Tuesday, 2 September 2014

Maulden Footpath No. 28 - Confuscation (confusion & cock-up)

The Maulden Footpath No. 28 saga which I wrote about HERE and HERE continues.

Central Bedfordshire Council caused confusion, consternation and inconvenience by submitting a ridiculously late request to adjourn a court hearing – a hearing which it had applied for and which was scheduled for 8, 9 & 10 September 2014 at Luton Magistrates’ Court. The court agreed to adjourn the hearing but then, because of a court official’s cock-up, changed its mind, reinstating the hearing.  The Council then withdrew its application for the hearing with the reservation that it might be reinstated if it chose to re-apply next year. The court agreed. Officially, the court has “administratively vacated the hearing and withdrawn the proceedings”.

This particular chapter of the saga could be said to have started at a meeting on 13 February 2013, when Central Bedfordshire Council’s Development Management Committee considered three applications from landowner Mr Bowers of Maulden. The committee resolved to refuse the application (1) to delete the path under section 53 of the Wildlife & Countryside Act 1981; to approve the application (2) to extinguish the path under section 118 the Highways Act 1980 and; to approve the application (3) to stop up the path under the section 116 of the same Act. This may well be a unique situation; three applications made under separate legislation for the purpose of getting rid of the same public footpath; and then two separate legal processes (and possibly a third) set in train by a council for the same purpose - to close a public right of way forever.

(1) The deletion:
The landowner, Mr Bowers, appealed to the Secretary of State about the Council’s refusal to delete the path. This was dealt with under Schedule 14 of the Wildlife & Countryside Act 1981. The appeal was dismissed by an Inspector acting on behalf of the Secretary of State, thereby upholding the Council’s decision. The Inspector’s decision letter can be seen HERE. However, the Secretary of State then changed his mind - quashing his decision, choosing instead to determine the appeal at a public inquiry. An Inspector can dismiss the appeal or direct that the Council should make an order to delete the path.

The public inquiry will be held at Beadlow Manor Country Club on 21st January 2015. The inquiry is scheduled to last 2 days. A path can be deleted from the Definitive Map if there is cogent evidence that it should not be shown on the map; e.g., if the path is shown on the map in error. In Mr Bowers’ opinion, Maulden Footpath No. 28 should not be shown as a public right of way - hence his application. Although it seems to me that he prejudices that view because he acknowledges it is a public right of way if he also applies to extinguish and or stop it up.

And it seems to me that there is another inconsistency. The route of Footpath 28 shown on the map now is not the same route as that originally added to the map; part of that path was diverted. If the argument is that the path was shown incorrectly on the map then it is THAT route which is subject to deletion, not a different, DIVERTED route. And there can be no doubt of the diverted route’s status – it is a public right of way created by a public path diversion order.

(2) The extinguishment:
The Council made the extinguishment order which, because it was opposed, was the subject of a public inquiry held on 11 June 2014. A council has the power to make an extinguishment order if it seems to it that the path is not needed. It cannot confirm such an order if anyone objects to it on the ground that, but for the order, the path would be likely to be used by the public to a significant extent. The Inspector decided not to confirm the order so the order failed. You can read the Inspector’s decision letter HERE.

(3) The stopping up:
The Council made an application to Bedford Magistrates’ Court for the stopping up of the path. At a case management hearing on 17 July 2013 the court adjourned the proceedings until 15 Jan 2014. At the 15 Jan 2014 hearing the court scheduled the case to be heard at Luton Magistrates’ Court on 8, 9 and 10 September 2014.

Seven months after the court had directed that a hearing was to be held, and just three weeks before the hearing was to start, and crucially only one week before exchange of documents was to be completed, it came to my notice that Central Bedfordshire Council wanted to adjourn the case until September 2015. The council now wanted to await the outcome of the deletion order appeal. (The Bedfordshire on Sunday newspaper, which has published good reports on recent events surrounding Footpath 28, reported the latest twist HERE.)

Agreement by interested parties had to be sought. Unfortunately, there was no co-ordinated effort to keep all interested parties informed. The court and the council certainly did not keep all parties informed so in this situation the passage of information seemed to rely on competence and good fortune, both of which were in short supply.

Although Mr Bowers’ (and possibly others) objected to the adjournment, the court agreed that the hearing could be adjourned, except that a 30 minute case management hearing should take place on 8 September 2014. But the court then changed its mind, reinstating the 8 – 10 Sept hearing. Apparently, a court official had failed to take the relevant Civil Procedure Rules into account when making the decision to adjourn the hearing.

It seems to me that Mr Bowers’ objection to the adjournment was perverse, as was the Council’s decision to request an adjournment rather than withdraw the application which it has now had to do.

At the 11 June public inquiry, Mr Bowers issued a statement orally (strangely, under oath) and on paper, to the effect that the public inquiry into the extinguishment should not proceed until after the 21 January 2015 public inquiry which would decide whether or not the Council should make an Order to delete the path. (That is, Mr Bowers wanted the extinguishment considered only if it was still necessary AFTER the decision about the deletion had been made.) Now though, Mr Bowers was objecting to the proposal that the decision to stop up the path should be heard BEFORE the decision on whether to delete or not. Confused?

For its part the Council could have withdrawn the application much earlier to spare interested parties the resulting inconvenience, expense and confuscation (which should be a legitimate word if it already isn’t). The Council hasn’t explained what had changed at such a late stage that it now considered warranted an adjournment.

Those enjoying this saga can look forward to next year when there will be a public inquiry and most likely a court case. Unless someone changes their mind.

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