Chapter 6: Green lanes and rights of way
The effect of the NERC Act 2006
299.Part Six of the NERC Act 2006 extinguished a large number of existing, unrecorded, public rights of way for motor vehicles. Section 67(2) provided a number of exceptions to this change, which have subsequently been the source of some controversy. Section 72 extended the power to make Traffic Regulation Orders, which limit the use of specified routes by motor vehicles, to National Park Authorities.
300.In their post-legislative assessment of the NERC Act Defra stated that “Part Six of the Act has been successful in achieving its primary aims. The use of mechanically propelled vehicles on rights of way is a contentious issue and views are highly polarised”.344
301.A number of submissions to our inquiry identified problems with Section 67(2)(b) of the NERC Act, which ensured that rights for motor vehicles were not extinguished on routes identified on local authorities ‘List of Streets’.345 The routes affected by this exemption include roads sometimes known as ‘Green Lanes’, or as unsealed, unclassified roads (UURs).
302.We heard evidence suggesting that it was inappropriate for these roads to retain rights for motor vehicle use as they were easily susceptible to damage, and were often not maintained by local authorities owing to resource constraints.346 Kent County Council also noted that the list of streets was originally intended to be a record of maintainable highways, rather than a record of highway rights.347 The polarised views highlighted by Defra were evident in some of the material that we considered.
Current issues
303.The North York Moors Green Lanes Alliance observed that “in recent years there has been a large increase in recreational use by off-roading motor vehicles, motor bikes and quads, and the disproportionate amount of damage done on UURs by them [means] many have become unusable for horse-drawn vehicles and at best difficult for horse riders”.348
304.The Alliance went on to argue that the NERC Act 2006 should be amended to enable UURs to be listed as restricted byways—effectively bridleways—meaning that horse drawn vehicles could use them, while other motorised vehicles would be prohibited.349 This point was supported by the Yorkshire Dales Green Lanes Alliance which stated that “the Act needs amending, so as to remove motor-vehicular rights from unsealed unclassified county roads on the List of Streets that are not part of what Defra calls the ‘ordinary road network’”.350
305.Dr Michael Bartholomew of the Green Lanes Protection Group told us that “before NERC, there was a very low threshold for vehicle users to claim a route and turn it into a vehicular route, and the number of routes that would become vehicular was virtually unstoppable. The NERC Act put a stop to that and stopped the expansion, but now it needs to start to reduce those that are there”.351 He added that “a small piece of legislation that extinguishes vehicular rights on those 3,000 miles on the lists of streets would be simple and very effective”.352
306.A critical perspective on this and similar proposals was provided by the Trail Riders Fellowship (TRF), which stated that its experience was that “responsible trailriding will, generally, have no greater impact on the road surface than that of a horse”. They also criticised the provisions in the NERC Act 2006 for which, it stated, “the practical effect … has been to extinguish motorcycle access on roads that were established carriageways”.353 The Fellowship added that “the objective evidence supports the TRF’s view that there was relatively little motorcycle traffic prior to NERC and that this remains the case post NERC”.354
307.The Motoring Organisations’ Land Access and Recreation Association (LARA) described the Act’s extinguishing of unrecorded rights of way as “a blunt instrument”. They noted in particular the removal of rights on public roads with vehicular rights of way which are also listed as footpaths, bridleways or restricted byways, meaning that “the public right of way for mechanically propelled vehicles is broken and rendered useless as a through-route”.355
The use of Traffic Regulation Orders
308.We were told that problems with vehicular use could be addressed through the more widespread application of Traffic Regulation Orders (TROs), which enable Highways Authorities to restrict motor vehicles from using green lanes or other highways. Section 72 of the NERC Act extended these powers to National Parks. This approach was supported by the TRF, which stated that it “actively lobbies for and supports TROs which provide effective regulatory solutions to irresponsible behaviour”.356
309.The Country Land & Business Association told us that authorities were sometimes reluctant to use TROs because of the threat of costly litigation.357 The Yorkshire Dales Green Lanes Alliance stated that Natural England “could be more energetic” in advising authorities to use TROs, and that “Natural England should also help authorities to frame their traffic regulation orders in ways that can withstand the legal challenges that vehicle users commonly present”.358
310.The Peak District Green Lanes Alliance suggested that introducing TROs was a “cumbersome, resource intensive process” and that “there is a strong case for new legislation extending the grounds for a TRO”, which might include sustainability, threats to ancient monuments or SSSIs, and the protection of other routes. It added that “most importantly the TRO process needs streamlining”.359
311.We were told that only two National Park authorities have so far used the powers granted to them through the Act to make TROs. The Green Lanes Environmental Action movement stated that this may be due to some green lanes in some national parks being protected by legislation, as well as insufficient resources for the TRO process and the above mentioned risk of legal challenge.360
312.Kent County Council noted that the NERC Act 2006 failed to extend to National Parks the powers in Section 92 of the Traffic Regulation Act 1984 (to allow the placement of bollards in locations where traffic has been prohibited), “and as a result limited the ability of National Parks Authorities to effectively enforce Traffic Regulation Orders should they be made”.361 The Council added that “the law of unintended consequences” may apply to the extinguishing of rights of way under the Act, as it “concentrated the recreational motor vehicle use of unsealed routes on a considerably shorter network”.362
313.Dr Michael Bartholomew stated that advice on the making of TROs was “overlapping, out of date, contradictory and … in some cases wrong”. He noted that the handbook supplied to highways officers for the management of green lanes was “published in 2005, is completely out of date, and the examples are obsolete”.363
314.Alan Kind, of LARA, suggested that the TRO process could be helpful, but that “the big problem with the TRO system is that it is not very flexible; it is a bit all or nothing” and that a new scheme could be introduced allowing for more selective closures where conditions made it unusual or damaging for motorised vehicles to use the routes.364
315.We believe that TROs need to be used more widely and more flexibly to address some of the evident ongoing problems on green lanes. It is clear that some of the requirements associated with making a TRO are onerous, unnecessary and, in some cases, outdated.365 The case for reform is clear.
316.We accept the evidence that the exemptions contained in the NERC Act 2006 may result in damage from motorised vehicles if green lanes are not sensitively managed. Unfortunately, local authority resource constraints mean that these routes are not always properly maintained, and the process of drawing up Traffic Regulation Orders can be slow and resource-consuming, and also creates the risk of legal action. Given that trail riders’ groups and protection groups alike welcomed the use of TROs in particular circumstances, we believe that improving these should be the first step in any new approach.
317.The Government should take steps to simplify the process for—and thus reduce the costs of—establishing Traffic Regulation Orders, with the aim of securing better value, greater flexibility and applicability in the use of TROs to manage problems resulting from ‘green-laning’. This might include provision for more selective closures, reduction in bureaucracy in the application process and reduced, updated, advertising requirements.
345 A list of highways which are maintainable at public expense.
346 Written evidence from the North York Moors Green Lanes Alliance (NER0007), Yorkshire Dales Green Lanes Alliance (NER0002), Peak and Northern Footpaths Society (NER0005), Green Lanes Protection Group (NER0015), Peak Horsepower (NER0016), Fritz Groothues (NER0020), Peak District Green Lanes Alliance (NER0036), Green Lanes Environmental Action Movement (NER0038), Kent County Council Public Rights of Way and Access Service (NER0040)
349 Ibid.
352 Ibid.
354 Ibid.
362 Ibid.