Equestrian enterprises benefit from path diversions.

We have recently achieved public path diversions for two clients each with equestrian interests.

In Wiltshire, the bridleway running through this working yard has been diverted as part of a development of farm buildings using planning legislation.  At a public inquiry in December we represented the owner and called supporters and expert evidence to satisfy the Inspector that the proposal should be confirmed.

Yard Picture

Meanwhile in Devon, and the village of Kings Nympton, our clients breed racehorses and the main paddock was crossed by a footpath which few people used, choosing instead an alternative permissive path that formed the basis of the diversion.  Neighbours and the Parish Council were opposed because of the perceived impact on properties near the diversion.

The design for the new path was detailed and a little unusual but reflected the importance of the diversion to the client.  It incorporated specific fencing and drainage provisions to address points made by objectors. This was the design plan we produced to the Inspector:

Kings N Footpath

This case was ultimately determined by written representations with the Inspector carrying out an unaccompanied site visit.  Where this method can be used it is undoubtedly cheaper for the client. Following the decision to confirm the Order, the new route is now being constructed so that the diversion can take effect.

These two recent cases demonstrate the importance of creative thinking and solutions.  The Wiltshire diversion would have taken much longer and met greater challenge had it not been possible to engage the planning procedures for path diversions.  We always consider this possibility.  The Devon case showed the importance of thoughtful design in a diversion proposal.

We work with a number of equestrian businesses throughout England addressing the particular issues they can have.

As always, more information and advice is available from us via our website – http://www.etlandnet.co.uk or you can email Michael Wood – mw@etlandnet.co.uk or call us on 0203 086 7657


Claimed footpath in Kent is not a public right of way – Modification Order is not confirmed.

Marden in Kent has a number of public paths and clearly a number of people passionate about using them.  Its Footpath Group applied to modify the Definitive Map to add a footpath on a track, arguing that the fact that two other paths terminated on the track with no connection between them or other public rights of way meant the track must have always been public.

It based its claim on historic documents, adding a little evidence of use as a back-up to its argument.

PI Notice

Working for the landowners affected by the claim, we argued that the evidence did not support the case, and was contradictory in any event.  Whilst some part of the track had been claimed in the 1950s, someone at the time took a clear decision that the route should not be recorded and it was removed from the final map.

For two days in March the evidence was examined and witnesses questioned at a local inquiry.  Pleas that “sense” should prevail and that the landowners should agree a path were made but were, of course, not relevant to the Inspector’s decision.

Unusually many of the arguments had been run previously and had failed so the landowners had regarded the issue closed before the claim was renewed based on “new evidence”.  The County Council had declined to make an Order but had been directed to do so by the Secretary of State, ultimately ending with the inquiry process.

We are pleased that our arguments against the Order prevailed before the Inspector who decided that the Order should not be confirmed.  His finding should be the end of this saga for those involved.

You can read the decision here: http://www.planningportal.gov.uk/uploads/pins/row/documents/fps_w2275_7_76.pdf

If you are facing a claim or want help with a public right of way issue, diversion or extinguishment, call us now on 0203 086 7657 or email Michael Wood mw@etlandnet.co.uk for advice.

More details of what we can do for you are on our website http://www.etlandnet.co.uk


Diverting or extinguishing public rights of way. The Deregulation Act 2015 finally receives Royal Assent.

“La Reine le vault”.  And so the Deregulation Bill finally received Royal Assent yesterday as Parliament was prorogued, and we can finally look to the future regarding the changes provided by this legislation for rights of way procedures.

The most important element for our clients is the provision to give landowners the right to apply for a diversion or extinguishment order and to have the application determined.  The current process enables a council simply to decline a request to divert or extinguish regardless of the merits of the case.  When fully implemented, the legislation will mean that if a Council does not determine the application, refuses to make a diversion order, fails to submit an opposed order for determination, or simply fails to take a decision within a reasonable time, it will be possible to appeal to the Secretary of State.

The full implementation will take a little while to complete as secondary legislation and guidance will need to be issued.  There is, however, a will at DEFRA and with those disparate groups who have been driving the legislation to bring all of the changes into force at the same time, so that provisions such as the right to apply which benefit landowners are not left behind whilst other changes that benefit users are implemented.

