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NERC Bill, property Access. 'worked examples' PDF Print E-mail

The NERC Bill and Property Access

'Worked Examples'

The provisions of NERC can seem very confusing.   GLASS's Rights of Way officer tries to work through examples to show how the parts fit together.

go back to property access Q & A

Example 1

A real situation; this is my own home, a 1950's built ex-council house.   Looking out of the window, I can see a tarmac road with made up pavements, street lamps, bus shelter.   Obviously Parliament doesn't intend to change roads like this, and I'm 99.5% confident ... but let's see how it works in practice.

NERC section 62 begins ...
"An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement ..."
Note the use of the words 'is extinguished' - not maybe, not perhaps.   If the circumstances fit, the right is gone forever, irrevocably. "But we didn't mean to!" carries no weight later.

I must have a hard look at my circumstances then.   NERC s.62(1) continues ...
"(a) was not shown in a definitive map and statement or was shown in a definitive map and statement only as a Footpath, Bridleway or restricted byway, and ..."
Clearly I'd better look at this Definitive Map, it's the primary condition.

I can start by looking at an Ordnance Survey Map.   Good, the road isn't shown there as a 'Right of Way', with red dashes.   But it is shown in yellow, meaning a made-up road.   I know that not all RoW get shown on the OS map, especially when it would be over a 'yellow' road - and that dual circumstance is exactly the kind of situation that NERC targets.  Quite often in towns there simply isn't room on the map to show it all either.   So I've got to dig further.

Because of my interests, I'm saved a visit to the County Council Rights of Way department.   I already know that my road isn't shown on the Definitive Map at all.   On the face of it then, it could have motor rights extinguished under s.62(1)(a)!!   The vast majority of ordinary roads will fit into this category and be liable to closure unless one of the protecting clauses applies.

Right, I need to look at condition following that 'and' then; NERC s.62(1) continues ...
".. and
(b) was being used by the public mainly for one or more of the purposes for which restricted Byways are used or was not being used by the public as a right of way of any kind."

Say what?   To be extinguished, the road must also be being used in the way described.   Referring to Countryside & Rights Of Way Act 2000, we can find the description of 'restricted byway'.   Such a road can be used by walkers, horse riders, and non-mechanically propelled vehicles - that's pony & trap and bicycles.

Somehow then, someone has to conduct a survey of who's using each road and how, before the NERC act begins.   Over what period of time; a day, a year?   Don't know, not stated.   If no-one at all can be proven to have used the road during that unknown period it gets extinguished.   My own use won't count because it's private use to get to my property - not use by the general public.   My road is okay though, it's in constant use by others and I'm sure my neighbours would swear to that too.   I hope that's enough evidence that it's used - but I've lived here just three years, what if they want ten years of evidence?

Some uncertainty there then, but I'm reasonably confident it could be shown to have been used by someone for many years.   So my road is saved from the 'not being used' condition I think - so now I must look into the other condition, 'used like a restricted byway'.

My road is certainly used by motors, including buses.   Wait though - s.61(1)(b) says used mainly like a restricted byway.   Ah, so we have to show more motor use than pedestrian/horses/cycles to save the road.   I could have a problem here; there's a school up the road and a thousand pupils walk and cycle in each day.   Maybe this outweighs the number of cars.   This kind of issue could even affect a busy high street - it's not at all obvious if shoppers on foot outnumber through motor traffic.

I'm not very confident that this how-is-it-used clause protects my road; I must have a look and see if there is more help.

NERC s.62(2) continues ...
"Subsection (1) does not apply to an existing public right of way if -"
and goes on to list exceptions. Thank goodness!

The first exception (a) is about being on a list kept by the County Council.   I don't have easy access to that list, I'll come back to it if I need to.

NERC gives another exception in s.62(2) ...
"(b) it was created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles,"
That's very wordy, but essentially means roads that were authorised by Parliament especially for motors, like Motorways.   Sure doesn't apply to my road, no comfort there.

NERC gives another exception in s.62(2) ...
"(c) it was created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles, or ..."
That's still wordy, but essentially means roads that were built especially for motors under terms authorised by Parliament.   Highway Authorities, such as County Councils, are authorised to build public roads under the Highways Act and suchlike.   Aha!   There's hope here for me.   My own road must have been built in the 1950's - and as a council estate, it must have been built by the County Council.   There is nothing that says it was particularly built for motors - no-one distinguished motor vehicle use from general vehicle use until now.   But there is a good argument that anyone building a road in 1950 must surely have expected it be used by motor vehicles.   This might save my road - but I'm no lawyer and not sure that argument would stand up in court.

It's a good job it wasn't a private housing development - in that case the developer would have made up the roads to the CC's standard, and when complete the CC would usually have 'adopted' them.   That case wouldn't be saved by s.62(2)(c) because it wasn't constructed 'in exercise of powers' by the County Council itself, so we'd have to look further.

Oh dear.   Just checked my copy of the house deeds, to see if the road out front was mentioned in any way.   (Please, please say 'public motor road' - but it didn't.)   Included in the deed bundle were copies of documents showing the land before the council bought it and built the houses.   What is now the road, existed beforehand as cross-field track.   It probably wasn't a public way then, but it does mean it'd be inaccurate to describe the current road as constructed in the 1950s.   Any lawyer would say it was re-constructed or improved.   So s.62(2)(c) doesn't have any effect to protect it all.   I need to look further after all.

