Natural Environment and Rural Communities Act
The Natural Environment and Rural Communities Act 2006 is commonly known as NERC.
Background and overview
In December 2003 Defra published a consultation paper on the 'Use of Mechanically Propelled Vehicles on Rights of Way'. The broad proposal behind this consultation was to limit the ways by which rights of way for mechanically propelled vehicles (MPVs) could be created or recorded. The results of this proposal were published in January 2005 as the Government's framework for action. This document laid out the government's intention to legislate to reduce the number of new byways open to all traffic (BOATs) recorded on the definitive map by ending the ability to record new BOATs on the basis of historic evidence of use by horse and cart and by negating the effects of the judgement in the Bakewell case. The 2005 framework also recognised the necessity for authorities to keep a register of applications, as provided for in section 51 and Schedule 5 of the Countryside and Rights of Way Act 2000.
The framework for action clearly stated the government's intention to bring in such legislation as soon as possible and, on 19th May 2005, the Natural Environment and Rural Communities (NERC) Bill was introduced to the House of Commons. The NERC Act received Royal Assent on 30th March 2006. Part 6 of this Act concerns Rights of Way and mechanically propelled vehicles. The commencement date for Sections 66 to 71 of the Act is 2nd May 2006 in England and (for Sections 66-72) 16th November 2006 in Wales. Section 72 came into force on 1st October 2007 in England.
Defra has issued Version 5 of guidance on the Act. This guidance is a good a place to start for interpretation of the Act. Associated with it are two flow charts illustrating the process of determining whether a public right of way for mechanically propelled vehicles over any given way is extinguished by section 67(2) or (3).
Summary of Part 6 of the Natural Environment and Rural Communities Act 2006
Section 66 restricts the ability to create new rights of way for mechanically propelled vehicles - evidence of use of a way by MPVs for a period of time will not of itself give rise to a public right of way for such vehicles.
Section 67(1) extinguishes every public right of way for MPVs unless that way i) is already shown on a definitive map and statement as a Byway Open to All Traffic or ii) is subject to one of the exemptions contained in sections 67(2) or 67(3).
Section 67(2) preserves from exemption any unrecorded right of way which is generally part of the 'normal highway network':
- s. 67(2)(a) exempts any way whose main lawful use by the public between 2001 and 2006 was by mechanically propelled vehicles. In practice it is unlikely that, for any given way, a full survey of user was carried out between 2001 and 2006. Therefore, evidence of use by MPVs during this period would not itself satisfy this exemption unless a comparable survey of other classes of user was carried out at the same time. Read literally, it seems unlikely that this section is capable of proof. Defra's advice is to adopt a pragmatic approach to the interpretation of this section, and suggest that the intention behind this exemption is to "except highways that are part of the 'ordinary roads network"'. It may be that authorities wish to consider aspects such as the character of the route when considering the application of this exemption.
- s.67(2)(b) exempts those ways which on commencement were recorded on the 'List of Streets' but not the definitive map. Problems might arise if the list of streets was not, on commencement of the NERC Act, entirely up to date, or if there are errors on the list of streets. At the very least it is imperative that an authority is able to produce a copy of the List of Streets and the Definitive Map as they were on the date of commencement of the NERC Act.
- s.67(2)(c) exempts rights for MPVs where those rights were expressly created through an enactment or instrument where that creation specifically provided for rights for mechanically propelled vehicles. Defra's advice further states that "there have to be express words for this exception to apply". Therefore a right of way for motor vehicles dedicated as part of an agreement made under section 38 of the Highways Act 1980 which specifies the dedication of a 'highway' (rather than specifically referring to a right of way for mechanically propelled vehicles) may not survive this exemption.
- s.67(2)(d) exempts MPV rights where that right of way was created by the construction (under statutory powers) of a road intended to be used by MPVs. It does not exempt an existing right of way which has been upgraded to carry vehicular traffic. For a discussion of the further application of this sub section, IPROW members are referred to the IPROWiki page s.67(2)(d) and Inclosure Roads.
- s.67(2)(e) preserves any right of way for MPVs which was created by virtue of use by MPVs before 1st December 1930. It would seem that unless there is sufficient user evidence, this exemption is again unlikely to be capable of proof.
