Wilson & Anor v Yorkshire Dales National Park Authority

Definitions and Abbreviations

In this Judgment I shall adopt the acronyms and abbreviations contained in Mr Pay’s skeleton argument:

The routes to which these proceedings relate are referred to by the letters adopted in the Amended Particulars of Claim, reproduced in the table below.

Introduction

On 30^th May 2008 YDNPA gave notice that under section 22B(2)(a) RTRA 1984 it had made TROs in respect of the 8 roads/green lanes set out above the effect of which was to prohibit access by mechanically propelled vehicles to the roads. The purpose of the orders was stated to be “for the purposes of preserving amenity and conserving the natural beauty of the area”.

The Claimants are members of LARA, an unincorporated association for promoting the responsible use of the environment for motor sports and recreation. They bring this application on their own behalf and on behalf of LARA.

This application is, in effect, a statutory appeal under Schedule 9 of Part VI RTRA 1984 against the making of the orders.

There were 8 pleaded grounds of objection in the Re-Amended Particulars of Claim. As a result the Claimants sought orders that the TROs be quashed, orders requiring YDNPA to provide reasons for making the TROs and an order requiring compliance with Reg 14 of the 2007 Regulations. YDNPA contended that none of the grounds were made out.

In fact LARA has modified its position. It no longer seeks an order that all of the 8 TROs be quashed. In particular whilst it maintains that the procedure was flawed it no longer seeks any relief in respect of routes D, E, G and H. In respect of each of these routes it accepts that YDGLAG recommended that full TROs be made. It accepts that recommendation and thus does not seek that the orders be quashed.

It has also modified the nature of the challenge. There are now in effect 4 grounds of complaint:

Statutory Framework

The statutory framework is not controversial and can be taken from Mr Pay’s skeleton argument:

Section 22BB RTRA 1984 was inserted by section 72 NERCA 2006 and came into force on 1 October 2007. It provides as follows:

In relation to roads which satisfy the conditions in subsection 22BB(1), the power to make TROs, which is normally conferred on the local traffic authority, is conferred on a National Park authority (“NPA”);

A TRO may be made under this section for any of the purposes set out in section 1(1)(a)-(g) RTRA 1984 or for that mentioned in section 22(2).

Among the statutory purposes in section 1(1)(a)-(g) RTRA 1984 are:

The statutory purpose mentioned in section 22(2) RTRA 1984 is:

“the purpose of conserving or enhancing the natural beauty of the area, or of affording better opportunities for the public to enjoy the amenities of the area, or recreation or the study of nature in the area.”.

Section 122 RTRA 1984 imposes a duty on authorities in exercising their functions:

By paragraphs 34 to 37 of Schedule 9 RTRA 1984, any person may challenge a TRO by application to the High Court within 6 weeks of the making of the order. It is common ground that all the usual grounds of judicial review are available in a challenge to a TRO by way of application under Schedule 9 RTRA 1984.

The procedure whereby an NPA can make a TRO is provided for in the 2007 Regulations. In summary:

National Parks were established by NPACA 1949. National Park Authorities, including the YDNPA, were established by the EA 1995 and the National Park Authorities (England) Order 1996 (SI 1996/1243). EA 1995 amended section 5 NPACA 1949 to provide that the statutory purposes for the exercise of functions in relation to National Parks are as follows:

The Facts

There are over 2,000 km of rights of way and over 100 km of unsealed unclassified county road in the Yorkshire Dales National Park. A 2005 survey established that recreational motor vehicles were using over 400 km of this network. The use of these routes by recreational motor vehicles can give rise to problems that need to be addressed by effective management. The use of unsealed routes by recreational motor vehicles can affect the enjoyment of other users, impact on the local community and damage the habitat and landscape of the Yorkshire Dales.

The term “green lane” is often used in respect of an unsealed road, often of some antiquity. It has no legal meaning whatsoever and gives no indication of the public’s rights over the road. In fact the public may have a variety of rights over the road. These include footpaths (right of way on foot only), bridleways (rights of way on foot, horse and bicycle) and BOATs (right of way for vehicular and all other kinds of traffic).

