Trail Riders Fellowship v Lincolnshire County Council

The Claimant, the Trail Riders Fellowship (“the TRF”), is a national organisation whose objects are to preserve the full status of vehicular green lanes and the rights of motorcyclists and others to use them as a legitimate part of the access network of the countryside. It further seeks to promote and ensure responsible use of such lanes on the part of its members. Trail riding is the activity of motorcycling on unsealed and minor sealed public roads for pleasure (and is not to be confused with “scrambling”).

By this claim, the TRF challenges the validity of a Traffic Regulation Order made by the Defendant, Lincolnshire County Council (“the Council”), the relevant traffic authority for Lincolnshire under the Road Traffic Regulation Act 1984.

The Traffic Regulation Order in question is entitled the Lincolnshire County Council (Allington, Sedgebrook, Skillington & Woolsthorpe by Belvoir – Sewstern Lane & The Drift) (Prohibition of Motor Vehicles) Order 2024. It was made on 10 September 2024. I shall refer to it as “the TRO”.

The TRO applies to certain sections of unsurfaced road known as Sewstern Lane and The Drift (“the Lanes”), which form part of an ancient droving road connecting the village of Long Bennington in Lincolnshire with the village of Sewstern in Leicestershire. The TRO was principally made by reason of the damage that had been caused to the surface of the Lanes by motorised vehicles, which had caused certain sections to be unsuitable for pedestrian use. That was of particular concern to the Council, because the Lanes form part of the Viking Way long distance walking route, which it says has become established as an important recreational resource for the adjacent communities. The TRO’s effect is to prohibit any motor vehicle or horse drawn vehicle from using the road, subject to certain specified exemptions:

The Lanes affected by these restrictions are set out in the Schedule to the TRO. Three lengths of Sewstern Lane are specified. The first two correspond to a single section of Sewstern Lane, running south from Thackson’s Well Farm to the A52; the third continues on south from there after a short interruption:

Each of the Lanes is a highway maintainable at public expense, and is listed as such by the Council pursuant to section 36(6) of the Highways Act 1980. None of them were listed as being a “byway open to all traffic” within the meaning of section 66(1) of the Wildlife and Countryside Act 1981, which are defined as being “used by the public mainly for the purpose for which footpaths and bridleways are so used.” The TRF therefore emphasises that prior to the TRO, they were each long-standing public vehicular highways used as through-routes passing between other public vehicular highways, and as such open to be used by trail riders.

The TRF is aggrieved that the TRO’s effect is to exclude the use of the Lanes by trail riders. The TRF’s position throughout has been that the damage caused is not attributable to their use by trail riders, but to their use by 4x4 vehicles and agricultural vehicles. In response to a public consultation over the proposed TRO, it supported a degree of traffic management, but wished to secure at least some access for two wheeled vehicles, contending that their impact is minimal compared to those considerably larger, four-wheeled vehicles.

The TRF now challenges the validity of the TRO on five grounds, namely that:

Adrian Pay appeared for the Claimant, and Stephen Whale for the Defendant. I am grateful to both counsel for their helpful written and oral submissions.

Section 1(1) of the Road Traffic Regulation Act 1984 (“the 1984 Act”) confers power on traffic authorities to make a TRO, as follows:

“(1)

The traffic authority for a road outside Greater London may make an order under this section (referred to in this Act as a “traffic regulation order”) in respect of the road where it appears to the authority making the order that it is expedient to make it—

(a)

for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or

(b)

for preventing damage to the road or to any building on or near the road, or

(c)

for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), or

(d)

for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property, or

(e)

(without prejudice to the generality of paragraph (d) above) for preserving the character of the road in a case where it is specially suitable for use by persons on horseback or on foot, or

(f)

for preserving or improving the amenities of the area through which the road runs, or

(g)

for any of the purposes specified in paragraphs (a) to (c) of subsection (1) of section 87 of the Environment Act 1995 (air quality).”

Section 2(1) of the 1984 Act provides:

“(1)

A traffic regulation order may make any provision prohibiting, restricting or regulating the use of a road, or of any part of the width of a road, by vehicular traffic, or by vehicular traffic of any class specified in the order,—

(a)

either generally or subject to such exceptions as may be specified in the order or determined in a manner provided for by it, and

(b)

subject to such exceptions as may be so specified or determined, either at all times or at times, on days or during periods so specified.”

Section 122 of the 1984 Act provides:

“(1)

It shall be the duty of everystrategic highways company and local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway or, in Scotland the road.

(2)

The matters referred to in subsection (1) above as being specified in this subsection are—

(a)

the desirability of securing and maintaining reasonable access to premises;

(b)

the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run;

(bb)

the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy);

(c)

the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and

(d)

any other matters appearing to the strategic highways company or the local authority to be relevant.