We are very fortunate to be working with Mike Walker on our diversion and extinguishment cases, as Mike is directly involved with the implementation process with DEFRA.  Together we are looking at some of the good practices already in place with other authorities which aim to speed up the process of application and determination and to see if these can be introduced more widely to make the new legislation work efficiently.

We have a number of cases of existing projects that are ready to be taken forward when the new legislation is finally in place.  These are cases where authorities have been unwilling to proceed with a matter because of the likelihood of objections, regardless of the merits of the proposal and the benefit to the landowner.

We anticipate that the new changes will lead to a significant demand from landowners seeking to remedy long standing path issues particularly those that impact on privacy, security and the operation of farming, manufacturing and rural business.  We have already developed a number of strategies for the existing procedure and these can be brought into play under the new legislation.

Mike has been involved in drafting the guidance to be applied when diversions out of gardens and working yards are sought, and we are looking to apply this guidance to our current and future projects.  As demand for applications is expected to be high, now is a great time to evaluate diversion and extinguishment proposals and to get these projects ready to move forward as soon as the legislation permits.

We realise that landowners can be concerned about the costs they may incur and wish to avoid an open-ended commitment.  We will always carry out an initial site visit to evaluate the issues and then prepare a quotation to take the matter forward.  The cost of the first visit and evaluation is fixed at £500 plus VAT.  The matter can then proceed on a fixed quotation or with a ceiling on fees for each element of the project.

100_3764

A Site Visit in Oxfordshire

 

We are also pleased to take on existing projects that may have failed or which are stalled, or those which are awaiting determination or have been referred to the Secretary of State for a public inquiry or hearing.

As always you can check out our website for more information about us and our projects: www.etlandnet.co.uk

Or to contact us complete the form below or call Michael Wood at ET Landnet on 07796 958572 or 0203 086 7657 or you can email Michael on mw@etlandnet.co.uk

 

 


Divert a Footpath

You are a landowner and you want to divert a footpath?  You have been heard that people always object.  You think it will be expensive.  But you know it would improve your enjoyment of your land.  Whether that is increasing your privacy, or the safety of your yard.

As with everything in life, success is improved by good preparation and planning.  Working out the best alternative route might seem obvious but the legal tests need to be met.  Will it be substantially less convenient?

We aim to help our clients from the beginning to plan their diversions and work with them through the whole process.  We try to avoid objections, or negotiate where they arise.  And if objections remain and the case goes to public inquiry or hearing then we will be there to represent you.  Our expertise and experience means that you get great value for money – we only do what needs to be done!

Start by contacting us – call Michael Wood on 0203 086 7657  or 07796 958572

You can also email Michael on mw@etlandnet.co.uk

And for more details you can visit http://www.etlandnet.co.uk

Accessible paths are frequently key to securing a diversion.

Accessible paths are frequently key to securing a diversion.

 


Evidence proves alleged footpath was disputed many years ago.

We are pleased to have successfully represented our client in its challenge to an alleged public footpath through woodland in East Sussex.  Fairlight Parish Council claimed that a route had been used by the public through Knowle Wood to such an extent that a presumption of dedication had arisen.

There was significant user evidence over recent years which the County Council had relied upon both to make an Order to modify the Definitive Map and to support its case that the Order should be confirmed.  At the public inquiry in September, some of those that had completed forms detailing their use, attended to give evidence which we were then able to cross examine.

One of the forms had mentioned a dispute in the 1980s which we thought was significant.  The Council sought to suggest that the dispute related to an adjoining path and was not relevant to the claim.

The public inquiry presented the first opportunity to explore this comment.  By then it was supported by a few items of correspondence but the arguments were still potentially tenuous.  However, when we pressed the Council’s witness on the issue it emerged that the Council had looked through a file which related to the earlier dispute. They considered it was not relevant.

This rightly raised the Inspector’s eyebrows and we asked to see the file so we could make our own decision.  At the end of the first day we were permitted to start reading the contents.  An early start before the inquiry reconvened at 10.00 am on the second day enabled the file inspection to be completed and, not surprisingly, there was plenty to confirm our belief that the early challenge was both significant and relevant.  The file contained notes and letters which referred to a section of the path, and confirmed that its status needed to be resolved.

