“In this part of this Act, the following expressions have the meanings hereby respectively assigned to them, that is to say- ‘footpath’ means a highway over which the public have a right of way on foot only, other than such a highway at the side of a public road; ‘bridleway’ means a highway over which the public have the following, but no other, rights of way, that is to say, a right of way on foot and a right of way on horseback or leading a horse, with or without a right to drive animals of any description along the highway; … ‘public path’ means a highway being either a footpath or a bridleway; ... ‘road used as a public path’ means a highway, other than a public path, used by the public mainly for the purpose for which footpaths or bridleways are so used.” ‘footpath’ means a highway over which the public have a right of way on foot only, other than such a highway at the side of a public road; ‘bridleway’ means a highway over which the public have the following, but no other, rights of way, that is to say, a right of way on foot and a right of way on horseback or leading a horse, with or without a right to drive animals of any description along the highway; … ‘public path’ means a highway being either a footpath or a bridleway; ... ‘road used as a public path’ means a highway, other than a public path, used by the public mainly for the purpose for which footpaths or bridleways are so used.”
“‘byway open to all traffic’ means a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which it is used by the public mainly for the purpose for whichfootpaths and bridleways are so used”
“3. Rights of way for which Part III of the Act (public rights of way) applies shall be shown on a definitive map as indicated in Schedule 1 to these Regulations. 4. A modification order shall be in the form set out in Schedule 2 to these Regulations or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case.”
“Subsection (1) does not apply to an existing public right of way if: a) it is over a way whose main lawful use by the public during the period of five years ending with commencement [2 May 2006 ] was used for mechanically propelled vehicles, b) immediately before commencement, it was not shown in the definitive map and statement but was shown in a list required to be kept undersection 36(6) of the Highways Act 1980 (list of highways maintainable at public expense), c) it was created (by an enactment, instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles, d) it was created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles, or e) it was created by virtue of use by such vehicles during a period ending before1st December 1930 .”
“The total length of Restricted Byway to be added to the Definitive Map is 239 metres. The width of the Restricted Byway described varies between 5 … (five) metres and 9 (nine) metres based on the depiction of the way, as shown on map sheet Cornwall XXXII.6 (1908) from the Ordnance Survey County Series Second Editionmap series published at 1:2500 scale.”
“It also appears to the PC that it cannot definitively be stated that the main use of the Lane in the five years before NERCA came into force was not by MPVs.
“As to the exception under section 67(2)(a) the PC’s submission is simply that, absent a proper contemporaneous survey, it is impossible to say what the main use of the lane was in the five year period before NERCA ‘bit’. 101 user evidence forms may well be a significant amount as Mr Eastwood and Mr Brett maintain, but that number of forms on its own takes no account of idiosyncrasies that might arise from the questions in user evidence forms, and the manner in which they are framed. For example, if a couple with two children drove a car up the Lane, would that count as four MPV users or one MPV user? In short, the PC concurs with the caveats alluded to by the first instance judge and the Court of Appeal in [Fortune and Others v Wiltshire Council and Another[2012] EWCA Civ 334 ] that the exercise contemplated by section (2)(a) is always likely to be challenging.”
“10. The Order route runs from a cul-de-sac highway, the U6177, which ends to the north of Morgan-and-Pydar Community Primary School (the school) and northeast of the village shop and post office. Other facilities, such as the church and a public house are situated to the south-west of the Order route; a car park to the south; and a play area and recreation ground to the north of points A - B (points A - B- C are shown on the Order map), with access gained from the Order route. I consider that the southwestern end of the order route can be said to be situated within the village centre. 11. The Order route itself runs through a ford with a footbridge on one side, running generally north-east and then north-north-east, with several properties gaining access from it. The route is surfaced, patched with tarmac, concrete and stone in places, with boundary hedges and fences. There are a couple of street lights at the southern end. It joins the road, also the U6177, to the north-east, in an area referred to as ‘Lanvean’.”
