Our successful diversion of a footpath out of the garden of Manor Farm, Little Rollright in Oxfordshire following a hearing in late 2019 was challenged by the Open Spaces Society by an application to the High Court. They claimed that the Inspector had got the law wrong when she confirmed the diversion and that DEFRA guidance was incorrect.
There are three statutory tests to be satisfied for a path diversion to be confirmed. The diversion must be in the interests of the applicant or the public; the diversion route must not be substantially less convenient; and the diversion must be expedient taking factors into account including the impact on public enjoyment.
In its Advice Note, which gives guidance to the parties and the Inspector, DEFRA had stated that when addressing the third, “expediency”, test, it was necessary to balance the impact on public enjoyment against the benefit to the applicant. DEFRA considered this to be applying a previous judicial view of the law in a case called “Young”. If there was marginal benefit to the applicant and an adverse impact on public enjoyment, then on balance the diversion should not be confirmed.
For some time, practitioners, councils and applicants had approached the third test by looking at this balance between public enjoyment and landowner benefit. It was on this basis and applying the Advice Note that I argued our case before the Inspector at last year’s hearing where she had reached her view.
The matter came for hearing in April and the judgment followed in May. The thrust of the Open Spaces Society’s case was that in applying the third test, the benefit to the landowner/applicant was to be ignored and only the impact on public enjoyment was to be considered. As the Inspector had come to the view that there would be some loss of public enjoyment because of the diversion, this outweighed any other consideration and the diversion should not have been confirmed.
In her judgment, Lieven J found that the DEFRA guidance was wrong and that the earlier case upon which the guidance was based had not contained a “balancing” test. Nonetheless the Judge was satisfied that the third test did not exclude other factors when determining the expediency of a diversion proposal and that it was right to include the benefit of the diversion for the applicant. She rejected the challenge – see OSS v SSEFRA  EWHC 1085 (Admin).
So for now the balance test has gone to be replaced with a broader consideration of all relevant matters.
And what has emerged as a very relevant matter in the current health crisis is that the presence of walkers, riders and cyclists in the garden of a house or in a farmyard or other enclosed space exercising a public right of way is a bad thing when the owners of the land are following guidance and are self-isolating or maintaining social distancing, or protecting their health and that of their employees so they can produce the food which the country needs.
We have had several enquiries about securing diversions in these circumstances and the failure of DEFRA to address this by a closure of such paths is frankly shocking. They readily closed down the countryside to prevent the spread of foot and mouth disease but there is no acknowledgement of the health risk created by permitting the ongoing use by the public of intrusive paths.
In the past, landowners’ concerns about coming into contact with the public using a path have been dismissed as hyperbole by user groups. Even at the Manor Farm hearing, just at the end of 2019, we could never have thought that possibly the strongest reason to remove the path from a property garden was the health impact on the owners, yet now in June 2020 it would be justifiably front and centre.
Numerous reports have been written over the last couple of months backed by photographs of paths “illegally” closed by landowners with walkers “up in arms” that their rights have been curtailed. As I have advised several client, this type of attitude that, no matter what the circumstances the public are entitled to walk on a public right of way, serves only to emphasise and build upon the justification for diversions in many cases.
We may no longer be directly balancing competing interests when assessing diversions, but the pendulum has swung towards landowners to secure diversions to protect their health, privacy and livelihoods.
Today I “attended” my first virtual High Court hearing. It was a case where the Open Spaces Society (“OSS”) sought to challenge the decision of an Inspector who had confirmed a footpath diversion order at a hearing last year at which I had represented the landowner. It had been the culmination of several years work with two landowners and the Oxfordshire County Council.
The OSS had been the only objector to the Diversion Order, although the Ramblers rode shotgun at the hearing. The challenge made at the hearing, and which formed the argument before the High Court, was that any impact of a diversion on public enjoyment was not to be weighed against the benefits of the diversion to the landowner when deciding if a diversion order should be confirmed. Only the adverse impact on the public was to be counted.
This argument ran counter to the previous authorities and the interpretation and guidance given by DEFRA to Inspectors and practitioners and which we had all worked to for several years.
The facts of the case were quite straight forward. A footpath through the garden of Manor Farm, Little Rollright, Oxfordshire impacted on the privacy of the owners. The diversion took walkers on a track outside the garden. The OSS argued that there was a loss of enjoyment including from walking through the garden and that regardless of the impact on the owner, this should be sufficient for the diversion to be refused. The Inspector had accepted some loss but did not consider it that great and agreed that the impact on the owner’s privacy outweighed this.
As the parties to the High Court challenge were the OSS and the Secretary of State, we were only observers to the proceedings, but we were clearly “interested parties” in the outcome. The intervening complications of COVID-19 meant that rather than waking up in London and walking down the Strand to the Royal Courts, my day started with walking the dog and taking my place in front of the MacBook ready to log in.
