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Landowners poised to win right to bar ramblers from their land

By Western Morning News  |  Posted: January 03, 2014

By Phil Goodwin, WMN reporter, Twitter: @Goodwin_Phil

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The “tortuous” process of establishing and diverting historic rights of way is to be sped up under ministers’ plans to cut red tape.

Homeowners would find it easier to divert paths away from their land under the proposals and councils would be forced to tackle the massive backlog of applications to establish routes.

Environment Secretary Owen Paterson wants to prevent conflict between homeowners and walkers, when evidence comes to light of routes that are often centuries old. The move comes after years of campaigning by residential groups who claim their lives have been blighted by local authorities invoking ancient rights of way through private land.

Campaigners for access have welcomed the changes under the Deregulation Bill to amend rules which first came into law 80 years ago this week.

Kate Ashbrook, general secretary of the Open Spaces Society, said property owners will still have to meet various tests and pay for diverting the path.

But she said the new legislation could allow for more compromises, avoiding bitter, protracted disputes and reducing costs for councils, campaigners and landowners.

Ms Ashbrook, a long-time campaigner on Dartmoor, said: “There are problems with claiming paths and getting them on to the map so we are absolutely backing the package, which makes it easier for paths to be processed more quickly.

“It has grown over the years and is very complicated – it is a tortuous process and the proposals in the Bill speed it up and make it more efficient.”

The legal rule that a path becomes a right of way after 20 years’ unhindered public use – The Rights of Way Act 1932 – came into effect 80 years ago on January 1, 1934.

Before this there was no simple rule for the time over which a route had to be used before it could be regarded as public.

Where walkers wish to officially establish a right of way, users state their experiences over the 20-year time period.

In most cases property owners would be aware of the route, though they are able to dispute the claims.

However, there are other ways to enshrine a path in the so-called definitive map, such as citing ancient public records, such as finance maps from as far back as 1910.

The general rule of rights of way is “once a highway always a highway”, so property owners could in theory be completely surprised by a claim for a route which is almost totally unheard of.

In these cases, the landowner will have the right to ask for a public path to be diverted so it goes round a house, garden or farmyard rather than straight through it, provided it is not substantially less convenient for walkers.

Peers and MPs examining the Bill have expressed concern about the current backlog of applications in local authorities for paths to be recorded on definitive maps.

A spokesman for Mr Paterson told The Times: “We’re simplifying rights of way regulations and working with interested groups, including the National Farmers Union (NFU) and the Ramblers Association to find a solution that makes it easier for landowners to divert rights of way without affecting walkers’ enjoyment of the countryside.”

The NFU has backed the move, saying that it would be much safer for walkers if routes were diverted round farmyards rather than going through them.

“Farmyards are often full of large machines and farmers have a constant fear that accidents could happen,” Andrew Clark, the head of policy at the NFU, said.

But the 12-strong Alternative Stakeholders Group, led by Richard Connaughton, a former soldier, argues that the concessions do not go far enough.

Mr Connaughton said: “This is not about wealthy landowners, it’s about simple ordinary people who have been overwhelmed by planning laws and officials.

“They have had their lives wrecked and spent tens of thousands of pounds protecting their land.”

Mr Connaughton has been fighting against the reinstatement of a public path in his garden in Nettlecombe, in Dorset, for the past 15 years. He claims that the dispute has cost him £65,000 in legal fees as a result of court cases and inquiries, but ramblers still use the path.

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10 comments

  • zorrodominic  |  January 06 2014, 3:12AM

    ...... the guidance that is still being discussed between the Stakeholder Working Group and the civil servants. Kate Ashbrook makes it very clear - as General Secretary of the Open Spaces Society - when she says "The article in today's Times (and other newspapers) is misleading and muddled. There is nothing in the draft Deregulation Bill about giving homeowners the right to bar ramblers from land. "The bill, in streamlining the processing of claims for public paths based on historic evidence or 20 years' uninterrupted use, enables a landowner, over whose land a path is claimed, to discuss with the local authority a simultaneous diversion to make the path claim uncontentious. "Any such diversion must meet the current public-interest tests for diversions and [the Department for Environment, Food and Rural Affairs] has not, as stated in the article, said there will be a presumption in favour of such a request. "The detail is still being discussed by the working group – consisting of representatives of landowners, path-users and local authorities – which is advising Defra on the Bill. "The provisions are not a free-for-all for landowners as the article implies." When an ancient way is claimed that has not been a matter of public record (included on the Definitive Map and Statement, or otherwise recorded) it certainly isn't sufficient to assert that a landowner could or should have been aware - whether or not it runs through a garden or a building. A means that provides a relatively straightforward, lower cost, less bureaucratic and, dare I say it, a not excessively inconvenient diversion that can be mutually accepted is I suggest to be welcomed. That won't overcome the Van Hoogstratens of this world - nor indeed the unacceptable tactics of certain councils and public as well as private organisations and individuals. But then they aren't in any case looking for anything other than what they perceive as their own interests being entirely protected. In the modern era, if a consented development is to block a public right of way either temporarily or permanently a further consent is necessary to temporarily or permanently stop up the highway - and will be granted. That for example has happened to two long-term public highways (that were also cycle routes as well as pedestrian routes) that ran north-south underneath London Bridge railway station. One will be permanently stopped up. The other will re-open, but not as a public right of way of any description but as a privately controlled shopping area. Any major infrastructure project like motorways, new dual carriage ways, the Channel Tunnel Link - HS1, as well as HS2 - will involve the diversion of many highways. For the most part the diversions and new routes required by say the M40, HS1, and the Hindhead Tunnel have been to the benefit of rights of way users. Organisations like the Ramblers Association and its Areas and Groups are doing a lot of work to keep the disruption and diversions to a minimum once HS2 is built. No that doesn't answer those who are entirely opposed to HS2 - and many in the RA as well as organisations like the Campaign for the Preservation of Rural England don't accept the need or believe that the economic case has been made. The building of all our railways not to mention the canal network interrupted, diverted, if not truncated much of the road and byways networks. The takeover of much land by the military in the last 300-400 years has done the same. As that use scales down some ancient rights of way are being re-instated - for example at RAF Upper Heyford. As for Paterson and the badgers let alone ancient woodland - it's beyond time for culling him. Others are campaigning for/working on a Scottish-style open access regime .... a different legal system and starting point and likely to take a pretty long time given that it is a fundamental change to the whole structure.

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  • zorrodominic  |  January 05 2014, 7:19PM

    1I'm not aware that anyone has suggested that detours (possibly qualitatively different from diversions, where the test is substantial inconvenience) are as good as an existing right of way - whether or not a footpath or any other form of highway. The effect of the changes - some of the detail is still being discussed, including the guidance

  • simonrtucker  |  January 04 2014, 11:18AM

    The common sensed answer is the right to roam legislation as enacted in Scotland. Landowners have not been inconvenienced by it - and it puts responsibility on walkers to behave correctly in the countryside. Of course, the Scots seem a little less hidebound by deference to the old and new aristocracies. Repeal the Enclosures Act: it is arcane and designed to enshrine land in the hands of the most powerful: this our land - not their land!

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  • groundnut  |  January 03 2014, 10:29PM

    You will find that the politics of this plan will be to aid Developers to move Footpaths. Money will talk louder than the ramblers association. Add to this the Paterson plan for "Bio diversity offsetting" Not heard of that !! I am surprised. well that is to move ancient woodlands and wildlife habitat. And replace them with new woodland habitat somewhere else. Perhaps you should ask-- why move them in the first place. Well to aid developers. Or perhaps HS2. but first kill off a few more badgers. Paterson is a developer, I see few if any benefits to the environment, from his department. And certainly landowners will need a few more wind farms or solar farms.

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  • TheodoreV  |  January 03 2014, 7:37PM

    In response to "by zorrodominic" I am well aware in the Long Rock case it has been Network Rail and Cornwall Council that have misguidedly extinguished a long-standing right of way. It cannot be easily disregarded. It illustrates how even a valued, much used and relatively safe crossing counted for little. Safety, as so often is the case, was used as justification, as indeed is this latest suggestion to make it easier to obliterate existing rights of way. (You will notice "dangerous farm yards" are being quoted when the real reason is largely convenience) I take the view that if you either buy or inherit a property with a right of way across it you do so knowingly, and should not then seek to remove it. Your suggestion that detours are equally good is false as I have learned from bitter experience. They usually involve greater distance and are often poorly maintained and overgrown. In one instance I nearly broke a leg falling in the deep ruts caused by heavy machinery in a new route. Rather than weakening the law with regard to footpaths, it should be strengthened to ensure land owners fulfill a legal obligation to maintain this most valuable public right of way. In response to "by inyourdreams" previous governments have of course criminalised trespass in certain instances. Even where the conditions are not met, a land owner can use reasonable force to eject someone from their property, and this power can be delegated to their agents. Although this is most reasonable in respect of domestic property, it is quite excessive and disprortionate in respect of open landscape, yet land owners resist any liberalisation here also. Considering the fact that historically speaking, huge swathes of land has been appropriated by the rich, and denied to the poor, it is well past time that Government did something to give it back, in access at least. These proposed changes do precisely the opposite.

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  • josdave  |  January 03 2014, 7:02PM

    Oh for a bit of common sense where the rich lawyers are not made even richer. If the rights of way are left and the walking public use common sense - e.g. shutting gates behind them etc. - all will be happy. But that is in an ideal world and here we have legal matters dragging on which make the general public poorer and the lawyers richer.

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  • zorrodominic  |  January 03 2014, 4:40PM

    1. Talk about a completely misleading headline - this is not a new right that has been won by anyone. 2. The changes have little relevance to the Long Rock Crossing saga ( see http://tinyurl.com/nll7gtv ) - and it appears to be Network Rail and the County Council rather than any landowners who are the 'guilty' parties. 3. The changes have the support of the Ramblers Association and the Open Spaces Society not least because they were put forward by the Natural England Stakeholder Working Group (SWG) of which they were a part. The SWG brought together outdoor users including the Ramblers as well as landowners and land managers and local authorities, who worked together to find ways to make the process for recording paths more efficient and less confrontational. In its report in December the Joint Committee of the House of Commons and House of Lords commended the SWG for its achievement in reaching a consensus amongst its members in a controversial area of the law and noted that the consensus relied on all the SWG's proposals being implemented as a package. The Joint Committee also expressed its concerns about the current backlog of applications in local authorities for paths to be recorded on definitive maps (the official record of public rights of way in England and Wales (other than in Inner London)) before the statutory cut-off date of 1 January 2026, after which any unrecorded path that existed before 1949 can't be claimed as a right of way. The RA's report Paths in Crisis published in November suggests that there over 100,000 problems on paths waiting to be dealt with by local authorities in England, and around 4000 claimed rights of way that have yet to be designated. Cornwall by the way is outstanding, as one of the top 11 councils, with 19,614 path problems waiting to be tackled. By way of example: Oxfordshire has 23 diversion orders outstanding dating back nearly 20 years (applications by various organisations and people for a number of reasons) - and 90 creation orders (new claimed footpaths, upgrades etc) outstanding dating back 13 years as at December 2013. Changes that simplify procedures that will speed up these changes are in general to the benefit of everyone.

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  • inyourdreams  |  January 03 2014, 2:50PM

    The land belongs to all trespass is a civil matter not criminal do as I do walk where u want when u want

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  • TheodoreV  |  January 03 2014, 1:21PM

    What a load of bolderdash! Yet more evidence this partizan government is in the pay of the landed (NFU) interest. Historic rights of access are PUBLIC rights that should never be diluted or extinguished - we have precious few of them already. If public rights of way are inconvenient for land owners, so be it. Walkers should not be inconvenienced or obstructed to please them. The footpaths are already abused and as the Long Rock Crossing has proved, land owners will advance any argument to get rid of them. Let us hope the Ramblers' Association put up a strident defence of ancient rights and the public, rather than sectional interest.

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  • Nikgee  |  January 03 2014, 10:51AM

    Here we go again... this will trigger the mass trespass demonstrations that brought this to a head 20 years ago, and still it simmers away. I appreciate land owners wish to divert paths from areas of their property, but it is the sheer lack of commonsense, mainly driven by legal teams dragging out these claims and counter claims for their own benefit. If you have a bull in a field, commonsense says you do not enter. If you have a crop in a field commonsense say walk around it. The right to ramble is a human desire to explore under controlled conditions. If planning permission was granted to build a property on a public right of way, then the council should have provided an alternate route as close as possible to the original, and ramblers should respect that alteration, and the same should apply to opposition when in the planning stages.

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