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.
The alignment of some public paths appears to defy logic and the public take, instead, the more obvious route on the ground. For years no one bothers about these small discrepancies. Indeed frequently the landowner and the public are unaware that things are not as they should be.
Such was the position at Lord Cowdray’s home in West Sussex. A footpath, No 1256 in Fernhurst, crossing grassland appeared logically to approach the garden boundary before turning onto a farm track. The garden was secured by fencing and a gate. All appeared to be fine.
However a member of the public checked the Definitive Map and found that the definitive line of the path went beyond the fence and in to the garden to a notional point quite undefined on the ground and then turned back on itself to the farm track. Whilst no one might choose to use it as part of their walk, this turning point provided a direct, close view of the house and its gardens and as paths may provide more than a mere means of passage, had a potentially damaging impact. The fence was an obstruction. The County Council had to act.
The matter was further complicated by the fact that the grassland over which the path crossed was used for grazing sheep and a stock fence had to be maintained across the path with a stile provided for public passage. The stile required authorisation and the Council required a gate in its place.
On the ground, the Estate had provided a sensible alternative permissive path avoiding both the garden and the stock fence and with a quality bridge and stock proof gates, so it was a case of persuading the Council’s Rights of Way Manager that the permissive path was an acceptable diversion. On a very (very) wet August day, we met on site. The existing and proposed paths were walked in each direction and photographed whilst landscape views were considered, surfaces scrutinised, gradients pondered, arguments made and chins scratched.
An application for diversion was agreed. A detailed submission and plan were prepared and the Council undertook pre-application consultation and making the order. There was one objection which through the good offices of the Council’s Rights of Way Manager was resolved so that the diversion could be confirmed unopposed.
It is always rewarding to achieve a diversion for a client particularly where the stakes are high and even more so where it is unopposed. It gives us hope that not all diversions need to be the source of conflict between the landowner and the public and that sensible solutions can be achieved.
We are always happy to discuss and assess your diversion proposals – just call us on 0203 086 7657 or complete the form below and we will get back to you.
From time to time we get calls from people buying houses and seeking reassurance that the unused public footpath in the garden should not worry them. It seems from these calls that all paths through private gardens or passing close to houses are frequently “unused” or “have never been a problem”.
Often the caller has set their heart on the property so anything we say to dissuade them will be ignored.
When speaking to owners and prospective owners it is difficult to be positive about the effect of a public right of way over their land. It is generally a burden. Public paths raise issues of privacy and security. Yes it is true that many people live in our towns and cities and step from their front door on to the highway, and village streets pass close to cottage gardens, but that does not mean that all properties have to be the same.
And it is not just residential land that can be affected. Commercial operations might be attracted to land because it can be secured.
Even small gardens like this can have public paths through them, just feet from the windows and door.
Some sellers, it seems, frequently make out that the footpath has presented no problems to them: that they never see anyone use it or that it is maybe a couple of people every now and then. That might be true and there may be a reason such as the path being blocked elsewhere. You can expect that sooner or later, however, a rights of way officer will be knocking on the door intent on ensuring the route is available.
So you should never assume that the perceived lack of use will continue or that the seller has actually witnessed what really happens on the path.
We do recommend that proper investigations are made so that the purchaser is fully informed before exchanging contracts. This includes:
- Ensuring that the path alignment is correct. We’ve seen plenty of cases where inconvenient paths have been moved unofficially to reduce their impact only to find that the correct alignment has been reinstated by the council after the new owner has moved in. Diverting the path can be time consuming and not necessarily successful.
- Checking the particulars of the path especially to see if it has a recorded width. Some historic paths can be 20 feet wide or more even if only a few feet are currently used. The whole width of a path has to be available for the public to use.
- Finding out if gates and stiles are lawful limitations, authorised or illegal. This is an increasingly important issue as the public exercise the right to have obstructions removed.
- Questioning the seller as to any contact there has been with the council over the path – any complaints about its condition or discussions about diverting it in the past.
- Asking the council if they have any outstanding issues, whether the path is promoted as part of a walk and whether they would inspect it to check before contracts are exchanged.
Finally, armed with the information you have obtained, take time to consider whether you could really live with the public using the path bearing in mind that:
- Walkers may stop on the path, take in the view, take a photograph or maybe do a sketch and may even picnic on the path.
- On a bridleway, you might like to see the horses but what about the mountain bikers going through at speed?
- Stopping illegal use such as cars on restricted byways and cyclists on footpaths will be your problem and the police and council will have limited or no resources to help you.
And if the property is just delightful and in all other respects ticks every box and you have the time and patience to see it through, can you address these problems by diverting the path to where it will have less of an impact? We moved this footpath:
Some of our more creative contacts in the property world come to us in the negotiation stage to consider the options for diversion to make a house that may be blighted by a path more desirable. That is quite legitimate and the courts have acknowledged that knowing of a path when you buy a house is no bar to diverting that path.
So do not write the property off if you have vision for the future and a diversion is a serious possibility. But do not go blinkered in to the purchase in hope.
We are always pleased to discuss options – use the contact form below and we will get back to you or call us on 0203 086 7657.
It is four years since the Secretary of State’s Inspector confirmed the package of diversion and extinguishment orders for the footpaths and bridleways at Pitshill House, just west of Petworth in West Sussex.
The changes to the network were key to the owner’s desire to restore this Grade II* Listed House as a family home. The original network reflected a period when people would walk to and from the house for trade and employment and was typical of many such paths recorded in the 1950s. Who seriously would invest millions of their own money and still have no control over the drive to their house?
