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The majority of TRF members are happy to get out on their bikes over the weekend and enjoy our rich variety of Green Roads. Some take it one step further and actively involve themselves in the running of their regional group.

For a few, the TRF is a step beyond, lending their enthusiasm and expertise to further the fight for Green Roads right up to the highest court in the land. Dave Tillbury has offered his services as a TRF contractor for over a decade. Here he describes some of his most proud and painful moments and offers up the baton for the next Right of Way champions as he steps down...

TRF:

Hi Dave, thanks for taking time out to talk to us. It's always bitter sweet to be interviewing someone who has done so much for the TRF but has decided it's time to step back. Could you give us a little background to how you became involved in the club originally and how you have seen it change over the years?

Dave:

In the beginning there was the word and the word was TRAIL…

Back in the ’60s my father worked with a guy, Pete Wildsmith. Pete was probably born with white hair and a white beard but he was quite capable of abandoning common sense. The way home from work for both my father and Pete was along the old Winchester Bypass, one of England’s first dual carriageways (another piece of highway heritage now destroyed) and the silly chaps would race. My dad in his Triumph Dolomite Sprint and Pete on his motorbike. Pete was a trail rider and an early TRF member so when I bought my first trail bike (Yamaha DT175) Pete led me out on a few rides. Although I had long been a walker and knew how to read a map Pete awakened in me the desire to see more; to see all those routes that were lost to the general public.

Back in those days there was no requirement to stick to RUPPs (as most still were then) because the recorded bridleways were without prejudice to higher rights. So, in order to expand the number of routes available to us research would be done so that we could demonstrate the existence of those higher rights. Life was so simple then. Logic was king. If one end of a through route is a road and the other end is a road the bit in the middle (in the absence of any legal event that stopped it up) was also a road. If it was on an Inclosure Award as ‘Public Carriageway’ and there was no evidence of it being stopped up, it was a road. None of the mind numbing hair-splitting that we face today.

I enjoyed the research and I learnt as I went, a great deal from Bill Riley who was streets ahead of me and still is.

Today, getting a byway added to the definitive map & statement is far harder on the research side but beyond that there is a need for a thorough knowledge of case law and statute.

TRF:

A lot of our more seasoned members will be aware of the work that you have done for the club over the years, however many others won't. Could you give a little insight into what your role has been as a ROW contractor?

Dave:

In the run up to Countryside Act 2000 I was one of group of TRF members (Geoff Wilson, Tim Stevens, Alan Kind….) who met with the Minister to talk about legislation that had been promised (Meacher as I recall). He said that the casual research & ride attitude was going to change. He accepted that the TRF were a legit organisation but said that we would need to get our routes recorded on the Definitive Map as BOAT if we wanted to continue riding them. This sparked a huge surge of interest within the TRF and fuelled by the Byway Bonus scheme hundreds of Schedule 14 applications were made.

The TRF realised that the success of all these claims rested on a positive outcome should they be decided at a Public Inquiry. As I was one who had represented the TRF view at numerous RUPP Reclassification Inquiries I was asked if I would share my knowledge with other groups in Southern England and assist in taking the group through the Public Inquiry process. Similar work was done by David Giles, Tim Stevens and Alan Kind in other parts of the country.

The sad (or sneaky) outcome was that our opponents complained to Government that we had made thousands of Byway Claims and the countryside would be overrun with motorcycles and 4x4s. The facts were, of course, that the numbers engaged in trail riding would remain pretty static but with more lanes to ride we’d effectively be invisible in the countryside. DEFRA polled the Order Making Authorities (OMA)and as a result back-dated legislation with the effect of nullifying many applications.

Meanwhile the OMAs asked the TRF to provide only a list of documents upon which we relied for our evidence of BOAT because they claimed to not have the capacity to handle massive bundles of papers, on top of this they would have to look at every document themselves to verify its bonafides and would make their own copies. This was at the root of the Winchester Case which scuppered most Byway claims. The law requires that to invoke one of the saving provisions in NERC the application needed to be ‘valid’. A valid application required that copies of the evidence relied upon be submitted with the application. Most claims were accompanied by just a list of references for the documents relied upon.

Was it a local authority trick? No, I don’t think so. Many RoW departments have limited space and limited staff (even prior to the current austerity) and faced with two hundred bundles (as Hampshire were) it would have caused havoc.

