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 Post subject: Stanstead byways - Kent MR200 and MR209
PostPosted: Wed Dec 31, 2014 9:43 pm 
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KCC cannot find the Orders!! Neither can Defra! We all know it was advertised in the London Gazette and that a committee pushed for a TRO and there was a public enquiry. Norman Smith went to it in about 1963 and he passed away decades ago. So there is NO ORDER! KCC insist there is a TRO. If we ride it can we be prosecuted? Is it worth a try and then when someone stops us we say "fine, report us!" Then the fun starts. :?: :?: :?:


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 Post subject: Re: Stanstead byways - Kent MR200 and MR209
PostPosted: Thu Jan 01, 2015 8:56 pm 
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steve neville wrote:
If we ride it can we be prosecuted?


Yes, you can be prosecuted for failing to obey a traffic sign.

To avoid conviction an available defence would be to prove that the sign did not relate to an order.

Whilst there is evidence that the order cannot be found this is not the same as proving that the sign does not relate to a restriction on motorcycles.

My advice is to respect the TRO sign as it has probably been lawfully placed as a result of proper process.

This is also in keeping with the spirit of the TRF's Code of Conduct.

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 Post subject: Re: Stanstead byways - Kent MR200 and MR209
PostPosted: Sat Jan 03, 2015 8:35 pm 
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Surely any judge would want to see the order?

Surely the prosecution would have to produce it?

I know we are experts on rights of way. Has the trf got a legal rep?


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 Post subject: Re: Stanstead byways - Kent MR200 and MR209
PostPosted: Sun Jan 04, 2015 1:02 am 
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What an interesting conundrum and I don't think this is black and white.

My view here would be, if an order is in place now: is it in place for an apparent good reason?

So for example, if its a swamp which will swallow you up, or get irreparably damaged, I would suggest the sign is respected.

Alternatively if trail riding appears to be sustainable and perfectly safe, then I'd suggest its down to an individual to make their own judgement about whether they're prepared to suffer the consequences.

If they did try to prosecute and the prosecution failed as there was no evidence of the order being made, then that might open up new routes where the same scenario applies?

Note that if they did seek a prosecution, they look a little harder for the missing order, and it might turn up.

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 Post subject: Re: Stanstead byways - Kent MR200 and MR209
PostPosted: Sun Jan 04, 2015 9:47 am 
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The merits of the reasoning for a permanent TRO aren't relevant to the question of failing to obey the TRO sign.

There is a 6 week window for challenging a TRO after it has been made. After this period the validity of the order cannot be challenged in the event of a prosecution.

To illustrate this there are TRO's in Sussex that ban mobility scooters fom using tarmac roads for the reasons of preventing flytipping and illegal encampments!

Can't recall seeing a mobility scooter towing a caravan.................

The absurdity of the reasoning does not provide a defence for the mobility scooter user (or a cyclist) passing the TRO sign.


With MR200 / 209 the presumption is that the TRO signs are lawfully placed because of two legal priciples:

The presumption of regularity - the signs have existed for a significant time

The presumption that things done are done lawfully - ie the authority is innocent of wasting public funds on unauthorised signs until proven otherwise


Which brings us back to the issue with not finding the order. This is not proof that the signs are unlawfully placed. It is merely proof that the authority cannot (currently) find the order. The presumption remains that the signs are lawfully placed.

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 Post subject: Re: Stanstead byways - Kent MR200 and MR209
PostPosted: Sun Jan 04, 2015 11:39 am 
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I agree. I believe that the signs were lawfly placed at the time. I do not dispute that.

BUT

We need KCC - kent county council to find the order so we can look at challenging/rescinding it.

Time has changed a lot since the 1960's so how can one ever challenge a TRO if the order cannot be found?

I feel this subject is swaying more towards a legal matter rather than a rights of way issue don't you think?


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 Post subject: Re: Stanstead byways - Kent MR200 and MR209
PostPosted: Sun Jan 04, 2015 1:40 pm 
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KentWR wrote:
I agree. I believe that the signs were lawfly placed at the time. I do not dispute that.

BUT

We need KCC - kent county council to find the order so we can look at challenging/rescinding it.

Time has changed a lot since the 1960's so how can one ever challenge a TRO if the order cannot be found?

I feel this subject is swaying more towards a legal matter rather than a rights of way issue don't you think?


Even if the order is found there is almost nil option to challenge it.

There is no statutory framework that requires TRO's to be reviewed.

There is no statutory option to challenge the TRO at this distance (50years) in time. The window is 6 weeks from the time the order is made.

That leaves judicial review. Not a chance. Even if you could get a court to entertain the notion it would cost a fortune, possibly more than it would cost to buy a property on the lane itself.



It would also cost a significant amount to defend a rider for failing to obey the TRO sign. Think in the region of the cost of buying two very nice brand new beautiful Orange dirtbikes AND a toaster.


This issue has now swayed well away from being a legal issue. Big budgets and lawyers are not going to result in a success for TRF members or the public.

In the short term the public and trf benefit lays firmly within the remit of conservation. At this stage that can be delivered by assisting KCC to find the order. The order is part of our heritage and researching its origins and hopefuly finding it will provide clarity for all - which is a good thing.

It may be the case that the order is no longer fit for purpose and should be reconsidered. However it is also possible that the order remains justified.

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 Post subject: Re: Stanstead byways - Kent MR200 and MR209
PostPosted: Sun Jan 04, 2015 2:11 pm 
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Pls enlighten me? Why is this thread titled " Stanstead byways"


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 Post subject: Re: Stanstead byways - Kent MR200 and MR209
PostPosted: Sun Jan 04, 2015 2:58 pm 
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hogdiver wrote:
Pls enlighten me? Why is this thread titled " Stanstead byways"


It's the area in kent where the byways are.


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 Post subject: Re: Stanstead byways - Kent MR200 and MR209
PostPosted: Sun Jan 04, 2015 3:02 pm 
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jonpaul1st wrote:
KentWR wrote:
I agree. I believe that the signs were lawfly placed at the time. I do not dispute that.

BUT

We need KCC - kent county council to find the order so we can look at challenging/rescinding it.

Time has changed a lot since the 1960's so how can one ever challenge a TRO if the order cannot be found?

I feel this subject is swaying more towards a legal matter rather than a rights of way issue don't you think?


Even if the order is found there is almost nil option to challenge it.

There is no statutory framework that requires TRO's to be reviewed.

There is no statutory option to challenge the TRO at this distance (50years) in time. The window is 6 weeks from the time the order is made.

That leaves judicial review. Not a chance. Even if you could get a court to entertain the notion it would cost a fortune, possibly more than it would cost to buy a property on the lane itself.



It would also cost a significant amount to defend a rider for failing to obey the TRO sign. Think in the region of the cost of buying two very nice brand new beautiful Orange dirtbikes AND a toaster.


This issue has now swayed well away from being a legal issue. Big budgets and lawyers are not going to result in a success for TRF members or the public.

In the short term the public and trf benefit lays firmly within the remit of conservation. At this stage that can be delivered by assisting KCC to find the order. The order is part of our heritage and researching its origins and hopefuly finding it will provide clarity for all - which is a good thing.

It may be the case that the order is no longer fit for purpose and should be reconsidered. However it is also possible that the order remains justified.



This all come about because KCC offered to look at recinding the order on the byway. They said they could only look at doing this once they had a copy of the order.

Now it can't be found so they were willing to look at it to see why it was made and what had changed clearly that can't be done if the order cannot be found.


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