Today I “attended” my first virtual High Court hearing. It was a case where the Open Spaces Society (“OSS”) sought to challenge the decision of an Inspector who had confirmed a footpath diversion order at a hearing last year at which I had represented the landowner. It had been the culmination of several years work with two landowners and the Oxfordshire County Council.
The OSS had been the only objector to the Diversion Order, although the Ramblers rode shotgun at the hearing. The challenge made at the hearing, and which formed the argument before the High Court, was that any impact of a diversion on public enjoyment was not to be weighed against the benefits of the diversion to the landowner when deciding if a diversion order should be confirmed. Only the adverse impact on the public was to be counted.
This argument ran counter to the previous authorities and the interpretation and guidance given by DEFRA to Inspectors and practitioners and which we had all worked to for several years.
The facts of the case were quite straight forward. A footpath through the garden of Manor Farm, Little Rollright, Oxfordshire impacted on the privacy of the owners. The diversion took walkers on a track outside the garden. The OSS argued that there was a loss of enjoyment including from walking through the garden and that regardless of the impact on the owner, this should be sufficient for the diversion to be refused. The Inspector had accepted some loss but did not consider it that great and agreed that the impact on the owner’s privacy outweighed this.
As the parties to the High Court challenge were the OSS and the Secretary of State, we were only observers to the proceedings, but we were clearly “interested parties” in the outcome. The intervening complications of COVID-19 meant that rather than waking up in London and walking down the Strand to the Royal Courts, my day started with walking the dog and taking my place in front of the MacBook ready to log in.
Before the main event kicked off, the various attendees joined and some banter (bantz) ensued. What would have been one to one chats in the corridor of the court became public and those tech savvy participants who knew how to switch their video and mikes on and off showed off their skills. The list of attendees gradually swelled, and barristers exchanged technology advice. This appeared to be a first for most of us. For once I may have known more than the leading QC in public rights of way. Two barristers (Leader and Junior) in the same room created horrendous feedback, resulting in much (basic) instructions being given (e.g. “it’s the button below that”), all strictly at 2 metres, of course.
It occurred to me that George Laurence QC, making the case for the OSS was, having been called in 1972, now at or close to an age where government advice should see him in isolation for 13 weeks, and not sitting in his chambers in London, using his iPad in landscape mode making him appear as if he is lying down. George, to those of us who have had the privilege of working together, and who once said he “owed me a favour” when he relieved me of a case on discovering he played cricket with my client, says in his Chambers bio that “I have always tried very hard to win “unwinnable” cases…” Here goes…
At the appointed hour the judge came into view on our screens. One rarely sees a judge at such close quarters. All appeared fine, but she could not hear anyone! Some minutes then followed whilst the Judge fiddled and plugged things in and out to make her computer work.
Success! Finally, she could hear and see the key players. Except she could not access her documents! But we could finally make progress.
Mr Laurence, making the case for the OSS, opened and was soon quoting my Statement of Case. It is always a concern when one is name-checked in the High Court (or indeed, any court of law) and that was this occurring at an early stage in the proceedings was a worry. This was not the first time I have been mentioned in proceedings (by Mr Laurence) and there is always a degree of frustration that my comments and actions are being cherry picked, and of the process that we had been required to follow prior to and at the first hearing not being understood by barristers and the court. On balance it seems the criticism here was that I could have made more legal arguments at last year’s hearing rather than just those that I did . As the argument that I made was on point and not peripheral (and less relevant) I think that was a good call on my part. It had won us the case and frankly any additional submissions would have run up more time and mu client’s bill.
The Judge pointed out that she was not particularly interested in what had gone before in terms of pleadings and that she would deal with the issues as they are presented to her.
If we are talking peripheral, there followed a very long pulling apart and re-interpretation of the only two previous relevant decisions and DEFRA’s guidance issued as a consequence of those decisions. In this exchange, Mr Laurence even pulled apart his own position in one of those previous cases. Words in the statute should be “strictly read”, apparently, and the intention of the draftsman from 1980 is to be interpreted without additional words or commas, or indeed any type of punctuation or drawing breath. When the Judge noted that the OSS were nonetheless seeking to limit the interpretation of the statutory words, well that was a different and entirely acceptable position, apparently.
We trudged further through the legislation until 1 pm arrived and we were free to rise for lunch. The normality of the court and its hours of work restored. Not all is that high tech.
At 2 pm it was off we go again. Mr Laurence continued his innings, which had been boycottesque, dissecting the wording of the relevant section of the Highways Act. I feel I have been here before, but then in reality rather than in a virtual space. The post lunch stupor of a legal submission has plainly transferred seamlessly to Skype.
