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Tilberthwaite and High Oxen Fell roads

Updated: 24 August 2020

Tilberthwaite Judicial Review statement

On 21 August 2020 the Honourable Mr Justice Dove dismissed the Green Lanes Environmental Action Movement’s application for judicial review. The Judgement dismissed the claim on all three grounds; supporting and vindicating our approach to the Sandford principle, our approach to the survey and consultation, the manner in which the matter was presented to committee and the decision reached.

On 8 October 2019 the Authority agreed that Tilberthwaite Road (U5001) should be maintained in its current condition by our partner Cumbria County Council and that we create a partnership management group of invited key partners and stakeholders to work collaboratively to monitor usage and condition; undertaking necessary activities to help mitigate any new issues that may arise. And for the High Oxen Fell Road (U5004), again Cumbria County Council maintains the road surface at its current condition, and we work with them and the National Trust to monitor surface condition.

Prior to the application for judicial review by GLEAM we were looking to bring together, in early 2020, the various interested parties to form a management group (for U5001). This group would operate through consensus and its membership would steer and monitor a fully collaborative approach to the establishment and proving of a long-term sustainable management regime for the unsealed section of the U5001 public road (High Tilberthwaite to Fell Foot). The activities of such a task and finish group could include - continued monitoring of use, attitudes, surface condition. It would also look to ensure appropriate maintenance is provided and would contribute to development of a project that tests and agrees at a point in time the adequacy of the management approach for the road.

Given the judicial review we felt it was inappropriate to form the management group prior to the judicial review being determined. And since that time we have had to focus our attention on managing the national park in light of the needs and impact of Covid-19. In this context we need to review the timing and formation of the group to ensure we deploy our resources to the highest priorities across the park and make sure that such a group can work effectively in partnership. Given monitoring of the route use and its condition is on-going and our focus on general visitor management is necessary - it is likely we will look to establish the working group early in 2021.

The Judicial Review decision can be found here.

Background

At the Rights of Way Committee on 8 October 2019 members discussed the reports and associated papers. Please take a look at the summary below.

These routes are both public roads, partly tarmac and partly unsealed.  As such pedestrians, horse riders, cyclists, motorcyclists, and motorists can use their whole length. The roads were originally well-built stone roads that served agricultural and quarrying activities and, as such, form part of the historic heritage of the area.

During the past 20 years or so, motor vehicular usage of both these roads has increased. At the same time, minor maintenance of the surface and drainage appears to have declined, and there have been at least three severe weather incidents (2005, 2009, 2015).  The combination of all this has led to a deterioration in the surface of the Tilberthwaite road in particular, to a degree where some agricultural traffic was having difficulties in accessing the land for farming purposes.

In 2017 we initiated a project to look at the future management options for these two unsealed roads.  We are delivering this project in conjunction with Cumbria County Council and the National Trust (who own the farms and surrounding land).

The Tilberthwaite road has been repaired, and the surface subsequently monitored.  We have collected evidence through drop-in sessions, online and onsite surveys, as well as collating data on usage levels.

There are three parts to the report that were taken to committee - please click on the buttons to read the reports. For a short summary of the project so far, please read the Frequently Asked Questions below.

Committee Summary Report 

Full Assessment Report

Committee Report Appendices (if on mobile, click through to 'continue to website')

The Appendices totals more than 1000 pages (and reports). This link will take you to a Dropbox account. All documents  can all be downloaded, even if you do not have a Dropbox account.

A paper copy is also available for any member of the public to inspect, this is held by the Contact Centre at our offices in Murley Moss, Kendal. It is advisable to arrange a time to visit before arriving by phoning 01539 724555. Find out how to get to the office.

Frequently Asked Questions:

Where are the roads?

The two roads are shown on the map below in red and blue:

  1. Public road U5001, is referred to as Tilberthwaite road.  This road runs between the A593 at Yewdale and Fell Foot, Little Langdale (A-D), and the section we are looking at is northwards from High Tilberthwaite (B-C-D) red on the attached map).
  2. Public road U5004, is referred to as High Oxen Fell road. This road runs between the A593 south of Colwith, and Hodge Close (X-Z), and the section we are looking at is west of High Oxen Fell (Y-Z red on the map).