TRF:

You've sat on both sides of the ROW fence, for a time working for the local councils. How did that come about? I imagine it's been pretty valuable to your role within the TRF.

Dave:

My work for a local authority RoW department taught me that most elected Members are ignorant of rights of way issues. They do not work on fact but on opinion. Opinion of those who will vote the Member back into office; opinion of their aspiring chums or, in short, what they want and not what the law requires. I worked for several local authorities on short term contracts but not being the sycophantic, servile sort didn’t really gel with those who wanted an outcome that didn’t align with statute or duty.

TRF:

I find it fascinating that it was your early adoption of digital technology that moved you forwards in the ROW world. It's easy to think that the use of computers was taken for granted but it really wasn't. I guess it's like someone developing advanced GPS mapping technology today.

Dave:

I saw the advantages of the computer from the outset. An Amstrad, monotone screen, started-up from a floppy and it all ran on a couple of kilobytes of RAM. This is how I recorded my research and user evidence. When offered the initial contract with a local authority I specified that I’d need a computer, thus it was that that rights of Way department got their first computer. Hard to imagine today. An entire office with no computers.

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Dave makes a splash at a horse trial back in the day when you popped down to the chemist to pick up your photos

This local authority contract required that I take a look at all dual classification routes. That is to say those routes shown on the List of Streets that were also on the Definitive Map. The County Surveyor was responsible for those RUPPs (for there were only RUPPs with dual status, no bridleways or footpaths) but he was not maintaining them. The RoW Dept was to take them over but they refused to do so unless they received commensurate funding. It was my task to figure out what was needed and what the cost would be. As you can see, that was an ideal task for a computer with a database.

Away from work my Amstrad was a good way to record user evidence because running a database it was possible to extract a lane from the many and various run records. Put simply, run leaders completed a survey after a run, utilising a route numbers system devised by Pete Wildsmith and Penny page recorded the user on her computer. As time passed and the need to record user on potential claims became clear and the TRF devised a recording system, based on the Landranger series of maps, that could be used by all groups.

TRF:

Have there been any notable ROW cases that you might count as defining during your work with the TRF?

Dave:

Back in the days of RUPP reclassification we gained a lot of BOATs but as we upped our game so did the ‘antis’ and we had to overcome a lot of dishonesty. At the time many of those battles seemed important but there were much bigger battles post NERC.

One that we should have engaged with was The Queen on the Application of Warden and Fellows of Winchester College and Humphrey Feeds Limited [2008] EWCA Civ 431, or, as most will know it ‘The Winchester Case’. This was a local Hampshire BOAT claim over an existing RUPP. There was very good evidence, including the holy grail – a Justices Certificate of Completion which confirmed that the road had been set out and made to the satisfaction of the Justices. (The antis would tell the Inspector that if there was no Justices Certificate then the road probably wasn’t brought into being following the Inclosure Award process. Firstly, that was wrong as the Award set down what was done. Secondly very few Certificates have ever been found even for roads that are now sealed and in daily used by motorcars.)

All those who followed the OMA’s advice and submitted their Schedule 14 applications with a list of evidence (not the full set of copies) were technically at fault so at the time I saw little point in fighting a lost cause. That said there is always the nagging thought that had we engaged with the case the Court might have seen the injustice of the situation. A slender chance indeed but…

More recently we had Trail Riders Fellowship and David Leonard Tilbury v Dorset County Council and Secretary of State for the Environment Food and Rural Affairs Case number CO/899/2011. Many will know this one as ‘the map scales case’

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Dave enjoys a well earned drink after his run in with one of the highest courts in the land

I will be brief so in essence we had a group of RoW enthusiasts (mainly 4x4) in Dorset called Friends of Dorset’s RoW. This group had made a number of Schedule 14 applications for BOAT. Dorset accepted the applications then sat on them for a decade. The applicant’s life had moved on during this time and so he turned to the TRF asking if I would take over the management of the applications. At around this time Dorset CC decided that the applications were not compliant, because the maps submitted with the claims were produced via digital mapping software and because they looked like 1:50,000 maps, not 1:25,000 as per statute. Their argument being that the map was not drawn to the required scale, but enlarged from 1:50,000 mapping. We pointed out the obvious, that one could hand draw such a map and it would be compliant, regardless of accuracy but DCC stuck to their interpretation, an interpretation made by the same organisation that was behind the Winchester case.