The OSS tactic is to apply their interpretation of the legislation to a number of potential scenarios and then to argue that this would lead to inequity which could not have been intended. At some point the Judge’s head is in her hands. She asks for the new words which Mr Laurence is advancing as the appropriate legal test he believes should be applied and for this to be set out in writing and emailed to her clerk! The Judge comments that these new words seem to be “an awful long way” from what the statute actually says.
After some questions from the Judge to Mr Laurence, he finally declared, and after a little finishing up for the OSS, at 2.45 the Secretary of State’s Counsel, Mr Westaway gets his turn.
At 3.00 the Judge has to depart to deal with a pressing family law case, so buttons are muted and the hearing falls silent.
It was all going so well. At 3.30 the Judge is back and Mr Westaway cracks on… then he freezes and we witness 21st century technology at its best. 5 or so minutes pass (it seems longer) when Mr Westaway is spoken to and we see the occasional glimpse of his features, but he is not to be heard. Eventually he is back and the Judge suggests others in his household might desist from using the wi fi. Roll on 5G.
Mr Westaway is analytical and follows through the obvious language of the law. He skips through his points, with a few skips in transmission, leaving the Judge 10 minutes before she changes hat/wig again to be the Duty Judge in the Family Division.
With insufficient time for Mr Laurence to respond verbally, he is directed to do so in writing by 1.00 pm tomorrow. Judgment will not be today, and we will remain in suspense, somewhat like a Skype call.
On reflection and bearing in mind that we have all been forced into this way of working without any practice to make it all perfect, that it was possible to cover most of the ground that could have been covered in court, without the need to travel, is remarkable. This, and those other cases to be dealt with during the lock down should be the way for justice in the civil courts at least. A virtual public inquiry should not be out of the question. We can and must make a difference.
There is just one month left before the winners at the Rural Business Awards are announced. We have our tickets for the event and the hotel is booked. The suit needs a brush down but is otherwise fine. I have to practice tying the bow-tie as it is not my normal attire.
As finalists with four other keen competitors in the Best Rural Professional Services Business Category, we have to hope that our USP has made us stand out in the judging process. Our competitors are Appetite Me, Greenway Training, McCartneys LLP and Roythornes Limited. We wish them well, but not necessarily as well as us!
We have done our bit of PR with visits to CLA events and the Game Fair but by and large our build up to the final has been to concentrate on the business of sorting out our clients’ public rights of way issues.
We are very grateful to our supportive clients who value our service and write things like:
“Michael Wood from ET Landnet very recently acted for us in relation to an application by the county council to potentially upgrade an existing bridleway on the Estate to a restricted byway. We chose ET Landnet after carrying out considerable research and enquiry, based primarily upon strong recommendations received from two separate third parties, together with our own assessment of Michael during telephone conversations. Michael proceeded to carry out a considerable amount of detailed work over a number of months, culminating in a very satisfactory agreed outcome with the county council. 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.”
John Edwards on behalf of Howard Dyer, The Nutley Estate, Hampshire
We are too busy to keep our fingers crossed for the final announcement as we review more diversion proposals and issues relating to footpath claims. We cannot let our standards slip!
Please let us know if we can help you with your public path issues – call 0203 086 7657 or email me, Michael Wood firstname.lastname@example.org and we will try to help you too.
The Supreme Court’s judgment in Barkas v NYCC and Scarborough Borough Council.
The law relating to public rights of way and the registration of village green has a common thread.
Where public rights of way are claimed on evidence of use by the public for 20 years, the use must have been “as of right”. Use must be open, without force and without permission. The same requirement applies to register land as a village green. The development of the law by the courts has, therefore, often overlapped.
“As of right” use might commonly be regarded initially as trespass. The public who do not have a right to be on the land use it continuously and thereby establish the right. Plainly if they have the right to be on the land, this is not the situation. Where there is a right to use the land, any use is “by right”. If the right is enjoyed by the public then there public use as a whole is by right.
The issue was considered by the House of Lords in R v City of Sunderland ex parte Beresford  UKHL 60 (“Beresford”). It has just been revisited by the House of Lords’ judicial successors, the Supreme Court, in R (on the application of Barkas) v North Yorkshire County Council and another  UKSC 31 (“Barkas”).
The core facts in Barkas and Beresford are not on the face of it so different: the minutia maybe more so. Importantly, both involved publicly owned land in respect of which applications to register village greens were made.