The status of the public rights in respect of an unsealed road is recorded on the Definitive Map. However, it is clear from section 56 WCA 1981 that the recorded status of routes on the Definitive Map is without prejudice to higher rights existing. Thus, a route may carry vehicular rights although no such rights are recorded on the Definitive Map. Thus, a route marked on the Definitive Map as a bridleway may carry vehicular rights.

Higher rights can be recorded on the Definitive Map by an application by any person under section 53(5) and Schedule 14 WCA 1981 and the relevant authority is obliged itself to keep the definitive map under regular review (section 53(2)(b) WCA 1981). The important point is that whether or not vehicular rights are recorded on the definitive map is entirely neutral as to whether or not vehicular rights exist.

Section 67 NERCA 2006 had the effect of extinguishing rights for mechanically-propelled vehicles on all routes where such rights were not recorded on the Definitive Map. Section 67(3) excepted from extinguishment routes which were subject to an outstanding application for a Definitive Map Modification Order.

Routes A, B, C and H all fall within this category. In each case there are no vehicular rights recorded on the Definitive Map. In each case there is an outstanding unresolved application for a DMMO. Those applications will, in due course, be resolved by an inspector following a public inquiry.

YDGLAG were formed as an advisory group to provide guidance and advice to YDNPA on the management of individual unsealed routes with possible or proven vehicular rights within the Yorkshire Dales National Park. It is clear from the terms of reference of YDGLAG that in providing advice it was required to have regard to

The first meeting of YDGLAG was held in November 2006. It considered a desktop sensitivity exercise to identify sensitive routes. The second meeting was held on 1^st March 2007. It considered routes A, B, C and D. The advice/ recommendation of YDGLAG may be summarised:

On 15^th March 2007 Jon Avison, the Head of Park Management prepared a report in which he recommended that the advice of YDGLAG be noted and that no comment on the extent or type of TRO be made at that stage.

On 23^rd May 2007 there was a meeting of YDGLAG to consider routes E, F G and H. The advice/ recommendation of YDGLAG may be summarised:

Jon Avison prepared a report for the Access Committee in which he included the minutes of the YDGLAG meeting for information.

On 1^st October 2007 section 22BB RTRA 1984 came into force with the result that YDNPA had the power to make TROs in respect of the Yorkshire Dales.

In November 2007 YDNPA produced a final framework document in relation to the management of the use of green lanes in the Yorkshire Dales. In the course of his submissions Mr Pay took me through the document in a little detail. It contains a summary of recent legislation and government guidance on the management of recreational motor vehicles and what actions should be taken to implement the policies of YDNPA. It is not necessary to refer to this document in any detail. It is perhaps worth noting that in Section 4 it refers to two key strategies for managing the access resources in the Yorkshire Dales and goes on to consider what actions are necessary to achieve the broad strategies. At the end of the document is a checklist for making a TRO. Under Part B of that check list there is a whole page devoted to section 122 RTRA 1984 which is ticked as being “always relevant to consider”. Mr Pay points out that there is no evidence that the check list was considered in this case. No documents have been produced to demonstrate that the boxes in the check list have been filled in.

On 15^th November 2007 YDNPA in pursuance of its obligation to consult under Reg 4 of the 2007 Regulations sent a letter to LARA in respect of each of the 8 routes. The letter indicated that YDNPA was minded to make a TRO, and included a report outlining the evidence in support of the TRO.

NYTMAG responded on behalf of a number of Groups including LARA. The responses are contained in a Table. In summary NYTMAG agreed with YDGLAG in relation to routes B, C, D F and G but made a number of comments in relation to routes A, E and H.

On 21^st December 2007 Jon Avison made a report on the proposed management of 15 green lanes in the Yorkshire Dales. The purpose of the report was to seek decisions on the future management of the 15 routes. Only in 8 cases was a TRO proposed.

The report is a long one, extending to 61 pages. It is plainly important in that the Access Committee made the initial decision on the basis of this report.

In paragraphs 5 to 7 of the report Jon Avison referred to the November 2007 Framework document. He listed the factors that need to be considered in evaluating the impact of recreational motor vehicles on green lanes and listed the options for management of individual routes including the making of full or partial TROs.

In paragraphs 10 and 11 he stresses the importance of an evidence based approach. In paragraphs 12 to 15 he summarises the TRO making process. Paragraph 14 refers to section 122:

In Appendix 3 Jon Avison refers to

Mr Pay is critical of these formulations. He submits that they do not accurately reflect the balancing exercise inherent in section 122. I shall return to this submission later.

