Rights of way: Opposing extensions to temporary traffic regulation orders

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Opposing extensions to temporary traffic regulation orders

This information sheet is brought to you jointly by the Open Spaces Society, the British Horse Society and the Ramblers. It explains how you may object to the extension of temporary traffic regulation orders, when they are applied to public rights of way, beyond their maximum initial term of six months.

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1. TTROs on public rights of way

1.1 A traffic authority (in the present context, usually the same authority as the highway authority) may make a temporary traffic regulation order (TTRO) under s14 of the Road Traffic Regulation Act 1984 to restrict or suspend the use of a highway by traffic. Such an order may be made:

because works are being or are proposed to be executed on or near the road; or because of the likelihood of danger to the public, or of serious damage to the road, which is not attributable to such works

or for litter clearing.[1]

1.2 A TTRO may not restrict the use of a highway by equestrians, unless the highway is a footpath, bridleway, restricted byway or byway open to all traffic.[2]

 

[1] S14(1)
[2] S127: but note that, for these purposes, a way may conform to any of these descriptions even if not recorded as such on the definitive map: so an ‘unclassified county road’ may conform to the description of a byway open to all traffic for the purposes of s127, and a TTRO may therefore be capable of excluding equestrians on such a road, even though it is not shown on a definitive map and statement as a byway open to all traffic.

2. Extension of TTROs

2.1 A TTRO made in respect of a footpath, bridleway, restricted byway, byway open to all traffic or cycle track may not be made for a period of more than six months.[3]

2.2 However, a traffic authority may apply to the Secretary of State for Transport to direct an extension of the TTRO, and if he thinks fit, the secretary of state may then extend the TTRO for a further period — that period is not specified in s15, is usually six months, but may be shorter or longer.

2.3 A TTRO may be further extended from time to time in the same way.  The traffic authority must publish notice of the direction extending the TTRO in a local newspaper.[4]

 

[3] S.15(1)(a): again, a way may conform to any of these descriptions without being on the definitive map and statement.

[4] R.9, Road Traffic (Temporary Restrictions) Procedure Regulations 1992 (SI 1992/1215).

3. Use of TTROs

3.1 A TTRO may be used to facilitate development on a site crossed by a public path, even where the intention is to reinstate the path (whether on the same line or on a diverted line) at the conclusion of the development.  In such cases, the closure may be said to be justified ‘because of the likelihood of danger to the public’,[5] notwithstanding that the traffic authority has no effective control over the duration of the closure, nor any incentive to question whether the development could proceed without a closure, or with the provision of a temporary alternative path.

3.2 There is concern that highway authorities (in their role as traffic authorities) are also using the powers in s14 to close or restrict the use of public paths in order to avoid maintenance responsibilities, or to put off controversial diversion or extinguishment proposals. Illustrations might include:

  • bridleway closed owing to weak bridle-bridge which would be costly to repair;
  • bridleway closed as users have complained about surface being ‘dangerous’ in winter;
  • byway closed to vehicular and equestrian traffic as surface eroded by storms and now jagged or slippery;
  • rail crossing closed as Network Rail claims it is dangerous

3.3 In such cases, the initial TTRO is made by the traffic authority on grounds of safety, but the TTRO is repeatedly extended on an application to the secretary of state.  It may seem that the traffic authority has no plans to address the cause of the TTRO (and in the last example, neither the authority nor Network Rail has any plans).

 

[5] S14(1)

4. The role of the NTCT

4.1 In practice, the powers of the secretary of state to direct that a TTRO shall continue in force are exercised in his name by the National Transport Casework Team (NTCT) — the NTCT also makes orders on behalf of the secretary of state under s.247 of the Town and Country Planning Act 1990.

4.2 Correspondence with the NTCT in 2013 elicited confirmation that: ‘we have no record of any requests made by local highway authorities, where [a TTRO] has been capable of being extended, having been refused’.

4.3 The NTCT has published no guidance to traffic authorities about the exercise of its discretion. It has however stated in correspondence that:

A request made by a local highway authority [sic] for an extension to an Order for a temporary road closure to the Secretary of State for Transport should include the reasons why the extension to the Order is required, what action is to be taken by the local highway authority to reach a permanent resolution, either by the reopening of the highway, or if it is not to be reopened, the means by which its permanent closure is being sought, and the timetable for how long it is likely to take. Any alternative routes should also be identified.

This office [i.e. the NTCT] monitors progress on works/permanent Orders and the reasons for the closure and we will request further information when necessary. This is [sic] the criteria upon which the decision is taken on whether or not to grant an extension.

4.4 The role of the NTCT, acting on behalf of the secretary of state, is not to wield a rubber stamp. Parliament constrained the power of traffic authorities to make TTROs to endure for just six months in relation to public paths (a power to make TTROs for 18 months was conferred in respect of other highways, or longer if the traffic authority thinks the works will require more than 18 months: s15(1)(b)).