One of the final witnesses called by the Council was the person who had made the comment in her evidence form.  She was clear in her recollection that the matter had been raised and never dealt with.  She had been at the heart of the Parish Council.  There had been promises made by the County Council which had not been fulfilled.

Once the evidence was heard, we were able to include this new material in our closing submissions to argue that this dispute had raised the pubic right to the claimed route and that the Parish Council had been aware at that time clearly indicating that the required elements to challenge the public had been satisfied.

The argument was one of several we made but ultimately it was the argument that the Inspector accepted.  In his decision letter he rejected the claim.  There was simply insufficient evidence of use for 20 years before the earlier dispute to enable him to confirm the Council’s Order.

This is a significant win and one that demonstrates the importance of following every line of evidence. It also shows how careful consideration of the material and the cross examination of witnesses can elicit supportive material which might otherwise be regarded as not relevant by some of the parties to a claim.

The decision arrived on the same day as we have been instructed on a new claim in Dorset so as one case concludes, another gets under way.

We are always happy to talk to landowners throughout England and Wales facing path claims or who have existing footpaths, bridleways or byways they would like to divert or who have public path management problems.  It is likely that we have already had to deal with a problem like yours!  Just fill in the form and we will get back to you.

 

 


Fencing Out Paths – our take on the Somerset Path

A Somerset landowner has caused consternation because he has used 2 metre high metal palisade fencing each side of a footpath on his land.  The type of fencing looks something like this:

Crossing a meadow in one of the prettiest rural counties, it is plainly shocking to the eye.

Yet it should come as no surprise to those who have had any dealings with paths in the countryside.

The sad fact is that landowners are increasingly alarmed by the abuse of paths by some members of the public.  These relatively small numbers are spoiling it for all.  The problem is getting worse, not better, despite attempts to educate.  Sadly a lack of respect for the landowner and an insistence on public rights causes friction and what we see in Somerset is the result.

Responsible walkers rarely cause a problem.  It is the few people who do not stick to the path, spread out over grass that is to be cut for hay, do not shut gates, allow their dogs to foul the land and do not keep their dogs under control so stock are worried that cause the issues for the landowner.  Walkers have been injured (and, sadly, killed) by grazing animals that become alarmed or defensive of their young, with farmers facing criminal and civil legal action.

It is hardly surprising that physical separation becomes necessary in the mind of those trying to manage the land.

Attempts to divert paths to remove or reduce the conflict are often opposed through arguments that views will be lost, despite the benefits to the farmer.  In those situations, fencing off a path may be the final option.  Would the public prefer to keep a path and have it fenced in this manner, or work with a farmer to find a compromise?

The Somerset example may be extreme but that is because of the immediate visual impact.  A post and rail fence with sheep netting might look more “natural” and achieve the same result without the media interest.

Is it a surprise that someone might choose a method to fence out a path that detracts from the path’s setting?  Even if that was the direct intention, there is nothing to prevent this.  Provided no planning laws have been broken, and no path is obstructed, landowners are free to erect what they like to secure a physical barrier on their land.

On social media, someone asked how much this fence must have cost.  It’s a valid question but any investment will be balanced against the cost of lost hay crops, injured stock, prosecution and actions for negligence all carrying a considerable and potentially ongoing expense, and not least the daily management concern for a path that impacts on the land.

We work for landowners across England and Wales and few would wish to erect such barriers on their land.  We would not like to see this become the default solution for difficult paths.  However we understand why someone would do this and maybe it is sign that working with landowners is more likely to avoid this occurring than confronting their plans to change paths where there are identifiable benefits to the landowner.

It will be interesting to see if others follow this example.

You can read more about the Somerset path and see photographs here: Daily Mail

To talk about your land access and footpath issues contact us on 0203 086 7657 or email mw@etlandnet.co.uk.


Will homeowners really win the “right” to bar ramblers from their land?

The Times on 2 January carried the headline: “Homeowners win right to bar ramblers from land”, saying “Homeowners will be allowed to divert historic rights of way from their land under plans being drawn up by ministers.”

