NERCA and the List of Streets Exception

Posted by Adrian Noviss on
On 2 May 2006 all existing public rights of way for mechanically propelled vehicles that were not recorded on a definitive map and statement were extinguished by section 67(1) of the Natural Environment and Rural Communities Act 2006 (NERCA). Such vehicular rights only survived if one of the five exceptions specified in NERCA applied.

The case of Trail Riders Fellowship v Secretary of State for the Environment, Food and Rural Affairs ("Trail Riders") is the latest in a long line of cases involving the application of the exceptions.

The background to Trail Riders is a familiar one. It was commonly accepted that there had been a long-established vehicular right of way for motorbikes to travel continuously along Oakridge Lane in Hertfordshire. However, Oakridge Lane did not appear on the definitive map and statement (DMS). When an application was submitted to the County Council to add the route as a restricted byway to record rights of way for horses to be ridden along it, the Trail Riders Fellowship contended that it should be recorded as a byway open to all traffic (a BOAT) to recognise the vehicular rights.

They relied on the exception under section 67(1)(b) of NERCA which applies to routes that did not appear on the definitive map and statement on 2 May 2006 but did appear on a highway authority's list of the streets within its area which are highways maintainable at the public expense held under section 36(6) of the Highways Act 1980 (List of Streets).

An Inspector decided that whilst the majority of the Lane was a BOAT, a 110 metre length part of the Lane was not. This meant that motorbikes could not be ridden continually along its entire length. Her decision was based on how the Lane was shown on the Council's List of Streets, which in this case included a plan as well as a list. The route was shown on the map by a magenta line which did not align with the physical course of the historic carriageway. It differed by up to 30 metres including a discrepancy in terms of which of two bridges the route passed over to cross a brook.

In quashing the Inspector's decision the court provided a reminder about the different purposes that the DMS and List of Streets serve and the case highlights the problems of this NERCA exception.

The DMS conclusively records the existence and alignment of public rights of way. It contains a high degree of cartographic accuracy and precision. It contains specific details such as the width of the way and describes the course of the route. It can only be modified through a specific legal procedure.

The List of Streets serves a completely different purpose. It enables anyone to find out whether a specific street is a highway maintainable at the public expense. It is not a conclusive record of what legal rights exist over the highway, nor is there a prescribed procedure for modifying it. Unlike the DMS, there is no legal requirement as to what form the List of Streets must take. Some authorities keep it in a list format, whilst others record it in the form of a map or a combination of both.

The court found that it was "in fact very obvious" that the magenta line on the list of streets was only intended to identify and not precisely delineate the street. It was so imprecisely drawn that in places it ran through the middle of the brook. The court held that it was perverse for the Inspector to find that one section of the route was automatically extinguished based on the imprecision of the magenta line upon the map that formed part of, but not the whole of, the List of Streets.

It is unfortunate that the question of whether public rights of way for mechanically propelled vehicles survived extinguishment is dependent on a document that was never intended to provide the degree of accuracy required to determine such issues.

Although this is a useful case to remind authorities and Inspectors about the distinction between the two records, other issues remain with this exception that are likely to arise in other situations, such as:

  • The highway authority may not have retained an accurate copy of the List of Streets as it appeared on 2 May 2006;
  • Routes that should have appeared on the List of Streets on 2 May 2006 but which were wrongly omitted or deleted and did not appear on that date cannot rely on this exception; and
  • Some highway authorities include, for completeness, all privately maintained highways on their List of Streets and it is not clear whether such routes which did not need to appear on the List of Streets are also covered by this exception.

Trail Riders Fellowship v Secretary of State for the Environment, Food and Rural Affairs [2017] EWHC 1866 (Admin).

About the Author

Adrian is a Senior Solicitor specialising in planning and highways law. Based in our Southampton office, he acts for a range of public and private sector clients.

Adrian Noviss
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