The commencement of the rights of way provisions of the
Natural Environment and Rural Communities Act 2006 (NERC), on
2 May 2006 (Wales in commencing later – date to be
confirmed), has finally brought to an end the lawful enjoyment
of hundreds of public vehicular roads that had been wrongly
recorded on the definitive map – or not recorded as public
roads at all – over the last fifty years. Regardless of the
rights and wrongs of NERC and the mistruths bruited in
Parliament, NERC is now law, and drivers of motor vehicles
need to understand the basics of the new order so as to keep
out of harm’s way when encountering the forces of law and
order.
A basic summary of the effect of NERC is that, blacktopped
public roads aside, the public may now exercise a vehicular
public right of way only on byways open to all traffic (BOAT)
and unsealed roads recorded in the highway authority’s
‘list of streets’ (otherwise known as unclassified
(county) roads), where these unclassified roads have vehicular
rights (see below). All former roads used as public paths
(RUPP) became restricted byways (RB) on the same day as, but
immediately before, the NERC provisions were commenced.
Underlying public rights for mechanically propelled vehicles (MPV)
have been stripped away by NERC from all footpaths, bridleways
and restricted byways, meaning that it is a ‘clear’
offence to drive a MPV on such routes by virtue of s.34 of the
Road Traffic Act 1988. There is no longer any available
defence (except in limited cases – see below) in being able
to prove that, for example, a footpath on the definitive map
is really an awarded public carriage road in an inclosure
award. Where a route is ‘dual status’, i.e. an
unclassified road and also on the definitive map as a
footpath, bridleway or restricted byway, then the definitive
map status takes precedence.
There remain a few routes, not currently BOATs or UCRs,
where NERC has not extinguished underlying existing MPV
rights. These exceptions are mainly on routes where an
application for a definitive map modification order (DMMOA)
was lodged with the order-making authority before 20 January
2005 in England, and 19 May 2005 in Wales. These applications
will be processed into orders and then through to completion,
and as any MPV rights have not been extinguished (at least
until the order finishes its passage and vehicular rights are
not found to exist) it remains open to a driver threatened or
charged under s.34RTA88 to plead these underlying vehicular
rights in defence – but the burden is on the accused to
prove the rights claimed. It would be bad policy for a driver
to rely on ‘hearsay’ that any route is subject to a
‘NERC-proof’ DMMOA, or to assume, without checking, that
where such a DMMOA is lodged, that the evidence of vehicular
rights is sufficient to form a defence to a s.34 prosecution.
There are also two very limited exceptions to NERC, one where
MPV usage has been the main usage of a route over the past
five years, and another where MPV rights were created by MPV
usage prior to 1931. Again, anyone wishing to rely on either
of these exceptions needs to be personally very sure of the
facts before using the lane(s) in question.
Where footpaths, bridleways and restricted byways, which
have lost their public MPV rights, are used for motor
competition purposes, it is still possible to use these routes
for events, with the ‘lawful authority’ of the landowner,
under the provisions of s.33RTA88.
There are also exceptions to the general effect of NERC
with regard to the exercise of ‘access rights’ to
properties along unsealed roads otherwise affected by NERC.
Offences under the Road Traffic Act 1988.
With NERC in force, the driver of a MPV on unsealed roads
may come up against legal challenges in any of three main
areas: actually driving on the routes; traffic regulation
orders; and technical matters like silencers and tyres.
The most likely offence that an MPV driver may be accused
of is a breach of s.34 of the Road Traffic Act 1988.
S.34(1) “ … if without lawful authority a person
drives a mechanically propelled vehicle (a) on to or upon any
common land, moorland or land of any other description, not
being land forming part of a road, or (b) on any road being a
footpath, bridleway or restricted byway, he is guilty of an
offence.”
S.34(2) “For the purposes of (1)(b) above, a way shown
in a definitive map and statement as a footpath, bridleway or
restricted byway is, without prejudice to s.56(1) of the
Wildlife and Countryside Act 1981, to be taken to be a way of
the kind shown, unless the contrary is proved.”
S.34(3) “It is not an offence under this section to
drive a [MPV] on any land within fifteen yards of a road,
being a road on which a motor vehicle may lawfully be driven,
for the purpose only of parking the vehicle on that land.”
‘Road’ is defined in s.192(1) “… in relation to
England and Wales, means any highway and any other road to
which the public has access …”
A conviction under s.34RTA88 does not carry penalty points,
and the offence is not one for which a fixed penalty notice
can be issued. The fine is level 3 on the standard scale –
currently a £1,000 maximum.
On the question of driving MPVs on unclassified roads,
whether or not any unclassified road has vehicular rights is a
question of fact in each case. Plainly, there are some routes
on councils’ ‘list of streets’ that are unlikely to have
vehicular rights – e.g. flights of steps, narrow ginnels,
and paths through churchyards – but these are few and,
generally, quite obvious. It would be very difficult to
prosecute a driver under s.34 for driving on a ‘normal’
unclassified road. At the least, the prosecution would have to
prove that the road is only a footpath, bridleway, or an
ex-RUPP restricted byway. This is not to say that some
enthusiastic police officer might not try to issue a ticket,
but it is unlikely that the CPS would allow the matter to
proceed to court unless there was already a strong case that
the route was and is less than a vehicular public highway.
