NERC Act

The NERC Bill gained Royal Assent on 30/3/2006, so now it is the Natural Environment & Rural Communities Act 2006.   This has now been followed up by some Statutory Instruments, the parliamentary procedures that "switch on" parts of the new laws in NERCA and in CROW2000.

What does this mean to GLASS members and other green laners?

Position as at 2nd May 2006

Simplified Summary - Effect in England

all RUPPs have ceased to exist.
They are now all transformed to Restricted Byways   (no exceptions - even if a BOAT order is outstanding).

NERC makes a big effect over most new RBs, dual-recorded Footpaths/Bridleways, and unrecorded roads; to extinguish MPV rights with immediate effect.

It is an offence under Road Traffic Act 1988 to drive an MPV over a new RB or a FP/BW.
As before, there is a defence of showing that public MPV rights exist - but that is now considerably harder to prove as most MPV rights will have been extinguished by NERC.

These changes do not affect BOATs or UCRs (shown as ORPA on OS maps).

How Joe Public might know all this I have no idea, most RBs will continue to be signposted 'RUPP', 'Right of Way', 'Cart Road', or not signed at all for some time.

As it is a de-facto offence to drive/ride a new RB with a motor, as it's always been for a FP or BW, the only advice can be NOT to do it.
Unless you have VERY good evidence both that MPV rights existed AND that they were protected from NERCs extinguishment effects.

Effect in Wales

The Welsh Assembly has passed the Statutory Instrument converting all RUPPs to RBs.

The WA yet to pass the NERCA extinguishing Instruments giving all the effects as per England.
No firm date known, perhaps November.

It remains an offence under RTA88 to drive on footpaths/bridleways and the new RBs, this can be defended with good evidence of Vehicle rights.

Effect in Scotland, Ireland, Man, etc

Acronyms -
BOAT - Byway Open to All Traffic - assures MPV rights (unless restricted)
BW - Bridleway
DMMO - Definitive Map Modification Order (a claim for Footpath or byway etc)
FP - Footpath
MPV - Mechanically Propelled Vehicle - car,4x4,motorbike,quad
NERC - Natural Environment and Rural Communities Act 2006
RB - Restricted Byway, rights assured only up to non-mechanised vehicles
RTA88 - Road Traffic Act 1988, regulating use of roads
RUPP - Road Used as a Public Path, actual rights uncertain from that designation alone

NERCA s.72 gives new powers to TRO to National Park Authorities over any Definitive Map way (FP/BW/RB/BOAT) and over ANY other unsealed roads, private or public, on the usual grounds.   These will take effect on 1st October 2006.

The NERC Bill gained Royal Assent on 30/3/2006, so now it is the Natural Environment & Rural Communities Act 2006.

Simplified Summary -
BOATs not affected (except in Nat Parks)
ORPAs/UUCRs not affected (except in NPs)
BOAT applications post Jan or May 2005 thrown out
RUPPs->RBs very soon - offence to drive unless strong user evidence from last 5 years
Dual-status, RT roads, Lost roads - offence to drive unless strong evidence as above
New opportunities for lost ways, FP & BW to become RB

More detail follows. Even that is simplified!

Part 6 affecting Rights of Way is in effect in England (2nd May 2006), but not yet in Wales.   The Govt promises quick commencement.   The regulations bringing Restricted Byways into existence under CROW2000 apply similarly, as parts of NERCA depend on that.

Where RUPPs were transformed to Restricted Byways it will be an offence to drive one (Road Traffic Act s.34).   You will be able to defend yourself, and you'd need to show that assumed extinguishment of MPV rights under NERC s.67 hadn't in fact taken place (see below).   The most obvious defence would be to show that main use over last 5 years is by MPV.

NERCA s.66 prevents the creation of NEW rights for MPVs, by e.g. twenty years use alone.   Not a problem, GLASS has never sought new roads.

BOATs are not affected by s.67
A,B,C,Unclassified roads should not be affected by s.67.
ORPAs (being Unclassified roads) should not be affected by s.67 due to being on LoS.
'Dual Status', ways that are BOTH on LoS and on DM as Footpath or Bridleway have MPV rights extinguished by default.
RUPPs (now RBs) have MPV extinguished by default, whether also on LoS or not.
Roads not recorded anywhere, such as privately-maintained public roads (RT roads) or genuinely 'Lost' ways, have MPV extinguished by default.

s.67(2)(b) means most 'ordinary' roads will be protected by inclusion on LoS.   But there are about a hundred authorities keeping LoS, with several thousand entries each.   If there are errors or omissions, those roads in error will be extinguished with no appeal.   Check the street you live on!   The accuracy of the Lists is crucial, but has never been examined, nor is there a process for public challenge.

Small sections of roads could be extinguished - one thinks of Railway bridges and level crossings (which are 'privately' maintained by Railtrack and so may not be on LoS), or some housing development, urban or industrial roads.

s.67(2)(a) offers another protection from extinguishment. It has to be shown that the MAIN use of the road in the last five years has been by MPVs.   This clause is necessary to prevent accidental extinguishment of Motorways (which may not be on LoS!).   This has to be 'lawful use by the Public’, use for adjacent access may or may not count.   'Used mainly by' isn't defined, so on the face of it 51%; but do you count heads or vehicles?   Not clear until it's been tested in court.

In practice no-one has been keeping records, so it would be up to users to show the User evidence for any particular challenge.

There ARE other exceptions to s.67, but they are all very unlikely to be able to be shown in practice;
e.g. s.67(2)(e) road created by use of MPVs before 1930 - not very likely as most roads used by motorists in 1930 already existed before MPVs were invented.
or s.67(2)(c) road expressly dedicated for MPV - not very likely as the law has begun to distinguish MPV from non-MPV Carriageway rights only since CROW2000. Even the M25 was not created on those terms.
s.67(2)(d) is for roads officially constructed for MPV, this is the one that saves the M25!

NERCA s.67(3) deals with what to do when there is an outstanding BOAT application.   Where the claim was made before 20/1/2005 (in England) or 19/5/2005 (in Wales) last year, the extinguishment does not take place.   The claim would still need to be determined in the usual way of course.
If a BOAT claim was made by a Landowner before 2/5/2006 (England), AND he can prove it's necessary for him, it will still be allowed to proceed to determination under the old rules.

(post-NERC BOAT applications can still be made, until 2026, but it would have to be shown why NERC extinguishment did not happen in each case.)

NERCA s.67(4) gives a private MPV right to landowners where a public right used to exist and was extinguished.   Handy, eh?   But they will have to prove it should have been a BOAT or UCR before the extinguishment took effect, not easy as we know.

NERCA s.68 allows Bicycle use to be counted towards creation of new non-MPV rights.   The effect is that illicit use of footpaths and trails by mountain bikers can now be legitimised as a Restricted Byway.

NERCA s.70 amends Road Traffic Act s.34, so that landowners depending on a RUPP don't commit a criminal offence by continuing to drive over it.   Not being an offence doesn't mean they have a right though!  Especially it does not mean a trespass is not committed.   So they could still find themselves locked out by gates or bollards etc.   Nor does the immunity extend to FP & BW (dual status roads).

s.70 also finally buries Road Traffic Act s.34A, an ill-advised section that sought to remove the right to a defence in court - and so contravened Human Rights of course.   Same advisors on this bill perhaps?

NERCA s.72 gives new powers to TRO to National Park Authorities over any Definitive Map way (FP/BW/RB/BOAT) and over ANY other unsealed roads, private or public, on the usual grounds.