A recent decision from the Planning Inspectorate confirming a bridleway diversion brought to an end a series of successful applications and interventions for the landowner at Baydon House Farm, Wiltshire. These included resolving steps taken by the landowner to restrict vehicle access to prevent crime, the authorisation of a gate across a bridleway, the diversion of a bridleway out of a farm yard under planning law processes, and the diversion of a bridleway out of a garden. Michael Wood of ET Landnet Ltd headed the team which successfully delivered the client’s required outcomes.
(Above – the yard at Baydon House Farm that was part of the public bridleway until we successfully diverted it.)
In the process we presented at two committee hearings, acted as advocates at a public inquiry and dealt with the expert evidence, and settled the statements of case for a written representation procedure.
The end result is that the Farm now has no public rights of way on the Farm drive or through the yard, and the privacy of the house and the Farm cottages is immeasurably improved. The operation of the equestrian enterprise can now be undertaken without the risks that come from unannounced public access so horses can be moved and trained in peace.
Here are some of the pictures…
A bridleway ran across the lawn of this cottage
This gate had to be legally authorised whilst the process of diverting the bridleway off the driveway was completed.
A section of bridleway ran between the wall and the outdoor school.
This is part of the new route that takes the public away from the driveway.
This is a section of the new bridleway that is enjoyed by local walkers.
We naturally look back at the end of such a case with a high degree of satisfaction in the knowledge that the owner’s objectives for the Farm have been met. We look forward to the next large project and solving our clients’ access issues.
You can call Michael Wood on 07796 958572 to discuss your access questions or email Michael at firstname.lastname@example.org
The so-so summer of 2016 is passing into history. Team GB has inspired us all at the Olympics with the Paralympics set to give us even further impetus.
If you have a house or own or manage land which is affected by a footpath, bridleway or restricted byway, and have an alternative route that the path could take to improve your privacy, security or the management of that land, now is a great time to start planning. The new right to apply rules are finally coming into play and will provide a fairer system for diversions to be considered and progressed, and the process should be quicker, too.
A diversion that removes the need for the public to use stiles improves the network and when a stile like this needs to be repaired, reduces the liability of the landowner too!
There are plenty of examples where path diversions succeed without objection, too. They do not always attract objections and even where there may be initial reluctance, it is often possible to find a compromise.
As the new rules start to apply, we will be updating you through our blog – but in the meantime we have many cases sitting ready to go when we can overcome the reluctance of councils to make orders because of the costs they may incur if there are objections.
We are always happy to discuss diversion proposals – please feel free to call our Director Michael Wood on 07796 958572 or email Michael email@example.com or fill in the form and we will contact you.
Clients in Herefordshire have finally had their footpath diversion confirmed after nearly two decades! The cross-field path has been diverted on to the neighbouring farm track, which is the route people have walked for so long. The case was dealt with by the “written representations” method of determining objections, and the clients are very relieved it is finally at an end. It was certainly worth the wait!
Not all cases are like this, thankfully, and the new procedures in the Right to Apply legislation are intended to make a marked improvement to the speed of the process. There is no inherent reason why a diversion should take so long. It is either a “good diversion” (in the sense that it meets the statutory tests and DEFRA guidance) or it is not.
It might be thought that delay benefits the objectors but that is rarely the case. Like the applicants and their advisers, we all only have so long on this earth and if you have a genuinely held objection to a proposal, surely it is better to have it considered and move on!
Any paralysis in the system usually arises from an approach that “we have always done things like that”. It is an approach which has been swept aside in so many areas of our lives without harm. The procedure retains the rights of the public to play a full part in the determination of path proposals, even through to a public inquiry if really needed.
You can always talk to us about how we can help you. Call Michael Wood on 07796 958572 or email Michael at firstname.lastname@example.org and see what solutions there are to these issues.
The Times on 2 January carried the headline: “Homeowners win right to bar ramblers from land”, saying “Homeowners will be allowed to divert historic rights of way from their land under plans being drawn up by ministers.”
“Owen Paterson, the Environment Secretary, wants to help householders who find that walkers, horses and even motorcyclists regularly trample through their garden or past their front doors on routes that are often centuries old.”
The Telegraph also carried the item and managed to drag in the Jeremy Clarkson case on the Isle of Man and blamed the Right to Roam.
We know it is a big, complex subject but these stories are sensationalised and unhelpful to the debate that is currently under way surrounding the legislative changes proposed in the Deregulation Bill.
The Bill in draft form has been undergoing “pre-legislative” scrutiny by a Joint Committee of the Commons and Lords prior to its imminent introduction in the current parliamentary session. There was some concern that none of the rights of way changes proposed in the Bill would survive the draft stage but the Committee, reporting just before Christmas, has recommended that the proposals go forward, albeit acknowledging the considerable shortcomings of the existing legislation are left un-addressed by the proposals
In their report they said:
“We are aware that the law governing rights of way is highly contentious and commend the SWG for its achievement in reaching a consensus on the issue of recording unrecorded historic rights of way. We acknowledge also that maintaining that consensus requires the package of reforms contained in the draft Bill to be accepted as a whole.”
Note – The “SWG” is the Strategic Working Group comprising interested parties such as the Ramblers, British Horse Society, the Country Land and Business Association (CLA) and local authorities.
In respect of the various submissions about the shortcomings of the existing legislation the Committee said:
“We took the view at the outset that we would focus our attention on the clauses in the draft Bill and that we would not consider proposals for additional provisions. Given the level of public interest in rights of way, however, we draw to the attention of the Government the wider rights of way concerns raised in the course of this inquiry and urge them to take action to meet them.”