It is also worth noting that in Appendix 3 Jon Avison also expresses the view:

In Appendix 5 Jon Avison summarises and comments on the responses to the first consultation process. Amongst the responses from the North Yorkshire Police are:

YDNPA noted the concern about complexity.

Appendix 5 also contains detailed comments on each of the 8 routes.

Appendix 7 contains detailed recommendations for the management of each of the 8 routes:

In the course of his submissions Mr Pay drew to my attention what he described as the nuanced approach of Jon Avison. He made the point that in the case of route B where the evidence pointed to a successful DMMO application Jon Avison recommended a partial TRO whereas in the case of route C where the evidence was less strong he advised a total TRO.

Jon Avison’s report was considered by the Access Committee at the meeting on 17^th January 2008. The minutes of the discussion on 15 green lanes (including the 8 routes the subject of this application) extend to 2 full pages. Amongst the comments that are minuted:

The Access Committee resolved to consult on the intention to make a full permanent TRO in respect of each of the 8 routes.

In the course of his submissions Mr Pay pointed out that there is nothing in the minutes to suggest that the Access Committee expressly considered the balancing exercise required by section 122 RTRA 1984.

Following the meeting of the Access Committee YDNPA prepared draft orders and statements of reasons in respect of each of the 8 routes. The statement of reasons was in each case approximately one page in length. The purpose of the order was stated to be:

The reasoning gives some detail as to the amenity and natural beauty of the area which it is not necessary to reproduce.

Mr Pay points out that none of the statements of reasons make any reference to section 122, the balancing exercise required under section 122, or the reason for making a full TRO as against a weekend or more limited TRO (whether it be for reasons of clarity or because of the uncertain status of the route).

On 7^th February 2008 YDNPA wrote to consultees, including NYTMAG seeking comments. On 6^th March 2008 NYTMAG responded on behalf of a number of organisations including LARA.

NYTMAG’s comments were similar to those that had been made in the regulation 4 consultation. Two specific comments were drawn to my attention:

On 30^th March 2008 Jon Avison made a further report to the Access Committee. The purpose of the report was to seek decisions on the 8 routes in the light of the responses to the regulation 5 consultation.

In paragraph 7 Jon Avison points out that in all 8 cases a TRO is being proposed for expediency in relation to the “amenity” and “natural beauty” of the National Park and he refers to sections 1(1)(f) and 22(2) RTRA 1984. In paragraphs 8 – 10 he refers to the exceptions to the order and suggests the addition of a further exception – namely use by invalid carriages. In paragraphs 11 – 25 he summarises the responses to the second stage consultation process including a reference to the NYTMAG response.

In paragraph 28 Jon Avison pointed out that members were being asked to make a decision on the basis of the evidence and the consultation responses. He pointed out the 5 options open to the Members including the possibility of a public inquiry. In paragraph 30 Jon Avison summarised the position by stating that before deciding to make an order the Authority must consider all representations made by consultees (and, if a public inquiry is held, the inspector’s report and recommendation).

Jon Avison’s conclusion is expressed in paragraph 31:

In his submissions Mr Pay made two points about this report. First it made no reference to section 122 RTRA 1984 at all. Second it encouraged members to think that all they needed to consider was the responses to consultations.

At the meeting of the Access Committee on 17^th April 2008 the Members resolved to the making of all 8 full TROs subject to the amendment in relation to invalid carriages.

The Minutes relating to this item are short:

On 18^th May 2008 LARA wrote to YDNPA seeking a copy of the minutes of the 17^th April 2008 meeting or a note of members’ reasons. On 21^st May 2008 the Solicitor for YDNPA answered the letter. The relevant part reads:

She also enclosed a copy of the draft minutes of the meeting.

On 26^th May 2008 YDNPA wrote to NYTMAG informing them of the making of the orders and setting out in detail a response to NYTMAG’s objection. It is not necessary for me deal with the letter in detail. There was, however a response to paragraph 2.3 of the objection:

“[t]he Authority recognises that motor vehicle users also enjoy the ‘amenity’ of the area. Use of recreational motor vehicles on green lanes with proven rights is a legitimate activity. In the National Park 54 routes with possible or proven rights for motor vehicles have been identified as used by recreational motor vehicles. Of these 28 have been identified as potentially ‘sensitive’ to this use. Access Committee, in considering the management of the first 15 of these ‘sensitive’ green lanes used by recreational motor vehicles, agreed to consult on TROs on 8 of these routes only.”

