If Members have not been advised of the broader implications, then HCC is leaving itself open to Judicial Review and or a complaint to the LGO

Maureen Comber writes to Hampshire County Council

With regard to your email it may be that there is every reason to delay the decision by the Executive Member. For a start this piecemeal approach to an eventual permanent TRO has been neither transparent or open.

I imagine the Officers report to him will focus on a partial ban, which as you say is supported by just about everyone. The indecision with regard to a total ban for all mpv's has come about by what seems to me to be a concerted campaign by the Trail Riders from as far away as Scotland? Therefore, will it not be confusing or even misleading for Members, if they do not comprehend or are not advised of the whole scenario?

For example will they be told:

That at a later date they will still have to decide the question of use by motor bikes whose so called rights are in fact very questionable?

That the decision to be made is partial because local residents were not invited or involved in the meeting of 9th January 2012? That at that meeting there were besides two County Councillors, a member from the HCLAF whose interests are predominantly to do with motor vehicles, even though LAF Members are not to be concerned with individual cases, three other trail riders and four HCC officers? That four Parish Councillors from two parishes were present while the third Parish Council Binsted which is where most of the residents live was not notified or invited to the meeting?

That option 2 to restrict all motor vehicles noted in the minutes of the meeting of 9th January 2012, is not repeated as an option in Vicky's email which describe HCC's proposals?

Nevertheless it is minuted that for Option 2 there is not good evidence to restrict motor cycle use, and that decision could leave the Council open to a legal challenge? I believe that to be misleading as there are indeed many reasons to support Option 2, not least a concerted opinion in favour of it by local residents who live on or close to Cradle Lane. However my main concern is that at the top of page 2, the minutes record a proposal to restrict all motor vehicles which had been approved by HCC's Executive Member.

This approval dates from 2008 when the first TRO was applied for under Sec 14 of the Road Traffic Regulation Act 1984, as follows:

a) Period of Closure from 11th November 2008 for a period of 21 days. Road to be closed to vehicles only.

b) Period of Closure from 2nd December 2008 until 10th May 2009. Road to be closed to vehicles only

c) Period of Closure from 11th May 2009 for a period of 6 months or until the completion of the works whichever is the sooner. Road to be Closed

d) Period of Closure from 11th November 2009 for a period 9 months or until the completion of the works whichever is the sooner.

e) Period of Closure from 11th August 2010 for a period of five days or until the completion of the works whichever is the sooner

f) Period of Closure from 16th August 2010 for a period of 6 months or until the completion of the works whichever is the sooner

g) Period of Closure from 16th February 2011 for a period of six months. Road to be closed.

Pedestrians and cyclists are exempt from this restriction. After 16th May 2011, this restriction will be lifted for horse riders (unless otherwise advertised), but will remain in place for other prohibited users.

In fact the works to the lane did not start until October 2010 and took until approximately the end of December 2010. Therefore seven (by now possibly 9) temporary TRO's in the space of four years seems to me to be excessive and not to comply with sec.15 of the RTRA 1984 which expressly states that

"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, 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 on which it comes into force." In addition it is stated that the road must not be closed once the work has been finished i.e December 2010.

9. I therefore question the logic by which HCC Officers have reached their decision to now advise the Executive Member to alter his original intention to restrict the use by all motor vehicles on Cradle Lane to only partial restriction so as not to include motor bikes, because surely 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 this Act, has the sole effect of reproducing the provisions of the temporary order and continuing them in force?

So the question has to be asked as to whether there was any involvement of the Secretary of State or whether HCC were just making the Orders off their own back?

10. If this was not the case, on what grounds the Secretary of State was extending the time limits on the temporary TRO's, since the work was started and finished in approximately two months at the end of 2010?

11. I also note that the SOS will not give permission to extend the closure if there is pedestrian access to property. I can say that as an adjoining landowner with such an access, permission has only been sought for the first three month temporary TRO. Since then there has been no request from HCC to either my husband or myself to extend the temporary TRO's. Why have adjoining landowners not been asked for their consent for the subsequent closures?

12. Not only this but as I have pointed out to the Officers on more than one occasion, Cradle Lane is now a section of The Shipwrights Way which is advertised as a long distance route for non-motorised users. To include motorised vehicles on any section of this must present an unacceptable health and safety risk, given the acknowledgement that there has been significant damage to this route in the past, the narrowness of the route and the fragile clay subgrade? Has a verifiable risk assessment been done and if so by whom?

13. Has the Highway Department been involved in this proposal as they are ultimately the responsible authority?

14. In addition I have produced evidence from the Binsted Inclosure Map and Awards that in fact only the top half of Cradle Lane which passes the houses, is in fact public highway. HCC seem to acknowledge this since over the years they have only maintained with tarmac, that section of the road?

15. HCC themselves upgraded Cradle Lane from a RUPP to a BOAT during the 1980's and I have asked for the evidence base that supported the upgrade, to be produced, or indeed any evidence that supercedes the 1857 Act of Parliament. Sadly I have received a flat refusal and a suggestion that I should make a claim!!

16. Upon making an EIR request for the information I was referred to the Definitive Map as the basis of verification for vehicular rights but as this can and probably is incorrect, I feel that was a somewhat facetious reply.

17. You informed me that HCC were under a duty to correct the Definitive Map and Statement if it was found to be inaccurate, so perhaps you could advise me if that is not the case? I have provided evidence from the 1857 Act of Parliament that Cradle Lane appears to have been stopped up and in fact have actually seen evidence of this, and yet no attempt has been made to provide documentation in rebuttal other than to again point in the direction of the Definitive Map.

18. I have of course not seen the officers report to the Executive Member but the minutes of the meeting appear to suggest it will be based on only two points, which are the possible damage to the surface of Cradle Lane and the otherwise questionable rights for motor vehicles of however many wheels.

I wonder if the Executive Member has been asked to consider that "as a matter of policy and good Practice the authority should be able to demonstrate that there was a reasonable risk of the Damage occurring which the traffic regulation orders would prevent.

Traffic Regulation Orders (TROs) are made by local traffic authorities under Section 1 of the Road

Traffic Regulation Act 1984 to restrict or ban the use of certain highways including public rights of way. TROs can be made for a variety of reasons, including:

• preventing damage to the right of way;
• preventing use by vehicular traffic of a kind that is unsuitable having regard to the character of the way;
• preserving the character of the way in cases in which it is especially suitable for use by people on horse-back or on foot;
• preserving or improving the amenities of the area through which the way runs; and
• conserving natural beauty, including flora, fauna and geological and physiographical features.

Permanent traffic regulation orders need to be supported by evidence that the order will achieve
One (or more) of the following outcomes:

• Avoid danger to persons or other traffic using the road;
• Prevent damage to the road or any building on or near the road
• Facilitate the passage of any kind of traffic (including pedestrians);
• Prevent unsuitable use by vehicular traffic;
• Preserve the character of the road in cases where it is particularly suitable for horseback or on foot, or preserve or improve the amenities of the area through which the road runs;
• Conserve or enhance the natural beauty of the area. This includes conserving flora and fauna, and geological or physiological features.

Because if Members have not been advised of the broader implications, then HCC is leaving itself open to Judicial Review and or a complaint to the LGO?

I look forward to hearing from you with the answers to my questions above.