This letter from Helen Denton, Definitive Map Officer -
Further to the advertising of the modification order to record the above route as a bridleway, we have outstanding objections from 31 people, of which you are one. Please find attached a letter responding to your objection and explaining our reasons for making the order for a bridleway.
Helen Denton, Definitive Map Officer -
Modification order to record the Icknield Way between Ickleford and Hexton Road on the Definitive Map as a bridleway I am writing to you as you have objected to the County Council’s order to record the Icknield Way shown on the attached plan on the Definitive Map as a bridleway.
As you may be aware, our decision to make the order was as a result of an application made under the Wildlife and Countryside Act 1981 (“the WCA”) to record the route on the Definitive Map as a byway open to all traffic (“BOAT”). Our decision to make the order for a bridleway was based on the evidence we had available to us at the time. Our decision report along with an information sheet entitled How we make a Decision? can be seen at http://www.hertsdirect.org/services/env ... ap/rowchange/rowmapapp. As you will see in our decision report we considered:
a) whether public rights were shown historically to exist; and/or
b) whether rights had been acquired through use.
Once an order has been made the County Council must consider whether it can or cannot be confirmed. An order may only be confirmed if there are no outstanding objections to it. I am therefore writing to everyone who has objected to the order to ask them to consider withdrawing their objection. The reasons for this request are outlined in this letter. Unless all objections are withdrawn we will have to send the order, together with the objections, to the Planning Inspectorate for determination. The Planning Inspectorate would assess the evidence before making a decision and it is likely that they would do this at a public inquiry. As an objector you would be expected to present your case at the inquiry. In presenting your case you would need to explain why the route is a BOAT, and apply your evidence to the legal tests.
I have received 31 objections, all from trail bike riders, who consider that the route is a BOAT. The objections gave a number of reasons for why the route should be recorded as a BOAT rather than a bridleway. These were:
1. That the route has been used by trail bike riders. Over 60 user evidence forms have been presented to support this argument.
2. That the route is recorded on the List of Streets and so has public vehicular rights.
3. That because the route is recorded on the List of Streets the Natural Environment and Rural Communities Act 2006 (“the NERC Act”) states that BOAT rights are retained.
4. That recording the route on the Definitive Map is a waste of public funds.
Our response to these arguments, along with the reasons why we believe the route is not a BOAT, are as follows:
1. The route has been used by trail riders and so is a BOAT for public rights to accrue a route must generally have been used for at least 20 years. The user evidence we have received so far mainly continues up to 2011, the date at which the majority of the user evidence forms were collected. However, in respect of vehicular use only use up to 2006 can be taken into account. This is because section 66(1) of NERC states that: “No public right of way for mechanically-
• created (by an enactment or instrument … or
• created by the construction … of a road”.
This means that after 2006 use of a route by vehicle no longer leads to the accrual of public vehicular rights because such rights can now only be created by legal order or the physical construction of a vehicular road. Before we made the bridleway order we consulted a number of user groups, including the All Wheel Drive Club, the Trail Riders’ Fellowship, the Auto Cycle Union and the Green Lanes Association. By the time we made our decision we had only received evidence from two vehicular users who had used the route for more than 20 years up to 2006. This was insufficient to suggest that public vehicular rights had accrued through long use. Since we advertised the order we have received evidence from nearly 60 further trail bike riders. Despite this, only 6 witnesses in total can attest to using the route with vehicles for at least 20 years up to 2006.
2. The route is on the List of Streets and so is a vehicular route. Many objectors argue that as the Icknield Way is recorded on the List of Streets it is a vehicular route. This is not necessarily correct. The County Council is required to keep a List of Streets by section 36(6) of the Highways Act 1980. The Highways Act only states that the List of Streets should be a list of all routes that are maintainable at public expense. It does not say that it should be a list of public vehicular roads. There is not an automatic presumption that routes which are recorded on the List of Streets are vehicular.
3. The NERC Act states that we must make an order for a BOAT. Many objectors have argued that because the route is recorded on the List of Streets the NERC Act states that vehicular rights are preserved and it should be recorded as a BOAT. The objectors are correct that NERC preserves vehicular rights under certain circumstances. Section 67(1) states that all vehicular rights are extinguished over unrecorded routes, unless the route comes under one of the exceptions. Subsections 67(2) and (3) lists those exceptions, two of which are relevant to this application:
• if the route was recorded on the List of Streets on 2nd May 2006;
• if the original application was made before 20th January 2005 and was to record the route as a BOAT. The Icknield Way was recorded on the List of Streets on 2nd May 2006, the application was made in 1998 and was to record the route as a BOAT. However, NERC is only relevant if vehicular rights exist that would otherwise be extinguished were it not for the exceptions. In Environment Director: John Wood www.hertsdirect.org this case following our assessment of the historical and user evidence (see above) we believe that there is insufficient evidence to show that vehicular rights exist over the Icknield Way. Accordingly, BOAT rights cannot be preserved, because there are none to preserve.
4. The order is a waste of public funds. Several objectors have argued that we are unnecessarily wasting public funds trying to record the Icknield Way on the Definitive Map when it is already recorded on the List of Streets. HCC opened the case because we received an application under section 53 of the WCA asking us to do so. The WCA legally requires us to investigate all applications and to make an order if evidence shows that public rights exist. Applications made under the WCA cannot be withdrawn and because we have a legal obligation to assess them we would be acting unlawfully if we ignored them. In addition, routes that are recorded on the Definitive Map are generally considered to have a greater level of legal protection than those just recorded on the List of Streets. This is because the Definitive Map records a route’s status, rather than just the fact that it is publicly maintainable, and so is conclusive evidence of the rights recorded.
To conclude, we made the order for a bridleway because of the following reasons:
1. The historical evidence showed that under the 19th century inclosure of the land part of the route was extinguished as a public road. We have sufficient evidence to show that since the 19th century public bridleway rights have accrued, but not public vehicular rights.
2. Whilst the route is recorded on the List of Streets, this is a list of routes that are maintainable at public expense, not necessarily those with public vehicular rights.
3. The NERC Act does not in this instance retain BOAT rights, because we do not have sufficient evidence to show that such rights exist in the first place.
4. We have a legal obligation to deal with the application to record the route on the Definitive Map. Recording the route on the Definitive Map rather than just the List of Streets means that it is legally better protected.
I hope you understand and appreciate the reasons for which we made an order for a bridleway rather than a BOAT. If you have any queries please do feel free to contact me. I would appreciate your confirmation as to whether you are willing to withdraw your objection by Monday 20th February 2012.
Definitive Map Officer
Rights of Way Unit
Environmental Management Group
Please note that I work mornings on Monday to Thursday, and all day on Friday
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