Inspector’s Decision concludes landowner’s changes to public access at Baydon House Farm, Wiltshire

A recent decision from the Planning Inspectorate confirming a bridleway diversion brought to an end a series of successful applications and interventions for the landowner at Baydon House Farm, Wiltshire.  These included resolving steps taken by the landowner to restrict vehicle access to prevent crime, the authorisation of a gate across a bridleway, the diversion of a bridleway out of a farm yard under planning law processes, and the diversion of a bridleway out of a garden.  Michael Wood of ET Landnet Ltd headed the team which successfully delivered the client’s required outcomes.

Yard Picture

(Above – the yard at Baydon House Farm that was part of the public bridleway until we successfully diverted it.)

In the process we presented at two committee hearings, acted as advocates at a public inquiry and dealt with the expert evidence, and settled the statements of case for a written representation procedure.

The end result is that the Farm now has no public rights of way on the Farm drive or through the yard, and the privacy of the house and the Farm cottages is immeasurably improved.  The operation of the equestrian enterprise can now be undertaken without the risks that come from unannounced public access so horses can be moved and trained in peace.

Here are some of the pictures…

A bridleway ran across the lawn of this cottage

A bridleway ran across the lawn of this cottage

This gate had to be legally authorised whilst the process of diverting the bridleway off the driveway was completed

This gate had to be legally authorised whilst the process of diverting the bridleway off the driveway was completed.

A section of bridleway ran between the wall and the outdoor school.

A section of bridleway ran between the wall and the outdoor school.

This is part of the new route that takes the public away from the driveway.

This is part of the new route that takes the public away from the driveway.

This is a section of the new bridleway that is enjoyed by local walkers.

This is a section of the new bridleway that is enjoyed by local walkers.

We naturally look back at the end of such a case with a high degree of satisfaction in the knowledge that the owner’s objectives for the Farm have been met.  We look forward to the next large project and solving our clients’ access issues.

You can call Michael Wood on 07796 958572 to discuss your access questions or email Michael at mw@etlandnet.co.uk


Autumn is a great time to start sorting out those public rights of way issues!

The so-so summer of 2016 is passing into history.  Team GB has inspired us all at the Olympics with the Paralympics set to give us even further impetus.

If you have a house or own or manage land which is affected by a footpath, bridleway or restricted byway, and have an alternative route that the path could take to improve your privacy, security or the management of that land, now is a great time to start planning.  The new right to apply rules are finally coming into play and will provide a fairer system for diversions to be considered and progressed, and the process should be quicker, too.

A diversion that removes the need for the public to use stiles improves the network

A diversion that removes the need for the public to use stiles improves the network and when a stile like this needs to be repaired, reduces the liability of the landowner too!

There are plenty of examples where path diversions succeed without objection, too.  They do not always attract objections and even where there may be initial reluctance, it is often possible to find a compromise.

As the new rules start to apply, we will be updating you through our blog – but in the meantime we have many cases sitting ready to go when we can overcome the reluctance of councils to make orders because of the costs they may incur if there are objections.

We are always happy to discuss diversion proposals – please feel free to call our Director Michael Wood on 07796 958572 or email Michael mw@etlandnet.co.uk  or fill in the form and we will contact you.


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.

 

 


A gate (great) result for two CLA members

Farmers need gates.  Farmers have always needed gates.  Gates in the countryside are passed unnoticed – they are things of utility and blend in to the background.

Except, that is, where they are across a public right of way. Then they become items for scrutiny and potential action.  They limit the public’s right of way and they may be obstructions.

One would think that the highway authority, charged with the duty to assert and protect the public right of way and to remove obstructions would be clued up on what gates are lawful and what gates are obstructions.  They should find the information in the “Definitive” Statement which records all lawful limitations.