“54. 101 UEFs were submitted in support of the application, whilst objectors provided additional information on use, or non-use, of the route. I note that there were some concerns as to the reliability of the user evidence, and the point of the Inquiry was to allow that to be tested. The OMA found that there were also 15 UEFs completed in 2003, 6 of whom also completed UEFs in support of the 2011 application. The 2003 UEFs appear to have been submitted due to verbal challenges to users and notices erected by local people who lived along the lane. No application was made to the OMA for an order at that time. 55. As noted by the OMA there was some discrepancy between the claimed use in the 2003 and 2011 evidence where users had provided information in both years. Whilst the evidence submitted in 2011 is more detailed, I disagree that this means it is more accurate, despite the more structured setup of the UEF. Without further information, through interview or cross-examination, I will only take the lowest reported level of use from these witnesses. However, even in doing so, the number of UEFs, and the agreement in the information provided is striking and provides a strong picture of consistent use of the route on foot, horse, bicycle and vehicle dating back to the 1940s.”
“68. This section of the 2006 Act would prevent the extinguishment of the MPV rights if the use is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use for MPVs. The date of commencement was2 May 2006 and so the relevant period, 2001 - 2006 falls within a period covered by the UEFs. 69. I consider that the UEFs demonstrate use on foot, horse, bicycle and vehicle throughout the relevant period, despite there being some evidence of notices to dissuade use during this time. The Parish Council argued that the use by vehicles was higher than use on foot or horse, with no specific comment on bicycle use. Although suggesting that the number of people in a car may lead to more ‘users’ of vehicles, the information was not available to me in this way. 70. The TRF also suggested that the use prior to commencement was sufficient to save the MPV rights. The more recent UEFs are structured to try to gain information on both the type and quantity of use by individuals completing them. Reliance on the bar chart of MPV use alone does not provide the full picture of use in the UEFs as a whole. I am satisfied that the OMA are correct in their view that the UEFs record less use overall with vehicles, than by any other means in the relevant five-year period to2 May 2006 . I also take note that there appears to have been action to prevent use within the five-year period to 2001. As a result, I am satisfied, on the balance of probabilities, that this exception to the extinguishment of MPV rights does not apply.”
“77. It was argued in objection that parts of the route were only 2.5 metres. I agree with the OMA that the lane is bounded and the width clear. I do not consider the order to be incorrect in setting out the minimum width of five metres and I do not propose to modify the order on this point. 78. The TRF raised concerns about the lack of reference in Part II of the Schedule to the Order to the mapping, as in Part I. The OMA explained that the reference to the width, based on the depiction of the way, as shown on map sheet Cornwall XXXII.6 (1908) from Ordnance Survey County Series Second Edition map series published at 1:2500 scale was not carried over to Part II of the Schedule due to the format of the existing statement. I am satisfied that the Order provides sufficient information for users and landowners - and most importantly the Highway Authority - to understand the width of the route at any given point and that amendment of the text of the order is required.”
“130. Section 67 of NERCA was enacted as a result of public concern about inappropriate use of ‘green lanes’. Green lanes are minor unmade rights of way, over which vehicular rights of way existed but which were generally enjoyed by walkers and horseback riders. Users of mechanically propelled vehicles (‘MPVs’), such as motorcycles, were using some green lanes for recreational purposes and causing damage to them. 131. Parliament reacted to this concern by restricting the ways that could be used for this purpose. The legislative technique chosen for this purpose was to graft, onto then recent legislation for the official recording of rights of way, the sanction of extinguishment for public rights of way for MPVs in default of such recording by midnight on1 May 2006 . That is the time when section 67 of NERCA came into effect (‘the NERCA commencement date’).”
“1053. The use of mechanically propelled vehicles over public rights of way in the countryside was causing concern. Whilst nothing could be done to extinguish existing vehicular rights already recorded on a Definitive Map and Statement, NERC sought to address the issue by preventing any future vehicular rights being established by mere usage, and by eliminating any existing vehicular rights which had not been recorded on the Definitive Map and Statement. 1054. Therefore, one purpose of Part 6 NERC was to limit those vehicular rights which could be accorded on English and Welsh Local Authorities’ Definitive Maps and Statements showing public rights of way. Section 66 halted the implied creation of rights (by user over 20 years) in the future for mechanically propelled vehicles. … 1055. Having limited the creation of any new implied rights of way for mechanically propelled vehicles, all existing public rights of way for mechanically propelled vehicles were extinguished on2 May 2006 unless, immediately before that date, those particular rights were shown on a Definitive Map and Statement. 1056. This represented something of a legislative sledgehammer to crack a relatively small nut. Section 67 NERC extinguished all motor vehicular rights (as Mr Laurence said, even over the M4) unless those rights were recorded on a Definitive Map and Statement. However, the real aim of this section was to extinguish vehicular rights over unrecorded byways open to all traffic.”
