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High Court rejects legal challenge from trail riders after council concludes road should be added to list of restricted byways

Trail riders have lost a High Court action over the extinguishment of the right of mechanical vehicles to use a road in Cornwall.

The case of Trail Riders Fellowship & Green Lane Association Ltd & Anor v The Secretary Of State for the Environment Food and Rural Affairs & Anor [2022] EWHC 1804 (Admin) was brought by the Trail Riders Fellowship and the Green Lane Association, the latter a body that promotes the use of unsurfaced roads by all means of transport.

They objected both to Cornwall Council's original decision and to it being upheld by a planning inspector.

Mrs Justice Steyn said the case was brought under paragraph 12 of schedule 15 to the Wildlife and Countryside Act 1981over Cornwall adding to its list of restricted byways a road from Mawgan-in-Pydar school to Lanvean. 

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The inspector agreed with Cornwall that the public right of way for mechanically propelled vehicles was extinguished by section 67(1) of the Natural Environment and Rural Communities Act 2006, and none of the exceptions applied in section 67 of that Act.

Two grounds were advanced, that the inspector erred in her approach to section 67, and in declining to incorporate in the definitive statement reference to evidence from Ordnance Survey of the route’s width.

In August 2011, St Mawgan-in-Pydar Parish Council applied to Cornwall to have the route listed as a byway open to all traffic.

Cornwall instead decided it should be a restricted byway as right of use by mechanical vehicles had been extinguished by the 2006 Act. 

The parish council objected and the matter went to the inspector, who concluded a restricted byway still allowed use by, foot, horse, bicycle and private vehicles for access.

Steyn J said: “The claimants’ first and main submission is that by treating the question whether the exception in section 67(2)(a) applies as confined to an arithmetic assessment of the frequency of use, the inspector erred in her construction of that provision.

"The claimants submit that while frequency of use may be an aspect of the assessment, the inspector misapplied the section in failing to have regard to the character of the route in determining whether it had mainly been used by [mechanical vehicles] in the five-year period to 2 May 2006.”

Steyn J said the burden was on the parish council and other objectors to prove on the balance of probabilities that one of the exceptions to section 67(1) of NERCA 2006 applied.

The judge said: “It would not have been open to the inspector to have declined to determine whether or not the section 67(2)(a) exception applied. It was one of the issues in the public inquiry that she was appointed to determine.

“She cannot sensibly be criticised for taking the view that it was her job to make a determination even if - as is so often the case in courts, tribunals and inquiries - the evidence was imperfect or could have been fuller.” 

Both the parish council and the fellowship said mechanical vehicles’ use of the route may be increased if the number of persons in each vehicle were to be factored in.

“Neither sought to put any evidence before the inspector to assist her in determining how that could be factored in,” Steyn J said.

"Nor did any party seek an adjournment to enable them to submit such evidence. Nor did they suggest that the inspector ought, herself, to seek such evidence. In these circumstances, the high threshold for showing a Tameside error has clearly not been met.

“The inspector was reasonably entitled to make a determination on the basis of the evidence the parties before her had chosen to adduce.”

She dismissed the point about the width of the route saying there was nothing irrational in the inspector’s acceptance of Cornwall’s proposed order.

Mark Smulian

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