The driver for the application in Beresford was a proposal to build on the land that the public had used. In the House of Lords their Lordships found that use had been “as of right”, even though the land had been maintained by the public authority for some years as an area for recreation. Benches had been provided, and the public were encouraged to use the land. It resulted in some complex questions about implied permission and tolerating use by the public.
Unlike Beresford, where the land was not specifically held by the Authority for public recreational purposes, in Barkas the land in issue was subject to a statutory provision to provide for such a use. At all stages up to and including the Court of Appeal the decision had been that the public’s use had been because of the manner in which the land was owned and had, therefore, been “by right”.
Was the basis upon which the public authority owned the land such a defining issue?
In the Judgment dated 21 May 2014, the Supreme Court agreed with the lower courts and upheld the argument that the public could not acquire a right where they had used land which was statutorily designated for public recreation.
For many that would have been enough. Unusually, though, the Supreme Court went further. It looked at the Beresford judgment and has ruled that it should no longer be relied upon, despite this running counter to judicial precedence.
The Supreme Court Justices held that Beresford was wrongly decided.
You can see the judgment here:
Giving the leading judgment, the President of the Court, Lord Neuberger found that the Council in Beresford had lawfully allocated the land for the purposes of public recreation for an indefinite period and thus public use of the land had been “by right”.
Earlier in his judgment, Lord Neuberger had clarified the law. In paragraph 24 he says:
I agree… that where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use (whether for a limited period or an indefinite period), it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land “as of right”, simply because the authority has not objected to their using the land.”
That is a logical view. If an authority owns land and intends the public should use it for recreation, why should that later be turned back on the authority or a successor as evidence that the use was assertive of a public right?
In three cases we have dealt with recently there has been land in the ownership of a local authority that has had a bearing on the issues in the case. In one of these, the Supreme Court’s Judgment would have prevented a right of way being recorded on our client’s land.
As practitioners we welcome the decision of the Supreme Court. Of course people would like access and rights over land but how pre-existing use has occurred is surely something that Parliament intended should be relevant and be taken into account. The position in Beresford had resulted in some very unnecessarily complex interpretations. Not all of these have been thrown out, with Lord Neuberger accepting that where the landowner stands by and does nothing about people accessing land that this is consistent with use being “as of right” but in respect of the findings in the key section of Lord Scott’s judgment in Beresford, Lord Neuberger says these “cannot be relied on, as they include passages which are simply wrong in principle and contrary to well-established authority”.
Clearly one now needs to consider in any case whether the land affected by the claimed right of way (or any part of it) has ever been land over which some right of public access may have occurred in the past even if only for a temporary period with the agreement of the landowner. With the large scale sale of public land to the private sector, this may be not uncommon. Builders may look upon this decision as removing much of the potential for challenge where they acquire former publicly owned open space for development. On the other side of the fence, local people will no doubt feel concerned that their use of such land will be curtailed and they will have no ability to fight actions for development.
There will also be further debate on implied permission to use land. Whilst the Justices said the position with publicly owned land was different to that of privately owned land, there may well be circumstances where this decision may apply to other land, such as private land in receipt of public money where elements of access are involved.
As always, we will be keeping a watchful eye, and will be relying on this decision in the future.
The Deregulation Bill – debate commences in the Commons after the Government respond to the Joint CommitteePosted: February 3, 2014
The Deregulation Bill which will change key elements of the law and procedure on rights of way started its formal debate with the few Members of Parliament attending the debate today raising issues of European Union membership and the cost of living.
In truth the changes to rights of way are probably quite niche and beyond the interest of many Members unless they have particular experience or have been lobbied by their constituents.
And whilst the debate continues, all sides outside the House are asking for the Bill to be introduced.
Rights of Way legislation is frequently packaged with other matters which are often strange bedfellows and the Deregulation Bill is probably one of the most extreme examples of this. Business regulation is clearly a more engaging subject for MPs.
Speaking for the Opposition, Chi Onwurah MP did welcome the provisions for the rights of way changes provided that they are all accepted. That has been the position on all sides so it gives hope that the changes will make it through this Parliamentary process.
The Government published last week its response to the Joint Committee that reported in detail on this legislation. It said it is expected that local authorities will save around £2 million a year through the measures for recording new rights of way by reducing bureaucracy. Let us hope it sees the backlog of applications cleared within a realistic timeframe.
On the proposals of most interest to landowners, namely the new rights to seek diversions, the Government said:
“The Government recognises that there are difficulties with rights of way that go through family homes or conflict with current land management. We believe that the rights of way clauses in the Bill will address these concerns.