What is the public status of these roads?

They are both public through roads, with around half of their length being tarmac, and half being unsealed, that is: not tarmac covered. Both tarmac and unsealed sections are covered by the same highway legislation as other public roads such as the A593 or Wrynose Pass. They are maintained by Cumbria County Council. Although the National Park has no legal responsibility to maintain these roads, we recognise their importance as part of the overall rights of way network that people use to enjoy the national park. The roads are part tarmac, and part unsealed, however, we are being requested to restrict motorised traffic only on the unsealed sections of these two roads.

How do these roads fit into the Rights of Way and access network?

In the Lake District National Park, there are some 3280km of public unsealed minor roads, byways open to all traffic, restricted byways, bridleways and footpaths.  There are legally established, or presumed, motor vehicle rights on around 121km of these.

The unsealed section of the Tilberthwaite road is 2.5km, whereas the unsealed section of the High Oxen Fell road is 0.59km long.  The combined length of around 3.1km of road is approximately 0.1% of the unsealed linear network.

What was the issue?

Motor vehicular usage of both these roads has increased over the last 20 years or so.

At the same time, minor maintenance of the surface and drainage appears to have declined, and there have been at least three severe weather incidents (2005, 2009, 2015).  The combination of all this has led to a deterioration in the surface of the Tilberthwaite road in particular, to a degree where some agricultural traffic was having difficulties in accessing the land for farming purposes.

A campaign group, Save the Lake District, asked us to make a Traffic Regulation Order (TRO) prohibiting motor vehicles on the unsealed portions of these roads.  As a National Park Authority, we have been granted powers to prohibit traffic on unsealed public roads of this nature (Defra guidance on this can be found here)

The issues of concern raised by campaigners included:

  • Increased vehicular usage over the last 10-15 years
  • Levels of use were damaging the surface of the roads
  • Damage is such that farming was becoming unviable, and the local farmer(s) could no longer access their land easily or safely
  • Levels of use have a negative impact on the amenity, beauty and tranquillity of the area
  • Levels of use negatively impact on the ability of most users to enjoy the area
  • Levels of usage are impacting upon the Outstanding Universal Values for which the Lake District has been designated a World Heritage Site.
  • The levels of usage create conflict between types of user.
  • Vehicular usage contravenes the Sandford Principle.

What was or is the condition of the roads?

The Tilberthwaite road was fully surveyed and many surface issues were identified for repair works.  As a result the road has been resurfaced for the first time in many decades (photographs below).

The High Oxen Fell road has been surveyed, and Cumbria County Council, ourselves and the National Trust consider that it is suitable for the current use, and we will continue to monitor the route. The surface remains fairly stable.

Can a Traffic Regulation Order (TRO) restrict 4x4s and motorbikes?

A TRO allows all or some types of traffic, including 4x4s and motorbikes, but also pedestrians, cyclists and horse riders, to be legally prevented from using a public route permanently, partly or occasionally. However there has to be grounds for doing so, based on facts and evidence, not just opinions or perceptions.

What options did the National Park’s Rights of Way Committee have to consider?

The main options for the committee to consider were:

a. Do nothing

b. Maintain the surface, but do nothing else

c. Prohibit all motor vehicles (except agricultural / emergency / service)

d. Prohibit some motor vehicles, or for some activities (such as commercial operators), or in certain circumstances (such as during winter, or one way)

e. Develop a Partnership Management Group (consensus working)

The main decision that Members were asked to make is: is the recreational motor vehicular use of these two unsealed roads so inappropriate and unacceptable that it should be prohibited?

And if not – then which is the most appropriate option for each of the two roads?

What happens now the Committee have made their decision?

At its meeting in October 2019 the Rights of Way Committee decided by a majority vote to agree the reports recommendations;

Recommendation 1:

Tilberthwaite Road (U5001) - we advise Cumbria County Council to maintain the road surface at its current condition, and we create a partnership management group of invited key partners and stakeholders to work collaboratively to monitor usage and condition; undertaking necessary activities to help mitigate any new issues that may arise.