(3)

The duty imposed by subsection (1) above is subject to the provisions of Part II of the Road Traffic Act 1991.”

The procedure for making a TRO is governed by the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 (“the 1996 Regulations”), which were made under Schedule 9 of the 1984 Act. In short, the 1996 Regulations require a traffic authority to consult various specified persons on a proposed TRO, to publicise it and allow any person to make objections to it. Regulation 13 requires the traffic authority to consider all objections made to the proposed TRO before making it. Where objections have not been wholly acceded to, the authority must notify the person who made them of the reasons for the decision.

Paragraphs 35 to 37 of Schedule 9 to the 1984 Act provide for a challenge to the validity of a TRO to be made in the High Court, in the following terms:

“35.

If any person desires to question the validity of, or of any provision contained in, an order to which this Part of this Schedule applies, on the grounds—

(a)

that it is not within the relevant powers, or

(b)

that any of the relevant requirements has not been complied with in relation to the order,

he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court or, in Scotland, to the Court of Session.

36.

(1) On any application under this Part of this Schedule the court—

…

(b)

if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the order or any provision of the order.

(2)

An order to which this Part of this Schedule applies, or a provision of any such order, may be … quashed under sub-paragraph (1) above either generally or so far as may be necessary for the protection of the interests of the applicant.

37.

Except as provided by this Part of this Schedule, an order to which this Part of this Schedule applies shall not, either before or after it has been made, be questioned in any legal proceedings whatever.”

Mr Pay also drew my attention to non-statutory guidance published by DEFRA in December 2005 entitled “Making the best of byways: A practical guide for local authorities managing and maintaining byways which carry motor vehicles.” It provided advice in relation to the management of “byways”, defined to include not only byways open to all traffic, but also unsealed, unclassified roads which are used not only by vehicles but also by pedestrians and equestrians. The Council had regard to it in making its decision in the present case.

The guidance provides advice about how conflicts between users and poor surface conditions might be managed. It recommends that authorities set a clear and transparent policy for the management of such byways which addresses stakeholder concerns, and carry out surveys to assess the condition of the byways ideally twice a year. It notes that use which exceeds the byway’s ability to resist the imposed stress will cause permanent deformation, such as rutting. It notes that uses will vary during the year, and that high-stress use may be related to the seasonal condition of the byway, as byways are more vulnerable to deterioration when wet. It may therefore be appropriate to restrict the level of use or the applied stresses at particular times of the year, it suggests.

The guidance provides a number of “action sheets”, including “Action sheet 6: Key actions when making a traffic regulation order”. It observes that TROs are an important tool for managing recreational driving and protecting the countryside. It recommends a number of actions when making TROs on byways. They include the publication of a procedure for the making of a TRO, including as to the type and quality of evidence on which TROs will be made (which may include a condition survey which indicates that the byway is unsafe for traffic, or data from byway surveys over several years that show that the byway can no longer sustain certain types of traffic), and the types of TRO which will be considered under different circumstances (which may include temporary TROs while the byway is repaired, TROs restricting access to permit holders, seasonal TROs, or permanent TROs). It recommends that TROs should be routinely reviewed at set intervals, and for example following maintenance or repair to see if a byway can sustain mechanically propelled vehicles or other users. Enforcing the TRO may include the use of barriers to prevent access where this is feasible.

On 20 November 2023, the Council consulted on a proposal to restrict motor vehicles from the Lanes, save that at this stage there was no intention to include Sewstern 1. The proposal was said to be made as part of theongoing Viking Way Improvement Scheme. The Council explained: “Use of these sections of the Viking Way by motor vehicles causes danger to other highway users and is detrimental to the integrity of the highway and surrounding environment. Physical means of preventing access by vehicles will be installed at either end of the sections covered by the order to bring the restriction into effect. This being the case, these routes will no longer be available for access to adjacent land.”

On 29 November 2023, the Council’s Senior Countryside Officer emailed other officers to report that a local councillor was under public pressure to extent the proposed TRO to include Sewstern 1. He expressed the concern that it may prove more difficult to justify including Sewstern 1, as the lane was in generally good condition – although he said he appreciated that the local landowners had surfaced the lane with road planings in recent years. The Council’s Programme Leader for Traffic responded on the same day to say that a similar restriction could be pursued on this stretch “as we could argue that the damaging activity on the unprotected stretches to the south might migrate to the northern section if these are closed off. The key thing is that the landowners on this stretch understand that they won’t be able to access it under the type of order we’re currently processing, and they need to be OK with that.” That message was passed back to the councillor on 5 December 2023.

