Public Inquiries - Limiting The Loss
As many of you will already know, the process of reclassification came about through the 1968 Countryside Act, which required that the term RUPP (Roads Used as Public Path) be removed from the Definitive Map due to the uncertainty about the existence of vehicular rights over routes so designated. (Yawn... Zzzzzzz...)
Every County that had RUPPs on their Definitive Map, had to examine the history of each RUPP and reclassify· them as either a Byway Open to All Trafic (BOAT) if vehicular rights could be proven; as a bridleway if vehicular rights were not proven or a footpath if it could be demonstrated that that was the correct status. Many of these RUPPs are being reclassified as bridleways or even footpaths and as such we are steadily losing many of our ancient vehicular rigbts of way.
Having examined the history of a lane, the County Council will publish an Order that might state that RUPP 123 in the Parish of ABC is to be reclassified as a BOAT. That Order will then be advertised in the local press and a copy will be posted at each end of the lane to be reclassified
Limit The Loss
Always read bits of paper nailed to a tree or a post at the end of any lane you drive. It could be something interesting - like a jumble sale. Any official notice on a lane you drive will concern you as a user. It could be announcing the proposed removal of vehicular rights or it could be a reclassification. In either case, make note of the telephone number or address and tell someone on that number that you use the lane (in most cases the local highway authority).
Great, the notice says that the lane will be reclassified as a BOAT - why worry? Well, the very next people to pass along the lane could be Mr & Mrs Nimby (not in my back yard), who moved to the village two years ago and the last thing they want is lorries using their "footpath". "Oh my dear what ever next!" First thing the next day Mr Nimby will be calling that number: "I...I...I...I'm not pweparwed to let this swort of thing hippen in my viwage."
One objection, relevant or not, following the Lasham judgement, and there will be a Public Inquiry.
It is at Public Inquiries that many vehicular users have contributed a great deal towards the preservation of vehicular rights of way. It is vital that you, as users of green lanes, let that Inquiry know that you use the lane in question. It will preferably be in person but a letter, setting out your personal use of the said lane, is better than nothing.
The letter must not simply state 'I've driven the lane 123 in the Perish of Abc"; the letter needs to state when the lane was first driven, how frequently, with whom and preferably with dates.
Attending An Inquiry
Attending an Inquiry is not anything to get stressed about. All inquiries follow roughly the same pattern. The inspector will welcome the public and announce the order in which he wants things to happen In doing so he will ascertain who wants to speak and whether they support or object the Order (I use the word "he" advisedly, as I have not yet attended an Inquiry where the Inspector has been, or is, a woman).
No matter what status the Order is made for, BOAT or bridleway, all you need do is tell the Inspector all about your use of the lane. It is best to go well organized and prepare your "presentation" beforehand. As minimum preparation you should make a few notes to ensure that you remember all that you want to say. If you can prepare a comprehensive word processed document, then it is helpful to have a spare copy for the Inspector. This will obviate the need for the Inspector to take notes on your statement, and it will cause him to beam from ear to ear in gratitude. Just be sure that your use was "as of right". That is, in expensive terms, nec vi, nec clam, nec precario - without force, without secrecy, without permission.
If the Inquiry involves a RUPP reclassification, it will be more than likely that you will be asked: "Why did you consider the RUPP to have vehicular rights?". Make sure that you have an answer ready (i.e. checked out old maps, etc., and that you can back it up). Alternatively, a useful reply is: "The 1949 National Parks and Access to the Countryside Act failed to make it clear whether RUPPs were subject to vehicular rigbts because a RUPP was defined as a way other than a footpath or a bridleway, therefore implying that the way was subject to vehicular rights. Nice, eh?
What will you be up against?
Almost without doubt the Inspector will appear to be from the same social class as those members of the public who object to vehicles using their "footpaths". No problem. Inspectors will have a successful career behind them and will have any prejudices concealed beneath their suit. Their task is to hear all the available evidence and as a user, you will be heard. Mr. Nimby's irrelevant ramblings will be nipped in the bud by a sharp Inspector.
