Cradle Lane and the excessive use of TRO’s
by Hampshire County Council
Maureen Comber writes to Damian Hinds MP for East Hampshire.
- Hampshire County Council appeared to be acting forcefully and autocratically to various issues arising from the way in which they were dealing with the problems affecting Cradle Lane
- Naturally as a taxpayer I do not expect to Judicially Review the many false representations and abuses of office that Hampshire County Council incur. What I do expect is openness, transparency and accountability rather than being threatened with the application of their policy of unreasonable complainant behaviour or the implication of being a vexatious nuisance.
- I say it is my democratic right to ask the questions until I am satisfied with the answers, so I would now ask why Hampshire County Council Countryside are not complying with the law?
- I wonder if these matters need to be reviewed by the Minister for Social Justice who should be asked “How can the ordinary man maintain his rights in law if he is not supported by it and it is not enforced.”?
Says Maureen Comber
Thank you very much indeed for at last obtaining a response to my complaint formally made to Judith Downing, Head of Information Compliance on 22nd February 2012.
I had also tried to address the various problems through contacting by email, Emma Noyce who is employed as Head of Countryside at Hampshire County Council, copied to County Cllrs Keith Chapman, Cllr M.J. Kendall, Cllr. Ferris Cowper, Cllr Adam Carew. The email is dated 7.3.2012.
Hampshire County Council appeared to be acting forcefully and autocratically to various issues arising from the way in which they were dealing with the problems affecting Cradle Lane. I have to say that this is by no means the only time in which they have been seen to cherry pick legislation in order to support whatever decision they have made with regard to a variety of matters.
The present difficulty is an excellent illustration of this fact because they stated that they were working under Sec. 14 RTA 1984. However sec.15 of this Act expressly states:
1) Subject to subsections (2) (3) and (5) below, an order under section 14 of this Act shall not continue in force-
a) If it is in respect of a footpath or bridleway, cycle track or byway open to all traffic, for more than six months; and
b) In any other case, for more than eighteen months from the date in which it came into force.
And yet there have been at least nine consecutive TRO’s over a period of four years, 2008-2012.
No clear explanation for this has been given?
In addition it is stated that the expectation of the Secretary of State would be, that an Order which the authority that made the temporary Order proposes to make under any other provision of the Act, has the sole effect of reproducing the provisions of the temporary Order and continuing them in force.
As you can see from the documents enclosed by Mr Austin, the legislation has not been complied with. I have still not been told why that is?
The other point which they have refused to take up is that Cradle Lane, in common with hundreds of other such paths in Hampshire, was until 1987 designated as a Road Used as a Public Path (RUPP). Under Sec. 54 of the Wildlife and Countryside Act 1981, Hampshire County Council upgraded them all to Byways Open to All Traffic, during the 1980’s, on the prima facie evidence of use by motor vehicles.
As many of us pointed out at the time that was clearly the wrong criteria to apply. This was supported by a letter to all Chief Executives dated 22nd July 1997 from the Head of Countryside of the DOE which clearly stated. “…., vehicular rights cannot have accrued over any way recorded as a road used as a public Path through the use of vehicles on that way in the belief that its status conferred rights of vehicular access. A Road used as a public path cannot be upgraded to a byway open to all traffic on user evidence, unless 20 years' use can be shown to have accrued before the Road Traffic Act 1930 came into effect, or dedication can be shown to have occurred.”
There is also other documentary evidence which I had sent to them that Cradle Lane was never more than a bridleway. Surely this was a precipitous moment to correct the record and I would like to know why the opportunity was missed?
Naturally as a taxpayer I do not expect to Judicially Review the many false representations and abuses of office that Hampshire County Council incur. What I do expect is openness, transparency and accountability rather than being threatened with the application of their policy of unreasonable complainant behaviour or the implication of being a vexatious nuisance.
I say it is my democratic right to ask the questions until I am satisfied with the answers, so I would now ask why Hampshire County Council Countryside are not complying with the law?
It is settled law that where Parliament lays down a statutory requirement, it expects to be obeyed in the minutest detail. It does not expect any Local Authority to falsely represent the statutory requirement or adjust it in any way.
I would therefore like to be told when Hampshire County Council are going to apologise for the misery it has caused to many of your constituents over three decades, and to correct the record by modifying the Definitive Map so that the RUPP’s are correctly shown as bridleways rather than BOATS?
The classification of Restricted Byway introduced by the Countryside and Rights of Way Act 2000 was obviously not in use before that time so it may be that some might now fit into that category also.
It might be valuable to point out that the use of motor vehicles on these unmade tracks, before 1930 was extremely unlikely since motors were something of a luxury and not to be jeopardised by use on roads that were not properly surfaced. If there was any use at all it would not have been sufficient to obtain a prescriptive right.
What is evident is that when required by Parliament large numbers of paths can be re-defined within a few years rather than decades so it would not be unreasonable to ask Parliament to require HCC to put right their mistake with the greatest of urgency.
I am sorry that Hampshire County Council is concerned that I might be using my correspondence with you as a means to bypass the correct processes to challenge or complain about the County Council’s actions. That is an extraordinary comment to make since they well know that that the Local Government Ombudsman has already reviewed this case and suggested Judicial Review would have been appropriate.
Unfortunately there are only so many JR’s a taxpayer can make and surely the hope is that if the evidence is sound, notice will be taken without the requirement of invoking the law. Of course it follows in those circumstances that the time limit for JR is quite limited and the ability to use it therefore curtailed.
It surprises me that Hampshire County Council officers feel comfortable within the correct processes as they call them, and uncomfortable that they are being held to account by other means!
I wonder if these matters need to be reviewed by the Minister for Social Justice who should be asked “How can the ordinary man maintain his rights in law if he is not supported by it and it is not enforced.”?
I look forward to receiving the answers to my further questions and thank you again for your patience.