On 1 December 2023, the TRF responded to that consultation indicating that it would “support the use of traffic regulation powers providing a fair degree of access is facilitated for responsible motorcycle use. TRF would vigorously oppose the most extreme option of permanently prohibiting all motorcycle access at all times.” It noted that more focused restrictions falling short of a prohibition could include the use of permit schemes which could be linked to restrictions on rear tyre choice for motorcycles, ensuring that only lower impact tyres and riding styles were used.

On 8 January 2024, the Council reconsulted on the proposal to restrict motor vehicles from the Lanes, now including Sewstern 1.

On 9 March 2024, the Council published a notice advertising their proposal to make a TRO. The advertised Lanes now included Sewstern 1 as well as Sewstern 2, Sewstern 3 and The Drift. It was accompanied by a statement of reasons, which read:

“STATEMENT OF REASONS

• These routes form part of improvements to facilitate the Viking Way Project and damage to the highway resulting from use by vehicular traffic is compromising the amenity value of these routes.

• Therefore, in accordance with the County Council’s Policy, it is proposed to prohibit motor vehicles as set out on the Plans to the Order.

• The Chief Constable, Allington, Sedgebrook and Skillington Parish Councils and South Kesteven District Council have been consulted, along with other local groups/companies.”

On 29 March 2024, the TRF objected to the proposal. Somewhat surprisingly, its letter of objection was cast in substance (though not in form) similar to a Judicial Review Pre-action Protocol Letter Before Claim: rather than simply advancing evidence and/or arguments as to why the proposed TRO should not be made, it cast its objection in terms of grounds for judicial review, to the effect that the proposal was inadequately reasoned, irrational, had failed to have regard to relevant considerations, and had had regard to irrelevant considerations. Though unnecessarily filtered through that lens, the points of substance made by the TRF included that:

On 25 April 2024, the Council made available an undated report entitled ‘Evaluation of Sewstern Lane and The Drift’, which had been produced by the Council’s Public Rights of Way team, who had carried out a survey of the Lanes in 2022 (“the Evaluation Report”). It included an evaluation of each section of the Lanes to be subject to the proposed TRO.

The Council extended the period for objections to the proposed TRO to allow objectors to take account of the evaluation report.

On 24 May 2024, the TRF made a supplementary objection in response. The TRF argued that the photographs in the report showed instances of deep parallel ruts, which would have been caused by 4-wheeled vehicles, particularly 4x4s and land management and access traffic, not 2-wheeled motor vehicles. There had also been recent forestry works, likely involving heavy vehicles which would have caused increased damage to the routes.

In neither its original nor its supplementary objections did the TRF take the opportunity to provide any evidence of its own (such as survey evidence). Instead, its position was that the evidence produced by the Council was inadequate and insufficient to justify a prohibition on motorcycles using the Lanes.

In June 2024, officers submitted an internal application for the approval of funding for the works which would be required to implement the scheme (including access barriers) in the event that the TRO was granted. On 15 July 2024, the allocation of funds was approved.

On 2 September 2024, the matter came before the Council’s Planning and Regulation Committee. In advance of the meeting, officers prepared a report which considered the objections made to the proposed TRO, and recommended that the proposed TRO be introduced as advertised (“the Officer Report”).

The Officer Report set out the background in terms which I need not repeat, and attached a copy of the evaluation report as an appendix to the report. It recorded that 53 objections had been received to the scheme, which were summarised and responded to in a further appendix to the report. By way of high level summary, it recorded that objectors considered that there was insufficient justification to restrict vehicular access along these routes and a lack of evidence to suggest that the damage caused was due to use by motor vehicles, specifically 4x4s and motorcycles. It was suggested that any visible damage was most likely caused by the passage of agricultural vehicles. There were concerns that no alternative measures other than the proposed restriction had been investigated or considered, and that the scheme in its current form would disadvantage all motor users, whose enjoyment of the countryside would be compromised.

The Officer Report commented as follows in respect of these objections:

“The County Council receives multiple reports each year regarding the use of Sewstern Lane and The Drift by motor vehicles and the significant surface damage that this has caused. Complaints have been received from parish councils, elected Members, walking groups and other path users. The current use of these routes is considered to be unsustainable and the condition of the surface in many areas is such that it is unusable by non-motorised users. The Evaluation and Condition Report … provides clear evidence as to the impact of vehicular traffic on these highways and the damage which results. These concerns are echoed by the sixty-one expressions of support we have received from the surrounding communities to these proposals. These cite the additional problems of noise, antisocial behaviour and destruction of flora and fauna as being further justification for the scheme. Deep potholes and ruts across the surface make navigation on foot along the route difficult and present a danger to pedestrians and horse riders.

A range of options to address the issue of damage caused by motor vehicles have been considered, including a seasonal TRO or refurbishing the public highway. However these have been discounted as unsustainable as it likely that continued damage to the highway surface would result.”