Post-NERC it is still possible to apply for an order to put an
unclassified road on to the definitive map as a BOAT where
there is evidence of vehicular rights. If the use of any
unclassified road becomes a local ‘issue’, then applying
for such an order would be good practice.
Remember that almost all Road Traffic Act and Construction
and Use offences can be committed on unsealed vehicular roads,
footpaths and bridleways; and that some offences can be
committed in ‘public places’.
The Police Reform Act 2002.
This Act gives uniformed officers additional powers to
deal, ‘on the spot’, with anti social motor use, and the
provision was introduced as a consequence of increased public
concern about ‘joy riding’ and ‘cruising’ in car
parks, as well as unlawful off-road motoring. S.59 of the Act
provides that, (1) “Where a constable in uniform has
reasonable grounds for believing that a motor vehicle is being
used on any occasion in a manner which (a) contravenes s.3
[careless driving] or s.34 [see above] of the Road Traffic Act
1988, and (b) is causing, or is likely to cause, alarm,
distress or annoyance to members of the public, he shall have
the powers set out in subsection (3).”
(2) “A constable in uniform shall also have the powers
set out in subsection (3) where he has reasonable grounds for
believing that a motor vehicle has been used on any occasion
in a manner falling within subsection (1).”
A ‘motor vehicle’ for the purposes of this provision is
defined as a ‘mechanically propelled vehicle’.
The powers in subsection (3) are:
· The power, if the motor
vehicle is moving, to order the person driving the vehicle to
stop;
· The power to seize and
remove the motor vehicle;
· The power, for the
purposes of exercising a power falling within paragraphs (a)
or (b) to enter any premises on which he has reasonable
grounds for believing the motor vehicle to be;
· The power to use
reasonable force, if necessary, in the exercise of any power
conferred by any of paragraphs (a) to (c).
The power to enter premises excludes a private dwelling
house, but includes garages, driveways, etc., but the power to
seize a motor vehicle cannot be exercised unless, by s.59(4),
the officer has warned the person using the motor vehicle that
he will seize it if use continues or is repeated, and, it
appears to the officer that use has been continued or
repeated.
Seizure without warning can take place if: the
circumstances make it impracticable for the officer to give a
warning; the officer has already warned, on that occasion, in
respect of that motor vehicle, or another motor vehicle used
by that person; the officer has reasonable grounds for
believing that such a warning has been given on that occasion
by an officer other than him; or the officer has reasonable
grounds for believing that the person whose use of a motor
vehicle on that occasion is a person to whom a warning has
been given on a previous occasion within the last 12 months.
Vehicles seized are held under the provisions of the Police
(Retention and Disposal of Motor Vehicles) Regulations 2002 (SI
2002/3049) and will be returned to the proven owner on payment
of a statutory release fee. Unclaimed vehicles can be sold by
the police to defray expenses.
With regard to the use of unsealed public roads post-NERC,
s.59PRA2002 is of limited application to lawful users. The
test for the use of the warning/seizure provision is a
two-fold test: that one of two offences is being committed,
and that ‘distress / annoyance’ is being caused to the
public. Use of a BOAT or UCR is not a s.34 offence, so unless
a motorist is driving carelessly (a s.3 offence) then the
first element of the test is not satisfied, and the second
element (distress / annoyance) is not relevant. Simply using
an unsealed road and thereby ‘annoying’ a rambler is not
enough. The use of the road must be a prima facie
careless driving offence, defined in s.3 as ‘driving without
due care and attention, or without reasonable consideration
for other persons using the road or place …” ‘Due care
and attention’ is the standard of driving that would be
expected of a reasonable, prudent and competent driver in all
the circumstances.
Thus ‘pulling a wheelie’, or splashing another road
user, would be driving capable of being held in breach of s.3.
Motorists driving within the provisions of a national
organisation’s ‘code of conduct’ are unlikely to commit
acts in breach of s.3.
Drivers may find themselves under threat of a s.59 warning
or seizure in respect of routes that are currently listed as
footpaths, bridleways or restricted byways, but on which there
is a NERC-exempt definitive map modification order application
founded on good evidence. In such a case, the driver under
threat should explain all the circumstances to the officer,
explain why no s.34 offence has been committed, and follow-up
by providing the police with copies of the DMMOA and evidence.
Even where such a s.34 offence is alleged by the officer at
the site, s.59 also demands that the second element of the
‘offence’ be satisfied – ‘alarm, distress or
annoyance’ to members of the public.
Other vehicle seizure provisions.
Drivers should be aware that the police now have seizure
powers in addition to those in the Police Reform Act 2002,
introduced by the Serious Organised Crime and Police Act 2005.
This Act introduced an amendment to s.165 of the Vehicles
Excise and Registration Act 1994 allowing the police to seize
motor vehicles on reasonable suspicion that the vehicle/driver
is not covered by Road Traffic Act insurance, and/or the
driver does not have a driving licence. The application of
this provision is usually tied to the link between the Police
National Computer, the Motor Insurance Industry computer
database, and the Driver and Vehicle Licensing Centre computer
database, often using number plate recognition camera systems.
As with the PRA2002, seized vehicles will be released only on
payment of a fee and proof of insurance and licence.
The Road Traffic Bill (which is likely to become law later
in 2006) looks likely to introduce a new offence of ‘keeping
a motor vehicle which does not meet insurance requirements’.
Essentially, this is aimed at requiring continuity of
insurance unless a statutory off-road notification (SORN) is
in force.