Before the main event kicked off, the various attendees joined and some banter (bantz) ensued. What would have been one to one chats in the corridor of the court became public and those tech savvy participants who knew how to switch their video and mikes on and off showed off their skills. The list of attendees gradually swelled, and barristers exchanged technology advice. This appeared to be a first for most of us. For once I may have known more than the leading QC in public rights of way. Two barristers (Leader and Junior) in the same room created horrendous feedback, resulting in much (basic) instructions being given (e.g. “it’s the button below that”), all strictly at 2 metres, of course.
It occurred to me that George Laurence QC, making the case for the OSS was, having been called in 1972, now at or close to an age where government advice should see him in isolation for 13 weeks, and not sitting in his chambers in London, using his iPad in landscape mode making him appear as if he is lying down. George, to those of us who have had the privilege of working together, and who once said he “owed me a favour” when he relieved me of a case on discovering he played cricket with my client, says in his Chambers bio that “I have always tried very hard to win “unwinnable” cases…” Here goes…
At the appointed hour the judge came into view on our screens. One rarely sees a judge at such close quarters. All appeared fine, but she could not hear anyone! Some minutes then followed whilst the Judge fiddled and plugged things in and out to make her computer work.
Success! Finally, she could hear and see the key players. Except she could not access her documents! But we could finally make progress.
Mr Laurence, making the case for the OSS, opened and was soon quoting my Statement of Case. It is always a concern when one is name-checked in the High Court (or indeed, any court of law) and that was this occurring at an early stage in the proceedings was a worry. This was not the first time I have been mentioned in proceedings (by Mr Laurence) and there is always a degree of frustration that my comments and actions are being cherry picked, and of the process that we had been required to follow prior to and at the first hearing not being understood by barristers and the court. On balance it seems the criticism here was that I could have made more legal arguments at last year’s hearing rather than just those that I did . As the argument that I made was on point and not peripheral (and less relevant) I think that was a good call on my part. It had won us the case and frankly any additional submissions would have run up more time and mu client’s bill.
The Judge pointed out that she was not particularly interested in what had gone before in terms of pleadings and that she would deal with the issues as they are presented to her.
If we are talking peripheral, there followed a very long pulling apart and re-interpretation of the only two previous relevant decisions and DEFRA’s guidance issued as a consequence of those decisions. In this exchange, Mr Laurence even pulled apart his own position in one of those previous cases. Words in the statute should be “strictly read”, apparently, and the intention of the draftsman from 1980 is to be interpreted without additional words or commas, or indeed any type of punctuation or drawing breath. When the Judge noted that the OSS were nonetheless seeking to limit the interpretation of the statutory words, well that was a different and entirely acceptable position, apparently.
We trudged further through the legislation until 1 pm arrived and we were free to rise for lunch. The normality of the court and its hours of work restored. Not all is that high tech.
At 2 pm it was off we go again. Mr Laurence continued his innings, which had been boycottesque, dissecting the wording of the relevant section of the Highways Act. I feel I have been here before, but then in reality rather than in a virtual space. The post lunch stupor of a legal submission has plainly transferred seamlessly to Skype.
The OSS tactic is to apply their interpretation of the legislation to a number of potential scenarios and then to argue that this would lead to inequity which could not have been intended. At some point the Judge’s head is in her hands. She asks for the new words which Mr Laurence is advancing as the appropriate legal test he believes should be applied and for this to be set out in writing and emailed to her clerk! The Judge comments that these new words seem to be “an awful long way” from what the statute actually says.
After some questions from the Judge to Mr Laurence, he finally declared, and after a little finishing up for the OSS, at 2.45 the Secretary of State’s Counsel, Mr Westaway gets his turn.
At 3.00 the Judge has to depart to deal with a pressing family law case, so buttons are muted and the hearing falls silent.
It was all going so well. At 3.30 the Judge is back and Mr Westaway cracks on… then he freezes and we witness 21st century technology at its best. 5 or so minutes pass (it seems longer) when Mr Westaway is spoken to and we see the occasional glimpse of his features, but he is not to be heard. Eventually he is back and the Judge suggests others in his household might desist from using the wi fi. Roll on 5G.
Mr Westaway is analytical and follows through the obvious language of the law. He skips through his points, with a few skips in transmission, leaving the Judge 10 minutes before she changes hat/wig again to be the Duty Judge in the Family Division.
With insufficient time for Mr Laurence to respond verbally, he is directed to do so in writing by 1.00 pm tomorrow. Judgment will not be today, and we will remain in suspense, somewhat like a Skype call.
On reflection and bearing in mind that we have all been forced into this way of working without any practice to make it all perfect, that it was possible to cover most of the ground that could have been covered in court, without the need to travel, is remarkable. This, and those other cases to be dealt with during the lock down should be the way for justice in the civil courts at least. A virtual public inquiry should not be out of the question. We can and must make a difference.
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: email@example.com
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 firstname.lastname@example.org 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 email@example.com or complete the form below.