One of the matters reported by officers in the Officer Report had been the fact that multiple reports had been received each year regarding the use of the Lanes by motor vehicles and the significant surface damage that this had caused, including from walking groups and other path users. The Council has disclosed in these proceedings the records of the reports received between 2016 and 2020. For present purposes, it suffices to record that they show repeated reports of damage having been caused by motorcycles, as well as by 4x4s. Photographs from site visits from 2016 to 2022 have also been produced on the Council’s behalf of rutting and surface damage, which were relied upon in the Evaluation Report. A witness statement by Andrew Savage, the Council’s Senior Countryside Officer who was the original author of the Evaluation Report, describes tracks shown in the photographs in the Evaluation Report which were judged to have been too narrow to have been caused by 4x4s rather than motorcycles.

A more detailed appendix to the Officer Report set out the substance of the objections in tabular form, alongside the officers’ response to the objection. Those points included:

The Officer Report concluded:

“The Sewstern Lane and The Drift highway refurbishment project aims to prevent further use by motor vehicles and to restore its amenity value. Extensive refurbishment of the route and ongoing sustainable management can then follow which will significantly improve access for non-motorised users and provide considerable environmental benefits. The scheme will secure the restoration of an ancient droving road and ensure that the popular Viking Way walking route is accessible through these areas.”

At the meeting of the Planning and Regulation Committee on 2 September 2024, councillors discussed the proposal and resolved to approve the proposal. An agreed transcript of the discussion has been provided. The proposal attracted strong support from councillors who spoke of their own experience of encountering deep water filled ruts caused by motor vehicles and the importance of restoring this part of the Viking Way.

The TRF relies strongly on Councillor Smith’s comment towards the end of the discussion, when he said: ‘… I read through every comment that was made and the one thing that did strike me and that I have an element of sympathy with these is, yes, it’s clear that motor vehicles have done that damage but as one of the objectors said it is very unlikely that it was done by a motorcycle because of its weight. I don’t know, [officer], within the provisions of the legislation, if there is a means of allowing access for two-wheeled vehicles or a weight limit so they could access but not allowing 4x4 and heavier vehicles to access other than farm vehicles when they need to because that’s what’s doing the damage?” The officer confirmed that orders could be tailored to accommodate different types of vehicle. Councillor Fleetwood (the Chairman) responded: ‘Of course, the real difficulty then comes with enforcement and I think … this droveway crosses the border of Lincolnshire into Leicestershire if I am correct and into Rutland so the net result would be it would become quite an interesting issue to try and resolve. My preference is still to continue with the recommendation as printed.” The resolution was put to a vote and carried unanimously.

On 17 October 2024, the TRF filed the present claim.

On 21 November 2024, works including surfacing work and the installation of barriers was carried out.

Submissions

By Ground 1, the TRF contends that there was no evidence that the Lanes had been damaged by motorcycles significantly or at all, rather than by 4x4s and land management vehicles, and no attempt to investigate that issue adequately or at all. Accordingly, the TRO was irrational and/or based on irrelevant considerations. In particular, there was no evidence that motorcycles were the substantial cause of damage; the Council had in any event failed to attempt to investigate or resolve that question; and prohibiting motorcycles would not contribute to achieving the stated purpose of the TRO (or any statutory purpose under section 1 of the 1984 Act). The failure to distinguish between motorcycles and other motor-vehicles further vitiated any balancing exercise carried out by the Council under section 122 of the 1984 Act.

Mr Pay submitted that the TRF’s objections had stated that there was no evidence that use by motorcyclists had caused any significant damage to the route, and that prohibiting motorcyclists would have a negligible effect in reducing any damage to the Lanes. The TRF had drawn attention to the DEFRA Report “Use of Mechanically Propelled Vehicles on Rights of Way”, set out above at paragraph 23(iv). Yet the Officer Report had obscured and passed over the key points that motorcycles could not have been the cause of substantial damage and that the routes could remain used by two-wheeled motor vehicles sustainably (the impact of which was said to be comparable to equestrian and mountain bike use). It was obvious in any event that motorcyclists had not, and could not have been, the substantial cause of damage to the route. If, as claimed in the Appendix to the Officer Report, there were ruts consistent with motorcycle use, that was only the consequence of motorcycles using a route which had already been churned up by 4x4 and/or land management vehicles. It was not evidence, and could not rationally be taken as such particularly in the absence of any investigation, that motorcycles would cause any substantive damage to the routes, if 4-wheeled vehicles were restricted and/or the route was in a proper state of repair. The overall picture presented by the report had shown 4-wheeled vehicles to be the substantial cause of damage, as was evident from the parallel ruts, and photographs showing flooding across the whole width of the carriage. It was clear that officers recognised that 2-wheeled motor vehicles were not the cause of the problem, as shown by the further remark in the Appendix that “Once the surface of the lane has been improved and reaches a sustainable level of maintenance to accommodate both horse drawn traffic and motorcycles, we will reassess the need to restrict access to these groups.” It was also consistent with Councillor Smith’s comment at the end of the discussion to the effect that motorcycles would not have been the cause of the problem, which nobody had gainsaid.

