Patricia Stubbs (on behalf of Green Lanes Environmental Action Movement) v Lake District National Park Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 21 August 2020 |
| Neutral Citation | [2020] EWHC 2293 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/80/2020 |
| Date | 21 August 2020 |
[2020] EWHC 2293 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/80/2020
and
Ms Katherine Barnes (instructed by Irwin Mitchell LLP) for the Claimant
Mr Ned Westaway (instructed by Julie Wood, Authority Solicitor Lake District Naitonal Park Authority) for the Defendant
No appearances or representation for 1 st and 2 nd Interested Parties
Mr Adrian Pay (instructed by DMH Stallard LLP) for the 3 rd Interested Party
Hearing dates: 2nd and 3rd June 2020
Approved Judgment
Introduction
The claimant brings this case on behalf of an organisation known as the Green Lanes Environmental Action Movement (“GLEAM”). GLEAM is an unincorporated association which campaigns to protect green lanes and the rights of walkers and others to use them without danger, difficulty or inconvenience. They are opposed to green lanes being used inappropriately for off-road driving. The third interested party is a national organisation founded in 1970 which has amongst its objectives the preservation of the rights of motorcyclists and others to use vehicular green lanes as a legitimate part of access to the countryside.
The defendant is the national park authority for the Lake District National Park. The first interested party is the highway authority for the two highways within the defendant's administrative area known as Tilberthwaite Road and High Oxen Fell Road. Parts of these highways are unsealed (or unsurfaced), and in 2017 a project was initiated between the defendant and the first and second interested parties to establish the most appropriate long-term management solution for the unsealed sections of these roads, including assessing the relevance of a Traffic Regulation Order (“TRO”). Having analysed the evidence obtained during the course of this project, the question of the future management of the unsealed sections of these roads was reported to the defendant's Rights of Way Committee on the 8 October 2019. An Assessment Report (“AR”) was presented to the members of the committee to assist them in the decision that they needed to reach. The members decided to adopt the recommendation put to them in the AR which included the conclusion that it was inappropriate to impose a TRO at the time. The claimants challenge that decision.
This judgment commences by setting out the relevant material contained in the AR underpinning the decision which the members reached. The grounds are then set out in brief. It then sets out the law and policy background in relation to ground 1 and reaches conclusions in relation to its merits, prior to turning to the law and policy materials relevant to grounds 2 and 3 and reaching conclusions in respect of those issues. At the outset I would like to put on record my thanks to all counsel and their solicitors who contributed to the presentation of the written material in this case which has greatly assisted the court. Further, I would wish to place on record my gratitude to counsel for their helpful written and oral submissions.
The defendant's decision
The two highways with which this case is concerned are situated in the Langdale and Coniston Valleys of the Lake District. In the AR it was noted that motor vehicle usage of both of the roads had increased over the past 20 years, and maintenance of the surface and drainage had declined. This, combined with three severe weather incidents in 2005, 2009 and 2015 led to a deterioration in the surface of Tilberthwaite Road, in particular such that agricultural traffic was having difficulties accessing land for farming purposes. Against this background the defendant was requested by an amenity group to make a TRO prohibiting the use of the unsealed portions of the highways by motor vehicles. For reasons which are set out below, the defendant has power to make TROs in relation to unsealed highways of the sort concerned in this case.
As part of the project to investigate the request to impose a TRO, a variety of different types of survey were undertaken alongside monitoring on a comprehensive basis. The nature and extent of the usage of the highways were investigated, along with social surveys of users of the highway. Physical surveys were undertaken, including before and after works of repair that were undertaken to the Tilberthwaite Road as part of the project.
The AR noted that it was extremely likely that there were public rights to use the unsealed portions of the highway with motor vehicles. Although there was a widespread belief amongst users and members of the public that the unsealed sections of the roads were footpaths or bridleways, the AR concluded that they were not, and that there was an existing public right of access for use by mechanically propelled vehicles over both the sealed and unsealed lengths of both roads. As part of the background to the decision the AR noted the purposes for which National Parks were designated, as described in section 5(1) of the National Parks and Access to the Countryside Act 1949 which is set out in full below. The AR went on to record the special qualities of the Lake District National Park which had led to its designation and which needed to be considered when determining whether and in what way to exercise the defendant's powers. In particular, the AR set out what is known as the Sandford Principle, which is derived from the Report of the National Park Policies Review Committee, chaired by the Reverend Right Honourable Lord Sandford DSC which reported in 1974 (“the Sandford Report”). The AR describes the principle in the following way:
“1.10 The Sandford Principle
1.10.1 The Sandford Principle as written in 1974 states that “Where irreconcilable conflicts exist between conservation and public enjoyment, then conservation interest should take priority”, and this has been updated in 1995 to say “If it appears that there is a conflict between those purposes (as set out at 1.8.2 above) [the National Park Authority] shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area”. Or, in the words of UK National Parks: “If there is a conflict between protecting the environment and people enjoying the environment, that can't be resolved by management, then protecting the environment is more important.””
The AR rehearsed all of the areas of activity which had been undertaken as part of the project, together with the findings which had been arrived at. In addition the AR was supported by a comprehensive suite of appendices setting out in detail the various areas of work which had been completed as part of the project. The AR went on to set out the responses to consultation which had been received from various parties interested in the decision. At section 12 of the AR the officers commenced discussion of the merits of the various options available to members which were for decision. This discussion commenced with an examination of the various grounds under which a TRO might be made in respect of the highways. The AR provides as follows:
“12.2 In considering the role of a TRO the best starting point for a discussion is to look at the grounds under which we can make a Traffic Regulation Order.
A For avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising.
The issue of safety has been raised by a number of people. GLEAM have referred to the dangers of riding horses over bare rock, difficulties in passing traffic, danger from fast-moving vehicles, and flying chippings being thrown up by motorbikes.
We have no actual evidence of any accidents, incidents or injuries to any users of either of these roads, which are largely unconfined in width. GLEAM (paragraph 46, Appendix 2.4) have provided links to videos and timings showing walkers having to move off the Tilberthwaite Road to avoid motorbikes. But watching these videos at the recommended timings merely shows walkers stepping to one side-much as they would if they were approached by mountain bikes or horses: there does not appear to be any animosity shown by the walkers who appear to be quite tolerant, and safe, passing something coming in the opposite direction.
There are also complaints about the risks posed to walkers by mountain bikers – but again, we have no direct evidence of any incidents or accidents. Studies elsewhere with regard to conflicts between users have generally tended to show that the perception of danger when creating mixed use routes is far greater than the resultant reality once the routes have been created.
B For preventing damage to the road or to any building on or near the road.
Damage to the road surface is one of the main [original] issues raised by the campaign, the petition threads, and by a large proportion of those completing the online surveys. The main issue raised is damage caused to the surface through 4WD use – as there is little evidence of damage from other users. This is discussed in section 13 below.
No issues have been raised with regard to damage to any buildings on or near the roads caused by vehicular use of the roads. One field wall was becoming undermined through erosion, and was repaired by the National Trust, crowd-funded by GLASS and the TRF (MPV users).
C For facilitating the passage on the road or any other road of any class of traffic (including pedestrians).
Prohibiting one type of traffic may arguably make it easier for other types-but there is little evidence to show...
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