4.5 The word “temporarily” in s14(1)) connotes that an order under it should be a short-term rather than a long-term expedient in response to a safety issue (sudden or ongoing), and that duration should be proportionate and not open-ended for closures or to enable works to be carried out.

4.6 It is fair to infer that Parliament therefore intended that closures or restrictions effected for the purposes of TTROs should be brief, and that renewal should be sufficiently unusual that it requires a direction of the secretary of state.

4.7 One reason might be that public paths seldom require significant unplanned engineering works in order to put them into proper repair — and where they do (e.g. the sudden collapse of a major bridge over a river), a longer closure may be sought with the direction of the secretary of state, in order that the highway authority is afforded time to design, build, and install the replacement apparatus.

4.8 S15(5) contains express provision to prevent a traffic authority making a new TTRO in respect of any path where the secretary of state has refused to extend a previous TTRO (the authority may make a new TTRO only after three months have elapsed from expiry of the previous TTRO, or with the consent of the secretary of state).

5. Objecting to an extension

5.1 Where a TTRO may have been made to enable a highway authority to defer its maintenance or repair obligations, or to avoid grappling with a permanent diversion or extinguishment order, it is open to the public to make representations to the NTCT asking the secretary of state not to exercise his power to extend the TTRO.

5.2 In appropriate cases, path users and their representative organisations are commended to anticipate traffic authority requests for TTRO extensions by writing to the NTCT to object to the extension, explaining why they believe that the TTRO is made for inappropriate reasons (such as evading maintenance duties) and should not be extended.

5.3 Representations should be made well in advance of the date of expiry of the TTRO, noting that the traffic authority will (generally) itself submit a request for extension in good time (the NTCT expects to receive a traffic authority request at least a fortnight before expiry of the TTRO).

5.4 Representations should anticipate the traffic authority’s case by, for example, setting out how long the closure has been in force, whether any steps visibly have been taken to plan or effect repairs, how long it might take to plan and execute the repairs, and whether the authority has expressly stated that it cannot afford to undertake repairs.

5.5 At a meeting in June 2023, the NTCT told representatives of user groups (Open Spaces Society, British Horse Society, Ramblers) that it welcomes representations from the public in respect of its role in extending TTROs.

5.6 The clear impression, however, was that the word of the traffic authority that a path was ‘dangerous’, whether through works or emergency, would be enough to cause the NTCT to grant an extension without examination of such factors as the suitability, let alone safety, of routes the public would have to use instead.

5.7 Nevertheless, it is suggested that any representation should propose a pragmatic process towards resolution: for example, that, where a bridge is out of repair, an extension be granted for a further year on the understanding that no further extension will be granted; or that where a path is closed owing to building works which have overrun their agreed schedule, an extension be granted for a further three months on the understanding that no further extension will be granted.

5.8 In many cases, it will be appropriate to suggest that the duration of any extension should be limited to what is essential rather than what is desired.  An extension of more than six months should be exceptional.

5.9 Experience has been that the usual response to the kind of representation suggested above is the NTCT’s suggesting that the correspondent should write to the traffic authority.

5.10 This should not deter communicating with NTCT direct.  But a letter to the traffic authority could usefully remind the authority that your organisation will (in the absence of credible assurances that steps are being taken to repair the highway or accelerate the developer’s progress) be making further representations to the NTCT, which must consider such representations as a matter of public law.

5.11 It is possible that the risk that the NTCT may question the case for an extension, refuse a request for an extension, or grant the request but on a final not-to-be-repeated basis, will goad the authority into bringing forward plans for repair, or taking action against a dilatory developer whose tardiness has led to the long-term closure of a useful path.

6. Further advice

6.1 It is suggested that in seemingly intractable cases, volunteers in representative organisations seek the assistance of their headquarters.  It may be that a judicial review of the long-term renewal of a TTRO will be the means of obtaining better scrutiny and not the mere rubber-stamping of requests for extensions under s15(5).

6.2 If it can be proved directly or by inference that an authority has no plans to deal with an obstruction, out-of-repair highway or other issue, then a claim for judicial review could be brought.

6.3 The position is complicated by the involvement of the secretary of state, who would need to be joined as a defendant, so that an argument could be made out that the authority’s request for an extension had not been made subject to proper, if any, scrutiny.  It is hoped that a suitable test case will come to light in due course.

6.4 The NTCT maintains a web page with contact details which can be found here.

7. Flow chart

While the Open Spaces Society has made every effort to ensure the information obtained in this factsheet is an accurate summary of the subject as at the date of publication, it is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this paper.

© Open Spaces Society, April 2024

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