Nor was there any evidence at all of any damage to Sewstern 1, of which there were no photographs at all in the Evaluation Report. The true reason for including it in the TRO was that a local councillor had been prevailed upon by members of the public including local landowners, notwithstanding that it was in good condition. Officers acceded on the basis that “we could argue that the damaging activity on the unprotected stretches to the south might migrate to the northern section if these are closed off,” but this was not put to the public or to the Committee.

In response, Mr Whale submitted that there was ample evidence that damage had been caused by motorcycles, in the reports from members of the public over the years, and from the site visits and Evaluation Report produced by the Council. The Council carried out sufficient inquiry prior to making its decision and discharged the Tameside duty. It was not under any duty, whether statutory or at common law, to determine the precise extent to which 4-wheeled vehicles (or a sub-set of them) or motorcycles were the cause. The TRF’s objections were fully taken into account. There was no basis to assume that the Committee proceeded on the basis of Councillor Smith’s comments to the effect that motorcycles were unlikely to have caused the damage.

As to Sewstern 1, the Evaluation Report had itself discussed that length of the road and had observed that the landowner at Thackson’s Well Farm had periodically surfaced it with road planings, but that these works had been quickly compromised by heavy use by 4x4s and motorcycles. It was irrelevant that there were no photographs of that length of road. The initial rationale canvassed for including Sewstern 1 acknowledged that the proposal would be subject to consultation, and public consultation followed.

Discussion

I do not accept Mr Pay’s submission that there was “no evidence” that damage had been caused by motorcycles. Evidence had been provided over many years to the effect that damage had been caused not only by 4x4s but also by motorcycles. The Council’s decision to make a TRO excluding both from use of the Lanes (subject to the permitted exceptions) did not require any prior determination as to the precise allocation of responsibility between the two. It was enough that they both contributed. Further, even if it were right that the worst damage had been caused by 4x4s and/or land management vehicles, it was enough that motorcycles were also contributing to the damage by further churning up the damaged surface, and that their continued use would impede the restoration of the surface.

There had been multiple reports of motorcycles causing damage to the surface over the years. The Council did not simply accept those reports at face value, but conducted its own site visits, and produced the Evaluation Report. The damage shown in the photographs was judged by the Council’s officers (and Mr Savage in particular) to show damage caused by motorcycles. The position to that effect reported to the Committee took full account of the DEFRA Report “Use of Mechanically Propelled Vehicles on Rights of Way”. While the TRF assert that it was “obvious” that motorcyclists had not, and could not have been, the substantial cause of damage to the route, this simply amounts to disagreement with that judgement. Such disagreement does not amount to a ground for judicial review.

Mr Pay submitted that the Council had sought to bolster its case that motorcycles had been responsible for damaging the Lanes by impermissibly producing ex post facto evidence in the shape of Mr Savage’s witness statement, in which he set out the substance of the reports received from the public and the basis of the evaluation made in the Evaluation Report and Officer Report that the photographs showed damage caused by motorcycles. I do not accept that suggestion. Mr Savage’s witness statement elucidates the reasoning set out in the two reports which were before the Committee at the time of its decision. They do not provide any new or different rationalisation of the decision. As such, the evidence is admissible under the well established principles set out by the Court of Appeal in R (United Trade Action Group Limited) v Transport for London [2022] RTR 2 at [125].

There was therefore a sufficient evidential basis upon which the Council was rationally entitled to conclude that damage had been caused to the surface by motorcycles, alongside other vehicles including 4x4s.

A logically separate question arises as to whether such damage would in future still be caused by motorcycles in the absence of 4x4s. The Officer Report made clear that to continue to allow use of the Lanes would undo the effect of the restoration works. However, it acknowledged that in the case of horse drawn vehicles and motorcycles, that issue would be revisited in the longer term once the surfaces of the Lanes had been improved and had reached a sustainable level of maintenance to accommodate them. Contrary to Mr Pay’s submission, this indication that the matter would be kept under review (as indeed the DEFRA Guidance Action Sheet 6 recommends) supports the rationality of the imposition of the TRO, rather than undermines it. If the precise amount of time could be known in advance as to how long it would take the Lanes would take to recover to that standard, no doubt a temporary restriction could have been further considered. However, there was no suggestion from anyone that the recovery time could be known with anything like that precision. A rational approach was to exclude such motorised traffic, and to revisit the position when the condition of the Lanes allowed.

