1. A traffic regulation order (TRO) may be made by a local authority or a national park authority and may provide for the restriction, regulation and/or prohibition of certain classes of traffic over any road. The word ‘road’ includes footpaths, bridleways, restricted byways and byways open to all traffic (BOAT).
2. This advice note is intended to be a general guide to TROs, offering an outline of their various applications to rights of way and the framework of rules within which they may be made.
3. The Road Traffic Regulation Act 1984 imposes a duty on local authorities to exercise their traffic regulation powers to secure the safe passage of all traffic, including pedestrians, equestrians, cyclists and motorised and non-motorised vehicles.
4. A TRO does not extinguish any rights, whether public or private, over a road, but may make it an offence to exercise such rights. A person who contravenes a TRO commits a criminal offence, for which the maximum penalty is 3 on the standard scale.
5. A TRO may be permanent, temporary or experimental, or may facilitate the holding of a special event (a special event order). The procedures for making various types of TRO and the grounds under which they may be made are explored in more detail below.
Permanent TROs
6. The grounds for making a permanent TRO are extensive. They are as follows–
a) for avoiding danger to persons or other traffic using the road, or preventing the likelihood of such danger arising; or
b) for preventing damage to the road or to any building on or near the road; or
c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians); or
d) for preventing the use of the road by vehicular traffic where that use is unsuitable having regard to the existing character of the road or adjoining property; or
e) for preserving the character of the road in a case where it is especially suitable for use by walkers or equestrians; or
f) for preserving or improving the amenities of the area through which the road runs; or
g) for conserving and enhancing the natural beauty of an area, or affording better opportunities for the public to enjoy the amenities of the area, for recreation or nature study; or
h) for the purpose of avoiding, reducing or preventing the danger and/or damage connected with terrorism.
7. An authority must, before making a permanent TRO, consult with organisations representing persons likely to be affected by it. No organisations are prescribed by the legislation, so an authority may exercise its own judgement in drawing up a list of consultees. Notice of a proposed TRO must be placed in a local newspaper, sent to consultees and placed on site – although the last applies only if the order-making authority considers it desirable in the interests of giving adequate publicity to the order. A proposed order, together with a map showing its effect and indicating alternative routes (if any), must be made available for public inspection throughout the objection period. Once a proposed order has been advertised at least 21 days must be allowed for the receipt of objections.
8. Unlike with the procedure for making public path orders, there is no requirement to hold an inquiry if objections are received to a TRO, although an authority may do so. If an order-making authority decides to make (implement) a proposed TRO it must notify objectors and advertise the fact in the press; it must also keep a copy of the made order available for public inspection for a further six weeks. If an authority takes the decision not to proceed with an order there is no requirement to communicate that decision to the public.
9. Once a TRO has been made notices must be displayed as to its effect in a prominent position at each end of the road to which the TRO relates. Where there exists an alternative road the order-making authority must give details of its location on site notices, and also at the points where traffic would need to diverge from the restricted road onto the alternative. The authority must see to it that this information remains in place and legible throughout the duration of the TRO.
Temporary TROs
10. The grounds for making a temporary TRO are as follows–
a) because works are being or are proposed to be executed on or near the road; or
b) because of the likelihood of danger to the public, or of serious damage to the road, which is not attributable to such works; or
c) to enable an authority’s litter clearing and cleaning duties to be discharged; or
d) for a purpose relating to danger or damage connected with terrorism.
11. Temporary TROs made in respect of footpaths, bridleways, restricted byways or BOATs may last only for six months, and should be made following the procedure set out in paragraphs 7 and 8. The notice procedure set out in paragraph 9 must be followed, with an additional requirement incumbent upon the order-making authority to stipulate on the notice the date on which the temporary order was made and the date on which it ceases to have effect.
12. An authority may apply to the Secretary of State for Transport for six-month extensions to a temporary TRO, for a maximum period of two years. The purpose of this application procedure is to impose some form of accountability on order-making authorities’ exercise of temporary traffic regulation powers, but, in practice, such an application to the Secretary of State is very rarely unsuccessful.
