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.
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