“Through some of these clauses DEFRA is working towards making effective the legislation that provides for a statutory “right to apply” for landowners. This enables landowners’ including householders, to make a formal application for diversion or extinguishment of a right of way on their land and appeal to the Secretary of State should the local authority refuse the application or fail to consider it.
“There are also clauses to ameliorate the effect on landowners of unrecorded or newly discovered public rights of way. We are introducing a presumption in favour of a landowner’s request for a diversion under certain prescribed circumstances, for example where a public right of way goes through a private garden, or working farmyard, or other areas where privacy, security or safety is an issue.”
The response also indicate that it is intended to consult on issues of motor use on public rights of way and minor sealed roads.
So it is so far so good.
“Light Touch” was a recurring theme at the two conferences into the changes proposed to rights of way law in the Deregulation Bill this month.
The problem is simple to identify. Many authorities have significant backlogs in processing claims to add to or modify the definitive map of rights of way. They have similar delays when handling diversion applications. These backlogs occurred when times were good but now times are hard and rights of way budgets sit at the top of the list for cuts. Add to that an increasing pressure on the Planning Inspectorate and the mess looks even worse.
So the buzz word is “light touch”. Do more with less because you have to.
The Leeds conference was sceptical. Maybe the realistic northerners had it right.
London, however, was more positive. The big guns were out in London – Open Spaces, Ramblers, BHS, Byways and Bridleways Trust, South Pennine Packhorse Trails et al.
Yes I am used to having Kate Ashbrook in the room ready to pounce on my diversion proposal being explained to a Parish Council. Or to sit opposite Alan Kind as an opposing advocate at a public inquiry. Having all the guns primed and loaded and ready to fire was, however, a different matter.
Yet in London any scepticism for my suggestions for a lighter touch came from the landowner side. You won’t achieve it, I was told. But if you don’t ask you don’t get.
At the end of the day as we packed up I was approached by a delegate. She was from an authority in the Midlands. She found my ideas to be a “breathe of fresh air” . The applicant handling their own diversion application; the council not having to support every order that it made. These were things (already practised by a few enlightened authorities) that her own authority had told her were not possible and could not be contemplated.
I felt that like many she is struggling to find a solution to reaching the top of the mountain and others are holding her back. So DEFRA must now play its part and look for best practice that cuts costs and delay. It must issue guidance to authorities to use the powers they have and guide them in the use of those powers constructively. As practitioners we must expect that the right things are done the most expedient way.
“Light Touch” is good but it needs a change of attitude at every level and for those in councils and at DEFRA to ask whether the things we have always done still need to be done. If, as some authorities have already discovered, there is a quicker, cheaper, way then that should be the standard. So much of this needs no change in the legislation particularly when orders come to be progressed.
The proof will come in the New Year once the Deregulation Bill is under way. As MPs debate it, DEFRA will have the time to look at existing arrangements and put guidance together based on what emerged from the Leeds and London conferences.
The Deregulation Bill will implement the long-awaited “right to apply” for landowners giving them the right to have their path diversion applications determined. At the moment the ability to proceed is in the hands of the council which has a complete and unquestionable discretion as to whether to accept or take forward a diversion proposal. Landowners will have to pay the costs of their proposals.
The worry is that a system which “copes” at the moment by rejecting applications because of a lack of resources in rights of way departments or refuses them on the grounds of the cost to the public will implode with an inrush of work.
That scenario is in no one’s interests.
So what is the solution? Most landowners appreciate that moving a path is not a five minute affair or one that is achieved easily. The public right is being changed and the public have a say. If a landowner intends building a house, he will expect to pay for the cost of the architect and not expect the local planning officer to do it for him. Many already lay the ground for a diversion before tackling the Council.
I came across a pilot where landowners were responsible for the work usually undertaken by the council. They prepared the plans, consulted the public and wrote the report on the diversion. The guidance was very detailed and set out exactly what the council required. This work was then reviewed by the council and a decision taken. It seems a good start to change.
In West Sussex, if your diversion is agreed, but objections are made then the landowner has the responsibility of presenting the case when it goes to the Secretary of State. How sensible is that? The landowner explaining why the diversion is in his or her interests, rather than having this said for them by the council. The landowner can then call what evidence might be appropriate to answer the case made by the objectors.