Recommendation 2:

High Oxen Fell Road (U5004) - we advise Cumbria County Council to maintain the road surface at its current condition, and we work with them and the National Trust to help monitor surface condition.

This decision was challenged in the High Courts by the Green Lane Action Movement (GLEAM).

The outcome of the judicial review application and our management of the Tilberthwaite (U5001) and High Oxen Fell (U5004) public roads is as follows;

On 21 August 2020 the Honourable Mr Justice Dove dismissed the Green Lanes Environmental Action Movement’s (GLEAM) application for judicial review. The Judgement dismissed the claim on all three grounds; supporting and vindicating our approach to the Sandford principle, our approach to the survey and consultation, the manner in which the matter was presented to committee and the decision reached.

Prior to this - on 8 October 2019 this Authority agreed that Tilberthwaite road should be maintained in its current condition by our partner Cumbria County Council and that we create a partnership management group of invited key partners and stakeholders to work collaboratively to monitor usage and condition; undertaking necessary activities to help mitigate any new issues that may arise. And for the High Oxen Fell road again Cumbria County Council maintains the road surface at its current condition, and we work with them and the National Trust to monitor surface condition.

Before the application for judicial review by GLEAM we were looking to bring together, in early 2020, the various interested parties to form a management group (for U5001). This group would operate through consensus and its membership would steer and monitor a fully collaborative approach to the establishment and proving of a long-term sustainable management regime for the unsealed section of the U5001 public road. The activities of such a task and finish group could include - continued monitoring of use, attitudes and surface condition. It would also look to ensure appropriate maintenance is provided and would contribute to development of a project that tests and agrees at a point in time the adequacy of the management approach for the road.

Given the judicial review we felt it was inappropriate to form the management group prior to the judicial review being determined. And since that time we have had to focus our attention on managing the national park in light of the needs and impact of Covid-19. In this context we need to review the timing and formation of the group to ensure we deploy our resources to the highest priorities across the park and make sure that such a group can work effectively in partnership.

Given monitoring of the route use and its condition is on-going and our focus on general visitor management across the national park is necessary - it is likely we will look to establish the working group early in 2021. This will continue the work as agreed before the judicial review application but somewhat delayed.

Some individuals and organisations want a Traffic Regulation Order implemented now to prevent or limit motor vehicle access on these roads. However there has to be grounds and legal tests satisfied for doing so, based on facts and evidence, not just opinions or perceptions. The facts and evidence have to be directly relevant to the roads in question; we captured the views of those who have used these specific roads through face-to-face on-site and on-line surveys. There has therefore been public input and consultation with those members of the public who actually use these roads.  Justice Dove commented favourably upon the depth and quality of the research.

Further information is available here about the overall approach taken and the outcomes of the project to date: https://www.lakedistrict.gov.uk/visiting/things-to-do/green_roads/future-management-of-tilberthwaite-and-oxen-fell-roads

Consequently we will be inviting representatives from interested parties to join a Partnership Management Group (PMG) to work together on the future management of the U5001. We hope the group will be able to meet in early 2021 to take this important work forwards.

We will provide updates on the progress of the PMG on these pages.

As a separate piece of work we will work with partner organisations to monitor the use of the U5004.

What about other unsealed roads in the National Park?

We envisage the robust and structured approach to the future management of the Tilberthwaite and High Oxen Fells roads as helping inform the Authority when considering future issues arising on other unsealed roads in the National Park.

How does this type of use relate to UNESCO World Heritage Site status?

We do not believe the current use of these roads conflicts with the Lake District’s UNESCO World Heritage Site status. In inscribing the Lake District as a World Heritage Site, UNESCO accepted our management approach to the national park, and recognised that our status as a national park already gives the highest level of protection to the landscape. Read the full Rights of Way committee report for comments from UNESCO, ICOMOS and World Heritage Watch.

Photos shows part of the Tilberthwaite road before and after the maintenance work was completed in January 2019.

Before and after

Map

Rights of Way frequently asked questions