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  

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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.

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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.

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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.