Trail Riders Fellowship v Hampshire County Council
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 07 December 2018 |
| Neutral Citation | [2018] EWHC 3390 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2381/2018 |
| Date | 07 December 2018 |
[2018] EWHC 3390 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Ross Cranston
(sitting as a High Court Judge)
Case No: CO/2381/2018
Adrian Pay (instructed by Brian Chase Coles) for the Claimant
Stephen Whale (instructed by Hampshire Legal Services) for the Defendant
Hearing dates: 28 November 2018
Judgment Approved
INTRODUCTION
This is a statutory challenge to the decision of Hampshire County Council (“the Council”) to make a traffic regulation order, the Hampshire (Various Roads, Warnford) (Prohibition of Driving) (Except for Access) Order 2018 (“the Order”). It was made under section 1 of the Road Traffic Regulation Act 1984.
The Order prohibits the use of three linked rural “green lanes” in Hampshire -Bosenhill Lane, Green Lane and Dark Lane —by mechanically propelled vehicles, in other words motor vehicles and motor cycles. Together these lanes form a through-route from Warnford to Brockwood Park, joining tarmacked public vehicular highways at their three termini. They are unclassified roads which, although appearing on the Council's list of streets under section 36 of the Highways Act 1980, are not recorded on its Definitive Map and Statement.
The claimant is a national organisation, the Trail Riders Fellowship, which aims to preserve the full status of vehicular green lanes and the rights of motorcyclists to use them. It has a code of conduct and its members are expected to maintain high standards of behaviour. It applies to quash wholly or in part the Order under Part VI, Schedule 9 of the Road Traffic Regulation Act 1984. The defendant Council is both the traffic and highway authority for the county.
BACKGROUND
It is convenient to begin in 2014, when there were complaints about the misuse of the three lanes by “off-roaders”, four-wheeled and two-wheeled. There is photographic evidence at various dates which shows the damage to the surface of the three lanes and their parlous state. The evidence is that this has been compounded by the deliberate blocking of a drain at the junction of Dark and Green Lanes to create an obstacle for the off-roaders, and by the use of the three lanes to trespass on adjacent land. Whatever the cause, the Council have not kept these lanes in repair.
The claimant does not deny the damage to the lanes but states that its members behave responsibly in accordance with its code of conduct. There is nothing in the evidence to suggest otherwise. One its members asserts in a witness statement that the damage to the lanes is attributable to access by tractors for forestry purposes, but even if this were the case it would seem to relate to only part of the three lanes.
Following an investigation by a member of the Council's highways department, and correspondence between the department and the local County Councillor, Cllr Huxstep, Council officers met Warnford Parish Meeting on 10 April 2015 to discuss the lanes and the issues associated with the off-road use of them. After the meeting Warnford Parish Meeting raised the issue with what it described as “the off-roader lobbies”. The situation seems not to have improved, and the Parish Meeting pursued the Council. On 21 January 2016 Mr Richard Sykes, the Council officer with direct responsibility for the lanes, undertook a site visit to all three lanes. Mr Sykes has a master's degree in civil engineering and nearly four decades of local government experience in highways and transport.
At some point the proposal for a traffic regulation order emerged. In November 2016 Mr Sykes acknowledged to the clerk of the Warnford Parish Meeting that having met the Council's legal team he would still not purport to understand all the implications of each type of traffic regulation order, but could explain the basics. That month a solicitor at the Council sent Mr Sykes a memorandum about the law relating to the making of a traffic regulation order. The memorandum addressed section 1 of the Road Traffic Regulation Act 1994 and the attendant 1996 regulations, but not section 122 of that Act. The following year, in February 2017, the same solicitor sent a further memorandum about the law and a breakdown of the procedure for obtaining one. Again there was no reference to section 122.
