When considering whether to oppose the diversion of a long obstructed path, notions of pragmatism and fairness can conflict. One example is the diversion of part of Holmfirth 34 which has recently been confirmed following a public inquiry. In the early 1980’s planning permission was granted for the development of a former farm. The developers were not made aware of the existence of footpath 34 across the site. You may well ask why this was not revealed during the conveyancing process when the land was acquired. The question on the search form sent to the local council, which asks about the existence of any public rights of way on the site, is an optional question. As there is an additional fee for it to be answered, it is common practice for the question to be deleted by the purchaser’s solicitors. The deeds of the property do not necessarily record accurately any rights of way, as was the case here.
The footpath at issue ran across the newly created gardens of the houses created from the former farm buildings. As a result most of the definitive line could no longer be walked. There was no evidence of any complaints being made to the highway authority, Kirklees Council, until recently. Eventually, at the suggestion of the Council, a diversion application was made which proposed a path through fields around the development linking the sections of the path severed by the gardens. The diversion was opposed by a number of objectors, as they considered it wrong for a path of some antiquity to be diverted for the benefit of a few individual property owners, when the existence of the path was well known when the residents bought their homes. It was also argued that by inviting the submission of a diversion the Council had promoted the interests of those responsible for obstructing the path over and above the interests of those entitled to use it. There is a duty on the Council to remove obstructions, whereas its power to make diversion orders is discretionary. It was also claimed there was a parallel with Ashbrook v E Sussex CC 2002 case (the Hoogstraten affair) where the Council was found to have acted unlawfully in considering a diversion, after a decision had been reached to take enforcement action to remove an obstruction. However, in the present case, Kirklees had offered to consider a diversion application, before the question of enforcement was considered. Any enforcement action was placed in abeyance to allow the landowners to seek an acceptable solution by applying for a diversion.
The planning inspector, whilst not condoning the intentional obstruction of a public right of way, found it entirely reasonable that as a general approach, where obstructions have been in place for some considerable time, apparently without complaint until comparatively recently, and would require substantial works to reinstate the definitive line to a usable state, any viable alternative solutions should be explored first. If none of these alternatives are acceptable, enforcement action may still follow. She found that whilst the diversion resulted in some loss of views and some extra climbing for those travelling in one direction, overall the route was not substantially less convenient and had the advantage that gates had to be negotiated rather than stiles. It was pertinent that that restoration of the definitive line was not practicable or desirable. It would necessitate the public walking across the gardens of several properties and immediately in from of the windows of two of them. The character of the original path could not be restored. A full report of the inspector’s decision – FPS/Z4718/4/31 may be found on the Government’s Planning Portal web site.
In my view the inspector’s decision was correct and gave due weight to the interests of both walkers and the occupiers of property crossed by the definitive line.
Lessons to be learnt? Planning applications affecting footpaths need careful monitoring to ensure that the path is protected during and after the development process or subject to an acceptable diversion. Any interference with the line of the path needs to be reported promptly and repeatedly. Where mistakes have been made in the past and restoration of the definitive line is neither practicable nor desirable, then highway authorities should be encouraged to negotiate a diversion which provides the maximum benefits to walkers. If landowners will not co-operate then enforcement should follow.
The question on public rights of way on the Local Authority search form used when property is being sold should be compulsory. Instructions on the planning application form should be amended so that the site plan must show the line of any definitive path in or adjacent to the proposed development and how it will be protected if planning permission is granted.
|Page title:||Diversion of long obstructed paths - some thoughts|
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