Trail Riders Fellowship and Others v Powys County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 17 October 2013 |
| Neutral Citation | [2013] EWHC 3144 (Admin) |
| Docket Number | Case No: CO/7314/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 October 2013 |
[2013] EWHC 3144 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil Justice Centre
2 Park Street
Cardiff, CF10 1ET
Mr Justice Cranston
Case No: CO/7314/2013
Adrian Pay (instructed by Brain Chase Coles) for the Applicants
Emyr Gweirydd Jones (instructed by Powys County Council's Legal Department) for the Respondent
Introduction
In this statutory application the applicants challenge the decisions of Powys County Council ("the Council") to make a traffic regulation order in May this year over each of two byways in the county. The Council is both the traffic and highway authority for the county. These orders have the effect of prohibiting the use of the byways by motor vehicles, motor cycles and horse drawn vehicles.
The first byway is mainly in an upland environment and runs some 4.8 miles from Penrhiw Lane, Dolau, to a waterfall, "Water-break-its-neck" in Radnor Forest ("the WBIN byway"). At the southern end the route passes down a steep slope and then drops into a dingle. The second, the Moelfre City byway, is in an upland environment and Glyndwr's Way National Trail is along part of it. It is some 4.5 miles in length and is from Little Moelfre Farm, Llanbister, to just south of Fiddler's Green, Felindre. At a point along this byway there is a ditch and ford; the footbridge over it is not designed for motorised passenger vehicles or horse drawn vehicles. In the judgment I refer to these byways together as "both byways" or "the two byways".
The applicants are two national organisations, the Trail Riders Fellowship and the Green Lane Association, and an individual, Mr Christopher Marsden, who lives just over the border in England. The Trail Riders Fellowship aim to preserve the full status of vehicular green lanes and the rights of motorcyclists to use them, and the Green Lane Association has as its object driving, protecting and researching the country's heritage of unsurfaced public highways. Mr Marsden and his family have used the WBIN byway for over 20 years; he is a representative of the Green Lanes Association in the area.
Background
It is convenient to begin some seven — eight years ago, when Mr Marsden served notices on the Council under section 56 of the Highways Act 1980, calling on it to repair the two byways, as well as a third byway, which does not feature in these present applications. After Mr Marsden served his notice relating to the WBIN byway, in April 2005 the Council made the first of a number of temporary traffic restriction orders in respect of both byways. These orders were justified in the interests of public safety, owing to the unsatisfactory condition of parts of them and, in the case of the WBIN byway, possible munitions. That was because the Ministry of Defence has used the area for training purposes over a number of years.
Mr Marsden's complaint in respect of the WBIN byway was compromised in November 2005 with the Council agreeing to put the route into a sufficient state of repair by June 2006 for it to be capable of being open to all users, subject to the Ministry of Defence advising that there was no need to make any closure order on the basis of dangerous ordnance. The compromise agreement stated that the Council would use their best endeavours to revoke the order as soon as the byway had been repaired. Very little was done in relation to undertaking the repairs agreed in the compromise agreement.
In mid 2010 Mr Stafford-Tolley, the Council's rights of way officer, met with a landowner at the southernmost part of the WBIN byway. For some considerable time that part of the byway had been inaccessible to vehicular traffic since someone had allowed trees to grow over its definitive line and had also cross ploughed the track. Mr Stafford-Tolley agreed to a gate on the byway being locked and for the installation of a bridleway gate. Thus he was making arrangements with the landowner for foot and horse use of the byway at this point but not vehicular use. Subsequently the trees were cleared from the definitive route.
In late 2011 Mr Marsden served further section 56 notices in respect of the two byways. These notices were followed by formal complaints which were heard in the Magistrates' Court in mid 2012. On 30 July 2012 the Brecon justices sitting at Llandrindod Wells Magistrates' Court dismissed Mr Marsden's complaint.
"We find that since the section of WBIN which is impassable is subject to a [traffic restriction order] which prohibits all traffic from using it, we do not make an order under Section 56; we thereby dismiss Mr Marsden's application. As far as Moelfre [City byway] is concerned we do not find that the route is in a state of disrepair; we also dismiss that application."
Mr Marsden appealed to the Crown Court against the dismissal of his complaints but although the hearing occupied two days the matter has been stayed pending a decision on these present applications.
Meanwhile in March 2012 the Council had issued its Motorised Access Strategy. It sets out matters such as the character of the county (sparsely populated), the Council's obligations regarding byways, the need to resolve user conflict and the Council's strategy regarding the maintenance and regulation of byways. Part 3 contains policy statements. PS3.1 uses a green, amber and red classification determining the existing surface carrying capacity as the main criteria to prioritise maintenance, along with other factors such as public safety and user views. Under PS3.6, when a route is not deemed to be sustainable, i.e. a red route, the strategy explains that the use of voluntary restraint orders should be sought. A traffic regulation order should be considered when voluntary restraint has failed or is not considered appropriate. PS3.9 provides that all permanent traffic regulation orders should be reviewed at least every 5 years.
In March-April 2012 a study of unmade byways open to all traffic in the county was undertaken by Daniel Baynham, one of its engineers and also a keen "off-road" sportsman in his spare time. Mr Baynham assessed these byways in terms of their suitability for use by local traffic all year round while being sustainable so that future care could be kept to a manageable standard. Cost estimates for repair were prepared and the byways labelled green (passable by local traffic), amber (passable at some times of the year) and red (impassible). Although the current standard of the two byways were marked as red in parts, both were marked green as regards their potential standard.
In October 2012 the Council's cabinet member responsible for Regeneration and Culture, Cllr Graham Brown, submitted reports to the Radnorshire Committee in relation to the future of each of the two byways. That committee is comprised of councillors from the area and has delegated power in this context. These reports began by acknowledging that a byway open to all traffic is a category of public right of way which enables all traffic, including motorised vehicles. After describing the two byways and the history of temporary traffic regulation orders, the reports acknowledged that management of the byway network as well as "off-roading" were emotive subjects, and that considerable resources were required to ensure the 164km of the Council's unsealed byways were kept to a satisfactory standard. Under the Council's Motorised Access Strategy both byways would be classified as red, since the surfaces were largely grassed, open pasture land, with little or no hard stoned or tarmaced surface. The surfaces were easily damaged by vehicles and open to more extended damage from additional degradation by the weather. In the case of the WBIN byway the cost estimate was £109,484 to make it sustainable for motor vehicle usage; in the case of the Moelfre City byway the figure was £56,689. (In passing I note that Mr Marsden later obtained an estimate which was about a quarter of that figure). Neither estimate included the ongoing costs of repair and management.
Both reports referred to the definition of a byway in section 66 of the Wildlife and Countryside Act 1981 (see below) and to the standard of a highway required in Burnside v Emerson, i.e. such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood (see below). The reports recommended that the ordinary traffic on both byways be confined to pedestrians, cyclists and equestrians. Both reports proposed to suspend permanently the public rights of motorised vehicles and horse drawn vehicles along their length. The reports considered other options. The first was to reinstate the damage to the surface, but this was contrary to the Motorised Access Strategy because both were classified as red routes, and because of the cost. With current and declining council resources, this was not considered a viable option. In relation to this option both reports also noted that the local community councils wished to see a permanent closure of the byways for motorised vehicles. Another option was voluntary restraint but the reports rejected that. The third option canvassed was a stopping up order under the Highways Act 1980 but the outcome of any application to the magistrates' court in relation to that was said to be uncertain.
In recommending the orders for closure to motorised vehicles, the reports noted that such orders could be experimental, involve seasonal closures only, or impose weight...
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