NERC gives another exception in s.62(2) ...
"(d) it was created by virtue of use by such vehicles during a period ending before 1st December 1930."
It's not immediately obvious what that means.   I've looked into the laws of 'prescription', and it seems to relate to that.   Prescription in this context means that if you do something for long enough, and no-one stops or tries to stop you, you can assume you actually have a right to do it.
More precisely, if the public drive up and down a road for twenty years, but not secretly or by use of force, and there's no 'Private' notice or locked gate, it's legal to claim a public vehicular right exists.   Lawyers say "the evidence of use raises a presumption of rights"; it's quite incorrect to say the use actually creates the right, only the Landowner can create the right.   Prescription just allows you to infer that the Landowner has dedicated the route to the public without telling anybody.
So far as I can see then, s.62(2)(d) is quite meaningless.   I think we can guess it's meant to cover prescription though.   But, only in the case where motors were used before 1930.   Why 1930?   Don't know, but perhaps it relates to the Road Traffic Act of that year that made it an offence to drive a motor "other than on a road".   That doesn't have much to do with NERC really, as s.62 is talking about roads and of course driving on a road remains legal post-1930 to this day.

Still, that's what is written, confusing as it is; and s.62(2)(d) doesn't seem to apply to my road as it's clearly something to do with pre-1930 circumstances.

Well, that's got us to the end of section 62 without any proof that my road is saved from extinguishment. Just have to go back now and check out that protective condition in NERC s.62(2)(a) that we skipped ...
"(a) 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),"
Ah, I know that list; it's commonly called the "List of Streets".   It's kept by the Highway Authority, often in the form of a master map rather than an actual list.   It's never had anything directly to do with public rights, what it shows is the council's maintenance responsibilities.   If a way is repaired by the public, it's safe to assume it can be used by the public; but current opinion from DEFRA is that it's only safe to presume it's at least a Footpath.   Be that as it may, NERC is now going to use the LoS to determine the vehicle rights that exist.

I made an appointment with Highways division at County Hall, explaining I needed to check their 'List of Streets'.   And hurrah !! - my road was included as a class C road.   So the effect of NERC 62(1) to extinguish my road is cancelled, because it fits the condition of the exception in s.62(2)(a).

As you can see, it's a rather long paper chase, full of uncertainty, just to show that NERC doesn't really affect an ordinary road it wasn't intended to.

 

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Example 2

A partly real, partly imagined situation; changed to protect the innocent (as they say) and to better illustrate more points.   It's based on one I heard about in a neighbouring village.   The end result is quite real!   Mr. X's property is accessed by a stone and gravel road, that goes on to service a farm and beyond.   Mr.X wants to sell, but immediately hit a snag.   The road is also shown on the Definitive Map as a Bridleway.   So any public motor rights are liable to extinguishment under NERC s.62(1).

There's known to be public vehicle rights, because the road was awarded as a "Public Carriageway" under an Inclosure Act in 1820.   It got put on the Definitive Map as a Bridleway by the Parish Council in the 1950s because that was pretty much how it was being used then, apart from the farm traffic and the odd car.   That didn't cause problems to anyone because despite the 'Bridleway' signs, anyone who needed to could prove it was really a vehicular road.

Because of the existing public vehicle rights, Mr.X has never had any documented private access.   That was no issue when he bought the house; after all the public vehicle access was well documented.

There has been a BOAT claim lodged with the County Council for the last three years, but Mr.X objected to that because he'd been told by someone it would result in lots of 4x4s passing his house.   So the disputed BOAT claim awaits its turn to be resolved.

Mr.X found a buyer, but the buyer's solicitor is aware of NERC and the uncertainty it brings.   The buyer is aware of the BOAT claim, and the convincing vehicular evidence (that old Inclosure award carries the full authority of a Parliamentary Act); but is also aware that NERC is still likely to prevent the BOAT claim - the 1820 vehicular right doesn't expressly include motors.   No way is the buyer going to proceed without a written guarantee that he can park a car in the garage!

Mr.X should certainly be able to claim some private right according to NERC section 62(3).   He doesn't know when - NERC may be affecting the sale today but isn't yet law, so he can't start anything yet.   Nor does Mr.X have any idea how long it may all take or how he can go about it, let alone how much it all costs.

Mr.X's solicitor notes that the effect of the 1820 Inclosure award is to make the Highway Authority, which is now the County Council, the effective Landowner of the road itself.   So they apply to the CC for an Easement - a private right expressly to use motors.   The CC legal department responds to the effect that it is only interested in the land insofar as it is a vehicular Highway - they are well aware of the Inclosure award which gave them this stake in the strip of land.   They can't give anyone a right higher than the existing public right, because that's all they have to give.   If the law says that the public vehicle right doesn't include motors, then there is no motor right for the CC to give out.   They do point out that any other rights over the land forming the road (like mineral or hunting) can be presumed to belong to adjacent Landowner(s).

Mr.X's solicitor takes the hint, and checks who owns the land on either side of the road up to the house - it's the farm of course.   It's pretty clear that if he wants to sell the place in the next few years, Mr.X has no choice but to get an Easement in writing from the farmer.

This is duely done, with Mr.X making payment to the farmer of 2.5% of his house sale value.  "Nice little windfall", says the farmer, and looks to see who else lives nearby ...

 

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go back to property access Q & A

Further reading

goSee the NERC Bill in full at
www.publications.parliament.uk/pa/ld200506/ldbills/023/2006023.htm
but remember it could be amended further.

goBarsby Legal Publishing offer a free guide to private roads via
www.barsby.com/articles.html

go'Fax your MP' facility at
www.faxyourmp.com

I will try to keep this information up to date as the NERC bill progresses.

 

by This e-mail address is being protected from spam bots, you need JavaScript enabled to view it , GLASS RoW officer

updated 15/11/2005

Last Updated ( Sunday, 03 December 2006 )