It follows that the prohibition of motorcycles was precisely identified as contributing to achieving the stated purpose of the TRO, which included avoiding danger to persons or other traffic using the road, preventing damage to the road, facilitating the passage of pedestrians on the road, preserving the character of the road where it was specially suitable for use by persons on foot, and improving the amenities of the area – all of which purposes fell within the scope of section 1 of the 1984 Act.

Nor was there any failure to distinguish between motorcycles and other motor-vehicles in the balancing exercise which was carried out by the Council under section 122 of the 1984 Act. The Council’s approach precisely adopted the approach outlined by Longmore LJ in Trail Riders Fellowship Ltd v Hampshire County Council [2020] PTSR 194 at [40], where he summarised the approach which should be adopted by traffic authorities as to section 122 in considering whether to make a TRO as follows:

“(1)

the decision-maker should have in mind the duty (as set out in section 122(1) of the 1984 Act) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) so far as practicable; (2) the decision-maker should then have regard to factors which may point in favour of imposing a restriction on that movement; such factors will include the effect of such movement on the amenities of the locality and any other matters appearing to be relevant which will include all the factors mentioned in section 1 of the 1984 Act as being expedient in deciding whether a TRO should be made; and (3) the decision-maker should then balance the various considerations and come to the appropriate decision. As I have already said, this is not a particularly difficult or complicated exercise nor should it be.”

As to the comments of Councillor Smith, these cannot be taken to represent the basis upon which the Committee as a whole acted. The ordinary position is that it is reasonable to infer, in the absence of contrary evidence, that the Committee members accepted the reasoning set out in the Officer Report where they follow the recommendation: R (Palmer) v Herefordshire Council [2017] 1 WLR 411 at [7], per Lewison LJ. Detailed analysis of what members said is unnecessary, as Cranston J observed in Bishop’s Stortford Civic Federation v East Hertfordshire District Council [2014] EWHC 348 (Admin) at [37]-[39]:

“37.

… there has been a long discussion in the jurisprudential literature as to how as a matter of practice judges can possibly discern the basis of collective decision making from what is said in debate: e.g. Neil Duxbury, Elements of Legislation, Cambridge University Press, 2013, 95-97. Not only may members of the collective not express their views, but if they do their real reasons for voting may be veiled or unclear. The cut and thrust of political debate is not conducive to refined textual analysis.

38.

Judges have long appreciated the difficulties. In The King v London County Council [1915] 2 KB 466 the issue was whether the Council as a licensing authority of theatres and cinemas had taken into account what was said to be an irrelevant factor, namely, that the majority of the applicant company's shareholders were enemy aliens. What some councillors had said in debate was before the Court of Appeal. Buckley LJ said that he did not pay much attention to the views expressed by six members out of the whole Council in determining what was the ground upon which the Council acted: at 489. In a well-known passage Pickford LJ (later Lord Sterndale MR) said:

"With regard to the speeches of the members which have been referred to, I should imagine that probably hardly any decision of a body like the London County Council dealing with these matters could stand if every statement which a member made in debate were to be taken as a ground of the decision. I should think there are probably few debates in which someone does not suggest as a ground for decision something which is not a proper ground; and to say that, because somebody in debate has put forward an improper ground, the decision ought to be set aside as being found on that particular ground is wrong:" at 490.

39.

Simon Brown J referred to this passage with approval in R v Exeter City Council ex. p J L Thomas [1991] 1 QB 471, as did Burnett J in Scottish Widows plc v Cherwell DC [2013] EWHC 3968 (Admin), [20]. In ex p JL Thomas Simon Brown J said that since the planning committee in that case was taking a collective decision on the application, one had to consider the "general tenor of the discussion rather than the individual views expressed by committee members, let alone the precise terminology used": at 483H-484A. Accordingly, he did not find it helpful or necessary to refer to the details of the relevant committee meeting on 20 June 1988. In my view the same applies here.”

I do not consider that Councillor Smith’s remarks amount to contrary evidence sufficient to displace the inference that the Committee acted upon the basis of the reasoning set out in the Officer Report (taken with the Evaluation Report, which was appended to it). There was no indication that anyone else agreed that his view should displace the evidence placed before the Committee that damage had indeed been caused by motorcycles in combination with 4x4s, and that continued access for such vehicles would impede restoration and maintenance of the surfaces. In any event, regardless of the precise balance of damage caused by 4x4s and motorcycles respectively, the observation did nothing to challenge the officers’ recommendation that motorcycles be excluded until such time as the Lanes had been improved and had reached a sustainable level of maintenance to accommodate them.

