Agenda No.
1
HERTFORDSHIRE COUNTY COUNCIL
development control Committee
tuesday 20th OCTOBER 2009 AT 10.00 A.M.
NORTH HERTS DISTRICT – KINGS WALDEN BYWAY OPEN TO ALL TRAFFIC [BOAT] 48 – ‘DEAD WOMAN’S LANE’ – REVIEW OF MANAGEMENT MEASURES
To review the management measures available to protect the surface of Kings Walden BOAT 48 to assist users of this right of way
Local Member: Nigel Brook
Report of the Director of Environment and Commercial Services
Author: Richard Cuthbert – Head of Rights of Way Tel: 01992 555292
1 Purpose of the report
1.1 The Committee is asked to consider the management measures available to protect the surface of Kings Walden BOAT 48 (Dead Woman’s Lane) in the light of this Authority’s duty to assert and protect the rights of all users under Section 130 Highways Act 1980.
1.2 In 2005 Preston Parish Council requested that a permanent Traffic Regulation Order (TRO) be made for Kings Walden BOAT 48. The TRO would have had the effect of preventing use by parallel axle vehicles (e.g. cars, 4x4s etc), while allowing motorcycles, horses, cyclists and walkers to continue to use the route. The request led to a report being prepared for the Development Control Committee of 12 July 2005 covering the management measures available. The officer recommendation was not to make a TRO but to carry out resurfacing works. However, members requested that officers proceed with the making of a TRO. This was duly drafted and advertised. The strength of the objections received led officers to conclude that the TRO could not be successful and it was therefore not pursued further.
1.3 Solicitors acting for Preston Parish Council have recently asserted that the decision not to pursue the TRO should have been referred back to the DCC for consideration and have requested that the matter is now considered by this Committee. In normal circumstances the options for dealing with such matters are as follows;
(i) under the scheme of delegation to officers
(ii) via a report to the Executive member
(iii) via the relevant Joint Member Panel
Nevertheless, in view of the history of this case, and in order to bring this matter to a conclusion, it is considered to be expedient to bring this case to this Committee.
2. Summary
2.1 The route, known as Dead Woman’s Lane, is shown on the Definitive Map and Statement as a Byway Open to All Traffic (BOAT), available for all users in vehicles, on horseback, cycles and on foot. There are approximately 186 such routes in Hertfordshire, covering about 97 miles (only about 5% of the total rights of way network). While it is listed as Kings Walden BOAT 48, the lane forms the parish boundary with Preston parish and is physically closer to Preston village, hence their interest in this case.
2.2 HCC, as the Highway Authority, has statutory duties to:
· Assert and protect the rights of all legal users to pass and repass along a highway and
· To maintain the surface of publicly maintainable highways in a reasonably passable condition for the ordinary traffic of the neighbourhood at all seasons of the year.
2.3 This lane has a history of surface problems from at least the 1950s due to the thick clay over which it runs (see Photograph 1 in Appendix 1). In more recent years the use of the route by off-road vehicles (mainly recreational but also agricultural) has added to deterioration of the surface of the lane. The lane has been harrowed and rolled on several occasions and re-seeded with grass, as a method of repairing the surface to make it more useable for users of all abilities (see Photograph 2 in Appendix 1), only for it to deteriorate again shortly afterwards. Even with non-motorised use the surface deteriorates, especially in wet weather. Sympathetic, harder surfacing as used extensively across the rights of way network would be an alternative solution to this problem, but Preston Parish Council has vehemently opposed this.
2.4 The tried and tested approach to solve the problem, favoured by officers, is to repair and reinforce the route with a harder surface. However following consultation, residents expressed their concern with this option and requested that other measures be tried first, specifically the introduction of a TRO. As well as their view that a new surface would detract from the route’s character they feel that it may also lead to increased traffic speed, traveller encampments and increased use by joy-riders.
3. Conclusions and Recommendation
3.1 In line with national guidance (Defra’s ‘Making the Best of Byways’) and by using materials which blend into the countryside over time, it is considered that the county council would be able to satisfy its statutory duty to assert and protect the rights of all legal users to the use and enjoyment of the lane by improving the surface of the BOAT. Experience elsewhere in the county of byway surfacing demonstrates a dramatic improvement in the robustness of the surface. It is also observed that a fall in vehicle use often follows, due to the challenge of a poor surface being removed. Additionally, a well surfaced route allows greater use by a wider ranger of users i.e. those less able to negotiate muddy or rutted tracks are afforded better access to the countryside.
3.2 It is therefore recommended that the Director of Environment and Commercial Services be authorised to carry out surfacing works to Kings Walden BOAT 48 and that thereafter the route be monitored.
3.3 In the event that further protective measures are required, the Director of Environment and Commercial Services be authorised to consider alternative measures, including a Traffic Regulation Order.
4. Background
4.1 Dead Woman’s Lane has a history of surface problems dating back to at least 1952 from records on file, to the extent that it can become very difficult to negotiate for parts of the year. It is therefore not a recent phenomenon which can be blamed solely on modern 4x4 recreational use. The lane lies on heavy clay and is well shaded by trees in several sections. There is no doubt that the increasing use of the route by off-road vehicles has added to the deterioration in the surface and the lane has been harrowed and rolled on several occasions to repair the surface, only to deteriorate again afterwards.