Meanwhile, Mr Sykes had carried out another site visit, as did Councillor Huxstep and Sergeant Gilmour from the local Meon Valley Police Station. There was a meeting the same day, 15 December 2016, at Warnford Village Hall. Mr Sykes expressed the view that there was a strong case for a traffic regulation order on grounds including avoiding danger, preventing damage, facilitating pedestrian and equestrian use and preventing use by unsuitable traffic. There were two police officers in attendance. Sergeant Gilmour stated that, “the Police would be in favour of closing the [three] lanes to motor traffic as this is the only realistic way of solving the problem.” The upshot of the meeting was an agreement that the way forward was a permanent traffic regulation order banning motor traffic, including motor cycles, from the entirety of the three lanes.
The Council began working towards a traffic regulation order. Councillor Huxstep, Warnford Parish Meeting, the five adjacent landowners, and Sergeant Gilmour all endorsed the proposed order. On 11 April 2017 Mr Sykes asked the Council's Senior Technical Officer, Traffic Orders, to begin the process of advertising the draft order. The justification was the damage to the lanes, so other users could not use them; the danger from irresponsible 4x4 drivers; use of the lanes to trespass onto private land; the churned up mud made it difficult to access Bere Farm and led to flooding; and noise, and antisocial and threatening behaviour from the off-roaders.
On 11 May 2017 Mr Andy Smith, the team leader of the Council's Traffic Management East, drew Mr Sykes' attention to the need under paragraph 9 of Schedule 20 to the Road Traffic Regulation Act 1994 to consult with “the chief officer of police” before making an order. He also explained to Mr Sykes that for this purpose the Council's consultations on traffic regulation orders was carried out with the Hampshire Constabulary Roads Policing Unit (“the RPU”). The RPU was written to on 26 May 2017.
On 1 June 2017 a traffic management officer at the RPU, based at Havant Police Station, replied that the police did not support the proposal. It asked whether the only safety implication was to protect landowners' property from damage. It continued that to erect prohibition notices would attract more traffic; that a prohibition order would be unlikely to have the desired effect on those currently committing offences; that an “access only” order would be almost unenforceable; that the police had limited resources and targeted them “at areas where there is a known casualty issue”; and that an order would raise expectations of the police, where none existed previously. The reply concluded that nonetheless it was up to the Council to decide on the matter.
Mr Smith wrote to Mr Sykes that the RPU reply was fairly standard, adding that it had not said that it formally objected, that the local police supported the proposal, that Mr Sykes had reasonable grounds to proceed, and that Sergeant Gilmour was satisfied that the proposed order could be enforced. In his evidence Mr Jarvis states that the RPU often do not support the making of new traffic regulation orders since it does not want Hampshire Constabulary to have to commit resources to enforcing them.
The Council gave its formal Notice of Proposal to make an order about 24 June 2017. The draft order was for a prohibition on vehicles proceeding along the three lanes. The notice was accompanied by a statement of reasons setting out the purpose of the order as follows:
“The order is proposed to prevent damage to the lanes by misuse of 4x4 vehicles and trail type motorcycles which make the lanes dangerous and almost impossible to use safely by other users, such as horse riders and pedestrians.
The lanes are also being used as access for trespass onto private land and public footpaths, particularly by motorcycles, which results in mud being churned up causing difficulties for access to Bere Farm track, and results in flooding down the farm access.”
The Council sent the proposal to a range of statutory and other consultees in accordance with regulations 6–7 and Schedule 2 of the 1996 Regulations. It also published its Notice of Proposals, displayed notices on the site and sent copies of the “deposited documents” (Notice of Proposals, proposed order, map and Statement of Reasons) to three locations including the Council's principal offices.
The Council received 31 responses of which twenty-eight were in favour of the proposed order. Sergeant Gilmour and Warnford Parish Meeting continued to support it. Only three responses were opposed to the Order. One of these was the claimant's notice of objection dated 11 July 2017. Mr Steven Taylor, an individual member of the claimant, filed a notice of objection two days later.
The claimant's response contended that the Statement of Reasons was inadequate as to what the Council hoped to achieve and to which statutory purposes it was directed. Those engaged in illegal activity at the present would not be deterred by an order in the future. The primary problem with the road was one of lack of repair. The claimant's understanding was that the damage resulted from forestry operations in the area and the Council's failure to address damage caused by extraordinary traffic. The damage was compounded by 4x4 activity. There was no objective evidence to demonstrate that responsible motorcycle...
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