PAPER B

Purpose : for Decision

DECISION UNDER DELEGATED POWERS

DECISION CANNOT BE TAKEN BEFORE TUESDAY, 30 JANUARY 2007

Title : TENNYSON TRAIL TRAFFIC REGULATION ORDER

REPORT TO THE CABINET HOLDER FOR ENVIRONMENT AND TRANSPORT

PURPOSE

1. To decide whether or not to confirm the Traffic Regulation Order (TRO) banning mechanically propelled vehicles from the byway open to all traffic known as the Tennyson Trail.

OUTCOMES

2. The banning of motor vehicles from using the Tennyson Trail in order to protect part of the Island’s natural and historic environment.

BACKGROUND

3. The Tennyson Trail (“the Trail”) is a route along the downland ridge between Nodgham Lane, Carisbrooke and Freshwater Bay (see Map 1). It is recorded on the definitive map as a byway open to all traffic. This means that all motor vehicles have a right to use it by virtue of ancient established rights, but its primary use by the public is that of a footpath and bridleway. The surface of the Trail is unsealed.

4. The occurrence of damage to the Trail and property adjacent to it prompted the council to consider whether or not motor vehicle access to the Trail should be restricted by a Traffic Regulation Order (TRO). The police were consulted on 6 January 2006 and other interested parties on 23 March 2006. Having considered the responses to the consultation the council decided to advertise a draft TRO on 11 August 2006.

STRATEGIC CONTEXT

5. For its whole length the Trail passes through an Area of Outstanding Natural Beauty (AONB). Under the Countryside and Rights of Way Act 2000, in exercising or performing any functions affecting an AONB, the council is under a duty to have regard to conserving and enhancing the natural beauty of the AONB.

6. From the Jubilee Car Park to the Military Road at Freshwater Bay, a distance of about 4½ miles (sections 2 and 3 on Map 1), the Trail passes, for most of its length, through Sites of Special Scientific Interest (SSSIs). The council has a duty under the Wildlife and Countryside Act 1981, as amended by the Countryside and Rights of Way Act 2000, in exercising its statutory functions, to further and enhance the nature conservation interests of SSSIs.

7. The above mentioned SSSIs form an integral part of the Isle of Wight Downs Special Area of Conservation. Regulation 3(4) of the Conservation (Natural Habitats &c.) Regulations 1994 requires the council, as Competent Authority, to have regard to the requirements of the Habitats Directive so far as they be affected by the exercise of those functions with respect to European sites.

8. The protection of the Island’s natural and historic environment is a theme of the Council’s Community Strategy and Corporate Plan.

9. The Council’s Rights of Way Improvement Plan prepared under the Countryside and Rights of Way Act 2000 advocates managing the byway network through education, a code of conduct and partnership working with user groups and the police. This reflects the government’s statutory guidance on the preparation of Rights of Way improvement Plans which states “wherever possible proposals for improving rights of way should not unduly benefit one class of user at the expense of another. Improvements that are intended to benefit cyclists, harness-horse drivers, horse riders or walkers should not unduly restrict lawful motorised use of public vehicular rights of way” (Rights of Way Improvement Plans Statutory guidance to Local authorities in England; Defra 2002).

10. However, in the national context the government passed legislation in 2006 removing the right to use mechanically propelled vehicles on certain categories of highway known as roads used as public paths (it was already an offence to drive on a footpath or bridleway). But it decided not to extend the ban to byways open to all traffic (of which the Tennyson Trail is one), stating “where use by mechanically propelled vehicles is not sustainable, local authorities can use existing measures available to them to restrict or prevent vehicle use” (Use of mechanically propelled vehicles on Rights of Way; Defra 2005).

PRE-ORDER CONSULTATION

11. The Police

The police are opposed to a TRO on the grounds that there have been no recorded collisions on the route and their resourses are prioritised towards casulty reduction. Enforcement would be complicated by legitimate access to adjacent land. Educational, engineering and publicity measures are suggested.

