Thursday, 26 June 2014
It’s not unusual for an unrecorded public right of way to come to light when a path that has been used by the public for many years is obstructed by a new landowner. By unrecorded, I mean not shown on the definitive map and statement.
Mr Bowers of Maulden (a village and parish formerly in the county of Bedfordshire, now in the unitary authority of Central Bedfordshire) purchased a field in 1989. In 1992, he fenced it off thereby obstructing a path in use by the public which prompted an application for a definitive map modification order (DMMO) to add a footpath to the definitive map. Anyone can apply for a DMMO which the local authority then has a duty to investigate.
In 1993, during the course of the DMMO application (a time-consuming exercise which includes investigating user statements showing that the path has been used without interruption for 20 years, researching historic documentary evidence, and carrying out legal and policy procedures), Mr Bowers bought adjoining land and applied for planning permission to develop the whole plot (demolish one dwelling and build another). Planning permission was refused but granted on appeal in 1995, the same year as the DMMO was made to add the footpath to the definitive map. The DMMO was objected to but, following a public inquiry, it was confirmed in 1997. The path (Maulden Footpath No. 28) was now legally recorded as a public footpath. Despite this, Mr Bowers built the house in the period Sept 1996 to April 1997 which had the effect of obstructing the path.
What followed has not been pretty and seems never ending! Among other things it has resulted in mounds of paperwork, numerous councils’ committee meetings, public inquiries, magistrates’ court prosecutions and hearings, and recriminations and talk of common sense where “sense” is anything but common. And all of which has consumed vast amounts of time and money; tens of thousands of pounds at the expense of (1) the landowner, Mr Bowers, who does not believe the path is a public right of way, and (2) by various councils, and therefore the public purse, and (3) members of the public, local user groups such as the Bedfordshire Rights of Way Association and the East Herts Footpath Society, and national user groups such as the Open Spaces Society and the Ramblers, all of whom are determined to keep the path.
On 11 June, I attended the latest (fourth) local public inquiry on behalf of the Open Spaces Society. Central Bedfordshire Council had made an order in 2013 (against the advice of its officers) to extinguish Maulden Footpath No. 28 to which the Society is opposed.
A public inquiry is not a fun event. And the inquiry into the extinguishment of Maulden Footpath No. 28 was no exception. It was held at a conference centre in Central Bedfordshire by an Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs (DEFRA). The Inspector heard the arguments for and against and will make a decision in due course; he can confirm the order as it stands, confirm it with amendments or refuse to confirm the order. Central Bedfordshire Council’s case in support of the order was presented by a top barrister, a rights of way consultant and the Council’s solicitor. Those in support or opposed to an order and choosing to speak at a public inquiry must state their case and then be subject to cross-examination.
With such strong opposing views, this long-running saga will continue. Already a magistrates’ court hearing has been scheduled for three days in September. Central Bedfordshire Council have applied to stop up the path (close it for ever) using different legislation.
And it seems that there may be another public inquiry in the pipeline. Mr Bowers made an application for a DMMO to delete the path from the definitive map. Central Bedfordshire Council refused the application and Mr Bowers appealed to the Secretary of State. The appeal was dismissed in September 2013 by an Inspector appointed by DEFRA but a public inquiry may be held to review that decision.
Friday, 13 June 2014
Back in January, I reported that Bedford Borough Council had made an order to close Sharnbrook Footpath No. 2 - see HERE. It seemed a great shame to me that such an old path should be lost to the public forever, or that it could not, in part at least, be diverted, but Network Rail and the Council argued that it should be closed for safety reasons because the public right of way crossed the railway tracks.
Fair enough. But in my opinion the alternative route (Park Lane, Sharnbrook) was also a dangerous place for pedestrians. It is a busy road - especially so on school days and something of a rat run between Sharnbrook and the A6. Pedestrians have to be extra vigilant when walking on the road and very careful when forced onto the grass verge which is narrow, has an uneven surface and is usually overgrown with underlying and overhanging vegetation.
The order plan can be seen HERE.
I objected to the order, as did Bedfordshire Rights of Way Association.
When someone objects to an order then the order making authority (Bedford Borough Council in this case) cannot complete the process by confirming it. The order can be abandoned or it can be sent to DEFRA who can appoint an official to hear the arguments for and against at some form of public inquiry before deciding whether or not to confirm or reject the order.
However, if objections are withdrawn then the order making authority can proceed. Although in this case there may be a typing error in the order - a legal discrepancy which may mean that Council has to forward the order to DEFRA. The Council does not have the power to amend an order whereas the Secretary of State does.
I said that I would be prepared to withdraw my objection if Network Rail would pay for works to provide a safer and better surfaced path within the verge for pedestrians. They agreed and the council has almost finished the works at a cost to Network Rail of £7,500. (Further works are required to retain parts of the new path, and overhanging vegetation is yet to be cut back.)
If I said that it was a shame to lose this old footpath then it is also a shame that more people did not show an interest, including Sharnbrook Parish Council. I have been informed that when consulted, the parish council considered the proposed extinguishment order and resolved to support it rather than to ask for highway improvements. Bedford Borough Council did not receive a response from the parish council anyway. Poor show parish councillors.
Nevertheless, a good result I think.