Finally under this ground, it was not irrational to include Sewstern 1 in the TRO. Although no photographs were produced of damage to that part of the lane in the Evaluation Report, that report specifically noted that it had been periodically surfaced by the landowner but that such works were quickly compromised by heavy use by 4x4s and motorcycles. Given that position, the absence of damage at the time of the preparation of the report could not be taken to be indicative of the absence of any damage being caused by such vehicles at all: quite the contrary. Further, despite the re-consultation on the basis of its inclusion, followed by the advertisement of the totality of the route, there does not appear to have been any objection made on the basis that Sewstern 1 should be excluded for lack of damage being caused to its surface. The initial proposed justification for its inclusion in early officer correspondence on an alternative basis does not change that position: as Mr Pay himself acknowledged, the TRO was not in fact promoted on that basis, but rather on the basis that damage was being caused by motorised vehicles over the entirety of the Lanes. There was a sufficient evidential basis for that justification.

Ground 1 must therefore be dismissed.

By Ground 2, the TRF complains that the reasons the Council gave for rejecting a TRO which allowed use by motorcycles were irrational. Based on the comments made by Councillor Smith in the Committee meeting, and the Chairman’s response to them, Mr Pay submits, it was clear from the discussion at the Committee meeting that the reasons for excluding motorcycles were a difficulty in enforcement. This was irrational, as motorcycles could have been permitted while excluding 4-wheeled vehicles with trivial ease by providing a barrier with an opening of sufficient width for the former but not for the latter.

The difficulty with this argument is that it proceeds from a false premise. As I have set out above at paragraphs 51-52, the basis of the Committee’s decision was that motorcycles had caused damage to the surface of the Lanes, and their continued access would impede recovery of the surfaces until such time as they had improved and had reached a sustainable level of maintenance to accommodate motorcycles again.

Ground 2 must therefore be dismissed.

The reasons for rejecting the TRF’s alternative proposal of a permit scheme for motorcycles were recorded in the Appendix of the Officer Report to be as follows: “We do support targeted measures where appropriate and can see that these type of restrictions could work, where resources and site conditions are such that this type of use could be supervised. The area in question however is remote and the Council does not have the resources to ensure that only less impactful vehicles would use the lane and it would ultimately be ineffective in preventing the damage that is being done to the lanes.” Further, “Action Sheet6 ‘Making the Best of Byways’ recommends a permit system for motor vehicle use. This is not considered to be an appropriate way forward because the Council does not have the resources to manage and enforce such a system in such a remote location.”

By Ground 3, the TRF alleges that these reasons were irrational. It submits that the typical means by which a permit scheme works is the provision of a key or keycode to those permitted to use the route to enable them but not others to open the barrier. It provided examples of other TROs where different local authorities had introduced such a scheme, as recommended by Action Sheet 6. Some such means of opening the barrier would, in any event, need to be provided for the purpose of land management access and other vehicles which were not restricted by the TRO. Such a permit scheme would require no or minimal additional resources. The Council had no evidence that there was any need for additional resources. Nor were the routes particularly remote: there was a barriered railway crossing on Sewstern Lane (which would continue to need to be inspected and maintained) and the route crossed the A52. But even if the location were remote, that had no impact on the enforceability of a permit scheme.

The Council submits that it was entitled to reject a permit scheme on the grounds that it would not be workable and would undermine the reasons for imposing the TRO. As set out in Mr Savage’s witness statement, while the Council had regard to Action Sheet 6, it considered that the difficulty with the provision of a key or lock code to permit holders was that it could be shared with non-permit holders. Moreover, such permitted use would result in the continued deterioration of the highway, defeating the purpose of the TRO. As to enforceability, it would be difficult to distinguish between permitted and unpermitted users from afar: even at the least remote part of the Lanes, the barriers were nearly a kilometre from the nearest settlements, and over 430m from the closest property, from which there was no natural surveillance owing to hedgerows and other visual barriers. The remote location meant that it was not possible to have surveillance of the route to be able to respond to any unauthorised access. By contrast, when the code was given to landowners and their maintenance teams only, it was easy for the Council to maintain control as to who had a code, and the limited vehicle use would mean that it would be easy to determine who was responsible should any future damage occur. Mr Pay responded by suggesting that Mr Savage’s evidence amounted to impermissible ex post facto reasoning.

In my judgment, the Council’s reasons for rejecting the use of a permit scheme in this case fall far short of the high threshold of irrationality. The TRF’s reasons for challenging the Council’s reasons again amount to disagreement with them. It cannot be said that the Council acted without evidence nor that it could not logically arrive at its conclusion; nor can it be said that it irrationally failed to investigate the matter. The Council was entitled to be concerned in the circumstances of the present case that unsupervised use of the access gates would risk doing further damage to the surface of the Lanes. It judged that it would be preferable to exclude motorcycle use generally and then re-assess the continued need for such an exclusion once the Lanes had recovered and could support it. That was a judgement that the Council was entitled to make, having taken full account of the TRF’s objection.