In the early days of reclassification inquiries, the objectors to byway status were concerned by the
prospect of having the lanes tarmaced or being used as access to new housing development. Lunch time was invariably an exchange of useful information once the locals realized that the issue was public access. You would hear of old ways that had been lost to the public and we would offer remedies to such action.
The climate at some inquiries has changed somewhat since the crass articles that have appeared in newspapers that should know better.
The new style of non-investigative journalism, involves borrowing a 4x4, parking it on a muddy track then writing a fiction You may have to hear a number of local worthies giving a good deal of "I...I...I... (puff huff) well wort iver next? Young yobo chappies wracing up and down our paths. Twenty five in one go there was. Eh?". Be there and disprove it.
Any upset will surface long after you have given your evidence in the Decision Letter. Unfortunately inspectors do not spend their lives hearing rights of way matters and some can display an alarming ignorance of the subject. Never assume an Inspector knows about any aspect of driving unsurfaccd roads. Always spell it out: "We are not frustrated comp safari racers. We are mature people interested in 4x4's, country lanes, the environment and picnics." Okay, I lie, sometimes picnics are a pain.
At an Inquiry you may well hear quotes from past High Court cases that have involved rights of way. One worth remembering was from Lord Denning concerning the Tithe Map. It... "was prepared under statutory authority with care and accuracy''. Another very useful little quote from Kent CC -v-Loughlin, that I find "persuasive", is: "The maps up to 1820 were on too small a scale to show more than public carriage roads". It is a point worth raising because many Inspectors will place little or no evidential weight on early maps because of the lack of a key showing the status of a route.
Maps and other documents that can be produced at a Public Inquiry are many and various. In fact, it is a subject that would fill a sizeable book. If the local authority are supporting the Order, which is usually the case, they will present a good number of documents that add weight to their argument. It has been my experience that the authority are not as thorough as they might be and, if you have time, it is worthwhile getting to know your way around the County Records Office.
There are many things to be found that can prove vehicular rights exist (e.g old maps including tithe maps and early OS maps, 1910 Finance Act records, railway plans, the county's highway records, district and parish council minutes, Rights of Way Act 1932 documents, earlier defnitive maps and statements, etc., and of course - user evidence).
As someone interested in driving unsurfaced roads, you will doubtless have more than a passing interest in maps. If you possess some very early Ordnance Survey road maps it is worth checking to see how the contemporary surveyors viewed the status of the lane. Bartholomew's maps (for drivers and cyclists) can also be helpful. Remember that prior to 1968 a bicycle, being classed as a vehicle, was not allowed to use a bridleway. Listen to the objectors. "I've lived here 50 years and only walkers, horse riders and cyclists used that lane". Vehicular use!
On the subject of the status, one must think back to the days before a Definitive Map, before most carriageways were covered with tarmac, even before the motor car and compare a journey then to a similar one today. Today we get into our car and set off to visit aunty on roads that are sealed and most expedient for our journey - no thought is given to the status of any given stretch of road. You do not turn into private driveways or industrial sites or a toad! One hundred years ago the same would have applied. You would have chosen to drive on roads that were in good repair and of a reasonable width. You would not have had tarmac and white lines as a guide to status. To suggest to a carriage driver in 1890 that the 40 foot wide lane he was traveling along was only a footpath would be a joke.
Unfortunately, many inquiries do not turn out the way we want them to, sometimes because there is insuffcient documentary evidence and sometimes because not enough of us turn up to say that we use the road in question. Often though, the Inspector just seems to make the wrong decision!
Wrong, though, is what some Inspectors are. Take the following contiguous route that runs from Wiltshire into Berkshire then Hampshire (Landranger 174. SU296603 to SU462551). The first 6km are in Wiltshire and are recorded as byway. The 5km in Berkshire are recorded as byway (save 400m of sealed public carriageway). Once in Hampshire the route is recorded as bridleway (2.5km), sealed public carriageway (500m), byway (3.5km), bridleway (1.5km), byway (1.5km), bridleway (1.5km). Ridiculous!