The TRF took DCC to Judicial Review over their interpretation of the map evidence – we lost. So sure were we that we were right that the TRF appealed that decision and prevailed. Egged on by the roaming antis and quite possibly a Dorset MP, Dorset CC appealed the High Court Judgment and the matter went to the Supreme Court Once again the TRF prevailed. Needless to say DCC have yet to progress the claims. Whilst not my department, I was a little disappointed that the TRF did not publicise the fact that Dorset CC had expended so much money only to deny the public their rights, counter to statute.

I cannot end this tale without giving praise and thanks to Dave Oickle, Dorset TRF’s RoW Officer at the time, for the consistent input he gave during this and other contentious RoW cases we have handled in Dorset in Dorset over the years.

There have been a number of other Public Inquiries, far too many to list, where I have assisted the TRF and from these there are numerous tales to be told. One classic instance involved a ‘roving objector’ (she would appear at many Public Inquiries with some spurious reason for a route not being vehicular) who told the Inspector that one route was a “permissive Public Carriageway” (think about it - you’d ask the landowner every time you wanted to use it…). She did not impress the Inspector. Following another RUPP reclassification, which went to bridleway, I received a telephone call from a senior Ramblers Association person who was astounded. “If it was public then it MUST be a carriageway” she said. There have been many instances where Inspectors cite dozens of individual ‘trees’ then conclude that they cannot see a wood. A number of my colleagues are convinced that the so-called independent Inspectors are told ‘that will not be a BOAT’ from the outset.

TRF:

I imagine that a lot of TRF members assume that work like this is always offed on a voluntary basis, but that's not actually the case. It makes sense for specialist contractor roles to be paid. As you step away from your role as a contractor, what qualities do you think the TRF are looking for in the next generation of ROW team members? What would you say to anyone who is looking to get involved?

Dave:

A tough question. Today we face different challenges to those we faced in the past. We have transitioned from the seeking new (old) routes to retaining those routes we have. We face fresh legislation that without modification to current proposals might well create new problems for not only the TRF but all user groups. There are still matters contained within the Countryside and Rights of Way Act 2000 and the Natural Environment and Rural Communities Act 2006 that could yield results.

So, in the future the working environment for the TRF will be the Court Room and not the local Record Office. Rights of Way departments have leapt on an uncomplicated interpretation of the law that suits them but there are a list of exemptions under s.67 NERC that need exploring and the RoW departments need to be reminded of some of those exemptions and modify the definitive map accordingly. I hope that in the years to come I will be able to return a few of the routes lost to NERC.

I must acknowledge the guidance I’ve received over the years from Alan Kind and Tim Stevens. In the future the TRF needs to find someone far brighter than I to move the legal issues forward.

TRF:

It sounds like a very valuable and worthwhile position to be part of in the club. I hope that within our 4000 our members we will have a few that would like to take their knowledge and apply it to the next chapter of the TRF and Green Roads in the UK. So, what's next for you?

Dave:

Over the years I’ve owned and ridden a few bikes. From that first Yamaha DT175 to my last bike, a BMW R1150GS …. but since around 1983 I’ve also owned mountain bikes. Whilst you don’t travel as far in a day I have to say that I’ve gained a huge amount of fun from this sort of cycling. Now that I’m a decrepit pensioner I decided to invest in an e-bike and I’ve got to say it’s brilliant. Not only can I ride all the old routes I loved (now restricted byway) my network now includes bridleways as well. So, to all those nasty, mean-minded individuals who perjured themselves at Public Inquiries in order to prohibit the likes of me using a powered two wheeler on ‘their footpath’ I raise two fingers, held slightly apart and say “You can f……..”

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The future's electric...

TRF:

Thanks Dave, we wish you the very best with the next chapter.


Dave is stepping down as a TRF Rights of Way contractor. All TRF contractors are paid for their services, from tech, to communications to the essential work done maintaining access to Green Roads. We are actively looking to recruit the next generation of TRF R.O.W. contractors who will help the TRF steer their way through the choppy waters ahead. If you would like to be considered for this position please contact John Vannuffel today.