Special events orders
13. A special events order may be made if a local authority is satisfied that traffic on a road should be restricted or prohibited for the purposes of–
a) facilitating the holding of a ‘relevant event’,
b) enabling members of the public to watch a relevant event, or
c) reducing the disruption of traffic likely to be caused by a relevant event.
14. There have to date been no Regulations made as to the procedures a traffic authority must follow when making a special events order, so there are no statutory requirements governing the process of public consultation and notice.
15. However, the Act itself lays down a number of stipulations in regard to the making and duration of special events orders. These are as follows–
Ø Before making a special events order an authority must satisfy itself that it is not practicable to hold the event other than on a road; and
Ø special events orders may not be applied to the same road (or stretch of road) more than once within the same calendar year; and
Ø an order may not remain in force for more than three days, unless made by the Secretary of State, in which case, subject to certain criteria being met, the order may endure for a longer period of time.
Experimental TROs
16. These may be made for up to 18 months. An experimental TRO may be renewed for one further 18-month period by application to the Secretary of State for Transport.
17. A relevant authority’s traffic regulation powers are wide-ranging and subject to very few restrictions. However, section 3 of the Act lays down one stipulation; namely, that a TRO may not be made where its effect would be to prevent at any time access for pedestrians to premises on or adjacent to the road, or to any other premises accessible to pedestrians only from the road.
18. A traffic authority is not empowered to create a temporary alternative to a road restricted by a TRO. In some cases nearby highways will be inappropriate for traffic ‘diverted’ from a restricted road: it may be, for example, that the ‘alternative route’ is a busy main road. In other cases an alternative route may not exist at all.
19. Whilst the legislation instructs order-making authorities to ‘have regard’ to the safety and convenience of alternative routes, a TRO is not precluded by the absence of a safe or convenient alternative.
20. Because an authority is not required to hold an inquiry into a proposed TRO, there is limited opportunity for the public to have their views on such an order properly taken into account. Unlike with the system of making public path orders, authorities may make TROs without scrutiny by an independent arbitrator, and the requirement to submit a request for an extension to a temporary TRO to the Secretary of State has, in practice, become little more than a rubber-stamping exercise. The Ramblers’ has been concerned for some time that the lack of accountability inherent in an authority’s exercise of its traffic regulation powers, and the almost limitless grounds on which they may be made, have made TROs an attractive option where the real objective is to procrastinate over the discharge of a statutory duty, such as keeping a highway in a reasonable state of repair, taking enforcement action over a public nuisance, and so on.
21. The public’s recourse in cases where an authority may have unreasonably applied a TRO is a claim to the High Court for a Judicial Review of the authority’s decision.
22. Many of our green lanes are obvious candidates for TROs. Such ways often carry vehicular rights on the basis that they were formerly horse and cart routes, but their unsealed surfaces may be grossly unsuited to present-day vehicular traffic such as trail bikes and 4 x 4s.
23. Where such use is unsuitable with reference to the character of a road, constitutes a public nuisance or even a danger to other users, or is ecologically unsustainable, members of the public may wish to lobby their local authorities with a view to prohibiting motor vehicles from a given road.
24. Nothing precludes the implementation of a TRO to restrict traffic of a kind which is either not ordinarily permitted on, or is prohibited by statute from, a given road. A TRO might, for example, be usefully applied in a case where equestrian or vehicular traffic is causing a nuisance on a footpath (where there is a public right of way on foot only) – even though such use would already constitute the civil wrong of trespass or, if the use is in or on a motor vehicle, a separate statutory offence.
25. There’s good reason for applying a TRO to restrict traffic that is already not permitted. Trespass, which is the wrong done when a person enters and remains on land without lawful authority, is not usually a criminal offence, and can only be remedied by a civil action, not a prosecution. The application of a TRO introduces the prosecutable offence of contravening the TRO, and is therefore a more robust weapon against nuisance traffic than an action for trespass. Moreover, a TRO carries no defence of lawful authority, since a TRO affects private rights (from which lawful authority derives) and public rights equally. This means that in cases where nuisance use has the express consent and approval of the relevant landholder – rendering an action for trespass a useless remedy – an authority’s traffic regulation powers may be employed to abate it.
