Farmers are lambing, drilling, and worrying. Private estates are managing. Individual landowners are staying at home. Here are a few thoughts on the impact of COVID-19 on land access issues.
Whilst we are locked down and, where possible, working from home, the public are exercising. Isolated paths whether official or not are more attractive to those seeking to have their one hour a day exercise. More people are at home and are looking for the opportunity to get out safely and within the guidelines.
For existing public paths, particularly those closer to areas of habitation, this has resulted in increased use. It has highlighted the intrusive nature of some paths, where they pass close to houses or through working areas (farmyards in particular). The right of the public to use such routes raises issues of the ability of the landowner to ensure safe distancing from the public.
The public are touching fencing, gates, latches, stiles and signs. All of these are apparently capable of retaining the virus to a greater or lesser extent so this represents a risk to the landowner and other members of the public.
With certain “high profile” routes closed to the public, there is a risk that paths that are not recorded on the definitive map, becoming more attractive. Even in the countryside, these paths that perhaps a few locals may risk using from time to time are potentially more likely to attract those seeking exercise.
Directly challenging anyone who is on such a path is potentially fraught at the best of times, let alone in the middle of a public health crisis where anyone may be carrying the virus.
Strict control is difficult and may be inappropriate where there is a national mood that we must help one another. Our suggestions are given in this light and are as follows:
Official Paths (those recorded on the Definitive Map)
As always there is no “one size fits all” so do speak to your land agent if you have one or take professional advice. We are here (our office is in the garden!) and are working if you wish to discuss your specific issue.
On Thursday 5 October 2017 we enjoyed the red carpet experience at Denbies’ Wine Estate in Surrey as a finalist in the Best Rural Professional Services category in the Rural Business Awards, Sponsored by the CLA and Amazon. It was quite a night!
We were awarded “Highly Commended” in our category. As a small niche business we were delighted with this acknowledgement of the service that we provide.
The night started with a champagne reception giving us the opportunity to speak to fellow finalists and guests. An interesting discussion with the Amazon contingent included the usefulness of the Amazon delivery boxes as composting material!
Our table was next to the stage – ideal for viewing the pre-presentation final details and the host, Jules Hudson from Escape to the Country.
Of course to have won would have been fantastic but the calibre of our fellow finalists was significant. Being beaten by a law firm with more than 200 employees and partners and a turnover of £14M is no disgrace!
A great night, explaining footpath diversions and modification orders to our table and learning about dog treats, farm shops and baking from them.
Congratulations to everyone who made it to the finals – we know just how much work it takes to shine in your chosen field, Well done!
We are always pleased to talk about public rights of way – just get in touch using the form below.
It has been an exciting few hours since we learned we had been shortlisted in the Best Rural Professional Services Business category in the 2017 Rural Business Awards – and now it has been officially announced we can share this great news with our clients.
We know there are some great rural businesses out there so are privileged to get through the initial judging and be one of the five in the running for the Award.
Thanks are due to our great clients and for their recommendations – here’s just one:
We would describe Michael as extremely professional, incredibly knowledgeable on the subject matter and very capable of conveying incredibly complex information in a very user-friendly way. We would not hesitate to ask Michael to act for us again.
We remain committed to working with our landowner clients challenged by public rights of way. We are always happy to talk through a problem and to find a solution.
You will find more about us on our website www.etlandnet.co.uk and you can always email Michael Wood at email@example.com for help.
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.
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.
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 – firstname.lastname@example.org or call 07796 958572 or complete the form below:
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 – email@example.com or Coralie Wood firstname.lastname@example.org 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.
As part of our 10 year anniversary, we are looking back at some of our significant cases.
We are starting in West Sussex – a County where we have had great success and where we continue to pursue some important cases.
When new gate posts and electric gates were erected on the drive to 5 private houses in Denne Park, Horsham, a campaign was started to record the driveway as a public footpath. 135 local residents completed user evidence forms claiming to have walked the route, with some saying they had done so since 1920. Whilst accepting that some would have used the route, the landowners’ case was that there had been a sign at the entrance to the route, from at least 1959, stating that it was private with no public right of way.
Many of the users denied that there had been such a sign or that they had ever been challenged when using the route. It was therefore important in preparing the case to find the evidence to prove the existence of the sign, and to tackle the issue carefully in cross examining the 24 witnesses called to support the case.
A number of sources for photographic evidence were sought from archive pictures through to the personal photographs of the previous landowner. Although many did not show the wording on the sign, it was possible to see the fence to which it was attached in the background with the sign board visible from the rear. Great care was taken in ensuring that the landowners’ case was presented comprehensively to cover this.
After a three day public inquiry, the Inspector concluded that the landowners clearly demonstrated their intention not to dedicate the way to the public and that the claim should be dismissed.
The result allowed the landowners to secure the privacy and security of their properties. There was always a risk that with so many people claiming to have used the route that the claim might succeed, so the careful preparation and presentation of the evidence was crucial in leading to this outcome.
We are now working nearby on a Special Diversion Order for the benefit of a School – you will read more about that on our blog as the matter concludes.
If you are facing a claim for a public right of way on your land and need help in fighting it please get in touch – email Michael Wood – email@example.com or call Michael on 07796 958572. You can also complete the form below and check out what we do on www.etlandnet.co.uk