Judge rejects challenge to how park authority decided against introducing traffic regulation order over off-road driving on two Lake District green lanes

A High Court judge has rejected a legal challenge to a decision not to impose a traffic regulation order (TRO) that would have stopped green lanes in the Langdale area of the Lake District being used for off-road driving.

The challenge was brought on behalf of campaign group Green Lanes Environmental Action Movement ("GLEAM"), an unincorporated association which campaigns to protect green lanes and the rights of walkers and others to use them without danger, difficulty or inconvenience.

Lake District National Park Authority was the defendant, while Cumbria Council – the highway authority for the two highways known as Tilberthwaite Road and High Oxen Fell Road – was the first interested party. The Trail Riders Fellowship was also an interested party.

Parts of these highways are unsealed (or unsurfaced), and in 2017 a project was initiated between the defendant, the county council and the National Trust to establish the most appropriate long-term management solution for the unsealed sections of these roads, including assessing the relevance of a TRO.

Having analysed the evidence obtained during the course of this project, the question of the future management of the unsealed sections of these roads was reported to the defendant park authority's Rights of Way Committee on the 8 October 2019.

An Assessment Report was presented to the members of the committee to assist them in the decision that they needed to reach. The members decided to adopt the recommendation put to them in that report which included the conclusion that it was inappropriate to impose a TRO at the time.

In Stubbs (on behalf of Green Lanes Environmental Action Movement) v Lake District National Park Authority & Ors [2020] EWHC 2293 the claimant advanced three grounds of challenge.

The first was the contention that the defendant failed to properly interpret and apply section 11A(2) of the National Parks and Access to the Countryside Act 1949 which is the section which seeks to enact the Sandford Principle, which states that "Where irreconcilable conflicts exist between conservation and public enjoyment, then conservation interest should take priority".

When officers advised the members that the need to prioritise the statutory purpose of "conserving and enhancing the natural beauty, wildlife and cultural heritage" of the National Park over that of "promoting opportunities for the understanding and enjoyment of the special qualities" of the National Park only arose when there was an "irreconcilable conflict" it was submitted that they misinterpreted and misapplied section 11A(2) of the 1949 Act.

It was said that this subsection refers only to "conflict" between the two purposes, and makes no mention of irreconcilable conflict. It was therefore submitted that the defendant imposed a higher threshold in relation to the triggering of this prioritisation than was warranted by a proper understanding of this section.

Grounds 2 and 3 of the judicial review were both related to the TRO procedure. Under ground 2 the claimant contended that the defendant failed to discharge the duty upon it under section 122 of the Road Traffic Regulation Act 1984, and failed to make a decision based upon the relevant mandatory considerations which needed to be taken into account. The defendant was in error when it contended that in making its decision it was not exercising a function under the 1984 Act. It therefore committed an error of law in reaching the decision.

Ground 3 was the submission that there was a misdirection in relation to the test for consultation under regulation 4 of the National Park Authorities Traffic Orders (Procedure)(England) Regulations 2007. Officers told members that they would need to be provided with details of a specific TRO proposal in order to meet the requirements to undertake a consultation under regulation 4 of the 2007 Regulations. It was argued that this was mistaken, because a consultation could have been undertaken on an in principle decision. The failure to advise members of the availability of consultation on an in principle decision, and the view that was expressed that a specific proposal was required, was both a misunderstanding of the relevant legislation and amounted to seriously misleading the members in relation to the decision which they had to reach.

Dismissing the claim, Mr Justice Dove said he was satisfied that the approach taken by the Assessment Report in the present case to section 11A(2) of the 1949 Act was a reliable and accurate interpretation of that statutory provision. He also rejected grounds 2 and 3 of the challenge.

In a statement GLEAM said it would be considering whether there were grounds for an appeal against the High Court ruling.

GLEAM Chairman Dr Mike Bartholomew said: “It is important to be clear about exactly what the Court was considering. It was not deciding, and we did not ask it to decide, whether off-roading on the two tracks should or should not continue, nor whether there should be TROs on the two routes. What we asked the court to consider was whether the way in which the LDNPA made its decision not to use its TRO powers was lawful.

“We are of course disappointed in the judgment, but it does not change the fundamental issue, which is that off-roading in Little Langdale is damaging the natural beauty of this part of the National Park, and that the LDNPA is refusing to stop the damage, even though it has ample powers to do so. Today’s judgment does not change the fundamental issue. GLEAM will be continuing to support the local campaign to get the LDNPA to make TROs on these two tracks.”