Our successful diversion of a footpath out of the garden of Manor Farm, Little Rollright in Oxfordshire following a hearing in late 2019 was challenged by the Open Spaces Society by an application to the High Court. They claimed that the Inspector had got the law wrong when she confirmed the diversion and that DEFRA guidance was incorrect.
There are three statutory tests to be satisfied for a path diversion to be confirmed. The diversion must be in the interests of the applicant or the public; the diversion route must not be substantially less convenient; and the diversion must be expedient taking factors into account including the impact on public enjoyment.
In its Advice Note, which gives guidance to the parties and the Inspector, DEFRA had stated that when addressing the third, “expediency”, test, it was necessary to balance the impact on public enjoyment against the benefit to the applicant. DEFRA considered this to be applying a previous judicial view of the law in a case called “Young”. If there was marginal benefit to the applicant and an adverse impact on public enjoyment, then on balance the diversion should not be confirmed.
For some time, practitioners, councils and applicants had approached the third test by looking at this balance between public enjoyment and landowner benefit. It was on this basis and applying the Advice Note that I argued our case before the Inspector at last year’s hearing where she had reached her view.
The matter came for hearing in April and the judgment followed in May. The thrust of the Open Spaces Society’s case was that in applying the third test, the benefit to the landowner/applicant was to be ignored and only the impact on public enjoyment was to be considered. As the Inspector had come to the view that there would be some loss of public enjoyment because of the diversion, this outweighed any other consideration and the diversion should not have been confirmed.
In her judgment, Lieven J found that the DEFRA guidance was wrong and that the earlier case upon which the guidance was based had not contained a “balancing” test. Nonetheless the Judge was satisfied that the third test did not exclude other factors when determining the expediency of a diversion proposal and that it was right to include the benefit of the diversion for the applicant. She rejected the challenge – see OSS v SSEFRA  EWHC 1085 (Admin).
So for now the balance test has gone to be replaced with a broader consideration of all relevant matters.
And what has emerged as a very relevant matter in the current health crisis is that the presence of walkers, riders and cyclists in the garden of a house or in a farmyard or other enclosed space exercising a public right of way is a bad thing when the owners of the land are following guidance and are self-isolating or maintaining social distancing, or protecting their health and that of their employees so they can produce the food which the country needs.
We have had several enquiries about securing diversions in these circumstances and the failure of DEFRA to address this by a closure of such paths is frankly shocking. They readily closed down the countryside to prevent the spread of foot and mouth disease but there is no acknowledgement of the health risk created by permitting the ongoing use by the public of intrusive paths.
In the past, landowners’ concerns about coming into contact with the public using a path have been dismissed as hyperbole by user groups. Even at the Manor Farm hearing, just at the end of 2019, we could never have thought that possibly the strongest reason to remove the path from a property garden was the health impact on the owners, yet now in June 2020 it would be justifiably front and centre.
Numerous reports have been written over the last couple of months backed by photographs of paths “illegally” closed by landowners with walkers “up in arms” that their rights have been curtailed. As I have advised several client, this type of attitude that, no matter what the circumstances the public are entitled to walk on a public right of way, serves only to emphasise and build upon the justification for diversions in many cases.
We may no longer be directly balancing competing interests when assessing diversions, but the pendulum has swung towards landowners to secure diversions to protect their health, privacy and livelihoods.
Statistically, it is more likely that path diversions will proceed unopposed, but there are still many where objections are unresolved and lead to the appointment of an Inspector to determine them.
We have recently had three such cases, all involving applications by landowners to move intrusive paths and improve their privacy. We are delighted that in every case the diversions have been confirmed.
Hildenborough, Tonbridge, Kent.
The footpath gave this view of the house and its garden yet the Ramblers argued that it was not intrusive. The landowner had set out a diversion of equal length but a little distant from the house which improved privacy, and it had been well used and was the preferred route for most users.
In addition to the Ramblers, a few local people and the Parish Council also objected so it was necessary to hold a public inquiry which was completed within a day. We represented the landowner at the inquiry, and supported the case made by Kent County Council. The Diversion Order was confirmed.
Three footpaths crossed a small area of land, including one immediately behind the landowner’s house, with the other two crossing an orchard. Other paths had already been established by local people so the whole area of land was surrounded by public paths.
The Parish Council, supported by three individuals, challenged the diversion forcing an inquiry which completed at 7.30 pm. It was a long day! A couple of technical issue were raised which needed follow up submissions and the Inspector has proposed confirmation of the Order subject to correcting errors in the Order.
We represented the landowner at the inquiry, and supported Dorset County Council who made the Order.
Little Rollright, Oxfordshire
When the garden at Manor Farm, Little Rollright, had been set out and landscaped, an error had been made in the location of a stone wall, with the consequence that a footpath had been incorporated at the end of the garden. The wall had been intended to separate the footpath from the garden but was built in the wrong place!
A rather tortuous process followed involving consultation with user groups. The Diversion Order was made and the Open Spaces Society objected. The Planning Inspectorate decided to hold a hearing rather than an inquiry and this was held in a workshop on site.
The Inspector specifically acknowledged the intrusive nature of the path on both the garden and the house and although she considered the diversion did have an impact on public enjoyment, this was not sufficient for her to refuse to confirm the diversion.
Oxfordshire County Council supported the confirmation but deferred to us to make the case at the hearing. We represented the landowner and were supported by our expert witness, Claire Goodman-Jones.
These three individual cases demonstrate that an objection to a diversion based on increasing privacy, from the likes of a Parish Council, the Ramblers or the Open Spaces Society, should not be regarded as a bar to success and that with careful case management and presentation, these cases can succeed.
We are always happy to assess a diversion proposal and give an experienced view on the prospects of success.
Email us with your inquiry: email@example.com
We are delighted to have secured for the third year the temporary diversion of the footpath through Fawley Court making it possible for the owner to run the Fawley River Club and Akoya-Henley events during the Regatta week.
Access along the River during the Regatta has always been contentious and starkly illustrates the issue between the public’s right of way and the ability of the landowner to manage their land. The issue is longstanding for the Regatta itself, with the National Trail running on their side of the riverbank.
Below is an aerial view of the site from Google Earth showing how the Meadow usually looks, so you can see how it is transformed to host these prestigious events!
The footpath runs close to the riverbank where the impressive glass pavilion is set up for guests. The diversion takes the public a little distance away from the site but they are still able to walk through.
We work with a number of estates like the Fawley Court Estate providing them with advice and management services for their public paths. It is an essential part of their land management to ensure compliance with the complex rights of way legislation.
We help landowners of all sizes with their public rights of way issues – you can contact us without obligation to see how we can help you
Call Michael Wood on 07796 958572 or email Michael firstname.lastname@example.org or complete the form below.