Because of the significant number of clearly illogical decisions, some Counties have - um- re-prioritized the RUPP reclassification process. There will, however, still be a number of inquiries to be heard due to objections to past Orders.
There remains a statutory requirement for local authorities to undertake the reclassification of RUPPs, so it is not a subject that will go away.
This gives the vehicular user, past and present, the opportunity to organize themselves and their records of use, for future inquiries (because there will be many, many more).
Those who are driving unsufaced roads today but do not belong to a club, should be motivated by the threat to their recreation to contact a local club, GLASS, or LARA. You may know people who used to drive lanes in your area and who now have new hobbies - get in touch in the hope of squeezing a letter confirming past use out of them. There might still be some older people around who remember ponies and traps using the local lanes. Again, vehicular use. There are even more people still around who used to drive lanes in their "old Humber", when cars had more ground clearance, or on a motorbike. Speak to your parents or grandparents, or try writing a letter to your local rag - just say you're doing some historical research --you might be surprised at the number of replies you get Also, stop and speak to people while out driving lanes. Not long ago, I stopped for a polite chat, only to get the usual sort of, "We don't like vehicles along here" but after a while was told how the lane was once surfaced, and regularly used by traffic until the war, when it was tom up by agricultural vehicles getting wood for heating houses.
The Law Is On Our Side
Bear in mind that the law of the land, as we know it today, dates from just after the Norman invasion (1189). From that time, the law makers have seen the need to draft legislation to protect the public's right to pass unhindered about the countryside. The 1949 National Parks and Access to the Countryside Act was brought about because the Government of the day realised that traditional routes in rural areas were disappearing. The Definitive Map was born.
The law is still on the side of the individual who wishes to use rights of way. Section 130(1) of the 1980 Highways Act is one of my favourites especially as a statutory duty is not an option but a compulsion: "It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority..." This brings me to the second area in which the vehicular user can limit the loss. I once sent copies of the above quoted section to all members of my local Rights of Way Panel. It raised a few eyebrows and an awareness of what they should be doing as opposed to what they wanted to do.
Decisions on rights of way matters will, invariably, be taken by a sub-committee of County Council Members. Your local authority might hide their Rights of Way section under Libraries, Surveyors, Recreation.
The excellent value for money public rights of way represent, in terms of leisure hours, never seem to be appreciated by those who hold the purse strip. As mentioned above, rights of way protection (and maintenance) is a statutory duty imposed on the authority, yet they are usually further down the list of priorities than many of the services provided under discretionary powers.
What do other user groups do about this situation? The Ramblers Association and the British Horse Society, two excellent examples of how to campaign for improvements in rights of way, will lobby their local county councillor or Member of Parliament. Try writing to your MP and express your feelings and find out their views - after all, they are there (supposedly) to represent us (your local library will be able to tell you who your local MP is).
The vehicular user must do likewise. Find out from your local Rights of Way section at the County Council when the sub-committee meetings are held then attend. Introduce yourself to one or more of the members of the committee and tell them why you are there. Your very presence in the room will deter most anti vehicular comments and matters will be all the more likely to go our way - sorry, I mean run smoothly.
If you live in a rural area, your Parish Council will have powers in these matters that they probably do not know exist. Speak to the Parish Council rights of way representative - become the Parish rights of way representative! I have organised "lane clearing" days that have involved all user groups and I have invited members of the Parish Council. On one occasion Parish Councillors did not realise the ancient lane we were working on existed.
One saving grace is that reclassification does not extinguish vehicular rights. As we should all be aware, the Definitive Map is not "definitive" and cannot deny that higher rights may exist. The Definitive status can always be restored via a Definitive Map Modification Order with the discovery of evidence not heard at the Inquiry.
.. Taken from 'Greenlanes', by Dale Wyatt (with acknowledgement to an original article by Dave Tilbury).