12. Parish Councils

Brighstone Parish Council are in favour of a total vehicle ban except farm vehicles. Calbourne Parish Council are in favour of a TRO but wish to leave the details to the Isle of Wight Council. Freshwater Parish Council have suggested that only vehicles with licences be allowed to use the Trail, in daylight hours, with marshalling. Any vehicles using the Trail after dark would therefore be illegal.

Freshwater Community Initiative are in favour of a total vehicle ban on the grounds of preserving the character of the landscape, the surface of the Trail and the quiet enjoyment of other users.

13. Local Access Forum

Supports a year-round ban on all motor vehicles except for agricultural and forestry access.

14. AONB Partnership

Supports a year-round ban on all motor vehicles. Attempts to manage the impact of motor vehicles through the Tennyson Trail Task Group have not been successful and therefore the ban is sought on the grounds of protecting the landscape.

A separate response has been submitted on behalf of the Tennyson Trail Task Group. The group was unable to reach a consensus, but wished to acknowledge its appreciation of the contribution of off-road motoring organisations in promoting responsible use and the voluntary restraint exercised in wet weather.

15. Elected members

The member for Freshwater Afton supports a ban on 4WDs and the member for Shalfleet and Yarmouth supports a ban on all motor vehicles. Both make the proviso that access be preserved for landowners’ vehicles.

16. Statutory conservation agencies

Both English Nature and English Heritage support a total ban on motor vehicles on the grounds of safeguarding the protected sites adjacent to the Trail. This view is supported by the council’s Finds Liaison Oficer in the Archaeological Unit.

17. User groups

Representing non-mortorists, responses were received from: the Ramblers Association, Cyclewight, IW Carriage Drivers and Wight Orienteers. All are in favour of a total ban on motor vehicles although the Ramblers Association and IW Carriage Drivers say that access should be allowed for farm vehicles.

Responses were received from the following groups representing motorised users: IW Motorcycle Club, Trail Riders Fellowship, Vectis Island Pioneers Motorcycle Club and Vectis Landrover Club. They argue that a TRO would have little effect on law-breakers but would penalise law-abiding drivers. They acknowledge that vehicle use in wet weather causes the highest level of wear and tear and, should the council decide to make a TRO, a seasonal ban, rather than year-round exclusion is suggested. Motorcyclists argue that their machines do less damage than 4WDs so would prefer a weight restriction which allowed motorcyle use.

18. Landowners

Responses were received from: the Forestry Commission, the National Trust, Freshwater Bay Golf Club, Strutt and Parker, Col. McKenzie-Walker and Mr Michael Poland. All are in favour of a total ban on motor vehicles. In support of their arguments they cite incidents of damage to property (including protected sites) and disturbance to wildlife, livestock and other users.

The National Farmers Union requested a TRO following the killing of livestock in December 2005.

19. Other interested parties

During the consulation period thirty-three other people commented on the TRO issue: 29 in favour of a TRO and 4 against.

OBJECTIONS AND REPRESENTATIONS TO THE DRAFT TRO

In response to the advertisement of the draft TRO 76 letters were received,73 objecting to the order and 3 supporting it. In addition one of the landowners re-submitted his response to the pre-order consultation.

The Police, as well as advising against making the TRO, have formally objected to it. In addition to their concerns and recommended action set out above, they assert that the surface of the Trail is adequate for current levels of use (having been extensively repaired by the Council). Specific concerns about enforcement are expressed i.e. the difficulty of separating illegal use from legitimate access to land, and the burden of having to deal with applications for special access. The Council’s attention is drawn to the offroad task group set up by the police in 2005 which concluded that education was the preferred solution to reducing offroad vehicle abuse. The police have questioned the use of the term mechanically propelled vehicle expressing concern that this will disqualify disabled scooters, but that interpretation of the law is not accepted by council officers.

Other issues raised by objectors are as follows:

· Voluntary restraint should be tried before a statutory ban.

· A ban on mechanically propelled vehicles will not affect illegal use, but will penalise responsible users who form the majority.

· Non motorised users have stated they have only encountered courteous and responsible motorists.

· The TRO will prevent disabled, elderly and sick people from being driven along the Trail to enjoy the countryside.

· The Trail is an historic road.

· 95% of the Island’s rights of way network is available for walkers, whereas only 5% has to be shared with mechanically propelled vehicles.

