Update regarding the Restricted Byway

The Parish Council has today received legal advice from NCC that confirms that obstruction of the Restricted Byway by planters or motor vehicles is illegal.

Therefore the planters will be moved while the situation is clarified.

 

Information from Norfolk County Council (dated Wednesday 1st April) is as follows:

 

Further to the issues surrounding the recent placing of planters within Horning Restricted Byway 4, hopefully the following should clarify the situation sufficiently.

There are essentially two aspects to the issue of parking and placing planters in the restricted byway which I will outline separately; these are the issues surrounding highway and private rights/ownership. 

Highway

The Staithe is registered on the definitive map and statement of public rights of way as Horning Restricted Byway 4.

A restricted byway is defined under Section 48(4) of the Countryside and Rights of Way (CROW) Act 2000 as a public right of way on foot, horseback or in a vehicle other than a mechanically propelled vehicle and therefore does not include public use in a motor vehicle.

Under Section 34(1)(b) of the Road Traffic Act (RTA) 1988 a member of the public driving a mechanically propelled vehicle on a restricted byway who is not exercising a private right is committing an offence.  In the instance of such an offence being committed any action against the offender should be referred to the police.

A restricted byway is a public highway and is maintainable at the public expense to a level commensurate with its public use – i.e. it is not publicly maintained to enable use by vehicles as there is no public right to do so.  The exact extent of the public rights on Horning RB4 are currently being researched and should be complete in the next day or so, however it is certain that the planters are within the extent of the public highway.

Any objects placed in the restricted byway to prevent use or parking by vehicles would constitute an obstruction of the public highway unless they were licensed by the highway authority.  As private rights also exist over the restricted byway it may be difficult for the highway authority to issue such a licence without adversely affecting the exercise of private rights, therefore licensing such structures may not be possible.

Private Rights / Ownership

Owners of any land accessed using Horning RB4 are likely to have a private right to use mechanically propelled vehicles along the route to access their property.  This may be a long standing right or one conferred by Section 50 of the CROW Act 2000, however it is not the role of the highway authority to establish the existence of private rights, advise on them or enforce them.

In the absence of evidence to the contrary, under common law a landowner adjacent to the route will own up to the centre of the route.  This does not allow the owner to take any action which would restrict any public or private rights that exist along the route although it may allow for an owner of land to park on land in their ownership in exercise of their private right as long as sufficient access was maintained to pass by the public and private right holders.  It may not allow a landowner on the route to park on part of the route adjacent to another land owner’s property without permission, again however, this is not an issue to be resolved by the highway authority.

The maintenance of the route for vehicular traffic is the responsibility of the adjacent landowners who hold the private vehicular right as it is a higher level of maintenance than that required for maintaining the restricted byway.

The section of the route adjacent to the green is also registered common land; register unit CL116.  It is unclear whether, as common land, any structure erected on the land may require permission from the Secretary of State under Section 38 of the Commons Act 2006.  As the highway rights predate the common’s registration the highway rights would likely take precedence and so such permission may not be an issue.

To summarise, the planters are an illegal obstruction in the public highway and the highway authority may not be able to licence them as there also exist private vehicular rights over the route which may be adversely affected by such obstructions, they will therefore need to be removed.  Private vehicular rights along the route likely exist for adjacent landowners although parking may only be possible on land in their ownership and as long as it does not obstruct use of the route, this is a private issue and not one for the highway authority.  The land adjacent to the village green on the route where the planters have been erected is likely to belong to the parish council as owner of the village green, any parking by the public on this part of the route can be referred by the parish council to the police if the parish council is minded to do so as it would likely constitute an offence under the RTA 1988 as set out above.  The parish council cannot take any action on the land which would obstruct the restricted byway

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