TRF Forums

It is currently Fri Sep 22, 2017 3:26 am

All times are UTC [ DST ]




Post new topic Reply to topic  [ 2 posts ] 
Author Message
 Post subject: Icknield Way between Westmill Lane, Ickleford and Hexton Roa
PostPosted: Fri Feb 03, 2012 5:24 pm 
Offline
80 cc

Joined: Sat Jun 11, 2011 8:14 pm
Posts: 11
Well.......... Just got this and emailed back refusing to withdraw my objection letter, so public enquiry it is..

Dear all

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.

Regards,

Helen Denton
Definitive Map Officer
Rights of Way Service
CHN103
Tel 01992 555286


Dear Sir/Madam
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/rowchan
ge/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objections are withdrawn we will have to send the order, together with the objections, to the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-propelled vehicles is created after [2
nd
May 2006] unless it is
• 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. An evidence-based decision
would have to be made in relation to each route. In the case of the Icknield Way, whilst it is
recorded on the List of Streets as a route that is maintainable at public expense, we do not
consider that the evidence shows that it is a public vehicular route.
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 2
nd
May 2006;
• if the original application was made before 20
th
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 19
th
century inclosure of the land part of
the route was extinguished as a public road. We have sufficient evidence to show that
since the 19
th
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 20
th
February 2012.
Yours sincerely
Helen Denton
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


Top
 Profile  
 
 Post subject: Re: Icknield Way between Westmill Lane, Ickleford and Hexton Roa
PostPosted: Fri Feb 03, 2012 6:47 pm 
Offline
400 cc

Joined: Fri Apr 03, 2009 11:44 pm
Posts: 1463
Yes me too.

Likewise, wont be withdrawing my objection anytime soon.

There is certainly a case to be made here.

Regards

Richard


Top
 Profile  
 
Display posts from previous:  Sort by  
Post new topic Reply to topic  [ 2 posts ] 

All times are UTC [ DST ]


Who is online

Users browsing this forum: No registered users and 1 guest


You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot post attachments in this forum

Search for:
Jump to:  
Powered by phpBB © 2000, 2002, 2005, 2007 phpBB Group. Color scheme by ColorizeIt!