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 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 firstname.lastname@example.org.