“1067. There is an obvious difference between Section 67(2)(a) and (b). 1068. Section 67(2)(a) saves from extinguishment a way mainly used lawfully by mechanically propelled vehicles. This will preserve the ordinary road network, which would not usually qualify for entry on a Definitive Map and Statement because it was mainly used by mechanically propelled vehicles. Although one might expect many such ways to be created expressly by an enactment or instrument or constructed under statutory powers as a road. Section 67(2)(a) will also capture public vehicular highways created by implied dedication and acceptance still being used mainly and lawfully by vehicles in the 5 year period before2 May 2006 . 1069. Section 67(2)(b) does not contain any requirement as to how long a way had been used, or what its main use was. This subsection preserves from extinguishment unrecorded public rights of way for mechanically propelled vehicles merely by being present on a list required to be kept of highways maintainable at public expense. 1070. Whereas a way recorded on a Definitive Statement is a record of public rights (e.g., byway open to all traffic, bridleway, footpath etc), a s 36(6) list is concerned with highways (which need not be highways over which exist rights of way for mechanically propelled vehicles) which simply are maintainable at the public expense. Furthermore, the s36(6) list relates to maintenance of the highway (including footpaths), and not to a record of public rights of way for mechanically propelled vehicles. 1071. In my judgment, the exception in Section 67(2)(b) serves at least two very useful purposes. First, it avoids the question of whether the use of a highway was mainly vehicular, a difficult factual assessment, where the burden of proof lies on the person seeking to argue the unrecorded right has not been extinguished. S67(2)(b) would therefore be useful in a case where the evidence was equivocal as to the main lawful use in the 5 years preceding2 May 2006 .”
“This analysis of the role and purpose of ss66 and 67 NERC leads me to conclude that s67(2) NERC should not be given a restrictive interpretation. On the contrary, Parliament having extinguished certain public vehicular rights of way merely because they were not shown on a Definitive Map, on which many of them simply could not have been recorded, a purposive interpretation should be given to the exceptions, especially when the burden of proof is cast upon the person seeking to establish that a particular unrecorded vehicular right of way has not been extinguished. Moreover, it seems to me appropriate that, if NERC starts from the premise of abolishing such a wide category of vehicular highways (and beyond the mischief at which the Act was directed, namely unrecorded BOATs), the exceptions to this extinguishment should not, in the absence of clear and compelling language to the contrary, be construed narrowly.”
“The intention of Parliament in passing the 1949, 1968, and 1981 Acts is in my judgment clear. That purpose is that county councils should record, in definitive maps and statements ways, including what Lord Diplock (in Suffolk County Council v Mason[1979] AC 705 , 710A) called ‘full highways or cartways’ for the benefit of ramblers and horse riders so that such ways are not lost and ramblers and horse riders have a simple means of ascertaining the existence and location of such ways so that they may have access to the countryside. Parliament intended that ‘full highways or cartways’ which might not be listed as highways maintainable at the public expense under theHighways Act 1980 , should be included in the definitive map and statement so that rights of way over such highways should not be lost. Parliament’s purpose was to record such ways not to delete them.”