The changes gained considerable support from local people and was amongst the first to engage positively with local access groups to achieve improvements to the network which would, for the first time, make a real difference to disabled people. And by “disabled people” we were not speaking solely of wheelchair users but of so many people such as those with hearing and sight impairments as well as mental health conditions. Where can someone with an Assistance Dog actually exercise it in safety?
Making the diversion routes accessible and providing resting and viewing facilities together with a small area for parking off the road were embraced by the owner. He welcomed them to come and see what he wanted to achieve and engaged with them to develop a scheme that was as much for their benefit as it was for his.
The Pitshill path diversions represented a partnership between the landowner, those main users of the existing public paths and those who would be able to use the new network and have access to this part of the countryside for the first time.
Standing against them were the Ramblers, the Open Spaces Society and the Highway Authority, West Sussex County Council. The enlightened Chichester District Councillors made and promoted the necessary legal orders so the process could be tested before a Government Inspector.
Central to the opponents objections were the sadly typical arguments that “things can’t change”. There was an undertone that the landowner was “getting away with it”, knowing that the paths were there when he purchased the house, and that the client and his advisers were “playing the disability card”.
If devising a scheme that would improve countryside access for disabled people was “playing the disability card” then, yes, we played it.
Despite the Inspector’s finding at Pitshill that the diversions should be confirmed, four years on and sadly there remains a high degree of ignorance on disability access in the area of public rights of way. Recently a senior rights of way officer told us “I just don’t understand your arguments”. Sitting in a Parish Council meeting hearing the chairman say “The disabled don’t want access to the countryside – they’re happy with what they’ve got” makes one think time travel to the past century has occurred.
Pitshill is a blueprint for so many situations: it should not be the exception, but the rule.
At Pitshill the landowner achieved:
* the movement of paths away from the house and driveway;
* improved privacy and security for his family;
* better land management for his grounds.
The public achieved:
* sympathetically surfaced paths that can be used by disabled people in safety;
* additional paths creating circular walks through woodland;
* resting and viewing points.
* traffic free paths maintained to a high standard.
The Chichester Access Group gained the landowner as their Patron and 50 to 60 craftsmen had much needed employment on the Pitshill restoration, bringing economic benefits to the immediate area.
Diverting paths from their “historic” lines through farms, passing residential houses and over working land makes sense to landowners for security and privacy and for the safety of the public. Diverting paths to where the views are inferior, where the paths are narrower, the surface worse and the gradients greater is rarely going to succeed. Approaching the diversion with the mind that improving a path for users is at least as equal a goal to securing the aims of the landowner is always likely to be a winning philosophy even if the forces against “change” stand against you.
The immediate problem remains the discretionary nature of the power to make diversion orders held by councils and their lack of resources to process cases. There is no entitlement to even have a hearing if the council says “no”.
In the Draft Deregulation Bill presented to Parliament in July 2013 the proposed “Right to Apply” for Diversions, first contained in the Countryside and Rights of Way Act 2000 but never implemented, has a new lease of life. If there is a serious intent to balance the position then the Right will finally be introduced and a fair consideration of the arguments for and against diversions can start.
Not all diversions are capable of being as beneficial as those at Pitshill but anyone seriously considering a diversion might well take a trip out to Petworth in West Sussex and head west to Pitshill to see what can be achieved. You will not find it swarming with wheelchairs but you will probably meet someone out with their dog enjoying the countryside and hopefully be inspired by what can be achieved even in the face of considerable opposition.
If you would like more information or assistance with a specific diversion – please complete the form below and we will get back to you.
New changes are being introduced from 1 October 2013 to the content and procedure of maps and statements protecting landowners from rights of way and village green claims.
A new form “CA16”, prescribed by the Secretary of State, embraces all possible scenarios to ensure that the landowner’s intention is clearly stated.
Renewing these statements will now take place every 20 years rather than the current 10.
Landowners can also now protect land from claims for village green registration based on 20 years use for open air recreation.
Key procedural changes include the requirement for notice to be posted on site when a deposit is made and for the council to charge a fee for processing the forms they receive.
The form will finally deal with the issue of whether a declaration is made at a date beyond that of the first statement since the form provides for the statement and the map to be combined.
We are of course very happy to advise and assist any landowner wishing to lodge a map and statement – contact Michael Wood on 0203 086 7657 or email email@example.com
We meet some inspiring people in our work. People who have drive and ambition. People who have initiative.
One such is Paul Cresswell of Insitu Designs. What Paul doesn’t know about wood isn’t worth knowing. He builds beautiful oak framed structures in his rural yard and buildings in a woodland setting in Kent. In times of recession he is flat-out, such is the quality of his work and the demand for his product.
Paul uses saws – very large saws. And handles large loads of timber. All of this is normal in his line of work but he had the added feature of a footpath running straight through his yard – a hazard for even the most careful person engaged in an already dangerous occupation. He also had a need for a drying facility – a larger building allowing him to use the prevailing wind to dry wood naturally. That required a development which would affect the footpath so Kent County Council was engaged and the process of diversion commenced.
The wide pre-order consultation led to objections. No one seemed to doubt the wisdom of a diversion, just the route it should take. Rather than take a route avoiding the yard and building, objectors wanted to walk behind his building over land that is stripped of life regularly to preserve the overhead high voltage cables. One particular objector was the local representative of the British Horse Society, despite the fact that it was only a footpath being moved.
A site meting with objectors started with a talk by Paul explaining how the company operated and why the new drying facility was so important. The options were considered and debated.
A compromise was reached retaining a walk through woodlands a few metres from the original proposal and honour was satisfied. The diversion order attracted no objections and will take effect at the end of March 2013. Work on the new drying kiln can commence and the company and the public can continue their respective use of the woodland.
For ET Landnet we are delighted to have secured another diversion for our clients and to have paid a small part in helping secure the ongoing business of Insitu Designs.