· 4 x 4 drivers (including the less able) and motorcyclists come to the Island to drive the Tennyson Trail and contribute to tourism. The TRO will therefore affect jobs.

· Protected sites and private property could be fenced off to prevent tresspass and damage.

· Preservation of the character of the way is not a valid criterion; it already passess through a managed landscape.

· There is no evidence to show that damage to the surface is attributable to recreational vehicles as opposed to agricultural vehicles.

· The surface is robust and volunteers are willing to help maintain it.

· Allowing access to land will mean walkers and riders will still have to contend with motor vehicles, some, it is alleged, not being driven sympathetically.

· Tennyson Trail is safer for walkers and riders than some narrow country roads, so why are such routes not being subjected to a TRO?

· Education campaign(s) would foster harmony amongst user groups.

· The Trail should only be closed at night.

· Linking a TRO to criminal activity sets a precedent for other roads.

· The exemption for disabled scooters is not safe: the surface is inadequate, gates are awkward and isolation is dangerous.

· The Council has a statutory duty to maintain the route for all users, but only a power to restrict use by TRO.

· The more vehicles that use the Trail, the more it will be self-policing.

· A TRO is not a fair and proportionate solution to the problems of the Tennyson Trail.

· Government policy following the CROW Act recommends seeking harmonious use rather than restriction.

· Horses do more damage to the surface than mechanically propelled vehicles.

· The TRO will prevent the League Against Cruel Sports from monitoring suspected illegal hunting.

· Trained volunteers and CCTV should be used to deter illegal activity.

· The NERC Act 2006 has already reduced mechanically propelled vehicle access to the rights of way network nationally by 60% [although it has not affected the Isle of Wight (writer)]

· A 10 – 15 m.p.h speed limit should be imposed instead of a complete ban on mechanically propelled vehicles.

· Winter closure would be sufficient to preserve the surface of the route.

· Allow motorcycles as they do minimal damage.

· Event marshalling and rescuing stranded walkers and cyclists will be prevented.

· Defra research concluded TROs not effective against 60% of mechanically propelled vehicle use.

· British Ecological Society research concluded offroad driving not damaging to wildlife in Cheshire sample.

FINANCIAL/BUDGET IMPLICATIONS

20. All the options have financial implications. If the TRO is confirmed either as it stands or in a modified form, it will need vehicle prohibition signs at the entry points where the restrictions apply. The maximum cost of these signs (if the order is confirmed as it stands) would be £2,000 which could be met from existing budgets. However, this cost is likely to be off-set in the long run by a reduction in surface maintenance costs.

21. Other options such as developing an education programme, voluntary restraint and using volunteers will have an impact on officer time.

22. If Section 1 were to remain open to all traffic (see below) some minor excavations would be advisable at the eastern end of the Trail at a cost of £3,000.

LEGAL IMPLICATIONS

23. s22 of the Road Traffic Act 1984 allows the Local Authority to make a traffic regulation order (“TRO”) under s1 of the same act in respect of certain roads for the purpose of conserving or enhancing the natural beauty of the area, or affording better opportunities for the public to enjoy the amenities of the area or recreation or the study of nature in the area.

24. The roads in relation to which such TRO may be made are, amongst others, those in or forming part of, or adjacent to or contiguous with; an area of outstanding natural beauty;a nature reserve or an area of special scientific interest; a long distance route; or land held inalienably by the National Trust.

25. The reference to conserving the natural beauty of an area is to be construed as including a reference to conserving its flora, fauna and geological and physiographical.

26. A TRO may make any provision prohibiting, restricting or regulating the use of a road, or of any part of the width of a road, by vehicular traffic, or by vehicular traffic of any class specified in the order, either generally or subject to such exceptions as may be specified in the order and subject to such exceptions as may be so specified or determined, either at all times or at times, on days or during periods so specified.