4.2 Consultation with local residents since 2002 about putting a new surface on the lane led to requests for other measures to be tried first. In November 2002, a 'Voluntary Restraint' agreement was trialled (an agreement with the formal user groups to avoid using the route) and the surface was harrowed and rolled. In September 2004 ditches were created alongside the lane to improve the drainage and the surface was once again harrowed and rolled, with a cross-fall to aid surface water run-off. The nature of this lane and the consequent effect that traffic, including vehicular use has on its surface, makes drainage alone an inadequate management solution.
4.3 Gates were installed and locked at the access points for vehicles and horses to enforce a temporary TRO and the lane was reseeded following a request from Preston Parish Council. Officers’ recommendations that a harder surface be applied to the lane to alleviate the problems, concurrent with HCC RoW policy 13, best practice and Government guidance, met considerable objection from the Parish Council and some local people. There were and are still concerns that surfacing will detract from the lanes character and may lead to increased traffic speed, more fly-tipping, traveller's encampments and increased use by joy-riders. Suitable measures can be taken to deter fly tipping, joy-riders and travellers encampments, such as leaving a short distance at each end of the lane unsurfaced and therefore less conspicuous for misuse. Concerns over increased speeds of vehicles on a surfaced route have not been borne-out elsewhere in the county, as few complaints have been received over the many years that the RoW Service has been maintaining byways in this way.
4.4 In 2005 Preston Parish Council submitted a 100+ signature petition requesting a TRO which was presented at the Development Control Committee meeting on 12th July 2005. The outcome of the Committee’s debate was that Members decided not to follow officer recommendations and requested the Director of Environment proceed to make the TRO. After the TRO was drafted and advertised there were 8 formal objections to the proposal. However, the strength of objections led officers to conclude that the TRO should not be pursued further.
Legislation, Guidance and Policy
4.5 The Road Traffic Regulation Act 1984 gives HCC the powers to make TROs and the use of such powers is guided by Defra Circular 1/09 and publication 'Making the Best of Byways'. Both of these advise local authorities to try other management measures and, where these have failed, or are deemed inadequate, to use a permanent TRO. Officers are concerned that should a permanent TRO be granted alone, motorcycle, horse, cycle and pedestrian use of the route will still lead to a deterioration of the surface, resulting in future surfacing work still being necessary.
4.6 In December 2007 the Environment Scrutiny Committee made recommendations regarding this area of work aimed at:-
· reducing levels of ongoing consultations, where areas of local opposition led to delays to accepted management procedures,
· introducing harder surfacing of routes to provide for year-round access for all.
The April 2008 Highways & Transport Panel endorsed these recommendations (Appendices 2 and 3).
4.7 In light of the above, it is considered that the best course of action would be to improve the surface with the use of permeable materials, capable of sustaining plant life, which therefore blend into the countryside as grass and plants spread. This course of action is recommended in order to satisfy the County Council’s statutory duty to assert and protect the rights of all legal users, including able and less-able walkers, cyclists and horse riders. Local people would rather the lane is not surfaced for the reasons highlighted above, but experience elsewhere in the county of byway surfacing, demonstrates a dramatic fall in vehicle use due to the challenge of a poor surface being removed.
4.8 HCC has a duty under the Disability Discrimination Act 1995 (DDA) and the Countryside and Rights of Way Act 2000 to have regard to the needs of all users, both local people and visitors to the area, when undertaking appropriate management and maintenance of the public rights of way network. If a disabled user was prevented from using the route the Authority may also face the risk of a prosecution under the DDA.
4.9 HCC has a duty to assert and protect the rights of all users. Users could therefore currently serve notice on the authority under Section 56 of the Highways Act 1980 for the highway's surface being out of repair. If a member of the public injures themselves as a result of the surface being out of repair Hertfordshire County Council would be liable.
4.10 Environmental issues have been considered and the environmental impact of the resurfacing has been fully assessed. Both the county’s Historic Environment Service and Biological Records Service have been consulted and no known environmental sensitivities would be affected by surfacing works. The solicitors for Preston Parish Council have asserted that an Environmental Impact Assessment (EIA) should be carried out for such works but have so far failed to clarify under which regulations they make this assertion. Legal advice has been sought and it is considered that no EIA is required for such works.
4.11 Objections to TROs and their implications can be considered by the Joint Member Panels, albeit that officers have delegated authority to make such decisions. Solicitors acting for Preston Parish Council have alleged that officers acted unlawfully by not bringing the decision to discontinue the TRO process started in 2005, back to DCC for consideration. However, despite various requests they have not explained on what basis they make this assertion. The Officers’ decision not to proceed with the TRO following the receipt of objections was based on the considerable risks of a legal challenge from objectors and the likelihood of losing such a challenge. The view of officers remains the same but constant objections from Preston Parish Council to the resurfacing works taking place has meant that the route remains difficult to use for large parts of the year. In an attempt to resolve this matter officers have concluded that further advice from the DCC would assist in deciding on the most appropriate way forward.
5 Consultations and Representations.
5.1 The TRO which was suggested in 2005, to be placed on this route, would have had the effect of preventing use by parallel axle vehicles (e.g. cars, 4x4s etc), while allowing motorcycles, horses, cyclists and walkers to continue to use the route. Motorcycles are thought to do less damage to the surface of this lane than 4x4s, as they weigh less and do not create such deep or wide ruts. The TRO was therefore drafted to ban heavier vehicles, while other users would still be able to use the lane. The criteria for making a TRO are set out in the Road Traffic Regulation Act 1984, section 1.
5.2 After the Order was drafted and advertised there were eight objections to the proposal. In summary they were as follows:
a) Lack of evidence, lack of reported safety issues, lack of accidents. Other options available.
b) Lack of safety grounds, condition acceptable, manipulation of data.