Buying a property with a public path through its grounds. Is it all doom and gloom?

A public right of way can have a dramatic impact on the value of a property, sometimes making it unsaleable.  However if you have fallen in love with a house and are willing to ask questions and do some research, then it might not be as bad as you think.  We’ve set out some pointers below.

Is the path on the correct alignment?  You might be surprised to know that some property owners have made changes to public rights of way without going through the formal diversion process.  It will be the line on the map that will be enforced, not an alternative.

Ground marked waymarks

Look out for signs which show where the path runs

Are there stiles or gates on the route?  You will need to be satisfied that these are “lawful limitations” and are recorded by the highway authority otherwise they are likely to be obstructions and you can be forced to remove them.  You can only get permission for a gate that keeps livestock in or out of your property.  The security of your pets or children is not a basis upon which an authority can permit you to have a gate, and a stile will rarely be authorised as a new structure.

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An authorised gate may require special latches

Is the path part of a promoted route?  You will need to ask or check on the Ordnance Survey’s published leisure maps where promoted routes are shown with diamonds.

Is the path well used?  Be sceptical when the seller says that they have never seen anyone use the path.  Even if that is the case, that does not mean that it will not be used in the future.

Walkers

Is the path fenced off?  The path might have been fenced off to stop the public and dogs straying, but any fencing must not obstruct the legal line and width of the path and there are rules about the fence height.  If in doubt, check with the highway authority.

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This footpath has been fenced on both sides across a paddock – but it is too narrow

Can you lessen the impact of the path on the property?  You may be able to divert the path away from the house or out of the garden or away from some change of use of the land if this improves matters for you.  Diversions are not straight forward but it is always worth investigating.  We recommend taking specialist advice.  And do bear in mind that diversions can take time to achieve.

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The footpath gave a great view into the garden of this house – it has now been diverted.

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We are standing on a public path – you can see into the windows of this house for sale.

 

It might be a matter of better management of the path.  Proper signs can help and a fence or hedging may be a good way to provide the privacy you need.  Bear in mind that if you plant a hedge it will grow sideways as well as up!  You will need to cut back side growth if it goes across the path.

 


 

Some of our clients have been able to benefit from diverting paths to improve their privacy and security.  As one noted to us “it’s just good land management practice to look after and enhance your property if you have the opportunity to do so.”


 

OUR KEY TIP!

Arrange to view the Definitive Map and Statement. 

The Definitive Map and Statement is the legal record of the alignment, status and other details about the path and it is this information which the highways authority will rely upon.  You will usually find how to see these documents through the “rights of way” pages on your county or unitary council’s website.

 

You can always contact us for advice – we can often give a preliminary view without charge and if nothing else, point you in the right direction.  It costs nothing to ask us!

Contact Michael Wood by email mw@etlandnet.co.uk or give him a call on 07796 958572

Or complete the form below:

 


The minefield of public rights of way

Two recent cases have demonstrated the potential minefield for landowner clients resolving public rights of way issues.  We’ve been glad to get them through these problems and to have them both say that our input was invaluable.

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In Hampshire, a relatively straight forward claim to upgrade an existing bridleway to a restricted byway ran into the huge complexity of the legislation when it emerged that the recorded route was on the wrong historic alignment.

On discovering during the investigation into the historic evidence that the route should actually run through ancient woodland, both our client and the council were agreed that this served no one’s purpose and that keeping the route on the existing alignment was the right thing to do.

To achieve anything, the first technical step would require a Modification Order to move the path back to the historic alignment through the woodland.  Such an Order might also seek to upgrade that route to a restricted byway, which our client would challenge.  We would then need a diversion order to move the route back onto the alignment currently recorded and used by the public.  There could be no certainty that either order would succeed in total (although it was likely that the route would be moved back into the woodland) so a solution had to be found.

And we have found one.  Working with the client and the council, there will be a restricted byway retaining the charm and characteristics of the currently used route.  It will take some further work to finalise the required agreements and orders but the public, the client and the council will have a clearly defined, sympathetic route and the significant expense to both the client and the council of public inquiries and potential challenges will be saved.

Meanwhile in Kent, we were called in to negotiate with the council over the availability of a public footpath which had a significant impact on our client’s estate but which had to be reopened.  Having made some initial demands of our client to open it to 2 metres in width, and to remove gates, we brought some direction to the discussions, pointing out that the route had no defined width.  The client was happy with 1.5 metres and this was agreed.

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More importantly we were able to argue that the gate that the client required was actually an improvement to the stile that formerly existed on her boundary and should be permitted as a lawful structure.  Again this was agreed and is now being implemented.  The client has achieved what she wanted and we have maintained a good relationship between our client and the council which looked at times to be strained whilst the issue was in dispute.

We will always fight our client’s corner but there are many situations where an early and knowledgeable intervention can help bring matters to a positive conclusion, saving time, money and anguish.

As always we are here to help!  Contact Michael Wood – mw@etlandnet.co.uk or call 07796 958572 or complete the form below:

 


A bridleway diversion is confirmed for a leading Equestrian Stud and a longstanding dispute about the path is finally resolved.

We are pleased to have resolved one of the longest dramas in rights of way history with the confirmation of a diversion of the bridleway at Quainton Stud at Lower Denham Farm, a highly successful equestrian enterprise, breeding and training horses for the Olympics, World and European Championships.