On 25^th June 2008 solicitors for LARA sent a letter before action to YDNPA. On 1^st July 2008 this application was issued.

Section 122 RTRA 1984

There is a large degree of agreement between Counsel as to the effect of section 122. The agreement is not total and as section 122 is central to LARA’s application it is necessary to consider the section in a little detail.

I have included section 122 in Section 3 above but repeat it for convenience

Section 122 has been considered by the Courts on a number of occasions. It is, however agreed between Counsel that the guidance offered by Carnwath J (as he then was) in UK Waste Management v West Lancashire DC [1996] RTR 201 at 209 C – G:

The section was further considered by Sir Christopher Bellamy QC in R(LPC Group) v Leicester CC [2002] EWHC 2485 (Admin) between paragraphs 50 and 59 of the judgment. A number of matters emerge from Sir Christopher Bellamy’s judgment:

Mr Pay accepts that the duty imposed in section 122(1) is not an absolute duty. He also accepts that the effect of many TROs will be to derogate from the ‘expeditious’ or ‘convenient’ movement of traffic. He recognises that the authority has to perform a balancing exercise between the duty in section 122(1) and the factors in section 122(2). However he submits that it is a balancing exercise of a particular sort:

Mr Evans does not accept this analysis. In particular he does not accept the characterisation of the section 122(1) duty as being primary and the section 122(2) matters as being subsidiary. In his view the section 122(1) duty is subordinated to the section 122(2) matters and the relationship between the section 122(1) and 122(2) factors are the reverse of those submitted by Mr Pay.

In my view the duty to secure the expeditious, convenient and safe movement of vehicular traffic is that prescribed by section 122(1). However that duty takes effect so far as practicable in the light of the matters to be taken into account under section 122(b). Whether one describes the section 122(2) factors as primary or secondary does not seem to me to matter much.

Mr Pay submits that it is clear from the contemporaneous documents that YDNPA did not consider the duty under section 122(1) nor carry out the balancing exercise required. He relies on the following matters:

Mr Pay recognises that there are references to section 122 in the Management of Green Lane final document and in Jon Avison’s first report. However he relies on the fact the check boxes were not completed. Furthermore he makes the point that Jon Avison’s report does not accurately set out section 122. Furthermore if section 122 had been brought to the attention of the Members he would have expected it have been mentioned in the Minutes.

Mr Pay also recognises that the reasons given do include the preservation of amenity (which is within section 122(2)(b)) and “natural beauty” (which could be said to be within section 122(2)(d)) but he makes the point that these are both matters which YDNPA is bound to have regard under sections 1(1)(f) and 22(2) RTRA 1984 before it can make a TRO at all. Thus he submits that it is not possible to infer that the necessary balancing exercise was in fact carried out.

These are formidable submissions. Mr Evans seeks to deal with them in paragraphs 13 to 19 of his skeleton argument. He adopted what he described as a belt and braces approach.

His first submission was that this was a case where it was impractical to secure the expeditious, convenient and safe movement of vehicular traffic on the routes in question. The core of this submission

I cannot accept this submission. As already noted in order to make a TRO there has to be a ground within section 1 or 22 RTRA 1984. That does not mean that YDNPA are absolved of their duty under section 122 to carry out the balancing exercise required.

In paragraph 15 of his skeleton argument Mr Evans recognises that YDNPA did not at any point direct itself to the effect that it was not practicable to observe the duty to secure the expeditious, convenient and safe movement of mechanically propelled vehicles on the TRO routes in question; however he invites the Court that it was impracticable to do so. I cannot accept this submission either. It seems to me to be clear that even if some form of TRO was inevitable on all the routes it does not follow that a full 24/7 TRO was necessary. It is not in my view open to the Court to substitute its view for that of the properly directed YDNPA. It follows that the first submission fails.

