Kempston Urban Footpath No. 9

Bedford Borough Council has made an order to divert part of Kempston Urban Footpath No. 9. It is my strongly held view that the council should not have made the order. But now that it has, I have formally objected and requested that the order be abandoned.

Why? Then consider this:

Part of Footpath No.9 is not evident on the ground, there isn’t a finger post on the metalled road, described as point “B” on the order plan (click here to view the plan) which is a legal requirement, nor is there signage at point “A” to assist persons unfamiliar with the locality to follow the course of the footpath. The public are unknowingly using an alternative route.

The part of the path to be diverted is obstructed by wooden fences and vegetation so even if the public knew where the path was (which I doubt they do) then they would not be able to exercise their right to walk along it. The reason it is obstructed is because the council agreed that if the developer, Kempston Mill Limited, erected fences then the council would make an order to divert the path. The relevant clauses are contained in a land swap agreement between Bedford Borough Council and Kempston Mill Limited. Yet, Section 130 of the Highways Act 1980 makes it explicit that “It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority”.

If that, dear reader, doesn’t convince you that the council should not have made the order then consider this as well:

It seems to me that the proposed “new” route is already a public right of way, and I submit that one public right of way cannot be diverted wholly onto another.

See (if you can) R v Lake District Special Planning Board, ex parte Bernstein, The Times, February 3 1983. Essentially: a public path diversion order should not be used to close a path where the whole of the alternative route is already subject to a public right of way. The effect, otherwise, would be to enable the tests, employed when making and confirming a public path extinguishment order to be side stepped, as such an order would, in effect, be stopping up a right of way.

Why do I think the “new” path is already a public right of way?

Well, the path is a popular, very well-used route. It has a hard surface provided and maintained by the landowner - Bedford Borough Council. There is a finger post at point “B” which was erected some years ago by the landowner. The sign indicates that the path is a “Public Footpath”. And the path is part of a circular walk promoted on the council’s website. All of which, in my opinion, is good evidence that the landowner has dedicated the route as a public footpath which the public has accepted. It’s just not a right of way shown on the definitive map.

The council should busy itself making public path orders which will be necessary to open up the rights of way network, as it has said it will, instead of wasting time and public money making improper, unnecessary orders such as this.