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 ...
(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.