Mr Evans’ alternate submission – developed in paragraph 16 to 19 of his skeleton argument was that YDNPA did in fact carry out a sufficient balancing exercise to satisfy the statute. He referred me to a number of documents in support of this submission:

Mr Evans submitted that these documents demonstrated a general balancing of rights in respect of green lanes such as to satisfy section 122.

I cannot accept this submission. Whilst I accept that the Access Committee considered a number of matters and carried out a degree of balancing, I cannot accept that it has been demonstrated that it carried out the balancing exercise required by section 122 in respect of each of the TROs. The necessity to carry out such an exercise was not brought sufficiently to its attention and there is no evidence that the exercise was in fact carried out.

It follows that LARA’s primary ground of complaint succeeds with the result that the TROs in respect of routes A, B, C and F will be quashed.

Ground 4 – DMMO irrationality

In the light of my conclusion on the main ground I propose to deal with the other grounds of complaint relatively briefly.

The approach of YDNPA was to exclude from consideration anything other than a permanent TRO in relation to routes where higher rights were not recorded. In paragraph 46 of his skeleton argument Mr Pay sets out all the references to this. I have set out some of the comments in section 4 above.

Mr Pay submits that this is an irrational approach because it treats a route, which may or may not carry vehicular rights, as if it certainly does not carry vehicular rights for the purpose of what management options are available. As Mr Wilson puts it:

“the passage on the report, effectively assumes that existing usage is not lawful where this is not yet established: the proposition amounts to saying that, simply because vehicular rights are not recorded (whether or not these exist which was an entirely open question), no management options are available except a complete ban.”.

Mr Pay drew to my attention what he described as the “nuanced approach” of Jon Avison in his first report in relation routes B and C. He recommended initially a partial TRO for route B because he believed on the evidence available that the DMMO application for full BOAT status was likely to succeed.

Mr Evans accepted that YDNPA did indeed adopt the approach suggested by Mr Pay. He also accepted that that approach was material in the decisions relating to routes B and C. He submitted that the approach was not irrational and cannot be shown to have affected the decision in respect of routes A and H.

In the course of the hearing there was some discussion about a possible analogy between making a TRO and the granting of an interlocutory injunction in a private law dispute over (say) the existence of a private right of way obtained by prescription. In such a case the Court would routinely take into account a number of factors before deciding whether to grant such an injunction and on what terms it would be granted. If the Court were to say that it would only consider a total injunction because otherwise it would be condoning possible illegal use I have little doubt that such a decision would be challengeable. It is inherent in the granting of interlocutory injunctions that the decision made might turn out to be wrong.

In my view a similar position relates to TROs. It is in my view irrational to consider only making a total permanent TRO in any case where BOAT status has not been established. In such a case there is no reason for anyone to believe that YDNPA are condoning what may turn out to be illegal use. I see no reason why the strength of the DMMO application cannot be taken into account as a factor in determining the extent of any TRO but, in my view it should only be one of a number of factors.

It follows that I would have quashed the decisions in respect of routes B and C on this ground as well. There is no application to quash route H and it is not in the circumstances necessary for me to decide whether this was a factor in the decision in route A. My provisional view is that it was not.

Ground 5 – complexity of reasons

I have set out the facts in section 4 above. It is plain from the response of the North Yorkshire Police that it was concerned at the complexity of the proposals then being proposed. In my view the issue of complexity was certainly a factor that the Access Committee were entitled to take into account when deciding whether to make full or partial TROs.

The issue of complexity was raised in paragraph 1.10 of NYTMAG’s response to the regulation 5 consultation. Members’ attention was specifically drawn to the responses in Jon Avison’s report.

In all the circumstances the decision of the Access Committee to reject the criticism in NYTMAG’s response cannot be said to be irrational in the Wednesbury sense. Thus I would reject this ground of review.

Sufficiency of Reasons

As Mr Evans pointed out there is considerable overlap between this ground of challenge and the other grounds. He did, however, point out that in order to succeed under this head LARA had to show prejudice. In my view no prejudice has been shown. Mr Pay submitted that prejudice was shown because if fuller reasons had been given other people might have submitted objections. I cannot accept that this amounts to prejudice to LARA. I would have rejected this ground of review.

Conclusion

The application succeeds on grounds 1, 2 and 4. I would quash the TROs in respect of routes A, B C and F.