Nor do I accept that Mr Savage’s explanation in his witness statement as to the Council’s reasons for adopting this position amount to impermissible ex post facto reasoning. Again, in my judgement it amounts to the permissible elucidation of the reasons which were given contemporaneously in the Officer Report.

Ground 3 is therefore dismissed.

In its objection to the proposed TRO, the TRF had suggested that an exception should be made in respect of organised road safety rallies held in accordance with regulation 5(c) of the Motor Vehicles (Competitions and Trials) Regulations 1969. The Council acknowledges that this point was not expressly considered in the Officer Report. The TRF complains under Ground 4 that this amounted to a failure to consider its objection in accordance with regulation 13 of the 1996 Regulations.

Although not expressly considered in the Officer Report, the TRO itself contains an express exception under paragraph 3(d) allowing for vehicles to be granted a special written exemption by the Council. The Council has made plain in response to this ground that there is no evidence that any organised road safety rally has been held on the Lanes in the past, and no application has been made for any such exemption for such a rally since the TRO came into force. However, in the event that the TRF wished to hold such an event for the first time, it could apply to the Council for an exemption, and any such application would be considered on its merits.

In my judgment, this is a wholly sufficient answer to this point. The Officer Report was not obliged to deal with every single point raised in the objections, however faintly advanced. In any event, the TRO contains a mechanism which can accommodate such use to the extent that it can be shown that it would not cause unacceptable damage at the time it is desired to hold such an event. Had the matter been expressly reported upon to members, the result would inevitably have been the same.

Ground 4 is therefore dismissed.

Ground 5 is a complaint that the TRO was made for an improper purpose, being to secure that these public vehicular highway routes were exclusively available to pedestrians and equestrians to promote the Viking Way Project, effectively downgrading it to a bridleway.

There is nothing in this complaint. As I have set out under Ground 1, the purposes of the TRO fell within the purposes permitted under section 1 of the 1984 Act. The purpose of the TRO was to protect the Lanes from further significant damage, which had given rise to danger to those using it, and to allow its restoration. This was consistent with the Council’s aim to promote the Viking Way as a valuable walking route for pedestrians, but the effect was not to downgrade the Lanes to a bridleway.

At the hearing, Mr Pay developed an argument (based in part on some recent disclosure from the Council) that this ground was supported by evidence regarding the approach that the Council had taken to secure funding to implement the TRO even before it had in fact been made. The effect of the evidence relied upon was that the Council had obtained a quotation for the necessary works for surface reinstatement and access control on 24 June 2024 in the sum of c.£178,000, of which the access control element amounted to c.£84,000. An internal application for funding for this scheme was drafted on the same date. It stated that the Council was proposing to make a TRO to prohibit the use of motor vehicles on four sections of the unsurfaced road, which would enable the restoration of the route and the installation of access controls. It explained that the bid sought to acquire the necessary funding for the described works, but that the funding bid would be dependent on the outcome of the TRO, which would be considered by the Committee on 2 September 2024. If approved, works would begin on 16 September 2024. The source of the funding would be capital monies from the Integrated Transport Block Fund, which was an annual settlement received by the Council from central government. The allocation of the funds was approved on 15 July 2024. On 25 July 2024, authority was given to procure K-barriers worth £17,380 from a named supplier without following normal tendering procedures, as they were the only known manufacturer that supplied suitable gates. Mr Pay submitted that this evidence showed that funding had already been obtained for the improvements subject to the TRO, and had been applied for only on the basis that the TRO would succeed as proposed, tying the funding to the restriction on motor vehicles.

I confess that I find it very difficult to see how any of this evidence advances the TRF’s case. It is not remotely surprising to discover that officers secured an allocation of funding and went through necessary clearances of the proposed procurement route for certain items in advance of the TRO. The application for the allocation of funding was expressly made on the basis that it was conditional upon the TRO being made. Officers were concerned that they should be able to progress quickly if the TRO was indeed approved on 2 September 2024 (as ultimately it was). This does nothing to suggest that the outcome of the Committee’s consideration of the merits of the TRO was in any way predetermined, and still less that the TRO was made for an improper purpose.

Ground 5 is dismissed accordingly.

I emphasise again (as did the Council in its submissions) that the Council expressly proceeded on the basis that the need for the prohibition on motorcycles on the Lanes could be reassessed when the condition of the Lanes had reached a sustainable level of maintenance to accommodate them. The TRF will no doubt be astute in reminding the Council of that position in future; the Council will no doubt undertake such further reviews as it considers appropriate to monitor whether that position has been reached.

So far as the decision to make the TRO on 2 September 2024 is concerned, however, the application must be dismissed: none of the grounds upon which that decision was taken are sustainable.