Sections 67(3) preserves MPV rights over those routes which (on the relevant date) were subject to outstanding applications for definitive map modification orders.
(Defra advise that the decision as to whether these exemptions apply should be made by the surveying authority when determining the application.)
- s.67(3)(a) preserves any right of way for MPVs where an application (under section 53(5) of the Wildlife and Countryside Act 1981 and made in accordance with Paragraph 1 of Schedule 14 of that Act) for the route to be recorded as a BOAT was made before the relevant date.
- s.67(4) provides that this relevant date is 20th January 2005 (in England) and 19th May 2005 (in Wales).
- s.67(3)(b) preserves MPV rights over those routes whereby an application for BOAT made in accordance with Paragraph 1 of Schedule 14 was determined by a surveying authority before commencement of the Act (2nd May 2006 in England and 16th November 2006 in Wales).
- s.67(3)(c) preserves any unrecorded public right for MPVs where before commencement a person who relied on that unrecorded public right to access land to which they had an interest had made an application in accordance with Paragraph 1 of Schedule 14 to record that way as a BOAT.
- s.67(6) provides guidance on what constitutes an application for the purposes of s.67(3).
An inquiry decision (Morchard Bishop, Devon) considering the application of s.67(2)(a) to claims which had been made (and dismissed) before the relevant date is of interest, as is the reviewed Defra Advice which lead to the Inspector's decision.
IPROW members are referred to a summary of a recent High Court Case which considered the application of these sections (in particular, what constitutes an application for the purposes of 67(6) and 67(3)(a) and a determination under 67(3)(b)) on the IPROWiki NERC s67(3) Judicial Review.
Sections 67(5), (7) and 70(4) together protect rights for people to access their land and property.
- s.67(5) provides that any unrecorded public right of way for MPVs which would be extinguished by 67(1) and was necessary for a person with interest to land to access that land would, upon commencement, become a private right of way to the benefit of that land. It is not immediately clear how this section is intended to operate – for example, it is unclear how a public right of way for MPVs might be proven, or how that private right might be recorded.
- s.67(7) states that in order for 67(5) to operate, it is not relevant whether the right in question was either exercised, or exercisable, by the person in question.
- s.70(4) amends the Road Traffic Act 1988 so that it is not an offence for a person with an interest in land to access that land with a MPV over a route which, immediately before commencement, was shown as a Road Used as a Public Path.
Section 68 amends section 31 of the Highways Act 1980 so that use of a way for the prescribed period by non mechanically propelled vehicles can give rise to the presumption of dedication of a Restricted Byway. Two articles in the Rights of Way Law Review consider the creation and use of ways by cyclists in more depth.
Section 69 amends section 31 of the 1981 Act so that an application under section 53(5) of that Act constitutes a 'bringing into question' for the purposes of section 31, and states that the date of that bringing into question shall be the date on which that application complies with Paragraph 1 of Schedule 14 to that Act.
Section 72 amends the Road Traffic Regulation Act 1984 so that a National Park Authority has the power to make traffic regulation (and other traffic management) orders. This section came into force on 1st October 2007 in England (The National Park Authorities' Traffic Orders (Procedure) (England) Regulations 2007) and the 16th November 2006 in Wales.
Restricted Byways and Transitional Arrangements
Restricted Byway Regulations came into force on 2nd May 2006 in England (through the Countryside and Rights of Way Act 2000 (Commencement No.11 and Savings Order 2006)) and on 11th May 2006 in Wales (through The Countryside and Rights of Way Act 2000 (Commencement No. 8 and Transitional Provisions) (Wales) Order 2006).
It should be noted that any Order made under s.53 or application made under s.53(5) of the Wildlife and Countryside Act 1981 to reclassify a RUPP must be processed to determination and final resolution. This is because every RUPP which was the subject of such an application prior to commencement of s.47 of the CROW Act is not, following commencement of that section, a Restricted Byway per se, but is to be temporarily treated as a Restricted Byway until the determination of that application. In theory, therefore, following an investigation such a route could be found to be a bridleway (not having had any vehicular right of way in the first place).
The NERC Act has now been with us for five years, and although some headway has been made in interpreting the subtleties and nuances of Part 6, there are perhaps more questions to be answered than have been, so far, resolved. It is hoped that through the IPROW web-pages, examples of good-practice and recent decisions can be shared.