evidence of the route’s width.

The issues were whether the Inspector had misinterpreted section 67(2)(a), made a Tameside error, wrongly allocated the burden of proof, or acted irrationally in determining the route’s width.

1. Ground one dismissed. Section 67(2)(a) of the Natural Environment and Rural Communities Act 2006 requires a factual assessment of whether the main lawful public use of the way during the five years ending on 2 May 2006 was use for mechanically propelled vehicles. “Main” means chief or predominant use. The statute does not prescribe the factors to be considered.
2. The character of the route is potentially relevant but is not a mandatory consideration, or a primary consideration. It need only be considered where it is so obviously material on the facts that ignoring it would amount to an error of law. The Inspector knew the route’s character, and was entitled to conclude that its features were consistent with mixed use and did not require a different assessment.
3. The legislative purpose supported the conclusion. Section 67 was intended to extinguish rights over unrecorded highways mainly used for the purposes for which footpaths and bridleways are used. The reasoning in Masters v the Secretary of State for the Environment, Transport and Regions was an external aid only. Its interpretation of a different provision, concerned with current use and the protection of recorded rights of way, did not govern section 67(2)(a).
4. The burden lay on those asserting that an exception to section 67(1) applied. The Inspector was required to determine the issue and was entitled to do so on the evidence adduced. The absence of evidence about vehicle occupancy did not establish a Tameside error, particularly as no party sought further evidence or an adjournment.
5. The submission that part of the route was mainly used by vehicles because pedestrians used the verge was speculative and unsupported by evidence.
6. Ground two dismissed. The statutory scheme gives the decision-maker discretion as to the particulars included in the definitive statement. There was nothing irrational in accepting a form of order that recorded minimum and maximum widths in Part II without repeating the reference to the 1908 map in Part I, where sufficient information was available to users, landowners and the highway authority.

The claim was dismissed.