“31. …The definition in section 66(1) of byway open to all traffic requires the public to have a right of way for vehicular or other kinds of traffic over the highway in question but does not require the highway in question to be used by the public with vehicles unless the word ‘mainly’ in the second part of the definition is read so as to exclude ‘exclusively’. I would agree with Kay J on this point: ‘exclusively’ is simply the extreme form of ‘mainly’ in this context. Although it can be said that the words ‘but which is used by the public mainly for the purpose for which footpaths and bridleways are so used’ are unambiguous if read in isolation, to read those words in isolation is in my judgment to fall into error. The definition read in its entirety is ambiguous. In those circumstances, Hooper J was right to adopt a purposive approach to the construction of the definition. 32. The definition in sections 66(1) has to be read in its statutory context, and, in particular, the provisions of section 54 and section 56 of the Act in mind. The whole purpose of Part III of the Act is the ascertainment of public rights of way. … If a public right of way for vehicular traffic has been shown to exist over the road used as a public path then it is to be shown as a byway open to all traffic. Once that is done then under section 56(1)(c) the definitive map and statement, shall be conclusive evidence that there was at the relevant date a highway as shown on the map and that the public had thereover at that date a right of way for vehicular and all other kinds of traffic. It is, in my judgment, clear from those provisions that Parliament did not contemplate that ways shown in definitive maps and statements as roads used as public paths should disappear altogether from the definitive maps and statements simply because no current use could be shown or that such current use of the way as could be established by evidence did not meet the literal meaning of the definition in section 66(1). In my opinion, it is much more likely that Parliament intended the way to be shown in the definitive map and statement so that thereafter, if no current use was being made of the way, ramblers and horse riders would come to know the existence of the way and start to use it. …”
“38. Consequently in my judgment, it cannot be shown that evidence that the use of the way by the public does not satisfy the so-called user test or has ceased to satisfy the so-called user test, is an event the occurrence of which Parliament intended should lead a county council to make an order modifying the map and statement. Again this reading of section 53 is consistent with Parliament’s undoubted intention that rights of way over which persons may access the countryside on foot or on horseback should not be lost, but should be recorded. 39. This result also avoids the absurdity that the adoption of a literal interpretation of the statutory definition of byway open to all traffic would produce; that county councils might have to review their maps and statements every few years as evidence was submitted to them that the patterns of use of such ways had altered. That in turn could lead to a plethora of public inquiries to determine whether a way which appeared on the map should be deleted or a way which had been removed from the map should be restored. Mr Laurence invited us to view that prospect and the prospect of such ways following deletion from the map and statement being lost with equanimity because the public right of way would survive following the common law’s principle of ‘once a highway, always a highway’.”
“I consider that in defining a byway open to all traffic in the terms it has insection 66(1) of the Wildlife and Countryside Act 1981 , Parliament was setting out a description of ways which should be shown in the maps and statements as such byways. What was being defined was the concept or character of such a way. Parliament did not intend the highways over which the public have rights for vehicular and other types of traffic, should be omitted from definitive maps and statements because they had fallen into disuse if their character made them more likely to be used by walkers and horse riders than vehicular traffic because they were more suitable for use by walkers and horse riders than by vehicles.”
“The text is the starting point, and centre of the interpreter’s attention from then on. After all, it is the text that is being construed. So for example in R v A No 2 [[2001] UKHL 25 at 44] Lord Steyn said: ‘It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it …’ In R (On the Application of Jackson) v Attorney General [[2005] UKHL 56 at 29], Lord Bingham said: ‘[the Attorney General] invites the House to focus on the language of the 1911 Act, and in this he is right, since a careful study of the statutory language, read in its statutory and historical context and with the benefit of permissible aids to interpretation, is the essential first step in any exercise of statutory interpretation.’”
“13. The dictum of Purchas LJ in Burrows is helpful, but is not to be taken in substitution for the standard set by the legislation. Purchas LJ can be taken as referring to the general intention of the legislation, namely that the map and statement should be kept under review and modified in the light of the most up-to-date evidence as to what rights of way are in existence so as to show, as accurately as possible, those rights of way. I do not take him to have been purporting to lay down a general requirement that the map and statement should attain some particularly high level of precision in the sense of showing the detail of the route in terms of its precise location on the ground to a manifestly high degree of particularity. 14. I accept that if it is possible, it will generally be desirable to show an order route to a high level of precision, but that will be the position if there is evidence to support such precise delineation actually relating to the right of way in question. Where, as is often the case, the existence of the right of way is shown by historical maps of varying quality, vintage and produced for varying purposes, in my judgment, there is certainly no requirement in law to show the route with a greater degree of particularity than can be justified on the basis of the available evidence.”