And other pertinent legislation
The commencement of the rights of way provisions of the Natural Environment and Rural Communities Act 2006 (NERC), on 2 May 2006 (Wales commencing later on 11th May 2006) 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.
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’.
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.
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 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.