27. However a TRO shall not be made with respect to any road which would have the effect of preventing at any time access for pedestrians, or of preventing for more than 8 hours in any period of 24 hours access for vehicles of any class, to any premises situated on or adjacent to the road, or to any other premises accessible for pedestrians, or (as the case may be) for vehicles of that class, from, and only from, the road. However vehicles could be excluded entirely if the Council were satisfied that it were necessary for avoiding danger to persons or other traffic using the road to which the order relates or any other road, or for preventing the likelihood of any such danger arising, or for preventing damage to the road or buildings on or near it, or for facilitating the passage of vehicular traffic on the road, or for preserving or improving the amenities of an area by prohibiting or restricting the use on a road or roads in that area of heavy commercial vehicles,

28. A TRO which imposes any restriction on the use by vehicles of a road may include provision with respect to the issue and display of certificates or other means of identification of vehicles which are excepted from the restriction, whether generally or in particular circumstances or at particular times.

OPTIONS

a. confirm the TRO as it stands.

b. modify the TRO to cover the winter period only.

c. modify the TRO to cover sections 2 and 3 only which pass through SSSIs.

d. modify the TRO to allow motorcyles either all year round or in summer only.

e. not confirm the TRO and instigate an education programme including fostering voluntary restraint and recruiting volunteers to warden and repair the route.

EVALUATION/RISK MANAGEMENT

29. Comparison of the condition of the Trail in 2006 to that shown on photographs taken in 1991 shows that the surface of Sections 2 and 3 has deteriorated considerably in that 15 year period (see Appendix 1). There has been a significant loss of chalk grassland within the SSSIs and a general deepening of ruts to the extent that the landscape of the AONB can be shown to have degraded. A TRO on these sections would allow the chalk grassland to regenerate improving the quality of the SSSI and the AONB. It may also allow the protective fencing around the Scheduled Ancient Monuments to be removed in due course further enhancing the quality of the AONB. Therefore confirmation of the TRO for these sections would accord with the council’s legal obligations in connection with the SSSIs and the AONB.

30. It may be that, on Sections 2 and 3, more research would indicate whether the deterioration is attributable to use by a particular type of vehicle, or if seasonal use is a factor. However, no local data is available and it would take an unreasonable time and considerable resources to collect it, during which period further deterioration would occur.

31. For Section 1 a similar comparison of the types of data used for sections 2 and 3 shows that the condition of the surface is better today than it was 15 years ago (see Appendix 2). This is attributable to extensive repairs carried out by the council on this section in 2002 at a cost of £50,000. This section is not an SSSI and its current landscape quality is in keeping with its AONB status. Therefore the wildlife and landscape issues applicable to sections 2 and 3 do not apply to section 1.

32. For most of its length section 1 is adequate for the low level of vehicle use to which it is subjected, although at its extreme eastern end it goes through a narrow cutting where two vehicles, or a vehicle and a horse could not pass each other. There is limited scope to improve this situation, but it is no different from that which obtains on many of the Island’s byways open to all traffic. If minor widening were to be carried out, the situation would be similar to that which already obtains on some of the Island’s minor surfaced roads.

33. The council has records of motor vehicles leaving Section 1 of the Trail and trespassing on adjacent land causing damage to Scheduled Ancient Monuments (SMRs), private property and livestock. To mitigate this problem on the land which it manages the Forestry Commission has installed barriers in Brighstone Forest to prevent trespass and damage to SMRs (Appendix 3). However, protection measures on any private property adjacent to the Trail will always be weakened by the fact that trespassers have points of access other than the Tennyson Trail itself.

CONCLUSION

34. The criteria set out in the TRO are met for sections 2 and 3 of the Tennyson Trail. However, in relation to Section 1, the character of the way, including the condition of its surface, is compatible with low level vehicular use and is in keeping with a byway open to all traffic passing through an AONB. No evidence has been submitted of damage to flora and fauna on Section 1 and reasonable measures have been taken to protect the SMRs which have been affected by trespass.

35. Enforcement remains an area of concern in view of the police’s opposition to the order and this must be weighed against the council’s legal obligations to protect SSSIs and the AONB.

RECOMMENDATIONS

36. That the Traffic Regulation Order for sections 2 and 3 of the Tennyson Trail be confirmed as advertised, but section 1 of the route should remain open to all traffic.

BACKGROUND PAPERS

37. Rights of Way file TT/TRO.