Statistically, it is more likely that path diversions will proceed unopposed, but there are still many where objections are unresolved and lead to the appointment of an Inspector to determine them.
We have recently had three such cases, all involving applications by landowners to move intrusive paths and improve their privacy. We are delighted that in every case the diversions have been confirmed.
Hildenborough, Tonbridge, Kent.
The footpath gave this view of the house and its garden yet the Ramblers argued that it was not intrusive. The landowner had set out a diversion of equal length but a little distant from the house which improved privacy, and it had been well used and was the preferred route for most users.
In addition to the Ramblers, a few local people and the Parish Council also objected so it was necessary to hold a public inquiry which was completed within a day. We represented the landowner at the inquiry, and supported the case made by Kent County Council. The Diversion Order was confirmed.
Three footpaths crossed a small area of land, including one immediately behind the landowner’s house, with the other two crossing an orchard. Other paths had already been established by local people so the whole area of land was surrounded by public paths.
The Parish Council, supported by three individuals, challenged the diversion forcing an inquiry which completed at 7.30 pm. It was a long day! A couple of technical issue were raised which needed follow up submissions and the Inspector has proposed confirmation of the Order subject to correcting errors in the Order.
We represented the landowner at the inquiry, and supported Dorset County Council who made the Order.
Little Rollright, Oxfordshire
When the garden at Manor Farm, Little Rollright, had been set out and landscaped, an error had been made in the location of a stone wall, with the consequence that a footpath had been incorporated at the end of the garden. The wall had been intended to separate the footpath from the garden but was built in the wrong place!
A rather tortuous process followed involving consultation with user groups. The Diversion Order was made and the Open Spaces Society objected. The Planning Inspectorate decided to hold a hearing rather than an inquiry and this was held in a workshop on site.
The Inspector specifically acknowledged the intrusive nature of the path on both the garden and the house and although she considered the diversion did have an impact on public enjoyment, this was not sufficient for her to refuse to confirm the diversion.
Oxfordshire County Council supported the confirmation but deferred to us to make the case at the hearing. We represented the landowner and were supported by our expert witness, Claire Goodman-Jones.
These three individual cases demonstrate that an objection to a diversion based on increasing privacy, from the likes of a Parish Council, the Ramblers or the Open Spaces Society, should not be regarded as a bar to success and that with careful case management and presentation, these cases can succeed.
We are always happy to assess a diversion proposal and give an experienced view on the prospects of success.
Email us with your inquiry: firstname.lastname@example.org
One aspect of our practice which we have developed from our specialism in public rights of way is private access, as the two issues often come together. It can also be the case that a client has both public and private rights of way issues and that was the situation for our farmer clients in Nottinghamshire.
We had successfully defeated a claim for a public right of way across their land so when a neighbour sought to claim a private right to access the rear garden of his house over our client’s farm track they came to us.
After a false start when the neighbours claimed and then withdrew their application to the Land Registry, the matter was referred to the Land Registry Tribunal and after an exchange of written cases and documents which we settled, a final hearing was arranged to hear the oral evidence of the parties.
The facts were intriguing as the neighbours’ house had originally been owned by our clients’ family before being sold off. The house had an access from the road and no rights over the adjacent track had been granted when the house had been sold. The neighbours case relied on use over a 20 year period. In order to have a full 20 years of use they were reliant on use by their predecessors.
Our clients’ case was that the owners of the house before the current neighbours purchased had been given permission to use the track. The current neighbours denied this and recited a conversation they claimed to have had before they purchased. The oral evidence was that the neighbours had been told that the track had been used “freely without objection or challenge”.
The Judge addressed this alleged conversation in his written judgment, saying this “did not ring true” and “was the language of a lawyer, not a lay man”. He concluded “I cannot accept this evidence.”
A twist came when it was established at trial that the permission had been given by our clients’ predecessor family member, and so this did not extend to the period after our clients had acquired the land. This may have meant that there had been 20 years of use without permission.
We were able to adduce evidence and argue that the level of the alleged use had been exaggerated, and that the use had frequently been after the neighbour discovered the padlock code, or had acquired a key to the replacement padlock.
The Judge agreed with our case and refused to grant the right of way. He ordered the neighbours to pay our clients’ costs.
The Judge assessed the costs and his award was issued on 1 August. He addressed arguments made by the neighbours’ counsel that our fees should not be payable as we are a consultancy. He found that the Land Registry Procedure Rules made it clear that a party was free to engage a consultant. He said:
“In relation to ET Landnet’s fees… the hourly rate (£200) is, in my judgment, reasonable and I am satisfied that it was reasonable to engage ET Landnet and that the costs incurred in doing so were reasonably incurred”.
We instructed Philip Noble of Counsel to represent our clients at the hearing. His fees in full were also awarded to be paid by the Neighbours. The total costs award was £12,684.
The full case details are:
Thomas Bradley and Karon Leslie Birchall v R J Howard Farming Limited REF/2018/0260
For further details or advice on private rights of way issues, contact Michael Wood.
There is just one month left before the winners at the Rural Business Awards are announced. We have our tickets for the event and the hotel is booked. The suit needs a brush down but is otherwise fine. I have to practice tying the bow-tie as it is not my normal attire.
As finalists with four other keen competitors in the Best Rural Professional Services Business Category, we have to hope that our USP has made us stand out in the judging process. Our competitors are Appetite Me, Greenway Training, McCartneys LLP and Roythornes Limited. We wish them well, but not necessarily as well as us!
We have done our bit of PR with visits to CLA events and the Game Fair but by and large our build up to the final has been to concentrate on the business of sorting out our clients’ public rights of way issues.
We are very grateful to our supportive clients who value our service and write things like:
“Michael Wood from ET Landnet very recently acted for us in relation to an application by the county council to potentially upgrade an existing bridleway on the Estate to a restricted byway. We chose ET Landnet after carrying out considerable research and enquiry, based primarily upon strong recommendations received from two separate third parties, together with our own assessment of Michael during telephone conversations. Michael proceeded to carry out a considerable amount of detailed work over a number of months, culminating in a very satisfactory agreed outcome with the county council. We would describe Michael as extremely professional, incredibly knowledgeable on the subject matter and very capable of conveying incredibly complex information in a very user-friendly way. We would not hesitate to ask Michael to act for us again.”
John Edwards on behalf of Howard Dyer, The Nutley Estate, Hampshire
We are too busy to keep our fingers crossed for the final announcement as we review more diversion proposals and issues relating to footpath claims. We cannot let our standards slip!
Please let us know if we can help you with your public path issues – call 0203 086 7657 or email me, Michael Wood email@example.com and we will try to help you too.
We are delighted to have secured for the third year the temporary diversion of the footpath through Fawley Court making it possible for the owner to run the Fawley River Club and Akoya-Henley events during the Regatta week.
Access along the River during the Regatta has always been contentious and starkly illustrates the issue between the public’s right of way and the ability of the landowner to manage their land. The issue is longstanding for the Regatta itself, with the National Trail running on their side of the riverbank.
Below is an aerial view of the site from Google Earth showing how the Meadow usually looks, so you can see how it is transformed to host these prestigious events!
The footpath runs close to the riverbank where the impressive glass pavilion is set up for guests. The diversion takes the public a little distance away from the site but they are still able to walk through.
We work with a number of estates like the Fawley Court Estate providing them with advice and management services for their public paths. It is an essential part of their land management to ensure compliance with the complex rights of way legislation.
We help landowners of all sizes with their public rights of way issues – you can contact us without obligation to see how we can help you
Call Michael Wood on 07796 958572 or email Michael firstname.lastname@example.org or complete the form below.