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Threats to Green Lanes - Professor  J.W. Dover

A source of information on the threats facing Green Lanes is available by Professor  J.W. Dover, Department of Biological Sciences, University of Staffordshire,  at:- http://www.britishecologicalsociety.org/grants/reports/1779.php

He states (specifically in Cheshire) for example: “There has been some concern concerning the potential for off-road driving activities to cause damage to green lanes (Dover et al., 2000). This does not appear to be a significant factor in green lane condition in the Cheshire lanes surveyed, with farming activities more likely to cause churning of the track. Recreational activities whether caused by vehicles, horse-riding or walking affected only 9% of the green lanes examined (Table 2). Interestingly, some of the green lanes appear to be threatened by neglect, if these remain unmanaged they may well become linear woods rather than green lanes. A preliminary inspection of the botanical data indicated a different, and impoverished, mid-line flora compared with the banks, but also that the mid-line flora contained some species not found in the banks. Moderate disturbance of the track is likely to be beneficial for overall botanical species richness and may provide micro-habitats for invertebrates using bare-earth habitats.”

Benefits to unusual species by occasional vehicular use. - Oliver Rackham

Authorities such as Oliver Rackham have identified benefits to some unusual species by occasional vehicular use. Studies have shown certain diverse habitats are caused by activities especially beneficial to some varieties of flora. 

Ecological Notes:

Verges are especially important where old grassland is now rare, and plants such as cowslip, knapweed, rock-rose and hay-rattle, oat-grass, kex or cow-parsley are more common on roadsides than in field hedges, hedge garlic, black horehound and (rarely) native grape hyacinth thrive best on roadsides. Some depend on recent disturbance, Conium maculatum, and the rare Verbacum pulverulentum.  Ragged Robin (Lychnis flos-cuculli), Devil's bit, and Pimpinella major are ideally suited to woodland glades, or where ancient roads coincide with ancient woodlands.  Earthen road surfaces support certain plants that withstand traffic; Juncus articulatus and bufonius, and creeping buttercup grow in ruts and  sloughs.

A very special habitat depends on vehicles using centuries old tracks very infrequently, and is in danger of being lost through complete disuse of the tracks. Plants at risk include mousetail, myosurus minimus, fleabane Pulicaria vulgaris (in 1660 was "in many watery or moist places of the highways"), Cornish Moneywort, Sibthoria europaea, and Pilularia globulifera, and several aquatic buttercups.”

Obstructions to Highways - Legal precedents of note.

1. Vanderpant v Mayfair Hotel Co (1930) 1 Ch. 138 at 152:
An encroachment on a highway is by common law a public nuisance. It is no defence that the obstruction is made on a part of a highway which is not habitually or ordinarily used for passage. It is no defence that the obstruction is in other ways productive of public benefit, and however reasonable may be the use of a highway by an owner of adjoining premises the public right is a higher right than his and he must yield to the public right.”

2. Harvey v Truro Rural Council (1903) 2 Ch.638 by Joyce J:
in the case of an ordinary highway running between fences, although it may be of varying and unequal width, the right of passage or way prima facie, and unless there be evidence to the contrary, extends to the whole space between the fences, and the public are entitled to the entire of it as a highway, and are not confined to the part which may be metalled. All the ground that is between the fences is presumably dedicated as a highway unless the nature of the ground or other circumstances rebut that presumption.

It is an established maxim that ‘once a highway, always a highway’. The public cannot release their rights. Mere disuse of a highway cannot deprive the public of their rights. Where there was once been a highway no length of time during which it may not have been used will preclude the public from resuming the exercise of the right to use it if and when they think proper. Even if the highway authority had actually consented to any obstruction or encroachment upon the strip being part of the highway, such consent could not legalise that which was otherwise illegal. ...”

3. R-v-Surrey CC ex parte Send Parish Council (1979) Lane LJ:“

The local authority must at all times act with the object of protecting the highway and of preventing or removing any obstruction, and more broadly speaking, of promoting the interests of those who enjoy the highway or should be enjoying the right of way and the county council must likewise operate against the interests of those who seek to interrupt such enjoyment of the highway.”

4. Seekings v Clarke – (1961)  Parker LCJ:“

"It is perfectly clear anything which substantially prevents free access over the whole of the highway is an unlawful obstruction"

5. R v Mathias (1861)  Byles J:“

"A nuisance to a way is that which prevents the convenient use of the way by passengers"

6. Bateman v Burge (1834):“

If a fence or wall is erected, or a hedge is planted, in such a way that the pre-existing width of a right of way is reduced, the fence, etc, constitutes an obstruction.”

7. Bagshaw v Buxton Local Board of Health (1875):

At common law a highway authority is under a duty to seek, prevent and remove obstructions.

8. Abel v. Stone (1969) Lord Chief Justice Parker

“The case of Gully V Smith (1883) makes it perfectly clear that there can be a wilful obstructing of free passage by an act of omission as well as an act of commission and where, as here, a notice has been given of requiring the obstruction to be removed then failure to comply with that notice is evidence of a wilful obstruction...... for my part I am quite satisfied that a wilful obstruction of this sort is a continuing offence and certainly occurs whenever there is failure to comply with a notice.”