It continues

“Owen Paterson, the Environment Secretary, wants to help householders who find that walkers, horses and even motorcyclists regularly trample through their garden or past their front doors on routes that are often centuries old.”

The Telegraph also carried the item and managed to drag in the Jeremy Clarkson case on the Isle of Man and blamed the Right to Roam.

We know it is a big, complex subject but these stories are sensationalised and unhelpful to the debate that is currently under way surrounding the legislative changes proposed in the Deregulation Bill.

The Bill in draft form has been undergoing “pre-legislative” scrutiny by a Joint Committee of the Commons and Lords prior to its imminent introduction in the current parliamentary session.   There was some concern that none of the rights of way changes proposed in the Bill would survive the draft stage but the Committee, reporting just before Christmas, has recommended that the proposals go forward, albeit acknowledging the considerable shortcomings of the existing legislation are left un-addressed by the proposals

In their report they said:

 “We are aware that the law governing rights of way is highly contentious and commend the SWG for its achievement in reaching a consensus on the issue of recording unrecorded historic rights of way. We acknowledge also that maintaining that consensus requires the package of reforms contained in the draft Bill to be accepted as a whole.”

Note – The “SWG” is the Strategic Working Group comprising interested parties such as the Ramblers, British Horse Society, the Country Land and Business Association (CLA) and local authorities.

In respect of the various submissions about the shortcomings of the existing legislation the Committee said:

 “We took the view at the outset that we would focus our attention on the clauses in the draft Bill and that we would not consider proposals for additional provisions. Given the level of public interest in rights of way, however, we draw to the attention of the Government the wider rights of way concerns raised in the course of this inquiry and urge them to take action to meet them.”

Those “concerns” were voiced to the Committee not just by the user groups but also from landowner groups including the CLA and a small but vocal group “Intrusive Footpaths”.

Keep to Footpath

Put simply the Bill when finally published is likely to propose the following key changes (based on the draft Bill that has been through the scrutiny process):

  1. Claims for rights of way based on historic evidence will have to pass a basic evidential test in order to be accepted and processed.
  2. Councils will henceforth be responsible for notifying landowners that a claim for a right of way has been received and will be processed, rather than the applicant..
  3. Where a claim is based on historic evidence the landowner will be able to negotiate a diversion to enable the claimed path to fit in to the modern management requirements of the land.  However this will not apply to routes already recorded which will still have to go through the formal diversion procedure.
  4. Landowners will have a right to apply for a diversion or extinguishment of an existing path with an appeal to the Secretary of State if a council will not make a diversion order.
  5. Landowners will be obliged to meet the full costs incurred by the council or Secretary of State for taking a diversion or extinguishment case through to final determination.  At the moment the rules preclude charging a landowner for processing a diversion or extinguishment where there is an unresolved objection.
  6. There will be a power to ignore irrelevant objections which currently can force a hearing or inquiry to be held.

One of the demands made by the Intrusive Footpath group was that there should be an automatic right to exclude any right of way from the proximity of a dwelling.  Other proposals included that there should be a presumption in favour of a diversion out of a garden.  These seem to be provisions hinted at by the newspapers.

The proposals in the draft Bill have been widely debated.  I was asked to speak at conferences in London and Leeds in December at which the changes were discussed with presentations from Dave Waterman, heading DEFRA’s input in to this, as well as Natural England, Intrusive Footpaths and user groups.  My role was to look at practical issues affecting landowners.  The audience included the head of the Ramblers, the Open Spaces Society, the Byways and Bridleways Trust and others in the who’s who of rights of way.

At Leeds, Dave Waterman asked if we could speak further in the New Year.  That conversation will start next week.

The point I made was that the current legislation is not the problem, it is attitudes and specifically a “can’t do” rather than a “can do” approach from councils.

There is nothing in the current legislation that prevents a path being diverted out of a garden or away from a house.  We have done plenty of these.  The problem is that these proposals frequently attract objections and that means councils say no, not because of the merits but because of the cost and the hassle.

Accessible paths are frequently key to securing a diversion.

Accessible paths are frequently key to securing a diversion.