Gates may be historic in that they were in existence at the time the public right of way came in to being and the dedication of the right of way is therefore deemed to be subject to a “lawful limitation” or they may be authorised for stock control purposes which also makes them “lawful”.  The difference is that a historic gate is not subject to a request for removal once its purpose has been served.  In contrast a gate erected for stock control must be removed once that purpose has ended, such as when pasture is turned over to arable cultivation.

SAM_1513

It potentially gets more difficult!  Lawful limitations may be upgraded with the agreement of the highway authority and are then subject to the authorisation process dictating their character, design and operation.  All these authorisations need to be recorded and should be added to the Definitive Statement.  It was not that long ago that a friendly rights of way officer would supply and erect a stile or a gate for a landowner to get over a problem, no questions asked and no paperwork done.  Now authorisations are formal.  Nothing much changed in “gate legislation”.  The change had to happen once the public had the power to force councils to remove obstructions.

When the Definitive Statement was first prepared a detailed survey of all paths was carried out and the gates and stiles found to exist were to be recorded.  This might be by showing the structure on the survey maps (“F.G.” = Field Gate) or by a note in the written description (“proceeds to a stile…”). This enabled those at county level to ensure the records were properly compiled so all would be clear in the future.

Great idea – poor execution.  The local surveyors of the rights of way were mainly diligent in their work.  Looking back now some 60 years it is inexplicable why the detail required and recorded for the survey such as the location of gates and stiles was frequently ignored when the Definitive Map and Statement were finally produced from the survey data.  The same is also true of widths, but that is for another time.

In two recent cases for CLA members (thank you to the CLA for the recommendation, by the way) two different authorities were threatening serious action for the removal of gates.  One in the North York Moors was across a route that had been surveyed as a public path but which had been omitted from the Definitive Map because it was a maintainable highway (this could be the subject of a separate post in itself) and the other in Hertfordshire was a gate across a bridleway.

Common to both cases was the owners’ knowledge that the offending gates were historic.  But how could this be proved?

Both clients were able to provide statements, either of personal knowledge or from occupiers, to confirm the existence of their gates, but these words did not seem to be enough.

The clinching evidence came from the parish surveys from the 1950s.  The surveyors had diligently recorded the features on these routes.  In the North York Moors case the “F.G.” was plainly marked on the survey map.  In Hertfordshire the Parish Survey described the gate and its location.

Detailed letters to each authority setting out why the authority was wrong to require the removal of the gates and requesting the withdrawal of the threats against the landowner followed.  The evidence from the 1950s surveys was proof in both cases that these were historic gates, so that the respective highway authorities withdrew their threats of action.   Applications to modify the definitive map and statement to correct the records followed and are being processed and the gates are still in place.

In both cases the authorities acted against the landowners in response to a complaint from a third party, placing the burden on the landowners to prove they were entitled to maintain their gates.  In the Hertfordshire case the compelling evidence only emerged once we made a specific request for the documentation.

SAM_1524

Landowners are not specialists in rights of way and are unlikely to appreciate that these records exist and what they may show.  When an officer from the highway authority turns up and tells a landowner they are in the wrong, not every landowner will have the personal knowledge to challenge this.  When it comes to gates and stiles, some investigation and having someone who “knows what they are talking about” on the landowner’s side is no bad thing. Not all gates and stiles are lawful limitations but landowners should treasure those that are and the public and the highway authority do not necessarily have access to accurate records about these structures.

In time two inaccurate records will be corrected through the formal, long-winded procedure of modification.  One cannot guess at how many further errors remain to be corrected, or how many landowners have removed gates or stiles they were entitled to keep.

The system is frustrating for the public and for landowners alike and placing the burden on the landowner due to an omission in the 1950s to do the job right seems particularly harsh.

Yet these two cases do illustrate that however difficult, there can be light at the end of the tunnel (or path!) when an officer calls or a letter drops on to the mat to say the gate must go.

As always, we are here to help if you have a public right of way issue – call us on 0203 086 7657 or complete the form below.