Towards the end of September 2015 I was driving back from visiting a new Estate in East Sussex when I took a call from a developer in the North West.
The problem sounded complex . A bridleway and a footpath had a significant impact on a house being developed for a high profile individual. The developer had believed the diversion would be problematic and time consuming and so a plan had been prepared to lower the level of the bridleway to lose it from view. The longer term plan was then to divert the paths after the house was built.
Emails, plans, drawings and opinions were exchanged over the next month. I visited the site towards the end of October. Our team were ready to go. But we couldn’t help thinking that changing the level was unnecessary and that the best bet was simply to press ahead with a diversion.
By Mid November we had agreed that was the right step and that the original wish to hide the bridleway should be abandoned, so with the agreement of the Council, we were able to undertake the pre-order consultation and in March this year the Council agreed to make a complex order for the diversion of the bridleway and the footpath. We then drafted the Order. With a few frustrating delays for Christmas, Easter and annual holidays, the Order was eventually confirmed in July. Even with those delays, from start to finish the process was completed within 8 months.
The result is:
Greater privacy and security for the new house being built on the site; and
A much nicer environment for riding and walking:
There is no particular reason why diversions should take long to be dealt with. Invariably it is because officers in councils have too many cases to process or councils have processes which cannot accommodate speedy decisions (such as infrequent committee meetings). Allowing the applicant’s advisers to do the consultation and the drafting of orders saves time for the council.
We are pleased to be pursuing this model in Wiltshire now and look forward to the time when it is the normal way of dealing with matters.
As always we are happy to help you achieve a diversion – call Michael Wood on 07796 958572 or email Michael on firstname.lastname@example.org
We have recently achieved public path diversions for two clients each with equestrian interests.
In Wiltshire, the bridleway running through this working yard has been diverted as part of a development of farm buildings using planning legislation. At a public inquiry in December we represented the owner and called supporters and expert evidence to satisfy the Inspector that the proposal should be confirmed.
Meanwhile in Devon, and the village of Kings Nympton, our clients breed racehorses and the main paddock was crossed by a footpath which few people used, choosing instead an alternative permissive path that formed the basis of the diversion. Neighbours and the Parish Council were opposed because of the perceived impact on properties near the diversion.
The design for the new path was detailed and a little unusual but reflected the importance of the diversion to the client. It incorporated specific fencing and drainage provisions to address points made by objectors. This was the design plan we produced to the Inspector:
This case was ultimately determined by written representations with the Inspector carrying out an unaccompanied site visit. Where this method can be used it is undoubtedly cheaper for the client. Following the decision to confirm the Order, the new route is now being constructed so that the diversion can take effect.
These two recent cases demonstrate the importance of creative thinking and solutions. The Wiltshire diversion would have taken much longer and met greater challenge had it not been possible to engage the planning procedures for path diversions. We always consider this possibility. The Devon case showed the importance of thoughtful design in a diversion proposal.
We work with a number of equestrian businesses throughout England addressing the particular issues they can have.
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 email@example.com.
The Growth and Infrastructure Act 2013 made a subtle change to the existing legislation where the diversion of a public path is required to enable the development of land to take place.
Where it is necessary to divert a public path to facilitate development the requirement was that the application to divert was separate from the planning application and was made after the planning consent had been granted. This often led to problems, due to the time limit for commencing the development. In one case where we were instructed to divert a path in such circumstances, we had to visit the one objector’s house to persuade him to remove his objection and then drive the withdrawal of the objection to the council’s offices to beat the deadline. The order was confirmed on the day before the permission expired and the JCB rolled on to site to dig the first trench and commence the work with 6 hours to go.
In other cases the diversion might not be acceptable. It might be too extensive and more than is strictly required for the development to be undertaken, even if it is a much better route.
Under the changes made it is now possible to make the diversion application at the same time as the planning application which makes sense on many levels. Often the objection to development is that it impacts on a path so combining consideration of the development and the diversion is logical.
Planning the development to ensure that the diversion works for the property has always been important and many landowners have discovered the benefit of using the process under the Planning Acts because the tests for confirmation of the diversion are easier to meet so that the prospects for success are always better. If the development can be justified but the effect will be that it would block an existing path then using this process can be a good way of diverting a path that might be more problematic if one has to fall back on to the Highways Act provisions.
We work with a number of developer clients and planning consultants and look forward to testing the new procedures in the near future. Our aim is always to advise and guide the process of diversion and help to develop the plans to achieve this.
If you would like advice please feel free to call Michael Wood on 0203 086 7657 or complete the form below.