So should there be a right to divert a path away from a house or out of a garden?  It is certainly an attractive proposition but what are the practicalities?  How do you distinguish an intrusive path in a countryside setting from one in a town or village centre?  How do you deal with the situation where a redundant agricultural building is converted to a residential property?  What if the landowner creates or extends a garden which then has a path running through it?

At the moment it is necessary to prove that a diversion is expedient in the interests of the landowner and that can include the privacy and security of the property affected.  The courts have acknowledged those as justifiable reasons to seek a diversion.

DEFRA could issue guidance as to a presumption in favour of a diversion where the right of way impacts on the privacy and security of the property.  Yet it would remain the case that this would have to be demonstrated by evidence and the presumption, as with all presumptions, would be rebuttable if an objector could prove otherwise.  It may shift the burden of proof but it is rarely an issue of contention.

Could there be a statutory “right” to divert the path, not merely a presumption?  Having a right suggests that no objection would be sustainable if the diversion was out of a garden or away from a house.

That is not an argument the Open Spaces Society or Ramblers would ever concede without a fight and they have the resources to fight hard and long up to the Supreme Court or even in to Europe with George Laurence QC leading the battle if necessary.

Let us consider some scenarios.  An existing path which has no “historic” value may be justifiably ripe for diversion.  Is there anywhere it can be diverted to?  Can the householder offer a suitable alternative route?

100_3856

The footpath through this garden should be diverted – but to where?

Where the path is recently deemed to have come into being through 20 years use, what is the justification for diverting something if the landowner has not taken steps to prevent it becoming a right of way?

If the path has historic value and the property is recently converted, why should the balance be in favour of the landowner rather than the public at large?

What if the existing path is surfaced and accessible to all walkers but the alternative would not be accessible to all?  Should the balance lie with the householder or the public?

These issues are all relevant to the existing law and we deal with them all the time.  Inspectors hear evidence on these points at every inquiry and hearing in to a diversion order.

The issue is overcoming the discretion of the council to say “no” even to the best considered proposal.  The right to apply for a diversion proposed in the Bill will by itself give the landowner the opportunity to put the case on its merits.  The provision for full cost recovery will remove the financial deterrent for councils to process opposed diversions.  Those two provisions therefore start to address the problem.  They do not, however, mean that landowners will have a “right” to keep people off their land.

The Bill does not address the current resource crisis, however.  You can have as many rights to divert paths away from houses as you wish but without the council staff to handle the cases, you end up with stagnation.  And despite the Joint Committee noting the greatest interest in the Bill came in relation to the rights of way provisions, rights of way staff and departments have been cut and cut again as these are seen as dispensable services with the lowest priority for public spending.

In my December presentations I gave two examples of how to improve things dramatically for landowners.  First, let landowners handle the application for the diversion order.  Secondly, let landowners make the case for confirmation at any inquiry or hearing.  If landowners are going to have to pay full costs to councils, better they have their own team do the work because their own team will have an incentive and be answerable to the client.

I cannot claim credit for these ideas.  Both of those are proposals taken from practical examples in use, but only by one or two councils throughout the country.  It is what Dave Waterman wants to discuss and it is something, again, that DEFRA can do by issuing guidance.

Proclaiming that landowners will have a right to bar walkers from their land is misleading, and potentially dangerous.  How many landowners have heard walkers claim “we have a right to roam”?  Will we now hear some landowners say “I have a right to bar you”?  Neither position is attractive but you can be sure that the landowner will come off worse in the eyes of the law.  Stopping use of a path is a criminal offence – trespassing is merely a civil issue.

Private Keep Out

A great deal was achieved on behalf of landowners prior to the Bill to secure the introduction of the right to apply for diversions.  The proposals are not new but the implementation was always problematic.  By and large that has been addressed and DEFRA intend introducing all of the changes to the legislation at the same time.

What is now required is some innovative thinking on the part of the agencies involved at local and national government level to unblock the process.  We need to acknowledge that diversion proposals will have to be determined so the procedure has to be in place for this to be achieved quickly and efficiently.

Let us see how this proceeds through Parliament.  Happy New Year!

Michael Wood

mw@etlandnet.co.uk

3 January 2014