In April 2008 the Court of Appeal found for two landowners, Winchester College and Humphrey Feeds, seeking to save Twyford Down from damage by off-roaders.  But this was not just a local victory: it has national implications. 

“Once a highway, always a highway” is the foundation stone of highways law.  However, this produced an anomaly: if a public road used by horse and cart fell into disuse in the nineteenth century, it could later be revived for use by 4WDs and motorbikes.

In recent years, off-roading and trail-riding have become popular pastimes, resulting in significant damage to green lanes or Byways Open to All Traffic (BOATs), as they are designated.  Off-roading is known as “mud-plugging” for good reason. 

DEFRA introduced a Bill in 2005 which addressed the anomaly, by extinguishing all BOATs that had not been recorded.  Evidence of a BOAT would, in future, give rise to a Restricted Byway, allowing use on foot, on horse and with horse and carriage.  But what of the hundreds of applications to recognise BOATs already made by off-roaders, but not yet decided? 

Parliament determined that the Natural Environment and Rural Communities Act 2006 should be commenced immediately, with a cut-off date for outstanding BOAT applications.  If they had been made before 20 January 2005, vehicular rights would be saved from extinguishment.  If they had not been so made or did not fall into a small number of other categories, those rights would be extinguished. 

But what qualified as an application for a BOAT? 

Winchester College and Humphrey Feeds argued that applications to upgrade rights of way across Twyford Down to BOATs were not properly made before 20 January 2005: they were not made in the correct form and did not, therefore, save vehicular rights from extinguishment.

The Court of Appeal agreed: if an application was not made in the correct form, with a scaled map and supporting copy evidence, it could not save vehicular rights.  The applicants at Twyford Down had not appended the supporting evidence: any BOAT that might have existed was extinguished.

County councils have waited patiently for this judgment, so that they can correctly decide the hundreds of outstanding BOAT applications.  Many such applications were similar in form to the Twyford applications – ie, without supporting documents.  It is expected that, in the majority of cases, BOAT rights will have been extinguished.  

This is good news: for the rural environment; for homeowners, whose properties have been blighted by the prospect of BOATs running through gardens or along drives; and for farmers, who have had the prospect of byways running through the middle of their premises, compromising security and biosecurity.  (438 words)

James Pavey is a partner of Knights Solicitors, whose practice comprises public and private law property litigation.  He acted for Winchester College and Humphrey Feeds.