Combining these ideas seems to have a great deal of logic. Let the landowner seeking the diversion make the application and send out the consultation letters. Let the landowner arrange site visits if people want to see what is proposed. Let the landowner compile the responses and let the council be the decision taker. If the matter is unopposed, the decision can be taken by officers. If there are objections, a committee can determine the application. As the matter moves forward, the landowner can present the case to the Secretary of State if there are objections.
None of this actually requires a Deregulation Act, because it happens now. Yet it is not the standard and is a scenario most councils seem to reject.
The Deregulation Bill does however end the culture where it is easier to say no than yes. It means councils will have to do something.
If someone wants to take their case to court they pay a fee to the court. It helps fund the administration of justice. Why not a fee to the council and the secretary of state to facilitate the determination of the case for a diversion? I am not advocating that landowners are fair game and can afford to pay fees unquestioning, but the reality is that many spend considerable sums on proposals that fail when the council says “no” without even going through the pre-order consultation. A straw poll of our clients suggests overwhelming support for a system where they pay the costs and have control of their own case.
We need to standardise the approach across England. In implementing the Act we need DEFRA to produce a model that works.
And we need to embrace change. Landowners currently pay upwards of £1,000 to advertise diversions in “public notices” even in these days of Twitter and Facebook. Get the notices on to a website where people can easily access them, not take pot luck that they might come across them in print. Free up that cost and apply it to the public cost of path diversions. Let us do consultation by email. Let us realise that times have changed.
I shall be speaking at 2 conferences in December where the way the Bill will be implemented will be discussed with DEFRA and local government. I shall make this case to them. I know it will not be universally popular with landowners because some will perceive that it is placing a financial burden upon them. But if a diversion is going to benefit you, that cost has to be weighed with those benefits. My clients tell me they are willing to pay to have their cases given a fair hearing which tells me all I need to know.
If you have a view or want more information, complete the form below and I will get back to you.
Michael Wood, Director
There has been a flurry of recent articles extolling the benefits of walking and enjoying the countryside. The health benefits of even modest countryside walking is well established.
Our rights of way network was once vital for everyday needs – the need to get to work, to school, to shop, to worship. The health benefits that our ancestors enjoyed were secondary to these essential tasks.
Whilst some paths may still serve these old functions, the greatest use of our network today is recreational. Yet the primary source of legislation that governs how the path network is managed pays no direct heed to the health benefits at all. This is particularly so when considering path diversions.
A path diversion must not be “substantially less convenient” – that means you compare the length, width, structures and “going” of the existing and proposed path. You then consider the expediency of the diversion having regard to public enjoyment of the path as a whole. Although regard is to be had to the Rights of Way Improvement Plan for the locality (which is likely to promote more access), the question whether the diversion will lead to more or fewer people being likely to use the path is not directly tackled. If one assumes that a more usable or accessible path means more people are likely to use the path which in tun means more people will gain health benefits, then that really needs to be central to the path management regime.
A landowner who is anxious to divert a path for improved security or privacy, or for better land management, can often find a route which will be more accessible albeit that it may be longer. Diversions are frequently opposed, however, by a small minority who argue against change for whatever reason. It is not uncommon for people to claim the route is “historic” but unless it provides access to a historical site, this is usually no more than a contention that the path was there before the landowner came along and he or she should not now alter it.
We have moved on. Surgeons used to amputate without anaesthetic and could still do so but that is not part of history any of us would choose to re-visit.
There is no democracy in the path diversion regime. Council’s consult only with interested groups on their list. It is a process that targets those who might use the route now, not those that could use the route in the future.
As a consultancy we have previously been accused of “playing the disability card” when we had the audacity to engage with disabled access groups to seek their views and gain support for diversions which would mean that parts of the countryside to which they had no access could be made accessible. There are those who challenge diversions which move paths away from close proximity to properties notwithstanding that others find this intimidating and will avoid using the path. This is an identified problem for some people with learning differences or mental health issues whose health is likely to see positive improvement if they can enjoy the countryside.
Although the Act talks of “public enjoyment” in practice that means the subjective views of a small number of people already using the path. There needs to be someone speaking for the rest – those that would like to use this path if only it were different. Of course landowners can try and source this view and present it as evidence and they should be encouraged to do so. Without it, Inspectors cannot go out on a limb.
So let us embrace the idea. When a diversion is being planned, let us look not just at the existing users but those who may be able to use it for the first time. Whether that is making it better for disabled users, or removing the dangers of walking through grazing livestock, let the question be asked “what health benefits will this diversion bring to people who can use it in the future”.
Merely praising the benefits but not embracing the opportunities to improve access when a diversion is considered is the perfect example of lip service.