Initially called in to try to resolve the problem of implementing the details of a diversion order made by Buckinghamshire County Council, we discovered a problem with the Order.   It had failed to join the diverted route to the highway, leaving a gap in the network.  We explored the options but finally it was agreed that a new Order would be required which has now been confirmed without objection.

Just quite how well the bridleway has or will be used by equestrians is debatable, though, as this is the busy road that the route joins with no immediate onward bridleway for use.

Part of the solution involved removing this recent flower bed and the granite sett edging which the Council regarded as a trip hazard for horses…  The gate in the picture was also removed.

In the course of investigating the path, we discovered that it had a significant history.  There are a few key cases you need to know about in the arena of public rights of way.  One of these is definitely Regina v Secretary of State for the Environment ex parte Burrows and Simms.

The Simms family had owned Lower Denham Farm and were convinced that the Definitive Map showing the bridleway on the driveway was wrong.   As far as they were concerned, a mistake had been made and there was no right of way.  They thought that when Parliament introduced the Wildlife and Countryside Act in 1981 they would at last be able to seek to have the bridleway removed.

From their files at that time was this cutting from Farmers’ Weekly:

Unfortunately it was not quite that simple.  First they had to challenge and overturn the decision of the courts in a case called Rubenstein v Secretary of State for the Environment which had held that you could not challenge the Definitive Map, despite the new law.  They won their challenge but failed to achieve the Order to have the path removed.

An unofficial diversion had got around the practical problem for a number of years, but the threat of enforcement and the opening up of the driveway was real and had to be formally addressed.

The bridleway now has its own dedicated route, separate from the driveway, allowing the Stud to gate and control access to its property.

We have considerable experience dealing with public rights of way affecting equestrian properties so if you have a problem, get in touch and we will be pleased to help find a solution.

Contact Michael Wood – mw@etlandnet.co.uk or Coralie Wood cw@etlandnet.co.uk  if you have a problem or you can call us without obligation on 07796 958572 for an initial chat to see what we can do.

Or fill in the form and we will get back to you.


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


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.


I always thought that was a Restricted Byway…

Mr and Mrs Reynolds are an ordinary family living in an ordinary house but their trials with their neighbours and the London Borough of Havering Council are anything but ordinary.

It started when they became concerned about anti-social behaviour on a track next to their house.  When the status of the track was raised, Mrs Reynolds said that she thought it was a Restricted Byway because any public rights with vehicles would have been extinguished by the Natural Environment and Rural Communities Act 2006 (the “NERC Act”).

The Council did not agree.  The route was unadopted and not recorded on either the List of Streets or the Definitive Map.

Finally taking matters in to their own hands and acting on the advice of their solicitor, they moved their garden fence in to the track.

The reaction from the Council was that this was a vehicular highway and criminal proceedings were commenced against Mr Reynolds.  At the 11th hour they agreed to withdraw when Mr Reynolds agreed to remove the fence.  That was not enough for the Council who insisted that he move his fence even further in to his garden.

Standing with the Council were the neighbours.  Unfortunately neither the neighbours nor the council appeared to understand the first thing about highway law so when we were instructed following the criminal case, we had to explain not only the law but also the procedure for them to record the route.

Mr and Mrs Reynolds did not deny it was a public way but it soon became clear that the council intended seeking to record not only the part used by the public, but also an area of ground that the Reynolds had cultivated for some years.  Eventually after several attempts the Council made a Modification Order to show the route as a Byway Open to All Traffic (BOAT), even though they failed to consider the NERC Act and that it was not then possible to record BOATs.  Our objection followed to an Order that was plainly flawed.

Everyone seemed to finally grasp the point and at the public inquiry the Inspector decided that it was a Restricted Byway and that the width did not extend to the full width claimed and only affected the area of land actually used by the public.  She reached her view having considered numerous forms from neighbours and others where witnesses had assessed that although vehicles did use the route, the main use was as a footpath or with bikes.

However, despite presenting evidence that the predominant public use had been on foot or bike at the public inquiry, the neighbours were not happy with this finding.  They objected to the decision and forced a further public inquiry, claiming now that the predominant use was with vehicles.  This would enable them to argue through their barrister that the NERC Act did not operate to extinguish any unrecorded public vehicular rights.

It fell to us to cross examine the neighbours as to their change of heart.  The Inspector put it like this in her decision:

“When asked by Mr Wood what had made her change her view, Mrs Tyler acknowledge that when she had completed the questionnaire in 2010 she had not appreciated the significance of the ratio of user, and that now she did. This suggests to me that her current view has been coloured by her increasing understanding of the issues, and that I should prefer her earlier view which was given freely and without pre-conception. Applying the same principle to the other witnesses leaves me with no option but to conclude that the views of most of them have been similarly affected, leaving Mr Lee as the only witness whose evidence in 2010 concurs with his view now.”

The Inspector went on to confirm her original finding that the route was a Restricted Byway and was limited to the extent of the public’s historic use, thereby excluding the area of the Reynolds’ garden and finally settling matters.  The neighbours will be totally unaffected by this as their access rights are preserved by the NERC Act.  Several £000’s of public money have been wasted and we await the Inspector’s decision as to various claims for costs made at the inquiries.

The Inspector’s decision is here http://www.planningportal.gov.uk/uploads/pins/row/documents/fps_b5480_7_1m_m.pdf  

Need help with your own public right of way or highway problem?  Contact us now: