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Footpath News

Stop Press! New Rights of Way Strategy published

Do take a look at our new strategy, which was developed with the input of hundreds of volunteers, members and stakeholders and was approved by the Board of Trustees on 14th October 2007. Find out more.

Gating orders - a step in the wrong direction

On 1 April 2006 local authorities throughout England were given sweeping new powers to make Gating Orders. Where such orders are in place they prevent the public from using a highway, at all or specified times, on grounds of reducing crime or anti-social behaviour. The authority only has to be satisfied that premises adjacent to the highway are affected by crime or anti-social behaviour, and that the existence of the highway is facilitating these offences. When a council makes a Gating Order it must merely 'consider' any representations made. It is not required to hold a public inquiry. If it does hold an inquiry there is no requirement for there to be an independent inspector. So the council will be judge and jury in its own case. The Ramblers, along with the Open Spaces Society and other path user groups made submissions to the Home Office on the draft regulations, to lessen their impact and protect the public interest, but the Home office appears to have ignored just about everything we said. When the legislation (the Clean Neighbourhoods and Environment Act 2005) was in parliament, ministers indicated that Gating Orders would apply only to urban alleyways which served no useful purpose but there is no such restriction in the Act or the regulations, so rural paths could be at risk too.

The Ramblers Association takes the view that there was no need for this new law. It was only in 2003 that new provisions came into force allowing the Secretary of State for Environment to designate crime hotspots, within which paths can be closed or moved on grounds of preventing or reducing crime. These provisions have barely been tested, so the gating proposals really are a step in the wrong direction. We are very sympathetic to local residents' legitimate concerns about security and public safety. Unfortunately, closing paths that are frequently used by responsible people is not the answer. The introduction of this new power to gate public rights of way on the grounds of anti-social behaviour and crime is just another cheap and purely cosmetic way of tackling the issue of anti-social behaviour. Instead of restricting use of these public rights of way councils should be making paths safer and more inviting e.g. by cleaning them up, removing graffiti and improving street lighting.

Reports from RA footpaths workers indicate widespread and enthusiastic use of gating orders by local authorities to close routes, allegedly for reasons of crime prevention and anti-social behaviour but which are nonetheless of value to the walking public. We would like to limit the use of gating orders orders on paths that form through-routes to local amenities and community facilities for pedestrians by getting the regulations tightened so that an objection by a member of the public to a proposed gating order would automatically trigger a public inquiry before an independent inspector. At present only an objection from the emergency services, a local NHS Trust, or another local authority can force the holding of a public inquiry. Not only would this bring the legislation in line with other rights of way laws, it would also make the process of closing alleyways a much fairer and more transparent process. We are aiming to bring together a coalition of like-minded organisations to lobby for this change.

The RA is presently asking a High Court judge to review a gating order made by Coventry City Council on the grounds that there was insufficient evidence that use of the way was facilitating the persistent commission of criminal offences and anti-social behaviour. However, going to the High Court is not a method that can be regularly employed to try to prevent the making of such orders.

If you are aware of any gating orders which have been imposed on routes which are regularly used by the public, and which are therefore causing inconvenience and hardship to people on foot then please let us know.
 

Landmark victory for the RA in the House of Lords

In May 2007 the RA took its first ever case to the House of Lords. The RA brought the case because interpretation of the law since the late 1990s had been making it unfairly easy for landowners to stop paths being recognised as public rights of way.

The law was always understood to be that if the general public used a path freely for twenty years or more then a public right of way was created. The exception to this was when a landowner put up a sign saying ‘no right of way’, or locked gates or ordered the public off the footpath. Through these actions, which made his intention clear to the public, the route remained private.

But in 1999 the High Court ruled that a landowner could, even after 20 years of uncontested public use, defeat a claim that a right of way had come into existence by producing evidence of virtually any sort of which the public were totally unaware - for example, letters to his solicitor, directions to staff to keep people off the path and so on. Indeed, a mere retrospective assertion by a landowner that he never intended a path to become public seemed sufficient to defeat a claim.

Staff at central office and ramblers across the country are now celebrating the dramatic overturning of this adverse precedent by the Law Lords. The House of Lords' judgment on what has become known as the 'Dorset' case (more properly known as the Godmanchester and Drain cases) was handed down on 20 June 2007 in the magnificent setting of the Chamber of the House of Lords and to everyone's delight all five judges - Lord Hoffman, Lord Hope, Lord Scott, Baroness Hale and Lord Neuberger found conclusively in the RA's favour.

This is a landmark ruling which means that, in future, actions to stop paths being recognised as public rights of way will have to be transparent. Their Lordships have thoroughly re-examined the law on how rights of way are established under section 31 of the Highways Act 1980, reverting to Lord Denning's statement of the law which had stood for more than forty years unchallenged.

We would like to thank everyone for both their financial and moral support during the long haul to this happy conclusion.

The judgment can be viewed in full here

And why not take a look at our legal timeline of this important case?

For more information, please contact the Footpath Team

The Secretary of State for Defence acted unlawfully

The High Court has declared the Secretary of State for Defence’s closure of a footpath in Suffolk to be unlawful.

On 5 September 2006 the Secretary of State for Defence ordered the closure of Footpath 28 Mildenhall, where it runs through RAF Lakenheath, on grounds of security. But he did so without providing a replacement; and the powers he used, sections 16 and 17 of the Defence Act 1842, require a replacement path. The only ‘alternative route’ for walkers is a lane and the A1101, both busy with fast-moving vehicles.

Angered by the Secretary of State’s failure to provide a real alternative route, the RA took the issue to the High Court and argued that the Secretary of State had acted illegally. On 21 May 2007 Mr Justice Sullivan agreed, and quashed the order. He held that the replacement route must involve some length of newly-created footpath.

Jerry Pearlman, RA solicitor, said the 1842 Act contained a ‘draconian power’ permitting the closure of public footpaths without prior consultation or due process. “The RA is extremely concerned about the erosion of the footpath network through the purported use of the 1842 Act and considers that the Secretary of State has acted outside the narrow ambit of the power in this instance”, said Mr Pearlman.

The existing path will however remain closed (under other powers) until the matter is heard by the Court of Appeal (since the Secretary of State was given leave to go to that court). It is not the RA’s intention, given the security considerations, to force the re-opening of the existing path; what it wants is an alternative that is safe for pedestrians, and a route along roads is not a safe alternative.

Motor vehicles and rights of way: a significant change in the law

On 30 March 2006 the Natural Environment and Rural Communities Bill received Royal Assent. The chief purpose of this Bill was to establish Natural England as the successor body to the Countryside Agency and English Nature but the Government also took the opportunity to introduce legislation to curtail the inappropriate use of byways by motor vehicles by bringing to an end the situation whereby a claim for motor vehicular access over an existing footpath or bridleway, or over a route not presently recorded on the definitive map, could succeed on the basis that the way was once used by horse-drawn vehicles. Since some of the worst damage to unsurfaced routes is happening in national parks, legislation was also introduced to give national park authorities the power to make traffic regulation orders so that the use of existing byways can be better regulated. These new laws mark the end of a long campaign by the Ramblers and many other environmental and amenity organisations. Read more about Green Lanes.

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