Highway Act 1980:

130.--(l) "It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of anyhigh-way for which they are the highway authority, including anyroadside waste which forms part of it."

The important word in s130 is DUTY. A duty cannot be prioritised and there are no excuses for not carrying it out. It must happen, and it must happen before a power is exercised. For example, an authority may have a power to divert a highway or to impose traffic management but these are only options. Repair and removal of obstructions are duties that must happen before management options are used. It is unfortunate that some authorities will often use a power to prevent use of a way rather than repair and make good for all users.

Government Circular 1/83 Para 20

It is important that public rights of way should remain unobstructed and open for public use the Secretary of State looks to authorities to ensure that any obstructions they discover or have reported to them are removed without undue delay….. s143 … secure the removal of obstructions…..s154 to cut back trees, hedges, or shrubs which overhang paths.”

Kippling on neglect of highways:

"There was once a road through the woods
Before they planted the trees.
It is underneath the coppice and heath,
And the thin anemones.'
Only the keeper sees
That, where the ring-dove broods,
And the badgers roll at ease,
There was once a road through the woods."

Economy:

Tourism figures show revenue from RoW exceeds the cost of clearance by 20 fold. (CCW Report May 2003 cost to clear £26M, cost benefit of RoW £548M p.a.)

A Rhayader Town Councillor stated “"There are two things that keep Rhayader afloat through the winter. Walkers and Trail Riding. Walkers bring their picnics, Trail Riders bring their wallets".”

Michael Meacher on 5 February 1998 when launching the DETR publication,  "Making the Best of Byways":

"There  may be a need for better management of byways at local level...... However,  we have found no compelling evidence of widespread problems being caused by  recreational use of motor vehicles on byways and have concluded that there is no case for a general ban”

DEFRAs  Consultation on RoWiP Dec2001:(page 19)

"It is important that proposal for improving rights of way should not unduly benefit one class of user at the expense of another. In particular, improvements that are intended to benefit cyclists, harness-horse drivers, horse riders or walkers should not restrict lawful motorised use of public vehicular rights of way."

An Independent DEFRA Inspector concluded in a recent report (PInsp Ref RAE/980632):-

• Byways should be available for use by everyone and all forms of traffic (although it may not necessarily be safe or physically suitable)
• that lawful, reasonable use should be accommodated wherever possible
• the onus is on the Council to justify the need to take away or suspend potential user’s public rights of way by means of a Traffic Regulation Order
• Rights should not simply be taken away simply to avoid any maintenance obligations of the Council
• Councils should recognises that horse riding, trail riding, pedal cycling and using other vehicles on unsurfaced tracks are recreational activities (if not sports) which should be catered for if possible
• the Council should take, and be seen to be taking a positive attitude towards those who enjoy such recreational activities and in the knowledge that generally there will be limited opportunities and locations
• that the standard moves with the times and has to be considered in the context of the 21^st Century traffic, and not just 19^th century traffic.
• that it will not be suitable for all types of traffic, that consideration must be given to the type of traffic that would reasonably be expected to use it, the state of repair that a reasonable person would expect to find it in.
• that the road should be maintained to meet the use which is normally made of such roads throughout the year, and to harmonise with the general character of the road.
• that highway authorities, landowners and user groups should endeavour to work together in a spirit of co-operation and agreement so that any potential conflicts in the use of BOATs can be resolved by management measures is the main thrust of Making the Best of Byways and Circular 2/93, there are a wide range of possibilities to be fully examined before public rights are taken away or suspended.
• that highway authorities, landowners and user groups should work together in a spirit of co-operation and agreement so that potential conflicts can be resolved by management measures.
• 'Making the best of Byways' makes it clear there is a wide range of possibilities to be fully examined before the rights of the public are taken away.
• Councils should adopt the Spirit of 'Making The best of Byways'

An Independent judgement on an application to close three highways by Leominster Magistrates Court

• There are a finite number of ancient highways .. Nationally
• As their availability reduces what remains, becomes ever more precious.
• There was evidence these highways are dwindling nationally, from neglect as much as anything.
• We were impressed by the efforts of several groups in preserving these ancient highways
• LJ Wolf reminds us that stopping up will render the other ways available more crowded
• Green Lanes are a scarce and precious resource.
• It is clear there are people who wish to use them and use them responsibly.
• If use is spread amongst the existing green lanes that will minimise the effect on them all.
• We have noted the particular concern that removing vehicular rights from these highways would have the effect of reducing access to the countryside for the disabled.
• It is clear that it is only in "off-road" vehicles that the disabled can access these difficult terrain highways.
• It would be quite wrong to deny them that access to what is a beautiful part of Herefordshire.
• There was evidence of limited use by "off road vehicles but there was no evidence of any resulting environmental damage.
• The evidence suggests that there will be no environmental damage from the likely light recreational use of these highways.
• We were impressed by the codes of behaviour and the responsible approach to the use of vehicles.
• We are concerned that illegal blocking should be used as part of the justification to close these highways permanently.

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