Those “concerns” were voiced to the Committee not just by the user groups but also from landowner groups including the CLA and a small but vocal group “Intrusive Footpaths”.
Put simply the Bill when finally published is likely to propose the following key changes (based on the draft Bill that has been through the scrutiny process):
One of the demands made by the Intrusive Footpath group was that there should be an automatic right to exclude any right of way from the proximity of a dwelling. Other proposals included that there should be a presumption in favour of a diversion out of a garden. These seem to be provisions hinted at by the newspapers.
The proposals in the draft Bill have been widely debated. I was asked to speak at conferences in London and Leeds in December at which the changes were discussed with presentations from Dave Waterman, heading DEFRA’s input in to this, as well as Natural England, Intrusive Footpaths and user groups. My role was to look at practical issues affecting landowners. The audience included the head of the Ramblers, the Open Spaces Society, the Byways and Bridleways Trust and others in the who’s who of rights of way.
At Leeds, Dave Waterman asked if we could speak further in the New Year. That conversation will start next week.
The point I made was that the current legislation is not the problem, it is attitudes and specifically a “can’t do” rather than a “can do” approach from councils.
There is nothing in the current legislation that prevents a path being diverted out of a garden or away from a house. We have done plenty of these. The problem is that these proposals frequently attract objections and that means councils say no, not because of the merits but because of the cost and the hassle.
Accessible paths are frequently key to securing a diversion.
So should there be a right to divert a path away from a house or out of a garden? It is certainly an attractive proposition but what are the practicalities? How do you distinguish an intrusive path in a countryside setting from one in a town or village centre? How do you deal with the situation where a redundant agricultural building is converted to a residential property? What if the landowner creates or extends a garden which then has a path running through it?
At the moment it is necessary to prove that a diversion is expedient in the interests of the landowner and that can include the privacy and security of the property affected. The courts have acknowledged those as justifiable reasons to seek a diversion.
DEFRA could issue guidance as to a presumption in favour of a diversion where the right of way impacts on the privacy and security of the property. Yet it would remain the case that this would have to be demonstrated by evidence and the presumption, as with all presumptions, would be rebuttable if an objector could prove otherwise. It may shift the burden of proof but it is rarely an issue of contention.
Could there be a statutory “right” to divert the path, not merely a presumption? Having a right suggests that no objection would be sustainable if the diversion was out of a garden or away from a house.
That is not an argument the Open Spaces Society or Ramblers would ever concede without a fight and they have the resources to fight hard and long up to the Supreme Court or even in to Europe with George Laurence QC leading the battle if necessary.
Let us consider some scenarios. An existing path which has no “historic” value may be justifiably ripe for diversion. Is there anywhere it can be diverted to? Can the householder offer a suitable alternative route?
The footpath through this garden should be diverted – but to where?
Where the path is recently deemed to have come into being through 20 years use, what is the justification for diverting something if the landowner has not taken steps to prevent it becoming a right of way?
If the path has historic value and the property is recently converted, why should the balance be in favour of the landowner rather than the public at large?
What if the existing path is surfaced and accessible to all walkers but the alternative would not be accessible to all? Should the balance lie with the householder or the public?
These issues are all relevant to the existing law and we deal with them all the time. Inspectors hear evidence on these points at every inquiry and hearing in to a diversion order.
The issue is overcoming the discretion of the council to say “no” even to the best considered proposal. The right to apply for a diversion proposed in the Bill will by itself give the landowner the opportunity to put the case on its merits. The provision for full cost recovery will remove the financial deterrent for councils to process opposed diversions. Those two provisions therefore start to address the problem. They do not, however, mean that landowners will have a “right” to keep people off their land.
The Bill does not address the current resource crisis, however. You can have as many rights to divert paths away from houses as you wish but without the council staff to handle the cases, you end up with stagnation. And despite the Joint Committee noting the greatest interest in the Bill came in relation to the rights of way provisions, rights of way staff and departments have been cut and cut again as these are seen as dispensable services with the lowest priority for public spending.
In my December presentations I gave two examples of how to improve things dramatically for landowners. First, let landowners handle the application for the diversion order. Secondly, let landowners make the case for confirmation at any inquiry or hearing. If landowners are going to have to pay full costs to councils, better they have their own team do the work because their own team will have an incentive and be answerable to the client.
I cannot claim credit for these ideas. Both of those are proposals taken from practical examples in use, but only by one or two councils throughout the country. It is what Dave Waterman wants to discuss and it is something, again, that DEFRA can do by issuing guidance.
Proclaiming that landowners will have a right to bar walkers from their land is misleading, and potentially dangerous. How many landowners have heard walkers claim “we have a right to roam”? Will we now hear some landowners say “I have a right to bar you”? Neither position is attractive but you can be sure that the landowner will come off worse in the eyes of the law. Stopping use of a path is a criminal offence – trespassing is merely a civil issue.
A great deal was achieved on behalf of landowners prior to the Bill to secure the introduction of the right to apply for diversions. The proposals are not new but the implementation was always problematic. By and large that has been addressed and DEFRA intend introducing all of the changes to the legislation at the same time.
What is now required is some innovative thinking on the part of the agencies involved at local and national government level to unblock the process. We need to acknowledge that diversion proposals will have to be determined so the procedure has to be in place for this to be achieved quickly and efficiently.
Let us see how this proceeds through Parliament. Happy New Year!
3 January 2014
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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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.
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.
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.