NERC as you are all aware has been ussed to justify the reclassification of parts of the Ridgeway as Restricted Byway removing vehicular access as a result.
I personally believe that the law as written does not support this action, it is improtant to bear in mind that the Right of Way is not enacted by NERC it is removed therfore unless the law as written is fulfilled the Right of Way must remain. Here's what NERC actually states about the removal of a right of way:
62
Ending of certain existing unrecorded public rights of way
(1)
An existing public right of way for mechanically propelled vehicles is
15
extinguished if it is over a way which, immediately before commencement—
(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
(b)
was being used by the public mainly for one or more of the purposes
20
for which restricted byways are used or was not being used by the
public as a right of way of any kind.
But this is subject to subsections (2) to (4).
(2)
Subsection (1) does not apply to an existing public right of way if—
(a)
it was not shown in a definitive map and statement but was shown in a
25
list required to be kept under section 36(6) of the Highways Act 1980
(c. 66) (list of highways maintainable at public expense),
(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,
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(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
(d)
it was created by virtue of use by such vehicles during a period ending
before 1st December 1930.
As can be seen two factors must be present before the right of way can be removed, the use of the word "and" is quite specific.
Clearly parts of the Ridgeway do fall under the remit of subsection 1 (a) but this alone is not enough to see the removal of the Right of Way and subsection 1 (b) must also be fulfilled.
The point of discussion is the word "immediately", interperatation of this word will be the foundation of justifying the removal of Right of Way. If the word immediately means the day before then it could well be argued that as the TRO was lifted on 1st May and NERC was introduced on 2nd May then the Ridgeway would have seen its highest use by vehicles "immediately" before the enactment, if however it means any othr period of time then the Ridgeway has a histroy of high vehicle use, hence the TRO's being applied to minimise winter damage.
Either way it will also be a requirement to prove the usage as defined in sub section (b) I would doubt that Oxfordshire County Council can produce accurate usage of the Ridgeway as there has never been any full survey of usage, please bear in mind that the Right of Way exists unless it "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." It will be up to Oxfordshire County Council to prove the usage fulfilled subsection (b) or the Right of Way must remain.
I personally believe that the law as written does not support this action, it is improtant to bear in mind that the Right of Way is not enacted by NERC it is removed therfore unless the law as written is fulfilled the Right of Way must remain. Here's what NERC actually states about the removal of a right of way:
62
Ending of certain existing unrecorded public rights of way
(1)
An existing public right of way for mechanically propelled vehicles is
15
extinguished if it is over a way which, immediately before commencement—
(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
(b)
was being used by the public mainly for one or more of the purposes
20
for which restricted byways are used or was not being used by the
public as a right of way of any kind.
But this is subject to subsections (2) to (4).
(2)
Subsection (1) does not apply to an existing public right of way if—
(a)
it was not shown in a definitive map and statement but was shown in a
25
list required to be kept under section 36(6) of the Highways Act 1980
(c. 66) (list of highways maintainable at public expense),
(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,
30
(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
(d)
it was created by virtue of use by such vehicles during a period ending
before 1st December 1930.
As can be seen two factors must be present before the right of way can be removed, the use of the word "and" is quite specific.
Clearly parts of the Ridgeway do fall under the remit of subsection 1 (a) but this alone is not enough to see the removal of the Right of Way and subsection 1 (b) must also be fulfilled.
The point of discussion is the word "immediately", interperatation of this word will be the foundation of justifying the removal of Right of Way. If the word immediately means the day before then it could well be argued that as the TRO was lifted on 1st May and NERC was introduced on 2nd May then the Ridgeway would have seen its highest use by vehicles "immediately" before the enactment, if however it means any othr period of time then the Ridgeway has a histroy of high vehicle use, hence the TRO's being applied to minimise winter damage.
Either way it will also be a requirement to prove the usage as defined in sub section (b) I would doubt that Oxfordshire County Council can produce accurate usage of the Ridgeway as there has never been any full survey of usage, please bear in mind that the Right of Way exists unless it "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." It will be up to Oxfordshire County Council to prove the usage fulfilled subsection (b) or the Right of Way must remain.
