17 December 2015
Mr Michael Lowe
Restricted byway, cycle user, ‘footpath’ notices, no application of s.67 NERCA 2006.

Tameside Metropolitan Council was directed by the Secretary of State, on appeal, to make an order to modify a route currently recorded as public footpath to restricted byway status, on the basis of long user by pedal cyclists. The council, and others, objected to the order, and Mr Lowe held a public inquiry on 10 & 11 November 2015.
The route may be described as an ‘L’, continuing in line from Hobson Moor Road (point D), via Landslow Green Farm (point C) to Ash Tree Farm (point B), where the way turns at slightly more than a right angle, along Cow Lane, back to Meadowbank Farm and the ordinary road network at point A. The inquiry heard that ‘footpath only’ signs had been erected at point C and maintained over many years, and Mr Lowe found that these are ‘inconsistent’ with the presumed dedication of restricted byway rights under s.31(6) and on this basis declines to confirm the order.
Mr Lowe states, under ‘Main Issue’, the need for him to have in mind the possibility of there having been dedication at common law. He says, “[6] Whether, in the alternative, the evidence is such, again on the balance of probabilities, as to establish dedication at common law.” Mr Lowe does not mention ‘common law dedication’ again, even to discount its having taken place, after he rejects the presumption of dedication under the statutory test.
As regards D-C on the order route (the western end), Mr Lowe finds:
“[9] During the course of the inquiry the council further researched its records of highways maintainable at public expense and discovered that earlier records of the list of streets indicated that Hobson Moor Road ran from Mottram Road to the gates at Landslow Green Farm, i.e. including the section C-D. The council therefore considered that the section C-D was a public road, for all traffic, and maintainable by the council. This section of Hobson Moor Road has a tarmacadam surface with grass verges between stone walls or fences and is of the character of other public roads in the locality. It therefore appears to me, that on the basis that section C-D of Hobson Moor Road is a public road, a carriageway, and is of the character of an ordinary vehicular road, it should not be recorded on the definitive map of public rights of way.”
Perhaps surprisingly, given Inspectors’ usual diligence in this area, this discovery of “earlier records of the list of streets” does not trigger an investigation as to whether s.67 of the Natural Environment and Rural Communities Act 2006 has stripped away public rights with mechanically propelled vehicles from D-C. Mr Lowe finds as a matter of fact that D-C is a public general-purpose road, and that it has the “character of an ordinary vehicular road.” But ‘character’ is not the relevant test here. In s.67 of NERCA:

An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement—
(a) was not shown in a definitive map and statement, or
(b) was shown in a definitive map and statement only as a footpath, bridleway or restricted byway.

But this is subject to subsections (2) to (8). If D-C was on the list of streets on 2 May 2006 then the public rights with MPVs are saved by s67(2)(b) “immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (c. 66) (list of highways maintainable at public expense)”, but as defra’s guidance makes clear, this saving must be proved in any case.

Alternatively, if D-C was not on this list of streets on 2 May 2006 then the public rights with MPVs could be saved by s.67(2)(a), “it is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use for mechanically propelled vehicles”, but as defra guidance states, such a main user must be proved.

Nowhere in this part of the 2006 Act is the ‘character’ of the road any sort of saving provision and in any case, Mr Lowe does not even mention the NERC Act in his decision letter.